The Death of American Civil Society and the Rise of the Authoritarian State

Today there is much discussion about something called politicization. Most people don’t 5pause to define the term when they us it thereby creating confusion.  Since this essay is at its heart about the phenomenon of politicization, I pause to define the term as it is used here.  Politicization means to require government through its passage of laws or by its punitive intervention into the lives of citizens by its bureaucrats or intervention by legislation, or intervention by court action for the purpose of authoritatively enforcing each citizen’s personal behavior and the cultural norms or social norms they are required to follow. That definition is quite a mouth full but it is necessary to reflect on each word to understand the nature and meaning of politicization

The word politicization can, depending on context, also refer to political activity by a group of people, in or out of the government, meant to force this kind of government coercion to replace an area of citizen behavior that is still decided by the freedom of individual citizens. Politicization, i.e., state control of most or all citizen behavior, of all cultural and society norms is the hallmark of a statist society. In a statist society, there is an ever-present government person or persons exercising their authority to stand between citizens and dictate how they will interact, dictate what they may and may not say, and dictate what they may and may not do.  This is the statist society.

In the absence of politicization, individual behavior and cultural and society norms are 2689892422_43f08b0615_odetermined by the citizens themselves based on their agreements or mutual acquiescence. A society that is largely absent of politicization, i.e., a society largely absent of government enforcement of behavior, is a civil society as opposed to a statist society. When citizens cannot agree or voluntarily acquiesce they simply go their separate ways.

The United States was founded as a primarily civic society and was designed with limited government intervention and little government enforcement of cultural and societal norms.  Behaviors and norms were to be determined by volitional agreements between citizens. These volitional agreements were to negotiated within a skeletal framework of a few and basic laws.  Only when one citizen claims another citizen has violated an agreement does is the power of government invoked to arbitrate or enforce behavior.

This civil design has changed in the United Sates over the last hundred years, particularly over the last thirty years, and most particularly over the last ten years.  The change has been executed without constitutional due process. More about this in later essays. The original civil design has been abandoned and in its place the process of gradual politicization has instituted a draconian statist society where government bureaucrats, legislators, and courts dictate and enforce the details of behavior of every individual and dictate every cultural norm. Almost nothing is left for free individuals to negotiate between themselves. America has become statist and is no longer has much left of its former free civil society. The transformation was brought about by the process of removing most of our individual free choices through politicization i.e., government control of almost all behaviors and norms.

Those who responsible for the transition and those currently seeking to ensure that there can be no return to a largely free civil society claim that the statist society run by an elite and dictatorial ruling class is far better for the citizens than a free civil society where the citizens decide behavior and norms on their own.  And while there can be distinct advantages to a mixed statist-civil society, there are hideous and terrible flaws with what the new American authoritarian state has wrought. I will attempt to explore these flaws in future essays.

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Post Election Uncivil Disobedience

countymapredblueThe 2016 presidential election was only partially about the personality zeitgeists surrounding Mr. Trump and Ms. Clinton. The election was, at its heart, about returning American  government to its more traditional approach to governance. Donald Trump’s victory signals a giant step backward for progressivism’s long jack-booted march over America’s constitutional republic.  Most of the more radical elements of the authoritarian administrative state seem to have been rejected by the American voter. Mr. Obama, while cynically  and destructively going back on his campaign promise to bring Americans together and build a post racial society, did indeed keep his promise to try to radically transform America’s government and culture. The radical transformations that Barack Obama and his administration sought to force upon the country through executive orders, agency rule-making, and condescending rhetoric were, in the end, not acceptable to the majority of American people.

The election seems to have also repudiated Barack Obama’s and Hillary Clinton’s effort to radically divide the nation along racial lines and build tension between whites and blacks. Slicing and dicing the country into warring factions then leveraging those divisions for political advantage has been a successful political strategy for post 60’s Democrats for nearly fifty years. The end result has been to weaken the nation, negate racial advances, and pit American against American. Then a funny thing happened on the way to the polls in 2016.

The stoking of racial animosity turned out to be far less politically effective than in the past.  This is probably because the reality that gave the slice-and-dice strategy its substance and credibility no longer exists. The Civil Rights Act, the Voting Rights Act, thirty-years of Affirmative Action and the heart-felt efforts of the vast majority of Americans, both right and left, both black and white, have gone a long way toward healing the nation’s race wound. The new 21st century Democratic Party and the American Left seek, it seems to me, to pull the scab off the healing wound and return our society to a state of racial tension and distrust. Democrats long ago decided that the reality that black and whites have come together in common acceptance and respect cannot be allowed to stand. That would mean that the Democratic Party would have to compete on a policy level and policy-based political competition would mean almost certain and total defeat for the Party. So, their divisiveness, race baiting and anger stoking continues unabated.

Free though we are now to speak admiringly about our country and its heritage, as unifying as our new President may try to be, the divisive hit-machine of the far Left continues to disrupt our civic peace. Our national institutions, from government to the academy to the media are still densely populated with angry postmodern progressives intent on upending the institutions embedded in traditional constitutional America. Democrats and the Left describe the Constitution not as fundamental law but as mere aspirational suggestions. Suggestions that are not binding on those who govern us. In this, they are the quintessential postmodern anti-Americans.

trump-riotThe Left’s street operatives and community organizers are in full bat-swinging mode. One need merely tune into the news (except of course ABC, NBC, CNN or CBS) to see the far Left and the radical factions of the Democratic Party going after our civil society bat-blow by bat-blow. This is evidence that leads rational people to conclude that the American Left and many in the  Democratic Party intend to practice insurrection and violence, not democracy. Simply take a look at the streets today and listen to the character-assassinating rhetoric of the Left for the evidence. This angry refusal to respect democracy and accept the results of the election is led and inflamed by mainstream Leftist institutions, not just by a few street thugs.

One example of Left’s continuing institutional endorsement of civil violence is the reaction of the mainstream academy across the country. Several university administrators have declared an all-campus red-alert emergency as a result of the American people having elected Donald Trump President. One Yale economics professor made final exams optional given the severe emotional distress students are supposedly suffering as a result of the decision by the American voters. The University of Michigan has offered Play Dough and coloring books to distract infantile students from the results of the election. The President of Claremont Graduate University has, in an open email to all students, declared that the “results of the election” has created a level of dysfunctional emotion on campus so severe that special therapeutic intervention is being offered to character-weakened students who apparently can’t respond responsibly to the election results. The CGU Monsour Counseling & Psychological Centre has this week offered special on-the-spot counseling to students. Why? The Centre said in a recent email to all students they were offering the special counseling “because of the outcome of the election.” One might note that the Monsour Centre did not announce any special on-the-spot counseling services to the students who were for months taunted and ridiculed for supporting Mr. Trump. Monsour services seem to be for Hillary supporters but distinctly not for Donald supporters. Monsour’s compassionate therapeutic outreach, while probably well-intended in a narrow-minded sort of way, appears to be  politically selective. All in all, this reaction by the academy seems to me to be a spectacle of clowns.

One might ask if citing the results and outcome of the election as setting-off a campus-wide emotional crisis and portraying a Republican victory as a tragedy equal to the end of humanity isn’t tantamount to the academy using university resources to publicly support one political party over the other. The answer is, of course it is. Large segments of the academy’s leadership have unfortunately devolved, in my view at least, into little more than a postmodern Leftist cult incapable of rationally integrating the views of the outside world into their cloistered lives. They for the most part simply emote, cherry pick anecdotes, and name-call. Most (though not all) academy leaders and the universities they inhabit seem, at least to me, to be a mere subsidiary of of the Democratic Party. Ample evidence supports the conclusion that true education, civil discourse, and open discussion were long ago abandoned by all but a hand-full of professors. These few brave teachers who educate through objective civil discussion rather than enforce Leftist propaganda are ironically often liberal democrats. They are true heroes and heroines regardless of political persuasion. They are the academy’s hope and our youth’s hope for the future.

However for now, would-be professors who embrace constitutionalism, traditional Madisonian republicanism, or allegiance to country are virtually disqualified from acceptance by the now fully politicized professorial class. Conservative Republicans account for less than 8% of all college professors. Therefore, the main thrust of the 21st century academy is (with notable and important exceptions) proselytizing for a far Left postmodern society and condoning the current bat-swinging street violence.

The academy’s comrades and kindred spirits in the media also stoke the fires of unrest and street violence. The New York Times and Washington Post have devolved into political versions of the National Enquirer. One expects to soon see a NYT headline screaming, “Trump Proven To Be Alien from Mars”. This taking to the street to intimidate, destroy, and create spectacle is the quintessential Saul Alinsky tactic of in-your-face insurrection and most of the media endorses it and loves to see it. The new American Left and the extreme factions of the Democratic Party now use paid professional street organizers as a standard political process. Examples can be found in the paid agitators that were present at Trump rallies during the campaign.  The message from the Left seems to be that if  they can’t rule through participation in representative democracy then they will destroy the winner and take over through street intimidation, violence, and the politics of fear.

Any commentary indicting the Left and certain factions of the Democratic Party for intimidation, violence, and insurrection is incomplete without mention of the more fanatical precincts of the right. There are tiny isolated encampments of radical actors on the right. A few are occasionally caught in action in the street or meeting in an abandoned warehouse somewhere.  Trump’s intermittent crude comments, occasional sophomoric rhetoric, and his adolescent name-calling during the campaign have exposed him and his supporters to a certain level of legitimate criticism. Some portion of the Party’s infantile character assassination hurled at Mr. Trump are in-kind responses. However, in terms of numbers, materiality, and statistical thresholds, the more obscene members of the right are, I believe, quite small and insignificant when placed next to the anti-Trumpites who are currently breaking windows and starting fires in the street. Almost the entirety of the Democratic Party and the Progressive Left seem ready to set the country and Trump supporters aflame. This is the immediate danger facing our more peaceful law-abiding citizens.

The overarching dilemma facing the country now is how, if at all, will we unify the country. How do we tamp down our emotions and find common ground? Dutifully relinquishing power is painful. But it is required in a democracy. Unrestrained emoting is far more thrilling than self-control, self-containment, and self-discipline. But unrestrained emoting is also dangerous and debilitating, especially on a national scale.


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The 21st Century Supreme Court: Rise of the American Ayatollahs


Origins of American Traditional Judicial Review: Blackstone, Federalist 78, and the Marshall Court

Traditional constitutional review was not created from whole cloth with the launch of the nation. It has deep roots in English Common Law and the colonial legal system. Its legal logic and methodology is eloquently spelled out in William Blackstone’s Commentaries on the Law of England. Blackstone looks at the historical development of law, and then poses a five-step process for judicial review.

Blackstone’s methodology focuses the judge’s analytical lens on the words of the law and the linguistic content of the compact, case, document, policy, or law being reviewed. Studying the evolution and historical application of English Common Law, he determined that the best way to interpret is to read the words of the law and explore the intention of the lawgiver at the time the law was established.

The intention of the lawgiver is not the same as contemporary legislative intent. The lawgiver in American governance is the legislature as an entity, not as its separate parts. Congressional intent is manifested solely by the act of making words on the page become law. The political rhetoric of individual legislators or side notes of committee meetings would not, under Blackstone, constitute the intent of the lawgiver.

Blackstone’s sets forth a specific and comprehensible jurisprudential methodology:

  1. a) First, go to the text of that which is under review. Examine the words understood in their general and popular use. This will almost always answer the questions posed by the facts at hand, questions of law presented, and any public policy impacts.
  2. b) If, and only if, a good-faith examination of the text fails to provide the holding, applicable rule of law, and legally appropriate public-policy outcome, go to step two. Two is a re-consideration of the words in light of the context of the entire document in which the words reside. Text and context, sufficiently examined by the informed and learned mind with honest intent, will reveal what holdings, rules, and policy ramifications are to be applied.
  3. c) When, in the rare circumstance that these two steps fail to answer the questions presented, go to step three. Re-evaluate the words again but this time in relation to the subject matter or public policy to which they apply. Sometimes specialized nomenclature makes its way into a statute or law and must be understood. If, in step three, questions of holding, rule of law, and policy implications can’t be ascertained, go to step four.
  4. d) Step four is an absurdity test applied to the words to ensure that any interpretation of them does not lead to a holding or rule that is, on its face, absurd. Blackstone’s example is the English law against bloodletting in the streets meant to prevent bloody violence against citizens. A doctor performing emergency bloodletting to save an injured person would not fall under the law; that would be an absurdity.
  5. e) Finally, in the unlikely event that no combination of these four steps produces an honest and discernible conclusion to the questions of law at hand, examine the words yet again, this time in the context of the whole document or law, to determine the spirit, reason, essence, and meaning of that which is under review. This would be a rare instance indeed.

If Blackstone laid the foundation for English judicial review, Federalist 78 suggests that his analytical foundation should be used for American constitutional review. Blackstone’s model was the starting point for traditional American constitutional interpretation.

Federalist 78 mirrors Blackstone’s traditional mode of review. Alexander Hamilton writes, “It can be of no weight to say that courts, on the pretense of a repugnancy, may substitute their own pleasure to constitutional intentions of the legislature.” As with Blackstone, Hamilton places the locus of review in the linguistic structure of the law, not judicial will. He argues from the vantage of the vesting clauses of Articles I and III, and anchors his design in constitutional text. Blackstone, colonial common law, and Federalist 78 laid the legal foundation on which the Marshall Court would build the institution of American constitutional review.

The American incarnation of traditional review is embodied in the jurisprudential reasoning and language of Marbury v Madison (1803) and many subsequent Marshall-Court decisions. Marshall uses Marbury to establish the Constitution-bound character of American judicial review. A quick summary of this cornerstone case explains the essence of American traditional judicial review.

Appellant William Marbury sought the specific legal remedy of a writ of mandamus under the Federal Judiciary Act of 1789, Section 13, which named the Supreme Court as the court of original jurisdiction for adjudicating such writs. Marbury filed such a writ with the Supreme Court in compliance with Section 13. The Marshall Court acknowledged that Marbury was entitled to the relief sought (awarding of a magistrate’s commission), and that a writ of mandamus was the proper legal form for remedy. The Court then declared Section 13 to be unconstitutional.

This was the first time the Supreme Court had struck a Congressional statute as being impermissible under the terms of our national compact. The Court’s reasoning is based on a reading of the text of Article III of the Constitution that establishes only two explicit areas of original jurisdiction for the Supreme Court. Neither area included original jurisdiction over mandamus. Accordingly, the Justices ruled unanimously (4-0) that the Court had no jurisdiction to decide writs of mandamus. They cited Article III’s silence on mandamus along with its explicit establishment of only two areas of original jurisdiction. Marbury and key opinions that followed institutionalized Constitution-bound judicial review for the new nation.

Marbury claimed for the Supreme Court the authority to decide conflicts between the content of Congressional statutes and constitutional text. General acceptance of Marbury and its standing the test of time established the authority of the Court to determine the constitutionality of statutes.

The jurisprudential methodology on which Marbury rests defines the essence of American judicial review: Look to the Constitution for an honest and reasonable textual permissibility. This “textual permissibility” approach requires adherence to the Constitution’s explicit language and structure. It is true that the Constitution is a framework to be filled-in by the operation of politics and jurisprudence. But exceeding clear constitutional permissibility while doing so brings grave consequences.

The Marshall Court would, even as it liberally defined allocation of power under the doctrine of federalism, ensure interpretation of fundamental law in the tradition of Blackstone’s Commentaries and Federalist 78.

Progressive academics have presented a counter argument asserting that Marshall soared beyond the bounds of textual constraint to aggressively ensure a strong and preeminent national government. He was, after all, a committed Federalist. Robert Warnick writes, “Marshall had a lifelong conviction that a country needs a central government with power and responsibility enough to override local interests.” Some progressives assert Marshall was a believer in the living constitution, and cite Marshall’s dictum from McCulloch v Maryland (1819) “We must never forget that it is a constitution we are expounding, a flexible instrument sufficient to the exigencies of the nation.”

Their argument continues. In McCulloch, the Court interprets the “necessary and proper clause” broadly in order to ensure successful execution of national government responsibilities. The decision is, indeed, a significant step in the direction of an energetic national government, as one would expect from a Federalist-leaning Court.

However, the language of the opinion is classic Blackstonian jurisprudence and establishes the Marshall Court as Constitution-bound. Marshall’s opinion in McCulloch states, in part:

“Let the ends be legitimate, let it be within the scope

of [the] constitution, and all means which are appropriate,

which are not prohibited, but consist with the letter and

spirit of the constitution … ” (italics mine)

Marshall’s use of this language in a comprehensive landmark decision, commits the Court and the nation to textual constraint and constitutional allegiance. Such language is the hallmark of most of Marshall’s interpretations. A thorough content analysis of the Marshall Court’s hundreds of decisions is beyond the scope of this paper and such an analysis would, without a doubt, reveal some contradictions. Nevertheless, on whole, their key opinions bind interpretation to honest and reasonable textual constraint.

Today such Constitution-bound language from the majority would evoke ridicule from contemporary Progressives. The re-establishment of constitutional constraint has been left to the shrinking minority on the Court. In 2012, Antonin Scalia wrote, “A more latitudinarian approach to interpretation, by contrast, makes it hard to see when the judge has succumbed to the Dark Side of the Tenure – which, like the Dark Side of the Force in Star Wars, is marked by self-indulgence.”

Scalia and Marshall are members of the same constitutional tribe. Marshall’s own words, when taken in whole and in context, describe a Justice and a Court fully committed to Constitution-bound review. This traditional review became the jurisprudential institution on which American constitutional law rested. Then things changed.

Leaving Traditional Judicial Review to Enter the Brave New World of Modern Judicial Review

During the 20th century, modern review replaced traditional review. What began as a distinctive judicial power to interpret the Constitution, essentially different from legislative review, became merely another variant of legislative power.  The result has been radically different outcomes in the holdings, rules of law, and public policy flowing from the Supreme Court. These have transformed American culture and quietly ushered in a new form of governance that runs counter to constitutional republicanism.

Constitution-bound interpretation was attacked as old fashioned and non-utilitarian by progressive intellectuals and academics. The Progressive Era was the first major period in American political development to feature, as a primary characteristic, open and direct criticism of the Constitution. Although progressives were not in complete agreement with one another on policy and means, they universally asserted that the existing constitutional system was outdated and must be made into a dynamic, evolving instrument of social change.   Change not by amendment but by central-government decree.

This criticism of constitutional design was unique because it formed the backbone of the entire progressive movement. The fact of a ratified Constitution seemed almost irrelevant in light of the newly evolved human subspecies homo progressia and its claim to decide matters of public governance for the rest of the body politic. Madisonian separation of powers was no long needed to protect liberty. The highly evolved homo progressia would become the protectors of liberty and determiners of policy. Severe and widespread social problems created by hyper industrial growth in the last half of the 19th century demanded that the progressives be allowed to step in with unimpeded corrective measures. Or so they argued.

The post-New Deal Courts, cut loose from their constitutional anchor, found themselves free to sail the open seas of modern judicial review. Today, Court majorities routinely select a culturally transforming value that fits their vision of “how America ought to be”, then advance their argument on premises often well outside the four corners of the Constitution. They are building a New America, refashioning society by sheer will, blithely pre-empting the legislative process and its national discussion.

Still, Americans invest heavily in constitutional rule and its Madisonian design. The illusion of separation of powers is necessary to camouflage modern judicial review’s inherent authoritarianism. The facade of constitutionalism reassures the public even as the reality of constitutionalism fades. Court majorities bury their social edicts in reams of excessive dicta and vague allusions to precedent that give the appearance, but not necessarily the substance, of constitutional reasoning. Key landmark cases decided by the Court today often result in holdings, rules of law, and public policies that are significantly different from what would be possible under constitution-bound interpretations of the Marshall Court.

Exploration of three culture-changing cases – Griswold v Connecticut (1965), Roe v Wade (1973), and Doe v Bolton (1973) will be offered as supporting evidence. They exemplify modern judicial review’s theocratic nature, and would have resulted in quite different outcomes had constitution-bound judicial review been applied.

The GriswoldRoeDoe phalanx is the smoking gun, the irrefutable evidence that exposes a modern Court operating far outside the nation’s constitutional compact. Sections five and six will provide evidence supporting this view and highlight the dangers that lie therein.

Some academics contest the assertion made by a growing body of contemporary scholars that judges are routinely operating outside the Constitution. Frank Easterbrook writes “political scientists, editorial writers, and cynics often depict judges as doing nothing other than writing their preferences into law. Careful observers of the judiciary do not make that mistake.” His point appears to be that vestiges of original constitutionalism remain.

The Court, of course, still makes decisions that rely on the Constitution and only the Constitution. Elements of traditional Marshall-style review can be seen here and there. This is because the vast majority of cases heard by the Court do not create new fundamental rights. Most decisions are matters of mere statutory construction or cases that require application of already settled rules of law. Only a handful of cases change the Constitution, create new rights, and result in cultural transformation.

The ultimate damage done by modern judicial review is that it is diminishing the Court’s credibility and authority to maintain the rule of law in the minds of the citizens. Historically, the Court has stabilized American politics through its use of interpretative processes largely based on non-partisan traditional constitutional review. The citizenry has intuitively trusted the Court to mostly (but not entirely) remain above political and social warfare. However, what the Court often does today is issue personal decrees that are enforced by the guns of government, not by the acceptance of the public. Modern judicial review replaces the constitutional republic with the new authoritarian state. If the Court continues with modern review, the rule of law will yield to the rule of guns, if it has not already.

Sinking Deeper into the Dark Side of Tenure

Progressives rose to national power becoming the dominant political and intellectual voices in the 1920’s and 1930’s. A full exploration of Progressive history is beyond the scope of this paper but it is generally correct to say they sought to transform the Court from Constitution-bound reviewer of fundamental law into an agent of social and cultural change. Nothing demonstrates this movement to change the Court’s identity and modus operandi more clearly than the progressive campaign to canonize living-Constitution Justices and to demonize Constitution-bound Justices.

Felix Frankfurter launched the canonization – demonization strategy in 1916 with his festshrift on Justice Oliver Wendell Holmes.In this homage, Frankfurter established the committed progressive Holmes as the bellwether for proper Constitutional interpretation. Legal commentary about individual Justices was new, with little similar personal commentary to be found before the 1920’s. The progressive’s good judge – bad judge campaign had begun in earnest.

In The Constitution and the New Deal, G. Edward White examines the progressive canonization phenomenon. He analyzes essays written by progressives in which they critique 20th century Justices. He finds two categories of reference to the Justices. The first category consists of references to Justices whom they routinely canonized as “progressive”, “liberal”, and “modern”. The second category consists of references to Justices whom they routinely demonized as “conservative”, “reactionary”, and “old-fashion”. For instance, during the 1930’s progressives lumped traditional-review Justices Devanter, McReynolds, Sutherland, and Butler together for ridicule, and by the 50’s had characterized them as “The Four Horsemen of Reaction”.

By the late 60’s, progressive Justices who unabashedly pushed for radical cultural change through Court mandates were revered as intellectual and social icons inside the academy. To this day, the meme of the progressive activist judge as unquestioned intellectual and cultural hero prevails. Witness Sonia Sotomayor’s remark that “one’s sex, race, and ethnicity ought to affect the decisions one renders from the bench.” . Such application of idiosyncratic personal preference to decisions on matters of constitutionality is quintessential modern judicial review.

The political rise of the progressives over the twentieth century empowered them to steamroller Constitution-bound judicial review. American constitutional review and culture would be transformed, as an examination of three modern-review cases will demonstrate.

Before We Proceed Further, What’s So Great About the Constitution?

An assumption underlying the argument being presented here is the necessity of adherence to and reliance on the Constitution. But why is there such a necessity? It is because without it our republican form of government would likely wither, and a corrupt and authoritarian state would likely rise to replace it. This assessment is based on scholarly writings, both old and new. They recount abuse of power from pharos to monarchs to military strongmen.

Much of the necessity assumption rests on the convincing works of Locke, Montesquieu, and Madison along with the contemporary work of Gary Lawson, Ronald Pestritto, Thomas West, and others. In 1748 Montesquieu sums up the problem, “Constant experience shows us that every man invested with power is apt to abuse it, and to carry his authority as far as it will go.” Montesquieu, like the Greeks, concludes on the evidence of history that “the nature of the State’s constitution is of the greatest consequence.”

The nature of human inclination is often argued by post modern progressives to be so subjective that it defies understanding or at least it is constantly evolving, i.e., a moving target that must be constantly redefined. This assertion is mostly sophistry. While civilizations can and do advance and develop (as well as fall and fail), the past offers evidence enough to conclude a consistent pattern of human attributes and human conduct over time.

The Constitution, and the separation of powers embedded in it, rest on a more historical and fact-based understanding of human nature than does progressivism. There is little evidence that a more virtuous, more knowledge-possessed, and more intelligent species of human evolved to inhabit the twentieth century.

The Constitution, with all its flaws, shortcomings, and imperfections, serves as a seawall against the storms of authoritarianism that perpetually sweep across bodies politic. If one is to trust the events of history, the Court’s use of modern judicial review moves us deeper and inextricably into rule by bureaucratic masters.

Modern Judicial Review’s Impact on Culture and Society

The primary impact of modern review is that fundamental law rooted in experience, history, and reflection is relegated to inconsequence. Three cases, Griswold, Roe, and Doe, stand as evidence that the Supreme Court, when convenient, sees the Constitution not as binding fundamental law, but as a minor historical roadblock to be circumvented. These cases demonstrate how the Justices implant language in an opinion as justification for even more radical constitutional departures in future decisions. This is not adherence to the rule of law; it is culture building.

The Case Evidence:

Griswold v Connecticut 381 U.S., 479 – 85, 1965  

The Executive Director of Planned Parenthood of Connecticut’s executive director and medical director were convicted as accessories for violating Connecticut law against giving married persons information and medical advice on how to prevent conception. The Court held that the Connecticut statute forbidding the dissemination of information on contraceptives violates the fundamental right of marital privacy that falls within the penumbras of specific guarantees of the Bill of Rights.

The Court reasoned that specific guarantees in the Bill of Rights have penumbras, yielding rights formed by emanations from “those guarantees that help give them life and substance.”These penumbras give rise to a constitutional right to marital privacy, which forbids state interference.

Factual analysis reveals problems with that finding. Griswold was a setup case. The law in question had never been enforced or prosecuted but lay inert from days long past. The Director of Planned Parenthood worked with the prosecution to be charged with a violation. The setup had nothing to do with a prohibition on distribution of birth-control information. The case was the first step in the judiciary conspiring with activists to legalize abortion through the courts thereby avoiding the bothersome legislative process and time-consuming national discussion. Fundamentally changing the culture by Court fiat rather than national conversation is modern judicial review’s modus operandi.

Even with the Griswold setup, finding a Constitutional right to abortion was going to be difficult. But modern judicial review simply rewrites the constitution – no amendment needed. Thus, William O. Douglas incants “penumbras emanate” and conjures into existence, voila!, the right of marital privacy.

That this is not jurisprudence but little more than New Age drivel seemed to bother only a minority on the Court. Byron White would make this point in his Roe dissent. “I find nothing in the language or history of the Constitution to support the Court’s judgment. The court simply fashions and announces a new constitutional right for pregnant mothers [410 U.S. 222] and, with scarcely any reason or authority for its actions, invests that right with sufficient substance to override most existing state abortion statutes.”

A right to marital privacy might a have been legitimately found on constitutional grounds but not in Douglas’ emanating penumbras. A more credible source would have been the constitutional text of the 4th amendment ensuring a right to be secure in our homes. Constitutional restrictions on government intrusions into the home might plausibly extend to the marital bedroom, no penumbras needed.

Modern judicial review often strategically links cases in order to arrive at a cultural change that could not be achieved through the legitimate legislative process. Case A is embedded with language designed to be invoked in cases B and C. Griswold was case A. Roe v Wade and Doe v Bolton cases B and C. This is the “legs of dicta” strategy invoked when modern judicial reviewers seek to change society from the bench.

Roe v Wade 410 U.S., 113, 1973

“Bodily” privacy would, without sufficient jurisprudential foundation, leap from Griswold’s marital privacy into the Roe decision. Why conjure into existence bodily privacy? The evidence suggests that the Justices were setting up to “discover” a right to unfetter abortion on demand, and they needed a rationale even if it was jurisprudentially implausible.

The underlying facts raise more troubling questions. The Federal District Court heard Roe with no trial court transcript and no review of trial level testimony. Why? Because there was never a case in controversy, never a trial, and never any evidence for the court to review. As a matter of law, this meant that there was no party who had standing. Ignoring this legal requirement, the District Court granted Roe standing, heard the “case”, and performed the magic that only modern judicial review can perform. It transmogrified the legitimate question of law “what limits may the states place on doctors performing abortions?” into the out-of-left-field question, “does the Constitution contain a fundamental right for women to terminate their pregnancies at will?” The Court panel, one of which was a pro-abortion activist, “discovered” that right embedded in the ninth amendment.

Curiously, lower-court winner Roe appealed her win to the High Court and was granted certiorari. Roe had gotten her right to abort and one would think that would have ended the litigation. The appeal was filed because the objective was never to secure Roe a legal abortion. Roe herself was simply a means to an end. That end was to give all women the fundamental right to abort their pregnancies at any time for any reason.

The Supreme Court upheld Roe, basing its decision in large part on the flawed – erroneous and factually inaccurate – essays of Cyril Means. Mr. Means was an attorney and long-time pro-abortion activist. Neither the District Court nor the High Court weighed the rights of the human living in utero vis-à-vis the mother’s rights. Mean’s essays were used to misdirect attention away from the human in utero and toward the issue of women’s health. This redirection of focus created a detour around two hundred years of common law, statute law, and jurisprudence regarding the rights of the human fetus. For instance, property law had long invested the human living in utero with legal rights. But then the Courts were in the midst of executing a years-long social-engineering plan to radically alter the culture. They were not interpreting law. The fetus and its rights were simply deemed irrelevant to the question at hand.

Doe v Bolton 410 U.S. 179, 1973

            Roe contained the language that gave a woman free reign over an abortion decision in trimester one, less reign in trimester two, but returned primary control to the state in trimester three. However, Doe created a way around any limitation by the state. This was accomplished by the ‘women’s health exception’ which, if the mother’s health is at risk, moots the state’s authority and returns the abortion decision to a woman and her doctor.

Most people envision a gravely ill near-death mother being aborted so that she may live. This was not the vision the Court had in mind. It defined women’s health to include anything in the life of the woman impinging on emotional, psychological or familial health. Translation: There may be no state intervention at anytime. The Court released Roe and Doe on the same day commanding that the two decisions be read and taken together as a single operating legal entity.

The Griswold-Roe-Doe phalanx is modern judicial review operating on all cylinders: Come up with a radical social change that could never survive the legislative gauntlet or a national conversation, conjure up cases with plausible facts, chain them together, then decide them on pseudo social science ignoring conflicting jurisprudence, common law, and constitutional text.

How Would the Court Have Decided Differently Under Traditional Review?

            Court decisions arrived at under traditional review differ from those arrived at under modern review. For instance, Griswold could never have been decided under Douglass’ claim of emanating penumbras. The argument that auras and penumbras emanate fundamental rights is not law; it is metaphysics. In fact, modern judicial review is little more than metaphysics which is why it so dangerous to the rule of law. The Court might have found a right to marital privacy in Griswold under traditional review. It could have gone to the 4th amendment that conveys, “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.” The 4th amendment’s “secure house” might well have been extended to the marital bedroom of that house. That would have at least anchored the finding in constitutional jurisprudence. The Constitution is written law not an Ouija board.

But subjecting Griswold to this constitutional tradition would not have so easily accomplished the hidden objective the Justices sought: Set up a string of cases that would lead to an unfettered abortion right for women.

Roe would have never been made it to the court docket under traditional review. Norma McCorvey never sought an abortion, was never denied an abortion and never had an abortion. She had no standing; there was no case in controversy, and no lower court proceeding to review. Traditional jurisprudential review would require that rules for standing be met. It would also require that a real case in controversy exist.

Likewise, Doe would have been decided differently under traditional review. The essence of Doe is reliance on the health of the mother for its legal rule. In deciding Doe, the Court relied not on constitutional principle and law but on the social science essays of Cyril Means. Social science academics and their theories are compelling sources of law only in modern review, not in traditional review.

Other cases would have had different outcomes under traditional review. Take Wickard v Filburn (1942). The Court decided that wheat grown on the family farm, made into flour on the same farm, baked into bread in the farmhouse, and eaten at the family kitchen table was interstate commerce subject to federal regulation. Such a decision would have been impossible under Marshall-style traditional review. Traditional review would have required that commerce be defined as commonly used. That common usage is “the activity of buying and selling, particularly large scale buying and selling, between states.” This activity was entirely absent in the Wickard fact-set. Other key Supreme Court cases would have been decided differently or not even made it to the Court docket under traditional review.            


The Constitution was created as the supreme law of the land. It is an agreement between the People and their sitting governments. It is also an agreement between and among the People themselves. As with any agreement, compliance with the terms of our Constitution requires an authoritative Keeper-of-the-Compact. Early American political development was, in part, a search for the proper institutional location for this primary compliance function. The search would not take long.

John Marshall declared the Supreme Court keeper of the American Constitution when his Court issued Marbury v Madison in 1803. The Constitution would stand guard over the rule of law and the Marshall Court would stand guard over the Constitution.

Using modern judicial review, Progressives quietly rewrote the terms of the American compact while a nation slept. This paper, relying on and summarizing the work of others and evaluating the facts in evidence describes what can accurately be described as the rise of the American Ayatollahs. If the United States is to control the authoritarian Leviathan that is our governance in the twenty-first century, return to the traditional constitutional review of the Marshall Court will be a necessary first step.


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The Battle Ahead: Re-constitutionalizing America


In this dark hour, the American constitutional republic seems lost. Our founding form of governance has burnt to the ground from fires set by political arsonists. A postmodern  regime opposed to a free civic society and constitutional rule has taken control. Its operatives are systematically installing an authoritarian bureaucratic state on the site where our free civic society once stood. The Congress is but Kabuki Theatre, the Courts have abandoned constitutional jurisprudence, and the Executive has weaponized the federal bureaucracy to intimidate citizens into acquiescence and has skillfully divided Americans into angry warring factions. The efforts of the regime in dividing us and in stoking the fires of animosity between American citizens have been so successful that we are now entering what could correctly be called die Schrecklichezeit, the Terrible Time: Citizen against citizen.

We must not allow the regime’s strategy of government led citizen agitation continue. Let us not surrender to the forces of administrative authoritarianism, let us recognize that the war for constitutional America continues and that we must gather ourselves for the battle ahead. That battle has but one end: The re-constitutionalization of the United States. Victory will be achieved when the courts return to constitutional-based jurisprudence, the executive unites our citizens in common cause, and Congress re-connects itself to its mandated constitutional duties. Fighting this battle will require sacrifice, commitment, and enduring the indignities and injuries visited upon us by a hostile regime.

The shape, form, and structure of the now-forming re-constitutionalization movement are yet to be determined. We each must decide what, if any, role we are going to play in the days immediately ahead. A necessary start is for each of us to insist that Congress obstruct, in every way possible, the newly elected regime’s actions aimed at completing the century-long effort to de-constitutionlize America.

The battle begins in Congress, particularly in the committees responsible for appointments and oversight. First, those waging the war for re-constitutionalization of America must identify statesmen-leaders who have the intelligence, commitment, credibility, and courage to articulate and execute an ongoing unceasing plan of attack against the current regime. Second, we must assemble large numbers of citizens who will support and defend these leaders over the long engagement ahead. Third, each individual combatant must be willing to contribute to the cause by asserting himself into the fray boldly and with knowledge-based well-articulated rhetoric. Fourth, like Tank-man standing steadfastly in front of the tanks in Tiananmen Square, we must be willing to facedown the current regime’s intimidation.



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The Coming Global State?


Yesterday, on the Google homepage, there was an ad for “The Global Citizen’s” Festival in Central Park. This “Global Citizen” hype is everywhere these days and is gaining momentum throughout the West.

Here is one possible interpretation of the so-called Global Citizens movement. Let’s call it the Brave New World hypothesis and it goes like this:

There is, indeed, something akin to an international postmodern movement afoot and its players are trying to end (or at least significantly weaken) the political supremacy of the nation-state structure of the world. The players are using the Alinsky playbook. The objective is creation of a global state that politically and economically supersedes all nation-states. The global state is to be run by a tiny corp of intellectual elites who will also be the prime benefactors of the “perks of power”.

The institutional players are the International Monetary Fund, The World Bank, the United Nations, World Health Organization, the Academy, large multi-national corporations, Facebook, Google, and international NGO’s.  Now that these key global-state institutions are in place and the players are beginning to coalesce, the propaganda campaign is unfolding in full force. Their key objective has been to begin to “dilute” the power and authority of the nation-states around the globe, a necessary step toward global statism. Under the global-state paradigm, nations still exist but merely as benign political-districts serving the vision of the global-state.

The governing structure sought by the global statists is loose and committee-like. The global-statist believe that under the new global order two or three key inspirational leaders will always emerge to “Lead the Global State”. There is no one central locus of operation where these globalist meet to conspire. Communication is postmodern in method: Adherents and would-be adherents listen for the “bird-whistle” in the news media and social media. These would-be global citizens are always on the lookout for “spontaneous happenings” such as the sudden appearance of Black Lives Matter, Occupy Wall Street and other faux public raging against the nation-state. The call-to-action is implicit and clear down to the locations of neighborhoods that are to be the point-of-assembly. Collectively, these methods of postmodern communication loosely bind the globalists and unite them in their daily efforts to “change the world”.

The key political tactics are to de-stabilize key nation-states through: a) massive illegal & legal immigration & radical mixing of all cultures resulting in tensions, chaos & anarchy,  b) creating impossible-to-amortize nation-state debt, c) teaching young citizens a revisionist history that erases the lessons and facts of the past, d) control election outcomes through un-manageable, impossible to track, chaotic voting processes, e) convince citizens that they have an innate right to be the recipients of the wealth and income of other citizens with government being the intermediary and, f) creating a false narrative that nation-states resisting global statism are racist, totalitarian, and oppressive which gives rise to the need for their re-placement by an objective, neutral, professionally run global-state.

The last significant obstacle to rendering the nation-state subservient to the global-state is substantive reduction of nation-state military infrastructure.

This scenario is far-fetched, I know. The real world of our politics is much more pedestrian, confused, disparate, and plural. Nations are not likely to surrender to the globalist vision quite so easily.  But this description has the troubling aspect that it fits many of the facts and much of the rhetoric of contemporary politics rather well.





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High Court Hubris


Justices on the Supreme Court Have No Constitutional Authority Nor Any Moral Basis to Decide What Our Cultural and Moral Norms Shall Be   

The vast majority of the Court’s work focuses on issues of little national consequence. This work looks at such things as statutory construction or clarifying the proper application of a long existing rule of law to a rather pedestrian matter that is of importance only to the parties. However, the Court must, on occasion, interpret the Constitution and apply that interpretation to a large overarching constitutional question that carries significant, lasting, and transformative impact on society. Chief Justice Marshall famously wrote that it was “emphatically the province and duty of the Court to say what the law is.” I think that Marshall’s words are meant to apply to these occasions. I also think, he meant to establish for the new nation, a general frame of reference that contains the essential rules, methods, and philosophy of America’s jurisprudence. A careful reading of the quote, along with the fuller explanation that follows in Marbury and other cases, reveals Marshall’s understanding of the Constitution. I do not take him to be claiming a judicial supremacy that resides in the will of the justices. Quite to the contrary, his quote and words that follow in Marbury and elsewhere, instruct us that supremacy lies in the language of the Constitution. It is the duty of the Court to base its decisions on what the language of the document actually conveyed when written. Marshall pledges allegiance to the Constitution, not judicial will.

To come to this conclusion, I focus first on the words “duty of the Court” and take them to mean that duty implies that the Court is bound to something larger than itself, something more profound, and something more lasting than the internal will of the justices; and that larger ‘something’ is the written words of the Constitution. In Cohens v Virginia, Chief Justice Marshall says, “A constitution is framed for ages to come, and is designed to approach immortality as nearly as human institutions can approach it.” In Osborne v Bank of the United States he says, “ Judicial power, as contradistinguished from the power of laws, has no existence, Courts are the mere instruments of the law.” From these statements, I conclude that Mr. Marshall means that neither the will of the Court nor its interpretations are the supreme law; the supreme law stands separate and alone as its own being. In the United States that ‘being’ is the words, clauses, articles, and whole document of the Constitution.

The Marbury quote also states that “it is the province of the Court to say what the law is” but he does not say that such province lies solely and only with the Court. I believe that this wording, in Marshall’s view, keeps him within the founding principles of the separation of powers. The fact that the thirty-five years long Marshall Court and the twenty-eight years long Taney Court rarely intervened into national affairs to overtly reverse or overturn a Congressional act supports this conclusion.[1]

I have often asked myself, “Why was the Court reluctant, over these many years, to intervene into what Congress did? “ For me the answer lies in large part in these words of Marshall’s, “Judicial power, as contradistinguished from the power of laws, has no existence, Courts are the mere instruments of the law”. It is apparent, at least to me, that he places the supreme law not in the interpretations of the Court but in the physical being of Constitution. This is why senior judges trained in the law, history, and legal philosophy who have spent large portions of their lives working in the courts reading and applying law are uniquely qualified to find and extract constitutional meaning from the words, clauses, articles, and whole document of the Constitution.

If, as I have done, I pledge my allegiance to the words and language of the Constitution, I must, if I am to be thorough, comment on the long line of precedent that stands separate from the Constitution. Do I believe that precedent cases stand as supreme law of the land? My answer is that they do not. There is only one supreme law of the land and that is the Constitution. Precedent cases exist as Court manifestations of the outcome the Court, in the exercise of its constitutional duty and oath, has determined the supreme law, in a particular instance, seems to require. If that manifested outcome is reflected and contained in the words, clauses, articles, or whole body of the Constitution, it stands as legitimate law. However, that particular precedent case, valid law though it is, remains subordinated to and a creature of the Constitution. Justice Antonin Scalia is one of my several sources for this line of jurisprudential reasoning. Critiquing the current modern mode of judicial review he says, “The starting point of the analysis will be Supreme Court cases, and the new issue will presumptively be decided according to the logic that those cases expressed, with no regard for how far that logic, thus extended, has distanced itself from the original text and understanding.”[2]   He goes on to say “Worse still, however, it is known and understood that if that logic fails to produce what in the view of the current Supreme Court is the desirable result for the case at hand, then like good common law judges, the Court will distinguish between its precedents, or narrow them, or if all else fails overrule them, in order that the Constitution might mean what it ought to mean.”[3] This is followed by “Never mind the text that we are supposedly construing; we will smuggle these new rights in, if all else fails, under the Due Process Clause.”[4] Justice Scalia’s withering description of judge-willed interpretation articulates more eloquently than I could, how the will of the judge has replaced the will of the Constitution.

I do not want to leave the impression that I believe precedent valueless. Carefully and faithfully extracted from very similar cases, precedent rules give law its necessary continuity. I take exception with what I call improper and disingenuous application of precedent. Robert Rantoul, an early American politician and practicing lawyer said it well. In a Fourth of July speech many years ago, he asserted, “The judge makes law, by extorting from precedents something they do not contain. He extends his precedents, which were themselves extensions of others, till, by this accommodating principle, a whole system of law is built up without authority or interference of the legislator.” Justice Scalia comments on Mr. Rantoul’s remarks saying, “Substitute the word people for legislature and it is a perfect description of what the modern American courts have done with the Constitution.” There is valid precedent which is faithful to the law, and there is conjured precedent used to force upon society the will of the judge. I endorse the former and eschew the later.

Mr. Scalia also describes another phenomenon of the modern Court. That is that the modern Court’s Constitution seems to be comprised only of he Bill of Rights and the due process and equal protection clauses of the Fourteenth Amendment. The seven original articles that are the structural framework for our federalist system of government have somehow faded off the pages as if they had been written in disappearing ink. In fact, the Court has constructed a fast moving assembly line that creates categories of rights as fast as postmodern progressive lawyers can invent them. These so called rights are then packaged as products to sell in the political market place. This practice is not constitutional and it is a danger to social stability.

I want to make one last reference to Justice Scalia as it will bring into finer focus my jurisprudential approach in interpreting the words of the Constitution and views on judicial supremacy. Mr. Scalia differentiates between strict construction and reasonable construction.[5] I, following the teaching of my jurisprudential betters Justice Marshall and Justice Scalia, adhere to reasonable construction. I am not a strict constructionist as I believe that would, on too frequent occasion, lead to the absurd outcomes about which Blackstone warned us and for which he provided a commonsense remedy.

Let me reiterate my view on where ultimate supremacy lies; it lies in the words, clauses, articles and whole document of the Constitution. There is long standing jurisprudential methodology that allows for faithful interpretation of those written words. Blackstone pointed the way in his Commentaries on the English Law and Chief Justice Marshall incorporated much of Blackstone’s methods into American jurisprudence. Blackstone and Marshall have constructed, not a mindless textual mantra, but a well-structured, rule-managed, accommodating, and flexible analytical process.

Interpretation of the Constitution’s words is further made possible by the nature of the constitutional compact. Court interpretation and application of constitutional meaning does not (or at least should not), on the vast majority of occasions direct the normal ongoing course of minor political affairs such as how we shall arrange traffic laws for an automobile society. Nor does it tell us how to arrange the work-a-day activities of the modern technological society nor does it create, erase, or enforce specific cultural norms. The Constitution and the power of constitutional interpretation is to be reserved to: 1) Maintain the overarching political relationships of the three branches of the federal government; 2) Maintain the power relationship between states and the national government and; 3) Defend the individual from denial of a restricted number of fundamental and sacred rights belonging in common to all.

There is much discussion today about the need for a so-called Living Constitution driven by judicial supremacy. The premise is that the Constitution must be capable of responding to the complex fast-changing problems of the twenty-first century. That Living Constitution has been present from the beginning and it is found in Articles I and II. The Congress and the President have always performed the functions of a “living constitution”. The duty to fashion new laws that address the problems of modernity falls to the Senate and to the House. There are committees for studying, analyzing, and addressing every modern problem. Each of those committees has access to the best and brightest experts in the world on every possible technological, social, and financial area of inquiry. It seems to me that the progressive postmodern Court has claimed to have found an authority to will social, cultural, and economic transformation simply because they want to.

I believe that the American republic is confronting several existential crises, one of which is a Court that has drifted rather far from the political agreements it made with the people, the states, and the other branches of government at the Founding. I believe that the Court’s duty and oath require it and me to exercise a good-faith allegiance to the original constitutional agreement. Postmodern Leftists have marched onto the American scene, destroyed constitutional America, and replaced it with central authoritarian rule by a self-anointed elite.

[1] The Dred Scott decision is excepted as a radical departure Constitution based interpretation. It brought such draconian impact and so clearly contradicted the from Constitution and its sister document the Declaration of Independence as to stand alone and apart from regular constitutional jurisprudence.

[2] Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law, p. 29

[3] Ibid

[4] Ibid

[5] Ibid, p. 38

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The Worst Supreme Court Case

Justices to Citizens: “We’re the Bosses Baby!”


A particular Supreme Court decision is good to the extent that it is properly and substantively grounded in sound jurisprudence. Sound jurisprudence is recognizable by its reliance on the pertinent legal history and exploration of directly related legal ancestry of the question of law at hand. In addition, good decisions must arise from cases that have arrived at the Court by successfully negotiating the gauntlet of mootness, ripeness, jurisdiction, and standing. Any case that cannot, in good conscience, overcome these obstacles is insufficient for Court consideration. Also, good decisions must be of constitutional substance, which is to say that they must pose a legitimate question of constitutional meaning. Finally, a good decision is one that is restricted, for the most part, to resolving only those issues raised by the parties and the facts of the case. To the extent that a decision lacks these qualities it is no so good.

The Burger Court is responsible for the jurisprudential travesty of Roe and Doe and for constitution-ending modern judicial review. Rather than turning away from the radical jurisprudential innovations of the Warren Court, the Burger Court continued to advance the avant garde methodology of that Court. The Burger Court therefore transforms Warren’s modern judicial review from a controversial innovation into a permanent and conventional practice. Looking back, I think the early Burger Court was a watershed moment in American constitutional law.

Roe v Wade and Doe v Dalton, two companion cases decided by the early Burger Court stand, in my view, as among the worst decisions of the last forty years, perhaps the second worst decision ever with Dred Scott being the worst. It is not only the absence of jurisprudential grounding that make Roe and Doe decisions wrongly decided but also their powerful influence on institutionalizing modern judge-centered review.

Before proceeding to explain why I come to this conclusion, I would like to say that I am neither pro-life nor pro-choice. From a moral standpoint, one can make a claim that the health of a woman justifies removal of a thimble of human tissue or that preventing the derailing of the life of a young woman outweighs at least some of the prohibitions on abortion. On the other hand, one can argue on behalf of the in vitro life however that life is defined. Both moral arguments are compelling, complex, and perhaps unanswerable in the absolute sense.

My criticisms of Roe and Doe fall into two categories: 1) The decisions derive from insufficient legal reasoning and the majorities’ improper reliance on questionable social science and; 2) The cases should not have, under the normal standards of jurisprudence, ever reached the Court. Let me begin with my objections to these cases ever reaching the Court for review.

First, the plaintiff Roe, seeks to a remedy to her dilemma. He dilemma is that she is pregnant and wants to abort but cannot do so because Texas law tightly regulates abortions so much so that it appears that Ms. Roe will not be allowed to abort. Prior to the Court’s granting cert, even before the lower court decided to hear the case, the plaintiff gave birth. This mooted the case and removed the plaintiffs standing for redress. Long established standards of jurisprudence, if followed, would deny standing. The Court simply ignored the standing obstacle and called the case into its jurisdiction. This is one aspect of the decision that, in my view of law, makes it “bad”.

Second, the plaintiff while before the lower court (Fifth Circuit of Texas), argued for but one remedy for her long mooted dilemma of her unwanted pregnancy; a holding that a fundamental constitutional right, heretofore not found, exists for a woman to pursue and receive an abortion. But the plaintiff had no standing and her legal dilemma had been mooted. Under these legal and factual circumstances, one must ask, “under what legal authority does the Fifth Circuit Court convene a tribunal to decide a question of fundamental constitutional rights”. The answer is that traditional fully evolved jurisprudence gave the Court no such authority. And what legal doctrine does the Supreme Court use to grant cert to such a legally unfounded appeal? The Court decided to ignore this long standing jurisprudence and rely on a statute allowing direct appeal to the Supreme Court passed a mere eleven months earlier. In my view, both courts have not only erred but also acted to legislate their own will adding another reason the decision is “bad”.

Third, there is no trial court transcript or evidence to review. There is no transcript or evidence to review because there was never any trial. Clarke Forsyth, an appellate attorney and recognized expert on Roe writes, “Trials and hearings are suppose to thoroughly weigh the evidence and determine the truthfulness and accuracy of claims of the parties. This is all the more important when a case involves constitutional questions and has sweeping implications for the people and the public health in all fifty states. Roe and Doe were conducted without hearing witnesses subject to cross-examination. Both district courts in Texas and Georgia simply decided that facts don’t matter and merely held a two hour-long oral arguments, in which much of the time was taken up with procedural or jurisdictional matters.” Forsythe poses a most troubling question[1]:

There were numerous abortion cases in the courts in 1970 and 1971 and many more in 1972. The Justices could have selected [from among these] cases with a factual record. At the time the Justices chose Roe and Doe, at least seven other abortion cases were pending at the Supreme Court. Remarkably the Justices choose not one but two abortion cases without any factual record. Why?

Thus, Roe and Doe became the case without a record. Forsythe among others, points out that in selecting Roe and Doe the Justice ignored several long-standing principles for good decision-making on constitutional issues:

  • Medical and statistical assertions that are not in the trial record but relied on by the judges – what lawyers call “judicial notice” – should be limited to indisputable fact.
  • Courts should not decide constitutional questions on an incomplete record.
  • Courts should not formulate rules of constitutional law broader than required by the facts.
  • Courts should not decide constitutional questions unless the question is presented with the clarity needed for effective adjudication.
  • Courts will not anticipate the decision of a constitutional

It was not as if the Justices were not warned that there was no factual record. In the first Doe arguments Georgia’s Attorney General, Dorothy Beasely, made the lack of a factual record point no less than five times. [2] These problems were compelling and suggest that the Court should have reached no decision, or sent the cases back for trial, or taken other cases with a trial record, or at least reached a narrow decision. Instead, the Justices issued one of the broadest decisions possible. That there was absolutely no record in this transformative case involving complex medical issues, deep rooted cultural norms, and substantive religious beliefs is another reason the decision is “bad”.

Fourth, the case appears to have been granted cert and docketed under confusion of what, if any, constitutional issues were involved. Justice Blackmum told the story that Justice Stewart urged a subcommittee of Justices to hear Roe and Doe under the “misapprehension” that they involved nothing more than an application of Younger and Harris which was to be a matter on procedure not constitutional substance. This apparent confusion among the Justices as to fundamental nature of the review is another reason the decision is “bad”.

Fourth, the Roe and Doe decision rest in part on suspect, and perhaps unethical conduct, on the part of the some of the litigants and at least one Circuit Court Judge. Judge Sara Hughes, the Fifth Circuit Judge heading the panel that first heard Roe, was active in the Dallas feminist community. She was in fact an abortion-rights activist eager to eliminate the abortion laws.[3] She lobbied the Texas legislature to repeal the Texas abortion law.[4] Judge Hughes admitted to the plaintiff’s attorney that she had her mind made up before the Circuit Court hearing.[5]

[1] Clarke D. Forsythe, Abuse of Discretion: The Inside Story of Roe v Wade, p. 92

[2] Ibid p. 97

[3] Ibid p. 90

[4] Ibid p. 92

[5] David J. Garrow, Liberty and Sexuality, p. 440

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Symbolism of the Obama Justice Department

Symbolic images are powerful communicators of large overarching ideas and mythologies. Swastikas and olive branches convey meaning and imprint themselves on the mind. All political regimes create their visual icons and images as a first order of business. The American flag is one such political image. Since the beginning of our Republic the vision of the Stars and Stripes has served to carry the history and values of our nation. The flag is the most powerful, most revered and most iconic of all American symbols.

Each morning when I arrived for work at the San Diego Immigration Court, I logged onto the United States Department of Justice’s public website to check the goings on. For years, I was greeted by the DOJ website banner flying above the homepage. Department of Justice officials had, in my view, achieved the perfect vehicle for conveying the values of the Department and its mission. The banner is printed below. My guess is that your overall response is positive and the banner elicits something akin to pride and patriotism. That was my reaction along with a sense of the banner’s pure beauty.


Shortly after Obama’s election and the appointment of Eric Holder as the Attorney General, I arrived at my desk and logged on to find that the United States Department of Justice theme banner had been replaced with this:

DOJ_Black copy

Compare your response to viewing the original. Obama and Holder are well aware of the power of political symbolism. It is reasonable to ask if they are using the revised symbol to erode America’s history and unwind the culture of traditional America. Is there any other interpretation? Is there any reasonable explanation other than distaste for historical America? To whom are they communicating and what is the deeper meaning of what they wish convey?

We dismiss the DOJ website banner lightly at our own peril. How long will it be before we look back on such seemingly trivial events and say, “How could we have missed the signs”?

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Resurrecting the Lost American Republic

Flag 2

On September 17, 1787 Benjamin Franklin exited the Pennsylvania State House and stepped into the afternoon sun. A passerby, Ms. Powell, asked the eighty-one year old quintessential colonial American, “Well, Doctor, what have we got, a republic or a monarchy?” The normally optimistic Franklin is said to have replied cautiously “ a republic, if you can keep it”.[1]

The Constitution, at least the one exiting the Pennsylvania statehouse in the summer of 1787, created a republic rather than a monarchy or democracy. We pledge allegiance to the Republic. We sing the Battle Hymn of the Republic. Participants in contemporary political discourse refer to our form of government as the “American republic” or as our “Constitutional republic.” Yet, twenty-first century Americans, save for a precious few, have no idea of the history or meaning of the republic in which they live. Recent surveys show that half of all Americans believe that the phrase “From each according to his abilities, to each according to his needs” is from the United States Constitution and that it is one of the founding principles of the American republic.[2]   Forty-four percent of Americans are unable to define the Bill of Rights.[3] I suggest that this ignorance is not mere educational oversight. Rather it is the result of more than a hundred-year deliberate assault on the founding republic by progressive academics, politicians, and public school administrators. American civic education has been re-made in the progressive grand vision.[4] The republic has been re-defined, then rendered more obscure by educational slight-of-hand.

In the twentieth century, traditional civic learning was steadily pushed aside by progressive school boards and Wilsonian academicians.  During the so called cultural revolution of the sixties and seventies, the long smoldering progressive vision reached kindling temperature and burst into full flame reducing traditional civic education to ashes. Until the 1960s, three courses in civics and government were common in American high schools, and two of them (“civics” and “problems of democracy”) explored the role of citizens and encouraged students to discuss current issues.[5] Today those courses are very rare.  What remains is a course on “American government” that usually spends little time on how people can – and why they should – participate as citizens.[6] Contemporary Progressives discourage true citizen participation in governance because their own expertise is viewed as far a superior means of governance than can be gotten by interfering citizen’s with mere opinions. Reawakening the original meaning of our republic and agreeing upon its design and nature is, therefore, perhaps more important today than at any point since the Founding.

Progressives have now installed themselves as seemingly permanent rulers over the “new” republic, which is not a republic at all but an authoritarian administrative state. They have unwound the spring of the original constitutional government largely by obfuscating the terms of the original agreement ratified by the sovereign people of the United States. In short they have with stealth, clever rhetoric, and electoral success put themselves in a position to transmogrify the republic into a new semi-statist society.

With the advent of the Progressive movement in the early 1900’s, scholars and politicians began to redefine the constitutional underpinning of the Republic.[7] Scholars such as Woodrow Wilson, J. Franklin Jameson, and Henry Jones Ford dissented from the reverential approval usually accorded the American Constitution.[8] Dr. Larry Sabato, founder and Director of the University of Virginia, Center for Politics writes, “The failure of the nation to update the Constitution and the structure of government it originally bequeathed to us is at the root of our current political dysfunction.” [9] If at least some of the people, in their collective wisdom, decide to weather the current assault on our original republic, they must begin to challenge assertions such as ‘the Constitution is based on a conspiracy of commerce’[10] or ‘came from Indian tribal culture’[11] or was ‘driven by colonial feminist tensions’[12] or that the republic was meant to be, or in any event should be, a fanatically egalitarian authoritarian administrative state.[13] Adherents to the new administrative state virtually never mention the nature of the republic bequeathed by the Founders. On the rare occasion mention is made, it is to dismiss the Founding principles as “old” and “outdated”. The term American republic has lost its meaning and its place in the body politic.

My thesis is that the term republic is a discrete, distinguishable and identifiable form of society that allows all citizens who would read the founding documents to determine for themselves what the republic “is” and, just as important, what it “is not” and that this Republic is there for the taking in the founding debates. The position taken by this paper is that Founding political principles would better serve contemporary American society than the Progressive principles of elite bureaucratic rule. The paper also takes the position that contemporary Progressive administrative rule is dangerous and a threat to continued common understanding of the original republic.[14] These are, admittedly, subjective conclusions based on personal evaluation of the best evidence available. Others may, of course, come to different conclusions regarding our system of governance.

This paper seeks to find the meaning of the term “republic” wherein it refers to the  American Republic. The objective is to bind the definition to such an extent that its referential power in the political debate is restored or at least begins to provide linguistic and political utility. The American political conversation is worthy of language that informs and clarifies rather than obscures and misleads.

The term republic as a political concept has marched through history under several conceptual banners. Currently, 135 of the world’s 206 sovereign states use the word “republic” as part of their official names[15]. Greek philosophers, Roman historians, and enlightenment European thinkers have covered so much ground in their various theories, disquisitions, and tomes of text that the word “republic” can justifiably take on different meanings despite a certain centrality to the centuries-long discussion. To find the definition of American republic, this paper looks to the Founding conversations, debates and documents of 1787 and 1788 and the rhetorical arguments emerging therefrom. More specifically, this paper mines and explores the term republic residing within the four walls of The Federalist.

The Federalist stands as the rhetorical masterpiece that explains the American Republic and the foundation on which it rests. The work forms the American political anchor to which our Constitutional ship is tied. The American republic was born in the arguments, theories and allusions in these eighty-five essays written two hundred and twenty-six years ago. There are many republics to be found scattered about in the political story of the world. However, the American Republic is centrally located in The Federalist.



References to Republic in Federalist Nos. 1 – 36

As a first step, I performed a content analysis of The Federalist Papers revealing that the terms republic, republican, and republicanism are referenced some 156 times[16]. The sheer number of these references and the fact that they are spread over thirty-two of the Federalist Papers from No.1 to No. 84 is significant evidence that a prime objective of the Federalist is creation of a particular kind of American republic. These repeated references and their strategic placement demonstrate that building a specific identifiable republic is the central purpose of The Federalist.

Federalist No. 1 appeared on October 27, 1787 about five weeks after the new Constitution was delivered to the nation. The United States, then comprised of thirteen sovereign states loosely bound by the Articles of Confederation, was in heated debate over ratification of the Constitution and more generally over the precise kind of government these thirteen states would adopt[17]. Federalist No. 1 enters the debate with the intent of defining the arguments at hand and in so doing early on makes reference to republicanism. The first use in No. 1 is an allusion to a republican government that possesses the attribute of liberty. Quickly thereafter follows the assertion that republics are in danger of having this liberty overturned by demagoguery[18]. “History will teach us that the former has been found a much more certain road to the introduction of despotism than the latter, and that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants.”[19] Liberty is unambiguously placed front and center in Federalist No. 1 as an irreducible foundational design element of the American republic. The discourse of Founding America amply reveals that this particular form of republican liberty[20] flows from the theory of natural law wherein citizens are free to engage in agreements with one another on their own accord without government inserting itself as a veto-empowered intermediary and senior party to the agreement. The essence of civil society is that free citizens through their volitional associations direct its affairs and activities. Therefore, liberty as a design element in the American Republic embodies the bedrock republican principle that sovereignty lies with the people and not the government. This construction of the American Republic is reinforced and illuminated throughout The Federalist.

Federalist No. 1 declares that this republican government is to be established as dual form of shared government and that the analogy for republican government already exists in the text and spirit of the state constitutions. Therefore, a reading of state constitutions will reveal, at least in part, the design and nature of republican government as argued for by the Founders, Publius and advocates of the Constitution. Alexander Hamilton published the following in The Independent Journal on October 27, 1787 “The utility of the Union to your political prosperity, the insufficiency of the present confederation to preserve that union… a government at least energetic as the one proposed,… attainment of…the conformity of …the true principles of republican government, its analogy to your own state constitution…will afford preservation of that species of government to liberty and to property.” This reference also lets us know that in the eyes of the authors there are “true” republics and others no so true. There is afoot in the land, suggests Hamilton, mistaken and distorted notions of republics. The character of the American republican regime is posed as a matter of great importance. This character continually emerges from the Federalist page by persuasive page.

The second reference, in No. 1 establishes a direct equality between the text of the Constitution and republican government, “…the attainment of this object the conformity of the constitution to true principles of republican government.” [21] To secure a government of and for the Untied States Publius immediately brings to the construction site three building blocks: 1) Natural Law; 2) Liberty and; 3) The Philadelphia Constitution. These then, like political concrete and theoretical rebar, form the foundation of the American republic.

The third reference appears in Federalist No. 4. It expands the definition of the American Republic by asserting that the republic must, if it is to survive external attack, incorporate the entirety of all states. The American Republic will, in the name of long-term survival, be constructed so as to encompass the entire body politic that emerged from the revolution. The new republic must be comprised of, and contain the geographic, social, and political unity of the whole revolutionary enterprise. The republic in The Federalist is a holistic political singularity gathering within its being all states and citizens. This enfolding of all states does not seek to, and in fact does not, impair the dual political structure of federalism but rather ensures federalism’s functional stability, internal integrity, and reinforces its unified cultural identity by protecting it from outside attack and insurrection. The national reach and cumulative resources of the federal structure act as a sort of immune system for the American Republic and states comprising it. Numerous explanations, direct statements, and proclamations appear throughout The Federalist establishing an intention to create federalism and dual sovereignty. The holistic republic is reflected in the words of John Jay “…split into three or four republics…what a poor, pitiful figure America will be.”[22]

The analogy to state constitutions points toward two ends: 1) Weave the states and union into a complimentary federal structure and; 2) Define the location of sovereignty in the People. The Virginia state constitution of 1776, one of Publius’ analogs to the Philadelphia Constitution, in Section I says “…That all men are by nature equally free and independent, and have certain inherent rights.”  Section II establishes the element of popular sovereignty…”That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them.”  Section IV expands, “That the legislative and executive powers of the State should be separate and distinct from the judiciary; and that the members of the two first may be restrained from oppression, by feeling and participating the burdens of the people”.[23] If the state constitutions are analogous to the new national constitution, it follows by logic that many of the state’s constitutional design elements will be found in the general government and the American Republic. There is, in fact, striking design similarity between the various state constitutions and the Constitution being considered for ratification.

From these very first references, the Federalist is specifying quite discernable design elements of America’s particular form of republican government. We see a republic rooted in natural law, a republic beholden to a sovereign populace, and a republican structure ordered by separation of powers, a republican government subordinate to civil society, and a republic where liberty and civil society flourishes.   A review of other original state constitutions will reveal nearly identical design elements reinforcing the analogy between state and national republican principles. To be sure there are some differences in the nature of state constitutions such as their level of policy detail and their plenary references[24]. But these differences are not about fundamental political design. States and the proposed union shared certainly many if not most of the overarching constitutional elements.

Further along in Federalist No. 4, Publius makes his third key republican reference adding the design elements of size, contiguousness and political cohesiveness. “where as one government, watching over the general and common interests, and combining and directing the powers and resources of the whole, would be free from all these embarrassments, and conduce far more safety of the people.” In Federalist No. 10 written on November 22, 1787 by James Madison, we see the 22nd through the 33rd usages of the root word republic. The argument throughout this particular Federalist Paper is that factions invariably form in all republics. No. 9 made the case that some republics, such as petty ancient republics, are designed so as to meet their demise as the result of virulent and violent factionalism. In No. 10, the multiple references to ‘republic’ build an argument that the American Republic will be constructed so as to successfully mange factions and therefore ensure long term survival. “If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote ... When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passions or interest both the public good and the rights of other citizens.” Importantly, No. 10 also differentiates the American Republic from a democracy with the words, “The two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended.”   No. 10 also brings to the construction site of the American Republic the design element of geographic size, diversity of abilities, and varied composition of the citizenry. The republican blueprint presented for ratification claims to ameliorate the dangers of factions by incorporating into the republic the entirety of knowledge, skills, and abilities spread throughout all the land. Such incorporation, it is argued, provides ample talent for solving factional disputes. Small republics of lesser scope do not enjoy this protection. Extended size and reach also limits factional tyranny because the sheer multiplicity of factions act as offsetting forces. Assertions of the protective power of multiple factions return throughout The Federalist and most prominently in No. 51 awaiting us some distance on the horizon. No. 10 also more finely focuses the design of the American Republic by referencing historical evidence in support of the conclusion that the republic under consideration has the advantage over both democracy and small republics. The diversity of ideas, peoples, views, ambitions bring problem solving talent and multiple opportunities for conspiratorial activity counter one another. The closing paragraph defines another element of republican construction…”In the extent and proper structure of the Union, therefore, we behold a republican remedy for the diseases (i.e., factions) most incident to republican government.” By the close of No. 10, the American Republic is taking on a very specific character and identity.

No. 14 contains references 34 through 44. About 25% of all references to republic appear in the first 14 essays thus somewhat front-loading the Federalist exploration and arguments on the nature and meaning of republic. One cannot be sure that this placement is not just a coincidence. However, given the rhetorical skill, organized thinking, and precision of the authors, it is at least as likely that the placement is strategic. Given the nature of the debate and sophisticated rhetorical devices deployed, it is reasonable to conclude that blueprints and construction of a specific kind of American Republic was seen as essential to the remainder of the project. Quentin Taylor of Rogers University points out, “Neglecting the rhetorical essence of The Federalist is akin to forgetting that Shakespeare’s plays are dramas to be acted, not merely literature to be read. Accordingly, to recall that Publius writes as an orator, that his papers are a species of rhetoric, and that his political analysis is subordinated to practical ends, is to place The Federalist in its proper light…”[25] One can, with some confidence, conclude that strategic rhetorical structure is woven into the Federalist. No. 14 is a sometimes-sarcastic counter to the anti-Federalist accusation that the proposed national government’s administrative and political powers threaten to end state sovereignty. Anti-Federalist insistence that the proposed national powers be rewritten and reduced is met by abject refusal from the Federalist. Rather than relent and compromise, they put forth arguments for the absolute necessity of national powers as present in the Constitution as proposed. Madison asserts that the opponents are confusing and conflating the proposed republican form of government with ancient democracies. He helpfully explains that they have failed to properly differentiate between the natures and necessities of a republic and those of small simple ancient democracies… “A democracy, consequently, will, be confined to a small spot. A republic may be extended over a large region.[26] Next Madison repeats for emphasis and clarity, that the American Republic is dual in nature, is an exercise in federalism, and founded on shared sovereignty…”In the first place, it is to be remembered that the general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects, which concern all members of the republic.” [27]

Federalists No. 18, No. 20, and 22 make mention of the ancient republics of Amphictyonic council, Achean league, and a handful of others. The objective is to demonstrate that loose confederacies that are insufficiently bound together by weak overarching law and poor means of unification soon fall victim to factionalism and insurrection. These are fortifying arguments that the new American enterprise must contain, by design and intent, the entirety of the revolution’s participants. The danger of “foreign corruption” to the body politic is again presented as reason enough to encompass the whole of the states and entirety of the people into the republic. The danger of having a foreign entity adjacent and contiguous to the United States was to invite disaster, “…Evils (from foreign influence) of the description ought not to be regarded as imaginary. One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption.”[28]  Hamilton closes No. 22 with this…”Hence it is that history furnishes us with so many mortifying examples of prevalency for foreign corruption in republican governments.[29]” The American Republic was to include the whole of the revolution’s participants; it was not to be subjected to competing confederacies living next door to one another.

The winter morning of Thursday January 10, 1788 finds many of the citizens of New York warming their feet and reading the Daily Advertiser wherein the ink is just drying on Federalist No. 29. The anti-Federalists are continuing to attempt to defeat the constitution by attacking certain provisions, most specifically Article I, Section 8, calling for the general government of the United States to raise armies, maintain a navy and declare war. Here again as on other provisions, rather than compromise Hamilton digs in to defend the Constitution that exited the doors of the Pennsylvania State House on September 17th 1787. He defends the military provisions using two methods of attack on the objections. First, he dismisses the opponents as acting in a spirit of jealousy….”By a curious refinement upon the spirit of republican jealousy, we are even taught to apprehend danger from the militia itself, in the hands of the federal government.”   Hamilton presents a second argument in favor of keeping the Article I, Section 8 military provisions by pointing out that the opponents confuse the armies and navies of King George with the armies and navies that will be manned by America’s own sons. He implies that this central difference changes the character and allegiances of the military. Changes that, when properly evaluated, accrue to the safety and benefit of both the union and the states. By the end of No. 29, the Federalist has incorporated a nationally controlled standing military as a key design component of the American Republic. Successfully keeping a national military as part of the republic rested on the cumulative arguments that: 1) The republic was in danger of external attack; 2) Each sovereign state was in danger of facing factional insurrection and; 3) That the character of an American military was distinctly different and safer than that of the British army to which the colonies had been accustomed. Accumulation is a key rhetorical device employed by Publius throughout.

References 57, 58, and 59 to ‘republic’ appear in Federalist 34. No. 34 revisits the question of how taxes and revenue will be collected and allocated in the American Republic. References 57 and 58 are incidental looks at past Roman republics claiming that their political structure was somewhat analogous to that of American federalism and therefore a dual taxing scheme for a dual-sovereigns republic will be workable. His logic apparently being ‘it worked for them it ought to work for us’. Another argument justifying dual taxation put forth in No. 34 is that the general government will be frugal thereby leaving behind reasonably achievable revenue for the states. The exact source of this claimed American frugality is, according to Hamilton, the more Spartan-like and simple sensibilities arising from colonial life and the hardships of building a society from the hash wilderness. American self-denial and self-discipline is juxtaposed against the officious and expensive grandeur of various egocentric monarchies. Dual taxation becomes a design element of the republic.


References to Republic in The Federalist Nos. 37 – 84

The conclusion of Federalist 36 brings with it a significant point of demarcation in the project to construct the American Republic. The necessity of the Union has been established. In these first thirty-six essays, the Federalist architects laid the American republic’s foundation on natural law, liberty, and a civil society conducting its affairs largely removed from government. On this foundation they built a superstructure comprised of a republic containing the entirety of the revolution’s participants, a federal structure of dual government, a distinct, if not complete, separation between functional parts, a cooperative republic that combines its members to defend the whole against foreign enemies, a republic of widely varied and diverse talents and abilities emerging from a far flung land, a republic based on dual taxing powers, a republic of people whose voice is expressed by representative government, in short a republic that stands on sound theory and very precisely delineated political concepts.

Federalist No. 37 forward begins to construct an argument for the merits of the Constitution. The Federalist architects walk through the doors of the standing superstructure built in Nos. 1 -36 and begin to install functional utilities throughout to accommodate the operations of practical governance. Although Federalist No. 37 through No. 85 will often reference and revisit the preceding foundational theory, history, and political conceptualizations, the primary work going forward is to wire the Republic for full operational use and convince the citizens, through practical re-assurances, that the general government is appropriate for normal politics and administration.

Energy and administrative wherewithal is required to operate a government, particularly one as far reaching as that proposed in The Federalist. Energy, authority, and stability for the national government pose a potential threat to state governments and their political leaders. On the part of the anti-Federalist there seems to be an understanding of the need for an over arching republic that protects and provides economic synchronization. On the other hand there is anxiety that their sovereignty and authority will be significantly weakened. One comes away with the feeling that the anti-Federalist wanted to build it but never throw the switch of actual administrative and political operation. They would eventually resolve these anxieties with the Bill of Rights. Throughout the 1787 – 1788 arguments in favor of the Republic, The Federalist authors had to present their plans in way that would ensure the eventual approval by the states and the people in the form of Constitutional ratification. Addressing his opponents fears of infusing the new government with significant energy Madison writes…”Among the difficulties encountered by the convention, a very important one must have lain in combining the requisite stability and energy in government, with the inviolable attention due to liberty and to the republican form of government…Energy in government is essentialto…security against external and internal danger.” The American Republic emerging from The Federalist is to be one infused with substantial energy, in the executive in particular. Energy is a much-explored concept throughout The Federalist. That energy can best be described as the personal motivation, institutional authority and administrative wherewithal to execute the responsibilities of operational governance.

Federalist No. 39 contains more references to republic than any other single paper. Here, we see fifteen references (63 through 77) to some form of the root word republic.   Thus, No. 39, helps further define the essence of the American Republic. It unequivocally establishes: 1) The proposal presented for ratification is strictly republican and; 2) The American Republic has a detailed design and a nature that distinguishes it from all other republics ancient and modern. Madison goes on in No. 39 to differentiate between the accidental, elusive and dissimilar republics from the intentional and specific American Republic[30].   He delineates the irreducible elements of the Republic as: 1) Powers derived directly or indirectly but at all times, from the people; 2) Office holders serving strictly at the pleasure of the voters for time-limited terms; 3) Absence of titles of nobility (by which one would reasonably conclude an absence of nobles and elites); 4) Preservation of modified federalism, dual sovereignty, and division of powers and; 5) A general government of constrained and enumerated power. Each of these provisions is explored in some detail bringing front and center the representative design that ensures the operation of natural law and liberty, the essence of which is a society whose members direct their own lives subject to the principle pacto sunt servant, agreements must be kept.

After Federalist 39, the meaning and nature of the American Republic is expanded, enlarged and reinforced. Federalist No. 51 introduces an important republican principle, that of legislative supremacy. “In REPUBLICAN government, the legislative authority necessarily predominates.   The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action as little connected with each other…” Here we see very specific elements of operational design. In this republic, power is to be countered and offset by adding checks and balances to the legislative design. Introduced are bicameral bodies, differing terms of office for each body, and divided legislative responsibilities.

Between Federalist No. 40 and Federalist 69, numerous references are made to republic, republican, and republicanism. These references take on the task of coupling certain political, economic, and legal concepts to the Republic. For example, No. 43 explains the positive attributes of creating time-limited property rights for inventor as reward for their creative effort. The Article I, Section 8 clause regarding patents and copyrights is referenced for emphasis, “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. Here the American Republic, relying on the antecedents in British common law, is directly linking itself to the emerging economic enterprise of industrial capitalism. One can see the pen of Adam Smith behind the scenes, “The natural effort of every individual to better his own condition…is so powerful, that it is alone, and without any assistance, …capable of carrying on the society to wealth and prosperity.” These comments in No. 43, Article I, Section 8, and publication of the Wealth of Nations in 1776 taken together make it more than plausible, even likely, that Publius means to incorporate into the Republic the means to compete in the dawning industrial world stage. Many of the design elements of the republic are the very definition of the industrial republic. Liberty, free association, property rights, rule of law, contract obligation, patents, copyrights, commercial coordination, regulation of commerce, capital formation and banking, are in play throughout the Founding and in particular in The Federalist. Political design and economic design are two sides of the same human coin. The nexus between the two is direct and virtually always present. This is because the operational principles of both economic and politics are at the heart of the human journey implicit in declarations of natural law.

The last of the Federalist Papers to extensively reference the terms republic, republican, and republicanism is No. 70 where we see some thirteen references. Here, Hamilton is arguing for, and defining the terms of, executive authority in the new republic. Repeatedly deploying the term energy, he unabashedly pursues a powerful executive office in the general government with phrases like “Taking it for granted, therefore, that all men of sense will agree in the necessity of an energetic Executive…” . Once again he turns to the rhetorical device of slyly painting those who would disagree as not having good sense. The anti-Federalist sought to water down the executive by establishing an executive committee. Publius shoots down the proposal for a plural executive by recounting the failures, divisiveness and dissensions created in Roman republics that attempted to govern with consuls and tribunals. Hamilton asserts, “A feeble executive implies a feeble execution of government.”

References to republic and republicanism, in the remainder of The Federalist continue to build the case for a strong executive. Hamilton constructs the energetic executive office for the general government by justifying the various sections of Article II. In particular he argues for duration of four years. Duration was a contentious issues given that lifetime hereditary rule was considered one the more oppressive components of monarchy. Hamilton also argued for the power of veto in the executive as protection against a runaway legislature. He further argues that the veto, in this well-designed republic, is not likely to be abused given that the executive is elected and serves for a temporary period. By the end of No. 73, Hamilton has thoroughly constructed the executive that will serve the American republic.

In No. 77 Hamilton defines and defends the nature and role of the Senate in the republic. The primary role of the Senate is to act as a sort of watchdog over the executive. This is to be accomplished by the power of appointment confirmation, veto override authority, and ultimately the power to conduct impeachment hearings. In No. 79 he introduces the argument that, in this republic, members of the judiciary should be long serving, well past sixty years of age. It was the law in New York and common practice elsewhere for judges to be age limited. No. 84 is the miscellaneous catchall for dispensing with the remaining objections and where we see the last references to republic. Titles of nobility are banished from the republic in 84 thus bringing to an end the 156 references to republic, republican, and republicanism.

Taken in its entirety, The Federalist is a powerful rhetorical onslaught. The sheer offensive thrust of the arguments tends to overwhelm the senses and overload cognitive capacities. The result is that the attributes Publius seeks to build into the design of the American Republic are presented repeatedly and relentlessly. The arguments seem arranged to leave the most intellectually prodigious opponents without a viable rebuttal and simply exhaust all the rest. From the eighty-five chapters of the Federalist, the American Republic emerges complete and whole.



The purpose of this paper is to find the meaning, nature, and design elements of the American republic as expressed in the Federalist Papers. I have attempted to extract the Founding definition of the American Republic as intended by the Founders. At this point, I shall declare the task successfully accomplished. I have identified 156 references to the root word ‘republic’ in The Federalist Papers. They occur in thirty-two of its eighty-five essays. The methodology was to perform a content analysis of the Federalist Papers, specifically to count and isolate the occurrences of the words republic, republican, and republicanism. Having identified the placement and number of usages, each occurrence was explored in its position and context to determine how it was used, why it was used, and to ascertain what role, if any, the usage plays in defining the American Republic. What emerged was a distinct and uniquely identifiable meaning of republic as intended by Founders of the United States. The Federalist Papers began by laying its foundation on the theory of natural law and human liberty and proceeded to build on that foundation a republic possessing a specific character and unique set of attributes. They constructed an operational government structure in keeping with that theory and character.

This finding is not particularly surprising. History, at least the “old” meaning of history as a recounting and recording the past, has long reported such. The paper was not undertaken to reveal a newly discovered Republic in The Federalist Papers. Rather it was undertaken in response to what I believe to be a hundred-year effort to erase the Founding Republic from the pages of time. This erasing of history has been a long and extensive first step toward replacing the original republic with an authoritarian administrative state. These efforts, whether appearing under the guise of the living Constitution, historicism, or the new social science, are being insufficiently countered by those inclined to retrieve the constitutional republic. We live not in the age of the living Constitution but in the age the dying Constitution. The rising tide of angry response to this brave new world of unelected authority, extra-legislative law making, pseudo-expertise and administrative rule is encouraging. The case for resurrection of civil society, individual liberty and personal responsibility needs to be advanced by a broad range of advocates and defenders. The case also needs to be made with more popular appeal and passionate commitment. Pulse-pounding emotional appeals to revisit Founding principles may not necessarily carry credibility, particularly with the elite and highly learned. However, dry tomes of information and data devoid of all emotional connection and threads of common allegiance do not compel the necessary political action. Politics encompasses both the mind and the heart and the future of the republic rests on finding the right balance.

Implicit in the Federalist Papers is this important truth: Our original American civil society was built on the political principles, economic structures, and social arrangements delineated in a triad of documents: The Declaration of Independence, The Constitution, and the Bill of Rights. The principles, structures, and arrangements in them transcend the American Revolution. These principles and lessons are to be found in thousands of years of hard and painful human experience. John Locke, Montesquieu, Mill, and other great political philosophers, reflecting on this long experience, distilled the lessons of humanity into a new political and economic framework. The Founders build on this framework to produce the world’s first truly free thoughtfully designed civil republic. Over the last hundred years and most especially over the last forty years, this civil republic has been unwound and replaced with something quite different. Many have had, and continue to have, a hand in this replacement including many in the academy, the media, public education, and vast expanses of our body politic. It may be that progressive university scholars, power wielding government bureaucrats, and postmodern media messengers offer a better and braver new world for us all. It is possible that we will eventually drop to our knees in admiration and thanks for the great good society they promise. However, those many among us anxious for this new progressive promise land might well heed the words of Omar Khayyam’s The Rubaiyat :

The Moving Finger writes; and, having writ,

Moves on: nor all thy Piety nor Wit

Shall lure it back to cancel half a Line,

Nor all thy Tears wash out a Word of it.






[4] The early Progressives admitted their assault on the Constitutional republic. Both early and contemporary Progressives likely believe the assault necessary to the greater good and few of them are ill-intended. The Progressives and I just disagree, rather markedly, on the means to and nature of the greater good.

[5] Survey of state and district polices from the Education Commission of the States, National Center for Learning and Citizenship

[6] Survey of state and district policies from Education Commission of the States, National Center for Learning and citizenship –

[7] The Myth of the Modern Presidency, David K. Nichols, Pub. 1994, p. 15

[8] A Living Constitution or Fundamental Law: The Critique of Constitutionalism in the Progressive Era, Herman Belz

[9] “A More Perfect Constitution: 23 Proposals to Revitalize Our Constitution and Make America a Fairer Country.” Larry Sabado.

[10] Interpreting the Founding, Alan Gibson, Chapter 2, page 10

[11] Ibid, Chapter 7, pages 72 – 76

[12] Ibid, Chapter 7, page 66 “Remembering the Ladies”

[13] An authoritarian administrative state rules primarily through governmental bureaucratic fiat with law making and law enforcement both flowing from the executive branch of the government largely rendering the legislative function an advisory body setting guidelines.

[14] See

[15] See

[16] Method of analysis was to apply the “Find” tool in MS Word 2011 to each individual Federalist Paper using the search term “republic”.

[17] Ratification: The People Debate the Constitution, 1787-1788, Pauline Maier, “ The Cost of Victory, pages 64 – 69.

[18] Federalist No. 1, par 6

[19] Ibid

[20] A deep and thorough exploration of the definition of liberty and its connection to the theory of natural law is beyond this brief paper. This fact notwithstanding, the meaning of natural law and liberty as the foundation of the American Republic is implicit in the Federalist Papers and the Constitution they incorporate. One need merely take a half step prior to the Federalist papers to the Declaration of Independence and a half step after the Federalist Papers to the Bill of Rights to grasp the essence of liberty in the American Republic.

[21] Federalist No. 1, par 8

[22] Federalist No. 4, par 16

[23] Virginia State Constitution, 1776


[25] Publius and Persuasion: Rhetorical Readings of the Federalist Papers: Anamnesis, A Journal for the Study of Tradition, Place, and Things Devine, originally published Fall 2002, The Political Science Reviewer.

[26] See Federalist 14, paragraphs 1, 2, and 3

[27] Ibid, par 8

[28] See Federalist 22, par 12

[29] Ibid par 14

[30] See Federalist No. 39par. 3

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An Inquiry: Does the Ninth Circuit And Board of Immigration Appeals Invites Violent Criminals to the US


The Nature and Parameters of the Research Inquiry

This paper explores two broad questions: 1) Does the federal judiciary seek to impact or change duly passed congressional legislation and, 2) If so, how does the Congress react to these judicial initiatives. The underlying assertion is that key members of the judiciary attempt to deconstruct, rewrite or change congressional legislation, either for reasons of sound jurisprudence or because they personally disagree with Congress’s policies. This thesis is explored through a case study of a landmark Congressional Act, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Specifically, one section of the Act is the focus and is followed from its initial floor debate to final passage, implementation, and finally to judicial reaction.

Congress passed the IIRIRA, which was the most comprehensive immigration reform since the Immigration and Nationality Act of 1952. One key objective of the Act was to stop re-entry after deportation[1] by criminal aliens; that is, aliens who have been deported or removed on the basis of having committed a serious crime known as an aggravated felony. The Act expanded the definition and type of offense considered to be an aggravated felony and increased the severity of sanctions for re-entry by previously removed criminal aliens. An alien in removal proceedings who has been convicted of an aggravated felony on or after November 29, 1990, may be sentenced to up to 20 years[2] in prison for re-entry in violation of the removal order. This enhanced deterrent to illegal reentry is known as USC 1326, Section 2.

The Act, through the U.S. criminal code, names a significant number of crimes and classes of crimes considered to be aggravated felonies that could trigger 1326 incarceration sanctions. The list of crimes reads as follows:

[1] The term deportation was replaced by the term removal in the 1996 Act. There are some technical differences between the two terms but, for the purposes of simplicity, this paper uses the terms interchangeably unless otherwise noted.

In the years since the passage and implementation of the Act, the Ninth Circuit Court of Appeals has rendered a significant number of decisions eliminating or weakening many of these crimes as a basis for removal in deportation hearings and for prosecuting criminal aliens for re-entry after removal. The result of this elimination has been to effectively deconstruct a portion of the landmark Act. A number of Ninth Circuit Court decisions seem to be, at least in part, based on the personal policy predilections of the judges rather than on jurisprudential considerations. There is evidence for this assertion. For instance, Ninth Circuit Judge Stephen Reinhart said in a debate with Circuit Judge Alex Kosinsky that he “sees the ‘little alien’ and ‘big government’ and is often inclined to favor the little alien.”[1] This may be a heartwarming sentiment, but it is not sound jurisprudence.

Through exploration of the Congressional Record, case law, interviews and other original sources, I establish that Congress passed valid immigration legislation to execute its specific intent to expand and strengthen laws directed at criminal aliens. Next, I establish that the executive legally and appropriately administered the new law and that the Ninth Circuit Court of Appeals then began to deconstruct parts of the law. In the conclusion, I pose the question, “Does Congress attempt to defend its legislation from encroachment by the Court’s actions?”


Primary research and source material comes from government records and from notes of personal interviews with judges, a congressman, and attorneys. These sources include an extensive review of the Congressional Record to establish the Congress’s intent when it passed the Act and the criminal alien re-entry sanctions portion of the Act. The review includes studying floor debates and extensions of remarks. I also rely on notes from my personal 1995 conversations with Congressman John Hofstettler of Indiana about his views on the immigration reform efforts of the 104th Congress (1995 – 1996). My description of group-illegal-entry in the form of “bonsai runs” is taken from newspaper accounts in the San Diego Union-Tribune and from my notes as an eyewitness.

Primary research on the early implementation and application of the “aggravated-felony-based deportation” section of the IIRIRA is taken from my notes of interviews with immigration judges, notes from conversations with the U.S Attorney for the Southern District of California during the mid-1990s, INS attorney interviews, interviews with the members of the immigration bar, and emails exchanged between these officials and me. Research on the response of the Ninth Circuit Court of Appeals is taken from reviews and accounts of circuit court opinions of appealed removal decisions rendered by immigration judges. I also rely on notes from my personal conversations with immigration judges regarding their efforts to administer the law in light of appellate court intervention. Additional information and data comes from think-tank accounts[2] of decisions by the Board of Immigration Appeals, as well as scholarly articles on the IIRIRA legislation.

A database of rhetorical comments by members of Congress was built from the Congressional Record. This database was created by first counting all rhetorical incidents of support and all rhetorical instances of opposition listed from search terms used in reviewing the Congressional Record for the 104th Congress. The result was 28 floor comments in support and 19 in opposition. This population of 47 remarks breaks down to 59% support and 41% in opposition. Not all 47 remarks could be included here as evidence. A sample of member remarks was randomly drawn from the population in a 3:2 ratio of supporting remarks (9) to opposing remarks (4). This allows the member comments included here to reasonably and accurately represent the total remarks made from the floor over the life cycle of the legislation.

In general, a descriptive, historical, and qualitative approach has been taken because it yields substantial information regarding legislative intent, executive action, and court response. The acquisition of data and information in these particular subject areas is achieved most readily by close examination of original documents and review of rhetorical records, rather than by strictly statistical measures and equation-based hypothesis testing. While a largely qualitative approach may introduce some subjectivity into the conclusions and revelations, it nevertheless provides insight and understanding into the multi-faceted and subjective area of Congressional-Court dynamics regarding judicial impact on valid legislation.

Literature Review

            Research into the general area of the contemporary political relationship between the Congress and the Courts on criminal aliens is limited. Studies that do exist are found almost exclusively in the disciplines of social science and law and are from scholars writing in immigration journals or law reviews. Scholarly literature that is specifically focused on the 1996 Act, its application by the executive, and appellate court reaction is virtually non-existent. Research from the field of political science into specific causes and dynamics of the Ninth Circuit Court’s response to the IIRIRA does not exist. This paper will be the first.

One of the most recent authoritative pieces of literature on the general nature of Congressional – Court relationships is The Amorphous Relationship between Congress and the Courts by Michael A. Bailey, Forrest Maltzman, and Charles R. Shipman published in the Oxford Handbook of Congress. Michael A. Bailey is the Colonel William J. Walsh Professor of American Government in the Department of Government at Georgetown University and teaches at the McCourt School of Public Policy there. Forrest Maltzman is a professor of political science at Georgetown University. Charles R. Shipman is the Ira and Nicki Harris Professor of Social Science at the University of Michigan, where he holds appointments in the Department of Political Science and the Ford School of Public Policy.

Isabel Medina did the only scholarly work that mentions the narrow area of the aggravated felony portion in the IIRIRA. Her work titled “Judicial Review – A Nice Thing – Article III – Separation of Powers and Illegal Immigration Reform and Immigrant Responsibility Act of 1996” addresses the effort by the INS and DOJ to get Congress to eliminate Article III Courts from reviewing their agency decisions. Medina includes a brief reference to the aggravated felony provisions of the Act.

Austin T. Fragomen, Jr., presents an analysis of the legal impact of the new law on various classes of foreign nationals in the United States. His article “Illegal Immigration Reform and Immigrant Responsibility Act of 1996: An Overview” was published in The International Migration Review in the summer of 1997.[3] Lina Newton, Associate Professor of Political Science at Hunter College, has written about the field of immigration reform publishing a scholarly book, Illegal, Alien, or Immigrant: The Politics of Immigration Reform (2008). Newton’s book is a critique of immigration policy as nativist and implies that there is more than a little irrationality and prejudice behind policies that restrict open entry into the country. She expresses her views with authority and factual support and makes vivid arguments despite her significant tilt toward open borders and loosely restricted entry.

While these works direct themselves toward the issue of immigration reform and congressional action in general, they do not explicitly explore the relationship between Congressional legislation and the Court’s response to that legislation. As a result, the political and legal relationship between Congress and the Courts is an inviting area for additional research and inquiry. A body of literature on this general relationship could form the foundation for more narrowly tailored research on specific pieces of legislation and court challenges to them.

The 104th Congress’ Intent with Regard to the Removal of Criminal Aliens

Exploring and establishing Congressional intent behind the aggravated felony provision of the IIRIRA is the first step toward understanding what happened in the courts in the years after passage. The bill was created, debated, and passed by the 104th Congress. Illegal entry into the United States had been a growing issue since the so-called “bonsai runs” of 1992 and 1993. Hundreds of foreign nationals would gather on the Mexican border at the head of Interest Highway 5 in San Ysidro, California.[4] On a given signal, as many as 500 would charge the American border, running down I-5, overwhelming the border patrol and thereby successfully entering the country in violation of law and without inspection.[5] According to the San Diego Union-Tribune, hordes of immigrants regularly stormed the border, startling and endangering drivers on I-5.[6] These bonsai runs would spontaneously arise and occurred frequently, thus creating public concern.

A number of illegal entrants gaining entry through these bonsai charges later committed serious, often violent, crimes against American citizens. A House Judiciary Committee report on the history of illegal immigration released on May 22, 2014, by Chairman Bob Goodlate reveals that of the 35,318 criminal aliens released between 1994 and 1999, 37% had been convicted of another crime in the United States by 2000.[7] Their crimes ranged from burglary to rape to murder. These criminals would serve time in prison then be deported back to their country of origin. However, they would promptly and repeatedly return to the United States in violation of their removal orders then commit additional crimes. Before the 1996 Act, they faced little or no legal sanction for violation of their removal orders and, therefore, continued to repeatedly re-enter the country in violation of deportation orders. Large-scale illegal entry in general, and re-entry by criminal aliens in particular, became a serious issue and area of political interest.

Given this environment, several members of Congress responded by making illegal entry in general and criminal aliens in particular a campaign issue. The 104th Congress reacted by passing the Immigration Reform and Immigrant Responsibility Act that included expanding the aggravated felony law to include an extensive list of serious crimes that could be used to trigger deportation based on criminal conviction.[8] The Congressional Record for the 104th Congress reports floor debates and extensions of remarks that reveal the intent behind the new aggravated felony law. Floor debates often become mired in arcane discussions of rules and procedure. It is the rhetoric in the extension of remarks in which one finds a more direct and open professing of intent by legislators. Therefore, this paper primarily explores the extension of remarks portion of the Congressional Record to establish intent.

The bill’s sponsor, Texas Congressman Lamar Smith, introduced the 1996 Immigration Act, also known as HR 2202, on August 4, 1995.[9] The bill had 129 bi-partisan co-sponsors.[10] Such significant levels of co-sponsorship indicate an institutional predilection toward an intent to support the general premise behind a bill in consideration. As Krutz (2005) notes, the likelihood that a measure receives serious attention is reflected in the number of legislators that endorse the measure through co-sponsorship. [11] Given this widespread endorsement through co-sponsorship, it is likely that the intent of Congress as an institution will be reflected in the floor remarks of individual members.[12]

Mr. Smith, while speaking to the Committee of the Whole House on the State of Union on Friday, February 10, 1995, said, “An increasing amount of crime is being committed by non-citizens: both legal and illegal aliens. About 25 percent of all Federal prisoners are foreign born. An astounding 42 percent of all Federal prisoners in my State of Texas are foreign born. Recidivism rates for criminal aliens are high – a recent GAO study revealed that 77% of noncitizens convicted of felonies go on to be arrested at least one more time.” He continues his address to the Committee of the Whole House with, “The Bureau of Prisons estimates that over 75% of noncitizen inmates are confined for drug law violations… Because of the porous nature of our border, drug traffickers who are deported…come back across the border into the United States.”

In another section of the Congressional Record for the 104th Congress, Mr. Smith says, “The Criminal Alien Improvements Act of 1995[13] further expedites the deportation of criminals after they have served their sentences…this bill increases the list of aggravated felonies for which an alien can be deported as criminal aliens.” Congressman Smith lays out the intention of the legislation as being generally directed at preventing repeat crime by previously deported criminal aliens. This expressed intent connects directly with the public’s concern over illegal entry and the “bonsai runs” of the early 1990s. The intent revealed in the record can be seen as an attempt to deliver on campaign promises to stop illegal re-entry, especially by previously removed criminal aliens.

Several co-sponsors of the IIRIRA are in the Congressional Record speaking about the problem of criminal aliens re-entering the country. The concern expressed from the floor was often related to the re-entry of criminal aliens almost immediately after their receiving a removal order from an immigration judge. Congressman C.W. Bill Young rose to speak on February 10, 1995, to address the issue of illegal alien crime. He said, “The legislation we consider today makes several amendments to the Immigration and Nationality Act and other immigration laws to address the problem of aliens who commit serious crimes while they are in the United States…[this] give[s] federal law enforcement officials additional tools with which to combat…immigration [related] crime.”[14]

Congressman Randy Tate rose to speak on January 25, 1996, in favor of the IIRIRA. He said, “The Immigration and Naturalization Service estimates that 300,000 people enter the United States illegally every year, and 3.8 million currently live in this country illegally.[15] These people are taking advantage of American generosity and openness without regard for our laws or principles…[This] is at the expense of those [legal entrants] who choose to play by the rules and come to America legally. I am supporting legislation to end this madness. Mr. Speaker, I urge my colleagues to support this legislation and to stand up for integrity.”[16] Later in the 95-96 session, Congressman Hyde spoke in favor of the new immigration law on March 19, 1996. He said, “…immigration reform is one of the most important legislative priorities facing the 104th Congress. Today, undocumented aliens surreptitiously cross our border with impunity….The 104th Congress can make an unprecedented contribution to the prevention of illegal immigration as long as we have the will to act. H.R. 2202 provides for…greater deterrence to immigration related crime…and expeditious removal of persons not legally present in the United States.”[17] During another floor debate, Congressman Gallegy rose in support of HR 2202 by saying, “The primary responsibilities of any sovereign nation are the protection of its borders and the enforcement of its laws. America is a nation of immigrants…and at its core celebrates legal immigration.”[18] Congressman Julian Dixon spoke on January 5, 1996, saying, “…one of the most important changes in INS procedures was…the decision to expand and accelerate the procedure for holding formal deportation hearings …for those who had served time on criminal convictions.”[19]

Near the end of the debate on the IIRIRA, Congressman Bill McCullum of Florida rose to speak on the issue of adjudication of deportation matters. He said, “I believe it is time…to establish a full-blown adjudicatory system in statute [for immigration hearings].” Mr. McCullum’s objective, albeit unsuccessful, was to include amendments moving the Immigration Court from agency supervision and management to Article I status. [20]

Member commentary in the Congressional Record supports a conclusion that Congress intended to inhibit re-entry of criminal aliens who are deported on the basis that they were convicted of serious crimes known as aggravated felonies. The product of that intent was USC 1326, Subtitle B – Criminal Alien Provisions, Section. 321 through Section 324 (penalty for reentry of deported aliens). The subtitle and these sections were part of the Conference Report on H.R. 2202 that was passed and became popularly referred to as the IIRIRA.

Despite the wide support for the IIRIRA and an intention to expand sanctions against illegal re-entry, the Congressional Record also reveals opposition to significant portions of the bill. In fact, as mentioned in the section on methodology, 41% of member floor comments spoke in opposition to certain sections of the proposed legislation. Congresswoman Maxine Waters rose to speak on March 26, 1996, saying, “I am well aware of many of the problems and economic concerns with illegal immigration. H.R. 2202 is an extreme measure that not only attempts to stop illegals from crossing our borders—often in unworkable and repressive ways—but also limits many…family members from joining us in America. I support securing our borders with more agents, better equipment, and sturdy barriers…but I vote no as to final passage.”

More opposition was expressed by Congressman Chrysler, who rose on March 20, 1996, to speak on the Chrysler-Berman amendment[21] by saying, “It is simply wrong that this immigration reform bill prohibits adult children…from immigrating to the United States. That’s right. Under this bill no American citizen will be able to apply for a visa for their close family members…Mr. Chairman, in a country of 260 million people, 700,000 legal immigrants is not an exorbitant amount. We are all immigrants and descendants of immigrants…”[22]

Next, Congress Berman spoke in opposition to the bill and in favor of his amendment by saying, “Mr. Chairman this debate is really about one’s vision of America. I think it is fundamentally wrong to take the justifiable anger about our failure to deal with the issue of illegal immigration and piggyback on top of that anger a drastic…40 percent cut in permanent legal immigration. Preserve the existing system. Do not tear it apart.”[23]

All of these remarks for and against various elements of the Act reveal a significant fact regarding the congressional intent behind the passage of the criminal alien re-entry portion of the law. The varying arguments and remarks on H.R. 2202 (IIRIRA) share a common trait: None of them oppose the section tightening the sanctions on criminal aliens who re-enter in violation of their removal order. The intent of Congress with regard to criminal alien removal based on an expanded list of aggravated felonies was clear: Tougher penalties for subsequent re-entry was an area of total agreement. The next step in understanding what happened to the IIRIRA and its aggravated felony provision after passage is to examine how the executive applied the act in the years immediately after passage.

 Application and Implementation of the IIRIRA and USC 1326

             Congress expressed a clear and unambiguous intent to strengthen and expand sanctions against criminal aliens who had committed serious crimes against United States citizens. After passage of the Act, the Department of Justice and Immigration and Naturalization Service[24] became responsible for promulgating rules and regulation and for administering criminal alien removal. During the first few months, deportation based on conviction for an aggravated felony and prosecution for re-entry in violation of that deportation order was unencumbered by appellate court decisions. The law was working largely as intended by Congress.

The Immigration Courts[25] were mindful of possible challenges to deportation orders that had been based on aggravated felonies. They took significant steps to secure their decisions against constitutional challenge. Given the severe sentences for those convicted of re-entry on the basis of a removal order, criminal alien respondents were afforded enhanced due process at their removal hearing in Immigration Court. The Immigration Courts held training conferences to instruct judges in the adjudication of removal cases under the Act.[26] Specific guidelines were provided that compelled notification requirements when a removal order was based on the newly expanded aggravated felony provisions. Each respondent who was issued a removal order based on the commission of an aggravated felony was to be given on-the-record advisals that illegal re-entry carried the possibility of long prison sentences. Immigration judges, as a matter of procedure in each hearing, began issuing these advisals to ensure due process notification of the consequences for violating the order.

United States Attorneys were provided tight guidelines for the prosecution of cases involving illegal re-entry after deportation by criminal aliens. These activities demonstrated that the 104th Congress had operationalized its intent to remove criminal aliens and stop their illegal re-entry. It had not equivocated. USC 1326 stated, “[A removed alien] whose removal was subsequent to a conviction for commission of an aggravated felony, such alien shall be…imprisoned for not more than 20 years.”

The IIRIRA went into effect on September 30, 1996, with the Immigration Courts seeing the first removal hearings based on the commission of aggravated felonies in the last three months of 1996. In early 1997, the U.S. Attorney’s Office began to criminally prosecute its first illegal re-entry cases under the new law. By early 1999, the first cases challenging immigration judges’ orders removing criminal aliens were decided by appellate courts. Courts also begin responding to challenges to U.S. Attorney 1326 criminal re-entry prosecutions.

Many—perhaps most—immigration lawyers specialize in defending aliens who are in deportation or removal proceedings before the United States Immigration Court. Aliens in deportation and removal proceedings are in civil, not criminal, proceedings. The civil penalty for illegal presence is removal. These aliens usually acquire illegal status by entering without inspection, attempting to enter with false papers, or overstaying a temporary legal status. If these aliens are deported, they are prohibited from legal entry for five years. If during these five years they re-enter in violation of the order, they face criminal prosecution and up to one year incarceration for re-entry although U.S. Attorneys rarely charge them. Instead, the U.S. Attorney simply lets the violator face another removal proceeding in Immigration Court. Under the IIRIRA, those aliens who were removed for illegal presence and who also were convicted of an aggravated felony while present face additional sanctions, including up to 20 years in prison. Immigration judges were removing criminal aliens and U.S. Attorneys were prosecuting these criminal aliens for re-entry, just as Congress had intended under the new aggravated felony provision. This is a classic example of how the American government is designed to function. An issue of public concern had arisen; that is, the illegal entry and commission of violent crimes. Congress responded with campaign promises, debate, and legislation. The executive was implementing the law as intended by Congress. However, this functioning was derailed, at least partially, by the decisions and opinions of judges in the federal courts, most particularly the Ninth Circuit Court of Appeals. Depending on how one views the evidence, this derailing was either appropriate jurisprudential intervention based on constitutional considerations or inappropriate judicial activism meant to engineer social norms.

The 9th Circuit and Others Respond to Congressional Intent Expressed in IIRIRA 1996

The Ninth Circuit’s dislike of Congress’s enhanced criminal alien sanctions quickly arose. This dislike is in harmony with several of the criticisms launched from the legal academic community. Together, academics and the Ninth Circuit began to form the nucleus of a reactionary response to the new law. Nancy Morawetz, when writing in the Harvard Law Review, opined that, “…with regard to deportability and eligibility for relief,[27] the most publicized aspect of the new laws is their Alice-In-Wonderland-like definition of aggravated felony.”[28] The essay argues that the effort to develop a per se list of offenses that mandate deportation is fundamentally misguided.”[29] Morawetz and others criticize those circuits that uphold Congressional intent of the law while embracing the one circuit that unwinds the law. She writes, “…the Third Circuit has held that a conviction for the…crime of petty theft under New York law with a one year sentence constitutes an aggravated felony under the immigration laws.”[30] Few criticisms of the Ninth Circuit decisions striking or limiting the new law can be found prior to 2002. One cannot say for sure if the Court is taking cues from legal academics, but their respective themes converge quite nicely and the correlation is noteworthy. In a 2002 case before the Circuit, a native of Guatemala pled guilty to two separate second-degree commercial burglary charges. Homeland Security issued a Notice To Appear,[31] thereby commencing removal proceedings. The court decided that this burglary was not an aggravated felony by commenting that “…entering a commercial building with the intent to steal items therein was not, as a matter of law, a ‘substantial step’ supporting conviction for attempted theft.”[32]

In another case, Chavez-Solis v Lynch in 2015, the panel could not seem to find possession of child pornography an aggravated felony. In 2011, after pleading nolo contendere to charges of possessing child pornography in violation of California’s penal code, Mr. Chavez-Solis was sentenced to 150 days imprisonment. Subsequently, the Department of Homeland Security charged him with removability as an alien convicted of an aggravated felony. But the Court determined that his conviction did not qualify as an aggravated felony. Their decision was based on what they said was the California law’s vagueness and overly broad construction.

The Ninth Circuit is not the only appellate body that is inclined to free convicted criminal aliens from the shackles of the aggravated felony designation. The Board of Immigration Appeals, which is the first level of appeal from deportation and removal orders, almost immediately begins to make decisions reversing Immigration Court applications of the aggravated felony provision. Board Members Cecilia Esponza, Lorry D. Rosenburg, and Gustavo Villageliu concluded that “…appellant Melanie Beaucejur-Jean’s crime “does not constitute a crime of violence and is not an aggravated felony subject to deportation guidelines.” And what was Beaucejur-Jean’s crime that these three said did not constitute a crime of violence? Beaucejour-Jean had been convicted in upstate New York of killing an 18-month-old baby in her care. “I hit him two or three times with my fist on the top of his head. I did this to stop him from crying. It did not work. I do not know how long I shook him but I did not stop until he was unconscious.”[33] The Center for Immigration Studies wryly observes, “Beaucejour-Jean was ordered deported as a criminal alien but, thanks to this trio of ‘it’s-not-over-till-the-alien-wins’[34] appellate reviewers, Beaucejour-Jean remained in America.” In light of this startling decision, one might ask if the Board of Immigration Appeals reviewers are deciding legal matters according to personal political views rather than on proper jurisprudence. The Center for Immigration Studies suggests that a partial answer might lie in the fact that Board Member Espinosa named her son after the violent Marxist guerilla Che Guevara.

Another recent Ninth Circuit case, Lopez-Valencia v Lynch, 2015, continues to narrow the scope of the new law. In this case, Judge Margaret McKeown writes, “The central issue in this appeal is whether a conviction under California’s theft statute may qualify as an aggravated felony.” She goes on, “We hold that a California conviction for theft is never an aggravated felony because it is categorically not a theft offense.”

Curiously, Ninth Circuit en banc decisions seem to differ from their three-judge panel decisions, lending evidence to support the conclusion that the attacks on the aggravated felony provision are coming from an ideological faction on the Court rather than from the whole Court. We see this in Randhawa v Ashcroft 2002. In this case, Sonny Randhawa was issued a Notice To Appear by the INS and placed in deportation proceedings in Immigration Court where he was ordered deported as an aggravated felon. On appeal, he argues that his conviction for stolen mail is not an aggravated felony under 8 USC §1101(a)(43)(G). The en banc panel disagreed and upheld the conviction as an aggravated felony. Other cases decided en banc upheld the aggravated felony enhancements. For instance, in Estrada-Rodiquez v Mukasey, the court said, “…we hold that resisting arrest under Arizona Revised Statutes § 13-2508 is categorically an aggravated felony…” There appears to be a faction on the Circuit attacking the application of the aggravated felony provision.

Law is complicated, technical, and often less than apparent. The cited cases may be rightly decided as matter of statutory construction or constitutional principle. On the other hand, the cases may represent judicial activism and social engineering by the court. This paper does not answer the question one-way or the other. The question posed here is: Was there a negative court impact on the aggravated felony-enhancement legislation that was validly passed by Congress in 1996? The above-cited cases say yes. Katherine Brady of the Immigration Resource Center (IRC) provides the most accurate description of court impact. Her job with the IRC is to instruct immigration lawyers on how to defend cases against aliens in deportation and removal proceedings, including those aliens deportable as aggravated felons. She tells lawyers, “If you represent an immigrant convicted of a crime…relying on older precedent you may think that the conviction [for an aggravated felony] has adverse immigration consequences, when under recent precedent it should have no consequences, or at the very least less serious consequences.”[35] What more eloquent revelation can there be to prove that the courts have deconstructed Congress’ aggravated felony portion of the IIRIRA?

I suggest that the evidence presented here leaves no doubt that Congress’ intent, in the instance of the aggravated felony provision of the IIRIRA, has been significantly “undone” by the courts. Determining whether this undoing was the result of sound jurisprudence or political activism is beyond the scope of this paper and legal expertise of the writer. The questions asked here are what, if any, was the response of Congress? What should be Congress’ response?

Congress Fails to Respond to Court Deconstruction of the Aggravated Felony Provision

As the evidence here indicates, decisions from the Courts and the Board of Immigration Appeals began to reverse or remand immigration judge removal decisions based on conviction for aggravated felonies. U.S. Attorneys trying to prosecute criminal aliens for re-entry met a similar appellate fate. Federal District Courts failed to follow the sentencing parameters in the Act. Instead, they most often sentenced to time served, amounting to a few weeks or few months. One reasonable conclusion is that many federal judges simply disagreed with Congress and were attempting to piecemeal deconstruct the legislation.

This poses the question: Would Congress drop the other constitutional shoe and pass additional legislation to counter court deconstruction of the aggravated felony provision? Congress had a number of options available. Many of the court decisions were based on the vagueness of state criminal law, rather than on the IIRIRA law in chief. Congress could have added amendments that addressed this problem. For instance, it could have instituted requirements for states to clarify the pertinent sections of their criminal code or lose federal law enforcement assistance. This political tool has long been used by Congress to influence state legislatures in other areas, such as social services or education policy. However, the Congressional Record shows that no such legislation was passed and floor remarks were few.

Congress could have re-written parts of the aggravated felony provision to eliminate any doubt about what it intended to be an aggravated felony. Statutes are often little more than general guidelines that leave the details to be specified by agency rules and regulations. This was decidedly not the case with the IIRIRA, as the definition of aggravated felony was unusually specific to the extent that it even provided a chart of offenses. Nevertheless, federal judges, if they dislike the policy objectives of a given statute, seem willing to deconstruct any part of the statute they can deem vague.[36] Congress can always counter this judicial action with tighter, more specific legislative language. But no such congressional action is revealed in the Congressional Records for the 105th through the 114th Congresses. Congress has become inert when it comes to responding with changed criminal alien legislation.

However, by the 108th Congress we see the return of rhetoric, if not substantive legislation, aimed at criminal aliens and illegal immigration. On September 21, 2004, House members traded remarks about the continuing problem of illegal immigration, especially by criminals. We heard a member rise and state, “In any event, the numbers suggest that tens of thousands of criminals, quite possibly hundreds of thousands, treat the southern border as a revolving door to crimes of opportunity. The situation is so out of control that 400,000 illegal aliens who have been ordered to be deported, 80,000 have criminal records—and the agency in charge, the Department of Homeland Security, does not have a clue to the whereabouts of any of them…” On the same day, another member rose to say, “Perhaps the most alarming aspect of having 15 million illegals at large in society is Congress’s failure to insist that federal agencies separate those who pose a threat from those who don’t. The open borders, for example, allow illegals to come into the country, commit crimes and return home with little fear of arrest or punishment.”

The Congressional rhetoric from the House floor continued in the 109th Congress. Congressman Sensebrenner, speaking to his colleagues on December 15, 2005, during a debate on the Border Protection, Antiterrorism, and Illegal Immigration and Control Act of 2005, tells his colleagues, “Our nation has lost control of its borders, which has resulted in a sharp increase in illegal immigration and has left us vulnerable to infiltration by terrorists and criminals. Estimates indicate that there are currently more than 10 million illegal aliens already here and that figure grows by a half million each year.”

It is déjà vu all over again. The floor remarks go on, as if IIRIRA had never been passed. There is, however, a new aspect included in Congressional discussion and that is terrorism. New immigration bills are introduced in both the 108th and 109th Congresses. The term “comprehensive immigration reform” enters the congressional lexicon and the public conscience. The key event since the passage of the IIRIRA was the 9/11 attacks on the nation. Even with this world-changing event, Congress cannot seem to pass its so-called comprehensive immigration reform. Throughout these congressional discussions on illegal entry, the aggravated felony provision regarding re-entry of criminal aliens fades from discussion. However, with the 2015 decision in the Chavez-Solis v Lynch, deconstruction of the provision continues. Congress’s only response found in the Congressional Record is a rhetorical whisper.


This paper began by posing two general questions: 1) Does the federal judiciary, on its own volition and initiative, seek to impact or change duly passed congressional legislation and, 2) If so, how does Congress react to these judicial initiatives? The case study that is presented provides evidence that the answer to the first question is yes. The federal judiciary, particularly in the form of Ninth Circuit Court of Appeals decisions, does impact and change the law.

The evidence suggests that this impact and change may be driven as much by the Circuit judges’ and Board of Immigration Appeals’ own policy opinions and personal ideology as by sound jurisprudential consideration. This evidence is found in the impact, nature, and language of the decisions reversing or remanding many immigration judge orders of removal that were based on the aggravated felony law. More evidence is offered in the public debates between the judges during which at least one readily and proudly admits to favoring one party over the other based on extra-judicial considerations. Still more evidence can be found in the correlation between law review articles that are critical of the aggravated felony provision and court decisions. My interviews with immigration judges revealed their frustration at trying to follow the clear meaning of the statute, only to be reversed or remanded by the circuit court. My conversation with Congressman Hostettler indicated that members of Congress sought to pass straightforward legislation expanding and enhancing criminal alien sanctions. According to the Congressman, the legislation was intended to increase public safety and address national security vulnerabilities. Mark Reed, District Director of the Immigration and Naturalization Service in Southern California from 1992 to 1996, told me in some detail why criminal aliens presented a clear and present danger to the country and why the aggravated felony provision would help ameliorate these dangers. Alan Bersin, the U.S. Attorney for the Southern District of California, met with me throughout 1995 and 1996 to express his concern over criminal alien activity and the need to use the aggravated felony provision to stem criminal activity.

Despite these all these factual indications of danger to public safety and national security, despite Congress’s clear expression of intent through legislation, and despite the Immigration Court’s considerable efforts to ensure due process, the Ninth Circuit, or at least a large faction of it, saw fit to begin deconstructing the aggravated felony law.

In the end, Congress failed to respond with anything other than short-term rhetoric. It did not challenge the judiciary with additional legislation. There is a legitimate constitutional question here: Do the Courts attempt to change Congressional policy with which they disagree by deliberately fashioning decisions that unwind Congressional decision-making? If they do, where is the Congres

[1] Ninth Circuit Judge speaking to immigration judges at conference


[2] Primarily accounts written by The Center for Immigration Studies.

[3] The Illegal Immigration Reform and Immigrant Responsibility Act of 1996: An Overview Austin T. Fragomen,

Jr., The International Migration Review Vol. 31, No. 2 (Summer, 1997), pp. 438-460 Mr. Fragomen, Jr., is

Chairman of the global law firm of Fragomen, Del Rey, Bernsen & Loewy LLP and chairman of the American

Council on International Personnel.

[4] Congressional Record, Volume 142, Issue 40.


[6] San Diego Union-Tribune, August 8, 2015.

[7] House Judiciary Report on Criminal Alien Crime and Recidivism, released May 22, 2014.

[8] See list-of-crimes chart on page 2 of this paper.

[9] Congressional Record of 104th Congress , search terms Lamar Smith + Immigration + IIRIRA.

[10] Ibid.

[11] Networks in the Legislative Arena: How Group Dynamics Affect Co-sponsorship, Kathleen A. Bratton

Department of Political Science Louisiana State University.

[12] Ibid.

[13] A sub part of the general 1995-1996 legislative package on immigration reform and illegal re-entry.

[14] Congressional Record of the 104th Congress, Extended Remarks, February 10, 1995.

[15] In the 19 years since these statistics were compiled, near abandonment of border enforcement has resulted in a loss of accurate data but estimates of currently-present illegal aliens is between 11 million and 20 million.

[16] Congressional Record of the 104th Congress, extended Remarks, January 25, 1996.

[17] Ibid.

[18] Ibid.

[19] Ibid, January 5, 1996.

[20] Article I status would remove the court from direct agency control and establish it as an independent administrative court whose decisions are not subject to agency review but appealed directly to the federal judiciary.

[21] The amendment sought to expand family unity requirements.

[22] Congressional Record, Floor Debate, March 21, 1996.

[23] Ibid.

[24] On November 5, 2002, the Immigration and Naturalization Service was renamed and subsumed into the Department of

Homeland Security.

[25] The Immigration Courts are under the jurisdiction of the Executive office for Immigration

Review in the Justice Department.

[26] 1997 Immigration Judge’s Training Conference, Schedule of Break Out Sessions, Executive Office for

Immigration Review.

[27] Virtually all respondents in removal or deportation proceedings admit and concede illegal presence and deportability. They are litigating a claim that they are eligible to qualify for relief (a legal excuse) from deportation.

[27] Nancy Morawetz, Harvard Law Review, Vol. 113, No. 8 (Jun., 2000), pp. 1936-1962.

[29] Ibid.

[30] Ibid.

[31] Title of the formal charging document used by ICE to bring illegal presence charges.

[32] Hacking Law Firm, website on immigration law at

[33] Transcript of interrogation of Beaucejur-Jean by the Monroe County (New York) Sheriff’s Office.

[34] A comment by the writer for the Center for Immigration Studies that is often repeated in the environment of immigration law enforcement.

[35]Kathy Brady is Director of IRC and graduated from Stanford University and Boalt Hall School of Law. She taught immigration law as an adjunct professor at Santa Clara University and New College School of Law and supervised students at the Stanford University Law School Immigration Clinic.

[36] An example is Judge Dolly Gee’s court orders on bond and legal representation of detained aliens.

[2] See United States Code 1326, Section 2, (d).

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Was Our Country Founded as a Christian Nation?


European settlers (and they were virtually all Europeans) who sailed to the Americas beginning in the 1500’s were, when it came to their religion, virtually exclusively Christian. Not Atheist, not Muslim, not Hari Krishnas, not New Age Crystal worshippers: They were Christians. They were Christians of all stripes. Catholics, Protestants, Quakers, Puritans, Mennonites, Calvinists, and other assorted sects some radical some more traditional and sedate. But, in any event they were beyond debate Christians. It is only after about 1820 or so that this begins, in some small degree, to change. In the twentieth century, United States’ Christian society began to be diluted by non-Christian immigration and by the appearance of secularism in younger generations.

Small groups of English arrivals in what became known as New England came to build their religious settlements. They came to escape the Church of England and practice Catholicism (which was outlawed in England) or to practice some more radical form of Protestantism (which was frowned on by the more authoritarian and hidebound Protestant Church of England). Each different group came to the shores of New England for the freedom to practice their unique brand of religion and ensure that those who came with them and came after them were completely and wholly free to practice the exact same brand of Christianity to the letter without exception. Freedom to these groups meant freedom from punishment by the English Monarchy and Church of England. It did not mean the individual freedom for their members to do whatever they chose religiously. When it came to religious behavior these communities were quite un-free.

The Puritan dream of impermeable communities of dogmatic purity with which each early New England settlement began was to soon be overwhelmed by the reality of mass migration across the Atlantic mostly from England. These second-wavers were Christians too, if only marginally so. There were some few, of course, for whom religion never entered consciousness one way or the other.

The settlements in the South were mostly founded and created more with profit and business in mind than enclaves of religious purity. Few settlement communities in the south were set up as new religious societies. But the settlements in the south were nevertheless foundationally and socially Christian in their religious practice. And that Christian practice was an important part of their lives. To be sure contradictions abounded as they do in any society. There was slavery. There was chicanery, fraud, and psychopaths. But yes, the Europeans that settled in the New World between 1600 and 1800 were most decidedly Christians of some sort.

Were the Founding Fathers Christians?

The Founding Fathers are generally considered to be those men who signed the Declaration of Independence.  Fifty-six men signed so we have fifty-six founding fathers. They were all extraordinarily intelligent and were educated and learned men. Each had a publicly known and historically recorded religious and church affiliation. Here is the list:

Religious Affiliation of the Signers of the Declaration of Independence

Religious Affiliations:

32 of the signers = 57.1%

13 of the signers = 23.2%

12 of the signers =  21.4%

2 of the signers = 3.6%

Unitarian or Universalist
2 of the signers = 3.6%

1 of the signers = 1.8%

56 total signers = 100%

Name of Signer his state and religious affiliation

Charles Carroll,   Maryland,   Catholic
Samuel Huntington,   Connecticut,  Congregationalist
Roger Sherman,  Connecticut, Congregationalist
William Williams,   Connecticut  Congregationalist
Oliver Wolcott,  Connecticut,  Congregationalist
Lyman Hall,  Georgia,  Congregationalist
Samuel Adams,  Massachusetts,  Congregationalist
John Hancock,  Massachusetts,  Congregationalist
Josiah Bartlett,  New Hampshire,  Congregationalist
William Whipple,  New Hampshire,   Congregationalist
William Ellery, Rhode Island,  Congregationalist
John Adams, Massachusetts,  Congregationalist; Unitarian
Robert Treat Paine,  Massachusetts,  Congregationalist; Unitarian
George Walton,  Georgia,  Episcopalian
John Penn,  North Carolina, Episcopalian
George Ross,  Pennsylvania,  Episcopalian
Thomas Heyward Jr.,   South Carolina,   Episcopalian
Thomas Lynch Jr.,  South Carolina,  Episcopalian
Arthur Middleton,  South Carolina,  Episcopalian
Edward Rutledge,  South Carolina,  Episcopalian
Francis Lightfoot Lee, Virginia,  Episcopalian
Richard Henry Lee, Virginia,  Episcopalian
George Read,  Delaware,  Episcopalian
Caesar Rodney,  Delaware,  Episcopalian
Samuel Chase,  Maryland, Episcopalian
William Paca, Maryland,  Episcopalian
Thomas Stone,  Maryland,  Episcopalian
Elbridge Gerry, Massachusetts,  Episcopalian
Francis Hopkinson,  New Jersey,  Episcopalian
Francis Lewis,  New York,  Episcopalian
Lewis Morris,  New York,  Episcopalian
William Hooper,  North Carolina,  Episcopalian
Robert Morris,  Pennsylvania,  Episcopalian
John Morton,  Pennsylvania, Episcopalian
Stephen Hopkins,  Rhode Island, Episcopalian
Carter Braxton, Virginia,  Episcopalian
Benjamin Harrison,  Virginia,  Episcopalian
Thomas Nelson Jr.,  Virginia,  Episcopalian
George Wythe, Virginia,  Episcopalian
Thomas Jefferson, Virginia,  Episcopalian (Deist)
Benjamin Franklin,  Pennsylvania,  Episcopalian (Deist)
Button Gwinnett, Georgia,  Episcopalian; Congregationalist
James Wilson, Pennsylvania Episcopalian; Presbyterian
Joseph Hewes, North Carolina,  Quaker, Episcopalian
George Clymer,  Pennsylvania,  Quaker, Episcopalian
Thomas McKean,  Delaware,  Presbyterian
Matthew Thornton,  New Hampshire,  Presbyterian
Abraham Clark,  New Jersey,  Presbyterian
John Hart,  New Jersey,  Presbyterian
Richard Stockton,  New Jersey,  Presbyterian
John Witherspoon,  New Jersey,  Presbyterian
William Floyd,  New York.  Presbyterian
Philip Livingston,  New York,  Presbyterian
James Smith,  Pennsylvania,  Presbyterian
George Taylor,  Pennsylvania, Presbyterian
Benjamin Rush,  Pennsylvania,  Presbyterian

Note that Franklin and Jefferson were both members of the Episcopalian Church as well as Deists. This fact, at least in my view, demonstrates that both Franklin and Jefferson were believers in God and had warm relationships with Christians and Christianity, not atheists as some progressive assert. Franklin beseeched his fellow constitutional conventioneers to begin each session with the “prayerful piety that inspired the revolution.” Hardly the words of a postmodern anti-Christian. The current effort of postmodernist to paint Franklin and Jefferson as hostile to Christianity seems to me clearly laughable. I suspect that Judea-Christian values permeated Jefferson’s and Franklin’s world view. I further suspect that like many intelligent people educated in the post Enlightenment post Newtonian world, they had difficulty with the Christian requirement for belief in miracles such as the virgin birth, the resurrection, and biblical miracles. However, anti Christians they were not.

Was the United States Founded as a Christian Nation?

No, it was not. The United States was a decidedly Christian society founded as a Constitutional Republic. The American Constitutional Republic, as brought to life by the Founding Fathers, was a brilliant and enlightened modification of Classical Greek republicanism. Our Christian and Deist Founding Fathers placed, along with the creation of a taxing enabled Central Government, three inviolable principles in the very soul of our Republic: 1) A Powers Limited Federal Government; 2) Fiscal Prudence on the Part of the Federal Government and; 3) The Rule of Law to be strictly adhered to by the Federal Government. One can see that there is not a lot remaining of these three constitutional principles today. Between the profoundly misinterpreted 14th amendment which eviscerated the power of the states, modern day Federal “Courts” and contemporary politics, our Constitutional Republic has been almost wholly co-opted by mobster style progressives.

Was the United States Found as a Nation Under God?

Yes, unequivocally. The Founding Fathers say in the Declaration of Independence “…to which the Laws of Nature and of Natures God”. Then go on to say “…endowed by their Creator”.  Thus, it is irrefutable fact that the United States was, with deliberation and intent, founded as a Nation under God albeit a more Deist and “natural” God than a purely Christian God.

Thomas Jefferson words are those of a Deist. Which is to say a believer in God. The Declaration of Independence and the Constitution that followed it are clear that the essential rights to life, liberty, and pursuit of happiness of all Americans flow from our Creator and never at anytime from politicians and bureaucrats. This principle too has been shredded in the grinding-bin of postmodernism and mobster progressivism.

In closing, I will opine that Jefferson, great Deist and Christian Church member that he was, used the word “Happiness” in the Aristotelian Greek sense.  Happiness in the Greek sense means the sense of accomplishment and personal satisfaction that results from a virtuous life of self-discipline, skills acquisition, achievement of professional expertise, and adding value to the community. Jefferson did not mean everyone had the right to “feel good”. This historical fact too has been lost to the storms of postmodernism.

Brent Perkins August 21, 2011 – Published in The Voice of Commonsense

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Open Letter to Law 360


Recently, Law 360 a  publication of Portfolio Media a subsidiary of Lexis Nexis, banned the term “illegal alien” from use. In July retired immigration Judges Mahlon “Mick” Hanson and Elisabeth Hacker submitted an article to Law 360 on sanctuary cities. The article was rejected pending removal of the term “illegal alien” which the editors have banned. This censorship by a supposedly respected professional legal journal is a significant indicator of how far the rule of law, commonsense, and accurate recounting of  history has fallen in postmodern America.   I respond to the editors and publishers of Law 360 below.

Dear Law 360 Editors and Publishers:

You recently banned the term “illegal alien” from use in your publication. Legal writers who submit work using the term have it struck by your editors. In doing this, Law 360 has removed its name from the list of professional legal publications. You have become just another enforcer of political correctness. One can no longer consider Law 360 a serious legal publication. No serious writer of matters on illegal immigration should waste time submitting work to you in the future.

“Illegal alien” is a term of legal art that has been in use for nearly a hundred years. It has been referenced thousands of times in statute law, in trial decisions, and in appellate reasoning. The term is embedded in thousands of serious legal articles and scholarly legal works. Thus, banning its use erases an entire body of law from being properly referenced by legal writers.

Brent Perkins

Immigration Court Administrator – Retired

See Fox News Story at link below:

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What Is Happening to America Society

Sun and Road - smaller(1)

Most of us can sense that things aren’t quite right in America these days. Talk to most anyone and they will tell you that things have not be right for sometime now. However, they won’t be able to tell you precisely why. If pressed a dozen seemingly unrelated things will come to mind. They will  to tell you about the dysfunctional Congress, a Court out of control,  a rouge unlawful President, the selling of fetuses for profit, re-defining marriage, a rampaging Donald Trump, a 20 trillion dollars debt. On and on they will go. Despite the mile-long laundry list of things clearly gone wrong, we are left with confusion and a sense of anxiety at our core. We are frustrated because there seems to be no cause and effect that we can apprehend.

There seems to be no correcting mechanism to set our multitude of political and social problems right because no one can credibly explain what is driving them. We feel powerless, lost, and angry as our seemingly crazy society runs amok around us. We try desperately to make sense of the goings on. Unnerved and seeking reassurance, we latch on to the latest fad explanation or some politician who claims to know what’s wrong and how to fix it. But we soon realize that these do not hold together long. We soon return to our anxieties and deep sense that things are not right and that we are in danger. Our best defense against the onslaught seems to be to occupy ourselves with the tasks of everyday life and relegate the “things gone wrong” problem to the back of our minds.

I have watched the goings in America and the world for 50 years (I’m 68) and have come to understand that he United States is in a stage of history where the present is incomprehensible and the future unseeable and unknowable. We seem to have jettisoned our old system of governance, our original culture and our traditions without replacing them. We have thus invited a sort psychological and spiritual anarchy.

Accumulating evidence suggests that there is a movement coalescing around the objective of radically altering the form of government in the United States. There is no conspiracy in the traditional sense but rather a process of self-selecting coalescence around the goal of ending constitutional rule and terminating American society as it was.  In the vast population of citizen-watchers of the political scene, there are those (in very large numbers) who seek profit, career success, fame, power, excitement, personal attention or retribution by bringing down the American constitutional republic. I think they have, at last, succeeded.

The history, virtue, necessity, and strength of American constitutionalism is but a faint and dim abstraction to most Americans. Societies tend to have poor institutional memories over the long run. There is a conspiracy of sorts involved. It is this: Various and sundry political players domestically and from around the world stand at the ready to exploit opportunities to empower, encourage, and increase the numbers of those joining the movement to take down constitutional America and replace it with something they can’t even articulate. Events such as Ferguson and Black Lives Matter are examples.

The United States is in the process of shedding all its traditional norms and replacing them with this vague and radical future. We are now in the stage of chaos and confusion in which neither the old traditions nor the new future is in place. We are in a political and cultural limbo where no clear set of guiding principles is available to us. This leaves vast numbers of hearts and minds there for the taking.

Original America is being killed off and the replacement America has yet to come into being. This is a historical period where no overarching social and cultural structure exists. Instead God is dead and all things are permissible.  A thousand ideas, a million noisy people, interest groups as far as the eye can see, and shadowy figures in all corners of power compete in a mad free-for-all to be the arbiters, and the rule makers of the Brave New Anti-America. The only question is who and what will win.

Brent Perkins

September 15, 2015

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An Open Letter to the Yale Divinity School Faculty


Dear Yale Divinity Faculty,

Your decision to invite DeRay McKesson to “teach” a course on public advocacy, social change and civil disobedience is more than ill-advised, it is unethical and immoral. The end toward which McKesson advocates (and apparently Yale Divinity) is cold-blooded  murder of our nation’s police officers. Deray’s gang of thugs and darlings of Yale Divinity School take to the street hatefully chanting  ‘Dead cops now” and “Pigs in a blanket, fry’em like bacon.”  The purpose of these chant’s is to provoke  street violence, create propaganda images for the media, and incite destructive divisiveness across American Society. The Left has always used these tactics of intimidation to bring chaos and anarchy to a largely peaceful civil society.

In inviting McKesson to Yale, you have shown that the faculty acts as the purveyors of anarchy, violence, and propaganda not the seekers to truth.  The faculty members will suffer nothing for their awful lack of ethics and moral emptiness. In fact, one can envision the faculty receiving happy toasts to their “courage” at academic cocktail parties all around New Haven this Fall. You will bask in the celebrity-light that is sure to be yours. However, when your heads hit the pillow in the nights ahead remember this: You will be a full and deliberate accessory to all future police murders inspired by the hideous hate-group Black Lives Matter.

Before you tout your tired and phony justification of “academic freedom” re-read the actual words in your course description. “A young leader of the Black Lives Matter Movement, DeRay McKesson will present case studies about the work of organizing, public advocacy, civil disobedience, and social change, through both Leadership of Presence, and Leadership in the Social Media.” Then compare that with the real world actions and rhetoric of Black Lives Matter. The comparison reveals the moral and ethical emptiness that now permeates Yale Divinity School.


Brent Perkins

San Diego

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The Dying Rule of Law

You awake to face the day. Throughout the day you have a reasonable expectation to be unencumbered by bullies, criminals, and thugs. This expectation is the result of the Rule of Law. The principle is simple: We have laws. Failing to follow them has serious negative consequences. These serious negative consequences motivate criminals, thugs, and bullies to leave you alone. It’s no more complicated than that.

Thugs, bullies, and criminals are more and more everywhere. Bernie Madoff, Enron, unconstitutional Obamacare, club wielding Black Panthers at the polls, Acorn pimps, SEIU intimidators, illegal aliens storming unchecked over the border, two year sentences for murders, Presidents and Governors commuting the sentences of violent criminals, multimillion dollar judgments to customers for spilling their hot coffee, fraudster CEOs acquitted, and slaps on the wrist for law breaking Congressmen. On and on and on it goes. The current Mobster Socialism is destroying the Rule of Law.

The Rule of Law, like its siblings limited government and Fiscal Prudence is increasingly being ignored by our law makers and constitutional interpreters. In its place they have inserted the brave new world of post modern relativism. Post modernism is simply an intellectual euphemism for an “Alice in Wonderland Society” where up is down and down is up. A society where criminals, thugs and bullies are the victims and peaceful productive citizens are the oppressor. A society where the laws and rules depend on ones point of view, ones opinion, ones emotions, and more importantly the personal ideology and emotions of the moment. What the law is not, under our progressive post modern relativist society, is what is written on the page created by law makers. In post modernism, words no longer mean what words mean. They mean only what anyone may “feel” or desire they mean. Up means up only if one “feels” it means up or desires it to mean up.

It is the progressive liberal politicians and their activist henchmen that are largely responsible for trying to convince American society that the rule of law is hopelessly passe. Adhering to the rule of law is not “cool” not “hip” to the progressive sensibility. This is what they tell us and teach our school children. For you see, in the liberal postmodern mind the criminals, the thugs, and the bullies are not responsible for their acts. Society is responsible. In their view it is bigoted racist, rich white men, and an ignorant society unenlightened by progressive insights are to blame for all crimes committed by criminals. Rarely can progressives bring themselves to blame the actual perpetrator. So, liberals seek to punish the larger society by confiscating money from it and bludgeoning it with Political Correctness. In doing so, they lift up the criminal as yet another poor victim needing progressive rescue and protection from a bigoted and unenlightened society that, in its ignorance, still believes that consistently applying the rule of law protects society. In the progressive view, moral and legal infrastructure is to be replaced by the vacillating feelings and transient opinions of elite rulers. Behavioral cause and effect established by the lessons of a long and painful history are to fall prey to the whimsical declarations of new age Federal policy experts and university intellectuals.

If we allow this march of post modern progressivism to continue unchallenged, America will no longer be able to assert that it is a society governed by the rule of law. America is increasingly ruled by the socialist ambitions of Progressives, ambitions that are increasingly enforced by the their intimidating street thugs in SEIU, their minions in the media, Federal Bureaucrats, and their Acorn soldiers-in-waiting. And soon to be enforced by what the President Obama calls his Civilian Security Force equal in size, scope and budget to the U.S. Military.

Despite the many thugs now wielding bats in the streets of Fergusen or Baltimore, courageous citizens willing to stop the New Left can prevail.  Regardless of how weakened and warped democracy and the Rule of Law has become under the relentlessness of the doctrine of political correctness and New Left progressivism there is still time, precious little time, for the majority to stand, fight and defeat liberal post modernism and its Alice in Wonderland view of human history and human reality

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Civil Society or Statist Governance

On campuses everywhere political rhetoric of the twenty-first century is in full-throated song. Students and faculty are raising their learned voices to defend the politics of Barack Obama and Nancy Pelosi or perhaps John Boehner and Trey Gowdy or perhaps Harry Reid and Maxine Waters or perhaps Karl Marx.

Their adherents tout the merits of the political thought of Thomas Jefferson or Woodrow Wilson or Karl Marx as the truth, the light and the way. In campus discourse, rapier wits and steel-trap minds shred arguments and leave their debating opponents in head-hanging humiliation. It is awe inspiring indeed to walk among such accomplished men and women as inhabit todays campuses.

However, on these campuses and in the American body politic at large, the central issue, the foundational premise, seems rarely stated. The simple and overarching question of this century, as well as the last, seems seldom asked. The question is one that we each may want to ask and answer before proceeding into the political fray as pulse pounding advocates for this view or that. The question is simply this: “Shall we live in a Civil Society or a Statist Society?” Insufficient serious reflection on this choice is the oversight of our times. Were I to be young and facing a life-long journey through civil society on the one hand or through statist society on the other, I would proceed to diligently study the matter for resolution.

Members of a civil society and the groups and factions into which they divide themselves are free and at liberty to execute transactions among themselves. Each citizen in the civil society may, at will, contract with any other citizen for personal commerce, engagement, and action. The government and its officials are not in any way involved in interactions between citizens. The interactions are direct, intimate, and personal. Civil society and its members conduct each of life’s transactions without government present as intermediary. Transactions between citizens in a civil society are subject to a set of rules to which each member is bound. Honoring one’s transaction is a requisite for continued membership in civil society. Each party is duty bound to live up to their side of each and every agreement. Government is an application running in the background to be called upon only if one party alleges another has broken the rules of transactional engagement. Then and only then does government become inserted into a transaction and even then is bound, narrowed, and limited by the strict rule of law and constitutional limitation in its settlement of the dispute.

Civil society’s fundamental reliance on direct personal transactions as the authoritative unit of social exchange requires property rights, rule of law, and a well-developed system of free market enterprise in order to effectively function. The promise is that millions of free market transactions will effectively and efficiently set prices and allocate resources. Transactions executed in a civil society are bound by a set of common rules and all personal transactions are agreement-constricted. The key to understanding the essence of a civil society is that government runs in the background leaving citizens alone until such time as one them invokes the government to resolve a dispute.

 Statist Society

 Members of the statist society, when they enter into individual transactions do so with the government present as a third party in the transaction. Not only a third party, but a superior third party with sole authority to  dictate the terms and language of the agreement. No citizen enters into a transaction, contract, or simple engagement unless some form of government intermediary is there to dictate, evaluate and approve the transaction. The states elite experts act as the legal parent on behalf of the citizens. At all times, each transaction is subject to direct government oversight, intervention, and review.

A civil society can be differentiated from a statist society by the unencumbered freedom of its members to forge relationships, agreements, and transactions so long as the rules are observed. Understanding the central political debate of twenty-first century America first requires understanding this essence of civil society. Pure civil society sits at one end of a long spectrum staring to the other distant end where pure statist society sits. The essential difference between a civil society and a state society is that in a civil society transactions are entered into exclusively by the private citizens who are members of the society whereas a statist society injects an external party, i.e., the state to oversee, direct, and give final approval.

The choice is not an all or nothing proposition. The continuum between a purely  civil society and a purely statist society offers a mix of each. The question is where on the continuum should American society rest. While the promises and premises of these two societal designs are certainly subject to challenge, examination, and critique, an acute awareness that they are vastly different societies is a prerequisite for reasonable evaluation of political design choices. Statist schemes range from bootjack Stalinist means-of-production communism to American welfarism. Civil schemes range from city-state pure democracy to constitutional republicanism. Before raising our voice in the American political debate, we should first deeply contemplate the possibilities of each of these two very different societies and come to a personal choice as to which best serves the body politic.


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Leviathan Revisited – The Brave New America!

The United States Constitution, that vessel which contains our founding principles, limits our national government. It does not do so slightly, but fundamentally, boldly, and unequivocally: “Congress shall make no law,” “…shall not be infringed,” “…not without consent,” “…shall not be violated,” “…shall not be required,” [and] “…powers are reserved to the people.” This is the language of limitation, of constriction, and of governmental disempowerment in key areas of our lives. The fire-breathing dragon of constitutional unambiguity gave birth to history’s first truly free self-sovereign people.

From almost the start, the dragon-slayers in Congress, in the White House, and most of all  the courts have sought to slay the constitutional dragon that stood between them and bureaucratic control over the people they wanted to rule. Congress passed laws that the Constitution prohibited, presidents executed actions the Constitution forbade, and the courts far too often declared that the principles and limits written into the constitution were null and void and meant nothing more than what the self-absorbed political hacks and social crusaders in the courts declared they meant.

It is the Supreme Court and the circuit courts—partners in crime—that have been, over the course of our history, most responsible for rendering the roaring dragon of our constitution a dying and wounded causality of American politics. The courts were supposed to be the guardians of constitutional integrity, the keepers of the vision of limited governmental intrusion into our civil society. The federal judiciary was to be the Constitution’s protector but in the end judges often acted like child molesters left to care for young children. They abused and raped the principles of constitutionally limited government intrusion into our daily lives and confiscation of our property.

These are strong words but I make no apology for them. Those who have knowingly and gladly strangled our constitutional republic and allowed us to be placed at the mercy of the tyrants inside the Beltway deserve more than a bit of vitriol spit in their direction. The times call for holding the courts to unadorned accountability for their destruction of the principles they were empowered to protect.

Despite the darkness of the hour, despite the fact that we have an self-serving Congress, a President that knows no limits and a government that spends us into bankruptcy against our will, despite the fact that our President seeks a Federal Civilian Security Force on the scale of the U.S. military, despite the fact that the defenders of the constitution are seemingly outnumbered in the courts, we can bring the constitutional dragon back life. To this end, we must swear an oath to cast no vote for any candidate not demonstrating clear allegiance to the constitutional limitations on the power that our national government wields.


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Invasion 2014

The People on the Trains


one train every day

I have given the massive influx of Central Americans, especially the unaccompanied children, a lot of thought, not just recently but over the years. Before I retired as Court Administrator from the Immigration Court in San Diego, I saw many such children put in removal proceedings. I met monthly with political activist groups and Department of Health and Human Services officials to discuss our handling of these cases in San Diego. The HHS and NGO’s mostly wanted toys and dolls for the kids and the judges to speak to them, even the M 13 teenagers, with the greatest of gentleness. I mostly wanted the custodians to get the kids to court on time.  I believe there are several actions that need to be taken in the invasion of 2014. Following the law and returning the illegal entrants to their country of origin is the responsible decision. In the rare instance that government persecution can be proved by a preponderance of the evidence, asylum should be granted.

But legal and rational solutions to are not on the minds of many if not most leaders in Congress, the White House, or the Federal Departments. These professional political operatives are busy trying to exploit the situation for short term and long-term political gain. They are focused on maintaining their political power and administrative authority.  They are busy shifting the labor cost curve or creating a new dependent political constituency . There will be wonderfully creative cover stories to the contrary but underneath the propaganda puff pieces and pompous posturing, true Machiavellian power politics is at work.

The average citizen may ache for these border crashing children even as we want the kids sent back home.  I suggest little such compassion and caring is present in the loud activities of far too many of our national political factions, right and left.  The right seeks in the short term to embarrass the Obama Democrats for their apparent incompetence and, in the long run, flood the labor markets and drive down the cost of labor. Evidence suggests that the progressive left on the other hand seeks, in the short-run, to accrue a reputation as compassionate lovers of children and in the long-run seeks to further dilute the institutional memory of, and allegiance to, the country’s constitutional republican form of government. There is also a concerted effort on the part of many to use this event to create more cultural and social divisions in the United States thereby making it impossible for broad public consensus to form in the United Sates. Union managements seek potential future expansion of their dues base and heightened ability to bring liberal victories at the polls. The far left wants to destabilize the operations of the Federal government as a means of justifying fundamentally changing our form of government to a full blown authoritarian state. All factions have their cover stories but underneath they seek primarily to acquire political wherewithal.

Sadly, this massive illegal flow of unaccompanied Central American children, their families, assorted criminal gang members and terror operatives is a well-orchestrated government setup. It was planned and intentional. The flow of illegal entrants did not just jump from a few dozen a day to well over a thousand a day by chance. Behind the scenes powerful political and administrative players deliberately made it happen and are continuing to make it happen. A careful six-year examination of the Obama administration leaves little doubt what happened. Regular normal illegal entry had drastically diminished due to the economic turn down and the Central American Train Plan was a cynical effort to restart the massive illegal flow. The fact that the plan feeds the organized crime cartels in Mexico is considered, by far too many, a necessary cost of political business. The players are many and include the Obama Administration, open borders political activist groups like La Raza, unions like SEIU, International Chamber of Commerce lobbyists, the American Bar Association’s Immigration Law Committee and several law firms practicing immigration law that have sent teams of hawkers to Central America in search of future clients. The ABA seeks to reward its members with loot from the public treasury in the form of government paid lawyers for hundreds of thousands of illegal aliens. The leftist ACLU seeks to exploit the situation to collapse the courts and unwind the rule of law.

Large numbers of the American public will not see beyond the cover stories, thus empowering the Machiavellians in both parties to continue their pursuit of power to the detriment of the greater good of the country. The media “human interest”stories about “the poor children” have already rendered return to Central America politically incorrect and practically out of the question, even for the adults and MS 13 members.

If we continue to open the border to all the worlds billions of poor, we only bring on the further weakening of our own financial condition, erode the political system and ensure cultural instability. Where is the virtue in that I wonder? What will these train people ultimately cost in lifetime welfare checks, food stamps, subsidized housing, emergency room care, schooling, and crime costs? Here is a tip in making the calculation:  They are never going to leave. How many of them are M-13 gang members? Answer: No one knows. How many speak English? Answer: Almost none. How many of our tax dollars will be diverted from helping our own needy American citizens in order to feed, clothe, “educate”,  medicate, arrest, try, imprison, and and rehabilitate this recent round of third world illegal entrants? Answer: Tens of billions of dollars. How many Americans will lose low wage entry level jobs to these people? Answer: Tens of thousands.

The word “children” conjures up warm visions of our own beloved children in all their innocent glory. But these train children are not our innocent children, they are a varied mix of poverty stricken, damaged children their personalities already informed by a hard and difficult life. Some of them, at age 12 are already members of M-13 and other gangs. Some, many perhaps still retain more than a bit of innocence but most have been damaged. The children, with all their inherent deficiencies will have to stay. Political correctness demands it. Political correctness now trumps common sense in America. We are gong to be forced to make the billions of dollars in lifetime welfare payments and public support requiring yet more debt and the fiscal ills that debt will bring. We will have to accept an enlarged underclass that will contain not only these children but their children as well. We are going to have to accept yet lower standards in public schools, accept the increase in crime that is sure to come in the years ahead along with the increased costs of crime and punishment. We will be forced to accept a shift in the American culture and sensibility that always comes when a society is invaded or invites-in massive numbers of people with radically different value systems and frames of reference. Our leaders, in desperation to retain their political power, continue to steadily march the country in the direction of decline and decrepitude.

Media pundits and politician speak of a humanitarian problem, of a moral responsibility to the families of illegals sweeping across the border and immediately presenting themselves to border officials demanding care and support. There is flaw in the moral argument. Moral codes, particularly Judeo-Christian principles teach how we should treat one another in our individual human exchanges. Virtue that one possesses by the act of helping another human being accrues only from entering into person-to-person transactions. A person-to-person exchange results in virtue earned, in good reputation acquired but such virtue cannot be obtained by delegating the virtuous action to a government bureaucracy then claiming virtue as one’s own. That is a trickery and falsehood that washes the transaction of all its virtue. I am not saying that government assistance is not good policy, under certain circumstances it is good policy, but it does not convey virtue on the remote, passive individual taxpayer.

The future of our own children has been damaged. A lifetime of Treasury Department checks drawn on tax collections confiscated by politicians seeking favor and re-election does not make for responsible adults. True morality would be a willingness on the part of individual Americans to step forward and adopt one of these children or invite them to sleep and eat in our own houses. Adoption is the virtuous thing to do, the moral thing to do. But this is not what most Americans have in mind when they say save these children. The child saving is to be delegated to the Administrative State. Unfortunately, checks and bureaucrats do not raise a child to responsible adulthood, parents do.

Most of the media, seeking to be admired, portrays these children as innocents in need. There will soon be a hundred thousand, then two hundred thousand, then three hundred thousand, none speaking English, few having relatives. All are destined for HHS facilities, serial foster care, and public schools where they will be far behind and too many will gravitate toward Hispanic gangs. A few will find paths to prosper and that will be beautiful but most will languish and become part of the underclass. Then it is only matter of time until another massive onslaught of illegal entry occurs with the entrants expecting the same flow of government checks and assistance plus jobs to supplement the income.

There are hundreds of millions of third world poor around the world awakening to this grand opportunity awaiting them by simply walking across our border. At some point government action to limit the flow will become necessary but what will be the total damage by then? Will a majority of the next generation have no memory or awareness of American principles? We are now 18 trillion dollars in debt and borrowing an additional 1.4 trillion dollars every 12 months just fund the Warfare / Welfare State. What happens at the Treasury Department bond auction when lenders demand an extra percentage point of interest? The ultimate catastrophe looms in the future.

Despite their deficiencies, the children fare far better than they would have in Guatemala, Honduras, or El Salvador. Here, they will face several months in the custodial care of the DHS bureaucracy, followed by several years in the custodial care of the HHS. The luckiest ones will get serial foster homes. All will receive welfare and food stamps most of their lives. All will attend public schools. Some few will find relatives to attach to. Eventually most will drop out of school and find various ways to feed, clothe, and house themselves with considerable and ongoing assistance from the government. Not a small number will join gangs and become lifetime criminals. A tiny fraction will break out to become educated successful citizens. One might be the founder of a chain of highly successful grocery stores. This is the future wrought by this debacle.

Much of the third world’s people are in sad shape. And all decent hearts break for them. Yet, are we able to dissolve our borders, surrender our sovereignty and support the poor of the entire planet Earth? Apparently, our leaders, in pursuit of yet more power and an easily manipulated dependent citizenry, think yes as they abandon the rule of law and destroy border integrity. What is next? The millions of poor children of the African Continent followed by the millions of poor children in Asia? Continuing on the path of unobstructed unabated illegal entry, I can see no future other than a painfully slow descent into increasing chaos and national decrepitude.



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American Animal Farm


Animal Farm, George Owell’s dystopian novella portraying Stalinist Russia is a passable allegory for what has happened in the United States under the Obama administration. Orwell’s Farm is transformed from a productive, well functioning political enterprise into a fear-driven authoritarian state. The farm’s pigs, obsessed with obtaining power, use propaganda, constitutional slight of hand, secrecy and a reign of intimidation to seize power and rule over the farm. President Obama and his appointed bureaucrats are similarly strong-arming our political system. Admittedly, this transformation to American authoritarianism has been brewing for thirty years and Obama’s New Left is using a softer form of threat and intimidation than Animal Farm and Stalinist Russia. Nevertheless, the results are rapidly evolving toward a similar Orwellian conclusion. We continue to deny this reality at our own peril.

The Orwellians in the current regime have crept off the pages of Animal Farm and into every facet of American governance and the general culture. The observable evidence supports a reasonable conclusion that Obama and his army of authoritarian appointees are the slightly more moderate descendants of the socialists who gave the world the Soviet Union, Maoist China, and Cuba. Who can honestly deny that Obama, his senior administrators and his supporters in the Congress have, for all practical purposes, declared the Constitution irrelevant, dispensed with the rule of law, and voraciously looted the public treasury to payoff public employee unions and corporate cronies. These new Orwellians routinely and unashamedly use the Federal bureaucracy to frighten and intimidate politically disagreeable citizens. Government agencies target citizens holding different political views, conduct politically motivated tax audits, intimidate and threaten citizens who attempt to ensure integrity at the polls, and abdicate law enforcement in favor of politically motivated prosecutions, raids and investigations.

Citizen’s complaints of intimidation, threat and punishment at the hands of Obama’s Federal Government are vetted on TV and in newspapers with regularity. Government whistle blowers are severely punished by the administration being summarily demoted or fired. The frequency, consistency and apparent veracity of these complaints establish a worrisome and convincing body of evidence against Obama and his people. Secret VA doctor’s appointment lists, IRS interrogations of conservative organizations (often demanding the organizations provide the content of any prayers, thousands of key evidentiary emails being destroyed, Senior Obama management officials invoking their fifth amendment rights before Congress to hide crimes, phone taps on journalist James Rosen and his parents. The evidence accumulates virtually everyday. The sheer weight of the information and the growing number of horror stories speak for themselves.

These unsettling events and the facts surrounding them make Obama’s summer of 2008 pronouncement “we gotta have a civilian national security force just as powerful as the military, just as strong and just as well funded” all the more frightening. Careful analysis of these words would be prudent indeed. The impact of all this is precisely the one I think Obama and his administration intended: Citizen fear of the Federal government and the creation of a soft Stalinism.

We can pretend that the American Animal Farm does not exist and that Obama is just another hyper-liberal democrat. We can put our head down in fear and hope that the new Orwellians in the authoritarian administrative state will leave us alone. Or we can admit the reality unfolding before our very eyes, rise up in widespread opposition and eradicate it. The choice is, for a brief time, ours to make.

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Gods of the Left

The secular leftists continue their relentless quest to eradicate God from American discourse. They seek to refuse God any existence at all. They want the removal of the Creator from all discussions within the public square. For the leftists, God must remain the mathematical equivalent of the empty set. The 21st century Left finds references to Christian deities so dangerous to their agenda that they object to any and all displays of the accidental cross from the 9/11 terrorist attacks.

Accidental 9/11 Cross - The New Left has filed law suits to prohibit its display

Accidental 9/11 Cross – The New Left has filed law suits to prohibit its display

Atheists are led by academicians, postmodern intellectuals and bestselling writers such as the late Christopher Hitchens and Richard Dawkins. Most of them tend—in my personal view—to belittle those who postulate the possibility of a universal Creator of any kind.

These champions for eradication of God from public discussion would have you believe that it is their outstanding intellects alone that should sell you on the truth of such an atheistic proclamation. Their pitch is that modern science has proven to all intelligent life the foolishness of the belief in an intentional Creator. The universe is a random accident over which a select group of self-anointed earthly humans must preside.

Although such a conclusion can be reasonably challenged by the logic of the scientific method and statistical analysis, I believe leftist political ambitions and quests for political supremacy, as much as the pursuit of scientific truth, are at the root of this obsession to outlaw a Creator from public acknowledgment. The Left must eliminate the concept of a universal Creator and kill off the idea of any power higher than that of the leftist themselves. This is a necessary step in removing a key political obstacle between them and absolute leftist control of America. The words “Our Creator and natures God” embedded in the Declaration of Independence block their vision of a rights-granting all-controlling authoritarian government. Specifically, the Declaration of Independence establishes the origin of the rights of citizens of the United States with the words:

…We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

The penning of these words, along with the constitution that followed them, gave birth to the American Ideal. The words are clear and unarguable. The American Ideal, the genius of the founding fathers and the hope of mankind going forward into time, is quite simple: The Creator of the Universe endowed all men with a select few unalienable or fundamental rights. Or if you prefer, the natural universe endowed all men with these few basic rights.   Political functionaries, left or right, have no basis on which to endow us with these fundamental rights; rather, the governing class derive their temporary and provisional authorities for simple policy making solely from the consent of those of us who enter into brief and temporary contracts to be governed.

The postmodern atheists want to rule and will not stand for their imagined right to rule to be abridged by any mere Creator. In order for leftists to dictate to us through their central bureaucracy from whom all rights and blessings flow, God the Creator as found in the Declaration of Independence must first be eliminated. Thus, anti-constitutional leftists on the Federal bench, in the universities, and entrenched in the federal government are busily deconstructing the very constitutional foundation upon which our individual rights, responsibilities and freedoms stand. Should they succeed, the source of liberty—the very headwaters of our rights and freedoms—will flow from central government bureaucrats rather than the Declaration’s universal Creator and constitutional limitations of bureaucratic power. Then America will have vanished with the winds of time.

Critique of the history and culture of the world’s religions is the appropriate purview of intellectuals such as Hitchens and Dawkins. However, when they seek to drive out public acknowledgement of the universal Creator as found in the Declaration of Independence, it is time to call them on their hubris. When the leftists seek to install themselves as the replacements for the Creator who endowed us with unalienable rights, it is time to stand and fight.

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