ANOTHER UNCONSTITUTIONAL LAW

Fiedor Report On the News #266 ^ | 3-31-02 | Doug Fiedor

[forest]

Unfortunately, the very unconstitutional Campaign Finance bill was signed into law last week.

Saying that, while the bill has flaws, it "improves the current system of financing for federal campaigns," President Bush signed the unconstitutional campaign finance legislation into law last Wednesday. Immediately, the National Rifle Association filed suit challenging the constitutionality of the new law. The legislation "eviscerates the core protections of the First Amendment by prohibiting, on pain on criminal punishment, political speech," the NRA’s legal complaint says.

Sen. Mitch McConnell (R-KY), an adamant opponent of the bill, said he will also file suit and expects the law to be overturned. Opponents know the bill will not take the influence of money out of politics -- "There won't be a single penny less spent on issues and campaigns in America after this becomes law," McConnell said. "The real loser under this legislation is the American voter, who can no longer rely on the political party as an indicia of what that candidate stands for.”

The Senate vote was 60-40. There were 48 Democrats, 11 Republicans and one independent. Opposed were 38 Republicans and two Democrats. The bill passed the House last month, 240-189.

"With a stroke of the president's pen, we will eliminate hundreds of millions of dollars of unregulated soft money that has caused the American people to question the integrity of their elected representatives," Sen. John McCain (R-AZ), the chief perpetrator of the unconstitutional act, gloatingly said.

Throughout American history, political speech was usually the most protected of speech. This began with English law and was included in the constitutions of most of the original Thirteen Colonies. Representative James Madison presented the protection of speech in the first Congress as part of the Bill of Rights.

Madison's version of the speech and press clauses, which was introduced in the first House of Representatives on June 8, 1789, provided: “The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.” (1)

The special committee then rewrote (condensed) the language to some extent, adding other provisions from Madison's draft, to make it read: “The freedom of speech and of the press, and the right of the people peaceably to assemble and consult for their common good, and to apply to the Government for redress of grievances, shall not be infringed.” (2)

That was the form that went to the Senate. The first Senate then rewrote it to read: “That Congress shall make no law abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and consult for their common good, and to petition the government for a redress of grievances.”

The religion clauses and these clauses were combined by the Senate. The final language was agreed upon in conference: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Which for speech, we can shorten to: "Congress shall make no law … abridging the freedom of speech …"

The words “shall make no law abridging the freedom of speech” seem rather clear out here in flyover country. Which means, the 240 representatives and 60 senators approving that campaign finance legislation intentionally and maliciously violated the Constitution.

They also violated a federal statute. Because, a federal law requires that, "An individual, except the President, elected or appointed to an office of honor or profit in the civil service or uniformed services, shall take the following oath": (3)

"I, (name), do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God."

Clearly, 300 lawmakers violated that law.

In The Federalist Papers No. 62 James Madison admonishes: "It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?"

And, in The Federalist Papers No. 78, Alexander Hamilton informs us that:

"There is no position which depends on clearer principles than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid."

One sentence there sums it up nicely: "No legislative act, therefore, contrary to the Constitution, can be valid." When government violates the Constitution, government then becomes an illegal entity and relinquishes its Constitutional authority. This places the burden of correction squarely on the shoulders of the people.

Out position, then, should be to assure that none of the offending 300 perpetrators ever hold a position of honor again.

The Federalist Papers, by the way, are often cited by the United States Supreme Court as a source of Constitutional law. The United States Supreme Court cited The Federalist Papers as a source of Constitutional law as far back as 1821 (Cohens vs. Virginia), wherein Chief Justice John Marshall said: "Its intrinsic merit entitles it to this high rank [as a commentary on the Constitution], and the part two of the authors performed in framing the Constitution, put it very much in their power to explain the views with which it was framed."(4)

Still today, the Supreme Court refers to The Federalist Papers in many of its opinions. An inexpensive paperback version can be found in any bookstore. The text should be studied by every liberty loving American citizen.

-----------------------------

1. Annals of Congress 434 (1789)

2. Annals of Congress 731 (August 15, 1789)

3. 5 USC 3331

4. http://laws.findlaw.com/us/19/264.html

 END

[forest]

- "There won't be a single penny less spent on issues and campaigns in America after this becomes law," McConnell said. "The real loser under this legislation is the American voter, who can no longer rely on the political party as an indicia of what that candidate stands for.”

They also violated a federal statute. Because, a federal law requires that, "An individual, except the President, elected or appointed to an office of honor or profit in the civil service or uniformed services, shall take the following oath": (3) "I, (name), do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God."

Clearly, 300 lawmakers violated that law.

[Fish out of Water]

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[vigilo]

"With a stroke of the president's pen, we will eliminate hundreds of millions of dollars of unregulated soft money that has caused the American people to question the integrity of their elected representatives," Sen. John McCain (R-AZ)."

To Sen. McCain,
The fanatical desire to write illegal law causes me to question the integrity of my elected representatives.

[uncbob]

Still today, the Supreme Court refers to The Federalist Papers in many of its opinions. An inexpensive paperback version can be found in any bookstore. The text should be studied by every liberty loving American citizen.

I disagree. Doing so will only make you more ANGRY, CYNICAL and DEPRESSED

Better to live in a FOOL'S PARADISE and praise George Bush

[Joe Bonforte]

Come on, Bush babies. Tell us what's wrong with Doug's analysis.

If your answer is the extremely lame "well, it's just a strategic thing, see, to get control of Congress", let me point something out to you. If the only objective of seeking power is to maintain it and gain more power, then what's the point? You talk about wasted votes for us who support third parties, but where's the wasted vote now? You voted for someone who lied to you - who told you he would never support such a monstrosity and has now gone back on his word. (Considering "read my lips", I'm tempted to say "it runs in the family"...)

You guys worked for Bush because you said he would make a difference. Now he has exposed himself as totally unprincipled, and willing to violate his oath of office whenever politically expedient. And that makes him better than Gore how?

[VinnyTex]

Ahhh Joe, he made a political calculation! Get that idiot from Arizona off his back. I think it's safe to say most of the bill will be declared unconstitutional by the court thus he's appeased the lunatic in Arizona and didn't waste any political capital.

[Aric2000]

He's got MORE political capital to waste then ANY president EVER!! He could have gotten on the bully pulpit and said, "look what your congress just did" This person and this person and this person, so on and so forth voted YES on this balatantly unconstitutional bill, they have violated thier oaths of office.

But NO, he had to sign the POS and then get on that little bandwagon of oathbreakers. GOOD MOVE Bush, that has got to be the dumbest and outright stupid thing he has ever done. If he doesn't have the political capital to waste on that, then what is he going to waste it on, the war with Iraq? 70% of us support the war on Iraq, he's got political capital in spades!!

[VinnyTex]

My theory is, the lunatic from Arizona told him if he didn't sign the bill he'd walk. His top guy, John Weaver has already gone Demo working for Dashcle now.

Washington is a rough town and anyone with a lick of sense knows the lunatic from Arizona hates Bush. So when the court throws the thing out, the lunatic won't have any leverage.

[BluesDuke]

Abrogate the Supreme Law of the Land, but appease an Arizona lunatic. Somehow, I can't help thinking that, compared to a deal like that, Frank Robinson for Milt Pappas was a steal for the Cincinnati Reds.

Congress shall make no law...abridging the freedom of speech. Which part of that clear enough portion of the Supreme Law of the Land did this Congress, and this President, not understand?

Leadership - not gamesmanship!

[VinnyTex]

Perhaps getting the court involved is leadership. The only way to settle this thing once and for all is to let the court declare in unconstitutional.

[BluesDuke]

Perhaps getting the court involved is leadership. The only way to settle this thing once and for all is to let the court declare in unconstitutional.

It is the final way to settle "this thing," but it ought never to have been allowed to come to that. The courts, National Review editor Rich Lowry reminded us in a neat headline a few days ago (he was writing of this affair), do not own the Constitution. Mr. Bush should have vetoed this bill on very solid Constitutional grounds, stated in plain language those grounds being the cause of his veto, and thrown onto the heads of Congress the onus of justifying why they believed it was their proper business to abrogate the Supreme Law of The Land on behalf of this dubious enough issue.

Merely letting the Supreme Court do the dirty work on behalf of letting the political class appear to have been on the side of the very dubious campaign finance reform angels (as has been suggested in several places was a key element in Mr. Bush's deciding to sign the bill) is not leadership, it is cynicism of a most grotesque variety. And why on earth should Mr. Bush have so cavalierly allowed Mr. McVain the chance to play Pepsi to his Coca-Cola and crow, in essence, The other guy just blinked?

If you'll pardon the expression, on this issue and this bill's abrogation of the Constitution, Mr. Bush had his chance. He did not lead.

[VinnyTex]

This was just the first step towards their ultimate goal which is public financing of campaigns. Feingold makes no bones about it.

So that's why the courts have to declare it unconstitutional. Can individual Americans participate or are we going to socialize the political process.

[BluesDuke]

My point isn't that the Supreme Court has to proclaim it unconstitutional - that one, unless I'm very wrong, is all but a no-brainer. (I almost can't imagine even the more liberal members of the Court allowing it to stand in its incumbent form, though I'd almost hazard the guess that either Scalia or Thomas would write for the Court if they do shoot it down, as damn well they should.) My point is that whatever the reason, be it gamesmanship or some other purely political motives, Congress had no legitimate call to write and the President had no legitimate call to sign flagrantly unconstitutional legislation.

It wasn't exactly a lock that Congress might have the votes to override a veto, particularly if Mr. Bush, with the political capital he had going in, had done as I enunciated above and made it plain he had extremely Constitutional grounds for vetoing this bill and was, therefore, laying it on Congress's heads to justify violating the Supreme Law of The Land in writing and passing it. It was not guaranteed that CFR would resurrect in a subsequent administration if Mr. Bush had vetoed and the veto had held up, and even if it were to have come back after a veto holding up, it would have been squarely on the shoulder of Congress, if they were that hot to have campaign finance reform, to try it the next time without treating the Constitution like an irrelevancy.

[mrsmith]

James Madison, a staunch defender of the prerogatives of the separate Branches, makes this point:
"...notwithstanding this abstract view of the co-ordinate and independent right of the three departments to expound the Constitution, the Judicial department most familiarizes itself to the public attention as the expositor, by the order of its functions in relation to the other departments; and attracts most the public confidence by the composition of the tribunal. It is the Judicial department in which questions of constitutionality, generally find their ultimate discussion and operative decision . . .
To Mr. ______ _____ , 1834(Madison, 1865, IV, pages 349-350) "

Though I wish Bush had vetoed the bill with specific instructions to remove the egregious 30 and 60 day speech bans, if he has fallen back upon "the public confidence" in the Supreme Court in this case- that is certainly no Constitutional extremity.

[BluesDuke]

Though I wish Bush had vetoed the bill with specific instructions to remove the egregious 30 and 60 day speech bans, if he has fallen back upon "the public confidence" in the Supreme Court in this case- that is certainly no Constitutional extremity.

If we consider the oath of office to which members of Congress and the President of the United States are bound, it is implicit in that very oath of office that they should not take the route of merely leaving legislation's constitutionality up to the Supreme Court - whose actual function as the final arbiter of what is and is not Constitutional was not delineated anywhere within the Constitution itself but, rather, was proclaimed when Mr. Chief Justice Marshall wrote Marbury v. Madison. That the Court will (unless I am very wrong) dismiss this CFR package as unconstitutional in its present incarnation is, I repeat, all but a no-brainer; that the Court ought to have been allowed as the first resort for determining this package's constitutionality - for whatever reasons of political gamesmanship - is at once intellectually disreputable and Constitutionally abominable.

[mrsmith]

Every Congress and President has passed unconstitutional laws, and I daresay every one of them has passed laws they believed unconstitutional.
If anyone has an example of a President or congress this can not be said of I'd be very interested to see it.
Of course, one can go to the well too often, the ever present danger in this course is that it will, by accumulation, lead to a diminuation of the respect the Judicial Branch affords to the other Branches Constitutional views.

As long as the CFR has festered in the political branches, and- most importantly- the great propaganda it receives from the press, I can't view with derision, but only mild disappointment, Bush's decision to call upon what Madison termed "the public confidence" in the Supreme Court's arbitration of Constitutionality.

[Congressman Billybob]

The long-term benefit of the above article will come if it causes a few tens of thousands of Americans to read the Federalist, by Hamilton, Jay and Madison. It is the best "political science" text ever written in this nation.

As for CFR itself, we the defenders of the First Amendment will kill this law in the Supreme Court. It should not have come to that. But it has. And we're ready.

Congressman Billybob

Click here to fight Shays-Meehan.

Click here for latest column: "Does Anyone READ the Constitution?"

[BluesDuke]

Every Congress and President has passed unconstitutional laws, and I daresay every one of them has passed laws they believed unconstitutional.

Enough Congressmen and Presidents had partaken of political crimes, but that didn't excuse Richard Nixon from his role in the Watergate cover-up. Enough Congressmen and even Presidents had used the apparatus of government to shield their extramarital dalliances, but that didn't excuse Bill Clinton from committing perjury, suborning perjury, and obstructing justice trying to shield his. And just because previous Congresses and Presidents have written and signed unconstitutional laws, even if they knew at the time the laws in question were unconstitutional, it did not and does not excuse this Congress or this President.

Of course, one can go to the well too often, the ever present danger in this course is that it will, by accumulation, lead to a diminuation of the respect the Judicial Branch affords to the other Branches Constitutional views.

Which is one extremely important other reason why Congress ought not to have written and passed, and the President ought not to have signed, this package. The last thing we on the right ought to desire is government by judges.

As long as the CFR has festered in the political branches, and- most importantly- the great propaganda it receives from the press, I can't view with derision, but only mild disappointment, Bush's decision to call upon what Madison termed "the public confidence" in the Supreme Court's arbitration of Constitutionality.

Aside from the fact that it is a foolish public which might sustain unbound confidence in the Supreme Court's arbitration of Constitutionality, considering the strategic mischief of only too many Court rulings and opinions in the past few generations (and may we please bear in mind that the Supreme Court is not the first or prime arbiter of Constitutional muster), how long campaign finance reform in the current form has festered in the political branches or within the great propaganda machinery is of no interest or concern to me. As country music legend Patsy Cline is supposed to have said, "People in hell want a glass of water, but that don't mean they're supposed to get one."

Mr. Bush deserves to be admonished, again and again and again, for signing a bill he knew good and goddam well was unconstitutional (we bear in mind that many previous unconstitutional laws may not have been immediately apparent in their unconstitutionality), for whatever reasons he chose to sign it. He has no excuse in the precedent that previous Presidents have signed unconstitutional legislation; the "everyone else did it" argument holds no more water for Mr. Bush (or any President) regarding such legislative unconstitutionality than it held for Richard Nixon or Bill Clinton regarding political crime. We are entitled to raise questions enough as to what manner of backbone or surety we may depend upon Mr. Bush to shepherd the Constitution through the remainder of his time in office, should Congress send him similarly (and just as obviously) unconstitutional legislation: Will he succumb to whatever seems to be the fashion of the moment among the members of the legislative branch, or among the various outlets of the press or even the public's views, and ignore the mandate of the Supreme Law of The Land; or, will he stand firm and forthrightly upon the oath of his office and its implicit mandate upon him and proclaim that the Constitution of the United States means more than Congressional or public passion would prefer it to mean?

One more time, with feeling: Which part of Congress shall make no law...abridging the freedom of speech did this Congress or this President not comprehend. The Washington Times punctuated it appropriately: "For shame, Mr. Bush. For shame."

[mrsmith]

"If anyone has an example of a President or congress this can not be said of I'd be very interested to see it. "

On another thread, "in veno veritas" suggests William Henry Harrison.

I think he may be right!