Sixty Years Ago

HISTORY WAS HIS TUTOR.  Father Time talked to him about all that he had seen.  The stories held his attention and made a deep impression. 

     High ideals help us focus—and reveal our flaws.  They ignite a contest between hubris and humility. 

     In 1960, he was well aware that we were nowhere near our potential.  During the campaign, he often opened with “I am not satisfied…” in pointing out our shortcomings.  He wanted no one left behind.  But he favored nuance over nonsense. 

     Eleven days before his inauguration, in an address to a joint session of the Massachusetts Legislature, he recalled the words of John Winthrop, who said, “We must consider that we shall be as a city upon a hill.  The eyes of all people are upon us.”  The light of those words had not dimmed over three centuries later, and the young man used them as a spotlight. 

     “And when at some future date the high court of history sits in judgment on each of us, recording whether in our brief span of service we fulfilled our responsibilities to the state, our success or failure, in whatever office we hold, will be measured by the answers to four questions.”  They concerned courage, judgment, and integrity.  But the last said it all.  “Finally, were we truly men of dedication, with an honor mortgaged to no single individual or group, and compromised by no private obligation or aim, but devoted solely to serving the public good and the national interest?” 

     In the first State of the Union Address, he said, “Before my term has ended, we shall have to test anew whether a nation organized and governed such as ours can endure.  The outcome is by no means certain.  The answers are by no means clear.” 

     He appealed to the best in all of us to realize “our hopes for freedom and the future.”  For success was not dependent “simply upon those of us in this chamber….  And in final analysis, they rest most of all upon the pride and perseverance of our fellow citizens of the Great Republic.” 

     In the second State of the Union Address, “an idealist without illusions” said, “This country cannot afford to be materially rich and spiritually poor.”  Otherwise, “a more perfect Union”—the first goal set forth in the Preamble—cannot be achieved.  His remarks were a reflection of the fact that we are spiritual beings in material bodies, which is why the Great Seal of the United States of America has two sides. 

     Like George Washington, he embodied character—the union of thought, word, and deed directed toward a noble end.  If that was not apparent then, it should be obvious now. 

     On November 22, 1963, the vision of President Kennedy was made clear in remarks he had prepared for delivery at the Trade Mart in Dallas.

     “This country is moving and it must not stop.  It cannot stop.  For this is a time for courage and a time of challenge.  Neither conformity nor complacency will do.  Neither the fanatics nor the fainthearted are needed….  So let us not be petty when our cause is so great.  Let us not quarrel amongst ourselves when our nation’s future is at stake.  Let us stand together with renewed confidence in our cause—united in our heritage of the past and our hopes for the future—and determined that this land we love shall lead all mankind into new frontiers of peace and abundance.”

(c)2023 Marvin D. Jones.  All rights reserved.

The Most Dangerous…With Lifetime Tenure

An immediate reaction to some Supreme Court rulings is indignation, and, beyond the instant, there      is a tendency to respond with slogans or soundbites instead of sound policy.  There is no room for subtlety.  Yet three things must be kept in mind in respect to the judiciary—elections, appointments, and removal.  But to fixate on one—to avert our gaze—is to share the fate of an inattentive juggler.  For the majority on the Court exists because of the first two, and a remedy would be the third, as well as the aforementioned.

 I.  Introduction

BEFORE WE GET CAUGHT IN A THICKET OF THE COMMON LAW and the Constitution, let us consider an initial abuse of power that created the contemporary problem.  It was later exacerbated; the one led to the other.  Ahhh…  “Elections have consequences,” politicians and the press never tire of telling us.  But dubious elections have consequences too, and they can be devastating.

 II.  Shenanigans

      The 6-3 majority of the Supreme Court is a result of events in Florida—and Pennsylvania, Michigan, and Wisconsin.  The former, in 2000, made possible the appointments of John Roberts and Samuel Alito.  The latter, in 2016, led to those of Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.  They were all greeted by Clarence Thomas who had been appointed in 1991. 

     The ascension of Roberts and Alito was made possible because Governor Jeb Bush’s two successive Secretaries of State, Sandra Mortham and Katherine Harris, ordered nearly 58,000 “ex-felons,” who were ineligible under State law, removed from the voter rolls.  But the list was inaccurate and affected Democrats disproportionately.  The United States Civil Rights Commission estimated that a minimum of 8,000 qualified voters were removed.  Thus, voter suppression carried the day and the Governor’s brother supposedly “won” by 537 votes. 

     The ascension of Neil Gorsuch, Bruce Kavanaugh, and Amy Coney Barrett was made possible because Kris Kobach, the Secretary of State of Kansas and commander of Operation Crosscheck, which has received little coverage, provided the perfect platform to piggyback the Russian Connection that the gentleman from New York rode to victory.  Kobach’s faulty list of approximately 7 million voters was used by GOP counterparts in 27 States to remove Democratic or Democratic-leaning voters from the rolls by claiming they were voting in multiple States.  Then, in the three crucial States that were supposed to be the Democratic firewall, the gentleman from New York “won” by 44,000 in Pennsylvania, 11,000 in Michigan, and 23,000 in Wisconsin.  Crosscheck removed up to 344,000 in the first and 449,000 in the second.  In the third, Photo ID, which is used to stop non-existent “voter fraud,” made the difference by depressing turnout in Milwaukee.  Thus, voter suppression carried the day and the 20 electoral votes in Pennsylvania, 16 in Michigan, and 10 in Wisconsin went to the Republican instead of Mrs. Clinton.  And so, the legitimacy of the gentleman from New York goes beyond the question of foreign influence. 

     “...(T)here is one basic check on a runaway Court: presidential elections,” as Professor Bruce Ackerman pointed out in noting the significance of Bush v. Gore. “The Supreme Court cannot be permitted to arrange for its own succession.  To allow (Bush the Younger) to serve as the Court's agent is a fundamental violation of the separation of powers....  The right-wing bloc on the Court should not be permitted to extend its control for a decade or more simply because it has put George W. Bush into the White House.”  (Emphasis added) 

     On July 25, 1787 at the Federal Convention, James Madison reviewed all the methods that had been proposed—and rejected—and concluded that the Electoral College meant that “The President is now to be elected by the people.”  (The Electoral College by Lucius Wilmerding, Jr., 3 & 19)  The involvement of the judiciary was “out of the question.”  Thus, Bush v. Gore was an act of judicial usurpation. 

     Unfortunately, at the time of the Convention, there was no way to reduce "the different qualifications in the different States to one uniform rule," which left a series of hurdles.  (James Madison, The Federalist Papers, No. 52)  But now, because of the Fourteenth, Fifteenth, Nineteenth, and Twenty-sixth Amendments, there is a national standard with consequences for States that deny or abridge the right to vote, and, therefore, at long last, “the original intention” of James Madison and Alexander Hamilton will come to pass that “The President of the United States would be an officer elected by the people…”  (Alexander Hamilton, The Federalist Papers, No. 69)  The National Popular Vote will make it so, and, when that is done, the Electoral College can perform its two functions, popular choice and national security, that is, thwart foreign influence.  That would avoid another political discontinuity, a misalignment of means and ends—a condition where a minority rules a majority, which, as Hamilton noted, “contradicts that fundamental maxim of republican government, which requires that the sense of the majority should prevail.”  (The Federalist Papers, No. 22)  Furthermore, “one basic check on a runaway Court: presidential elections” will be in place. 

III.  Background

      The Court, when properly functioning, is a collegial body that exists to “establish justice.”  (Preamble)  It is not a lifetime Cabinet with a Prime Minister in a robe, much less a Privy Council and the Chief Justice the reigning monarch.  The tenure of those on the bench was not extended to make them barons.  The intention was to strengthen inherent weakness; for, as Hamilton noted, the judiciary controls neither the purse nor the sword.  (The Federalist Papers, No. 78)  Judges were to serve “during good behavior”; decide cases or controversies; and, from the beginning, they issued no advisory opinions, not even for President Washington.  (Article III, Section 1 & Article III, Section 2, Clause 1) 

IV.  Appointments

     If the supreme tribunal is ever to become a collegial body like the one under Chief Justice John      Marshall—who understood the importance of reason, the Court’s role, and the exercise of restraint, and produced 1,042 unanimous decisions out of 1,129 cases—then the nomination and confirmation process must be improved.  These are the essential elements that must be weighed—the institution, the individual, ideology, interaction, image, impact, and intersection.  The nature of the institution—and the current composition of the Court—has to be considered when an individual is nominated.  Ideology, a leading cause of blindness, cannot be ignored and merits a thorough examination.  That interaction affects the Court’s image.  But the impact of their decisions on lives and jurisprudence must be anticipated across a wide range of scenarios.  Finally, the intersection or union with the other branches undermines the constitutional design and endangers the freedom the separation of powers was meant to defend.  “…(L)iberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation….”  (Alexander Hamilton, The Federalist Papers, No. 78; emphasis added) 

V.  Reform? 

     A Code of Ethics is not enough.  It is the bare minimum. 

VI.  Recommendations 

     In the meantime, some members of a 6-3 Court seem to be under the impression that the claim of  lifetime tenure implies impunity.  But “good behavior” sets the standard. 

The provision for judicial tenure “during good behavior” is located in Article III, Section 1….  Derelictions from “good behavior,” on the other hand, were reachable in the English courts by a proceeding to forfeit one’s office.  …(I)ts sole object was to remove the misbehaving appointee….  In sum, at common law there was a civil forfeiture proceeding for “misbehavior” brought in a court, and a criminal impeachment proceeding brought by and in the Parliament.  Never, so far as I could discover, did an English impeachment charge a breach of “good behavior”; instead the stock charges were “high treason and other high crimes and misdemeanors.”  The intermixture of these quite distinct common law procedures and doctrines has bred analytical confusion in the United States.  (Impeachment: The Constitutional Problems by Raoul Berger, 124-125; emphasis added) 

     There are three methods of removal for those who miss the mark—resignation, impeachment, and scire facias.  The first depends upon the individual; the second on the House and the Senate; the third on a judicial panel. 

     “Energy in the Executive is a leading character in the definition of good government....  A feeble Executive implies a feeble execution of the government.  A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government.”  (Alexander Hamilton, The Federalist Papers, No. 70) 

     The oath requires the President of the United States to “preserve, protect and defend the Constitution.”  (Article II, Section 1, Clause 8)  Then he must “take care that the laws be faithfully executed.”  (Article II, Section 3)  The Constitution is the first law—“the supreme law of the land”—and the acts of the three branches “shall be made in pursuance thereof.”  (Article VI, Clause 2)  Thus, here, on the cusp of theory and practice, no one is in a better position to educate the public about what must be done regarding the judiciary in respect to appointments, ethics legislation, and creation of a special court. 

     First, appointments.  The President "shall nominate, and by and with the advice and consent of the Senate, shall appoint...Judges of the Supreme Court...."  (Article II, Section 2, Clause 2)  Accordingly, he may send a Special Message to the Senate and inform them that Mitch McConnell’s abuse of advice and consent cannot be allowed to happen again.  A law degree, law review, a law license, a clerkship, and a favorable rating from the ABA is only a start.  Thus, the need for a comprehensive approach—the institution, the individual, ideology, interaction, image, impact, and intersection—is obvious and overdue.  But should a future nomination be given the McConnell treatment, the President will consider that, as Glenn Kirschner put it, “a waiver of the Senate’s ‘advice and consent’ responsibilities.”  Therefore, pursuant to the Article II, Section 3 duty to “commission all the officers of the United States,” the President shall do so and instruct his designee to take a seat on the Court. 

     Second, regarding legislation, the President “shall…recommend…such measures as he shall judge necessary and expedient.” (Article II, Section 3)  An Emoluments Clause Act is “necessary” to enforce Article I, Section 9, Clause 8 and insure that public officers serve one master and adhere to the oath—“to support and defend the Constitution…against all enemies, foreign and domestic”—by requiring them to place their holdings in Treasury securities.  Failure to do so must be considered as evidence of bribery and, in the case of jurists, require a removal hearing.  The First Congress acknowledged the relevant common law, such as the writ of scire facias, in Section 14 of the Judiciary Act of 1789, and Section 21 of the Crimes Act of 1790 stated that a Judge convicted of bribery shall be “forever disqualified to hold any office.”  Thus, a ‘Good Behavior’ Act is an “expedient” measure to acknowledge the definition of the phrase, as understood by Sir Edward Coke, Matthew Bacon, and Sir William Blackstone, so that it is not rendered an oxymoron.  A special court to remove jurists who think otherwise could consist of District and Circuit Judges, and possibly one Supreme Court Justice.  (Berger, 174-175; Article III, Section 1 & Article I, Section 8, Clause 18) 

     Third, District and Circuit Court Judges, who obey the rules, may want to encourage their higher brethren to do the same.  But if their words fall on deaf ears, they may want to demand that their superiors be required to do so.  For good citizenship is vital “during good behavior.” 

     Finally, journalists like to say that they write the first draft of history and, with just a bit of historical perspective, they could provide more accurate descriptions.  “To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them….”  (Alexander Hamilton, The Federalist Papers, No. 78; emphasis added)  And so, those Justices who overturn settled law willy-nilly are radicals, not conservatives.  Thus, whether past or present, it is better to talk to Mr. Ed instead of Wilbur. 

VII.  Close

      While the least dangerous “during good behavior,” jurists can be the most dangerous with lifetime tenure.  The confusion that the two are one and the same must change because the premise leads to a false conclusion.  The Supreme Court is not, as Ken Starr would have it, “first among equals.”  The judiciary is subject to checks and balances like the other co-equal and co-ordinate branches, and only then can the Justices begin to be trusted “to do their duty as faithful guardians of the Constitution….”  (Alexander Hamilton, The Federalist Papers, No. 78)

(c)2023 Marvin D. Jones.  All rights reserved.

 

https://youtu.be/EZ98IJ0usoE

[Anywhere Is by Enya]

 I.  Introduction

https://www.gregpalast.com/the-great-florida-ex-con-gamernhow-the-felon-voter-purge-was-itself-felonious/

[The Great Florida Ex-Con Game by Greg Palast]

https://www.sourcewatch.org/index.php/Voter_roll_purge_in_the_2000_Florida_election

[Voter roll purge in the 2000 Florida election by Source Watch] 

II.  Shenanigans

https://readersupportednews.org/opinion2/277-75/27009-voter-purges-alter-us-political-map    [11-17-2014]    [Operation Crosscheck—here and first two below]     

https://readersupportednews.org/news-section2/318-66/43764-focus-greg-palast-how-can-we-stop-crosscheck-and-get-our-country-back    [05-25-2017] 

https://www.thenation.com/article/the-crosscheck-voter-database-is-a-security-threat/    [02-02-2018] 

http://marvindjones.blogspot.com/2019/08/the-electoral-college-without-blinders.html

[The Electoral College] 

https://www.nationalpopularvote.com

[The National Popular Vote] 

III.  Background 

https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/advisory-opinion-doctrine-and-practice

[Advisory opinions] 

VI.  Recommendations 

https://twitter.com/glennkirschner2/status/1307289996362162176

[Glenn Kirschner—Counter Senate Obstruction] 

Institutes of the Laws of England by Sir Edward Coke, A New Abridgment of the Law by Matthew Bacon, and Commentaries on the Laws of England by Sir William Blackstone 

https://youtu.be/tkksL5KYC_c

[Mr. Ed] 

VII.  Close 

https://marvindjones.blogspot.com/2021/01/the-imperial-court.html

[The Imperial Court] 

https://www.democraticundergournd.com/100218068344

[The Three Branches…Executive, Legislative, Prejudicial] 

A Designer Nation

“Whenever we as Americans have faced serious crises, we have returned to fundamentals….” 

                                                                                                                      Ralph Ellison

THE DECLARATION OF INDEPENDENCE makes an appeal to heaven, but a different pole star.  Instead of the divine of right of kings, “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.”  (Emphasis added)  There is a departure from royal grants.  Here, rights come from Nature’s God.

     A designer nation is a matter of creation.  It is based on principles, not birth.  It is where the obscenity of h_ _ _land—and chants of “Blood and soil!”—have no place.

     America is a child of the Enlightenment and mankind’s attempt to become transcendent.  The Great Seal is a symbol of that aspiration.  Its two sides represent the material and spiritual realms; the eagle on the one and the pyramid and the all-seeing eye on the other define the struggle “to form a more perfect Union.”

     Under God’s leadership, Ancient Israel faced the gap between the idea and the reality—the tension  between the material and the spiritual.  For after witnessing miracles, there were, to be generous, doubters.  Let Moses step away and the people demanded a golden calf.

     Whether past or present, liars dominate the stage.  And that problem has existed since the encounter with the serpent in the Garden of Eden.  Yet assertion and repetition do not equal truth.  They never have—and never will.  But falsehood is not defeated on the defensive.  We must take the battle to the enemy.  For it must be remembered that knowledge is the foundation of the American Republic.

(c)2023 Marvin D. Jones.  All rights reserved.

 

https://youtu.be/Lcms5H5AIZY

[Transcendence (Original)]

https://youtu.be/DHdkRvEzW84

[Transcendence (Orchestral)]

https://marvindjones.blogspot.com/2020/11/in-order-to-form-more-perfect-union.html

[‘In Order to Form a More Perfect Union’]

Debate and Switch

What is the difference between the Godfather and a lawyer?  A lawyer makes an offer you cannot understand. 

THE PREAMBLE is clear about the ultimate end of the Constitution—“to promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.”  But some politicians major in missing the point.  For how is that to be done if the economy is destroyed? 

     The Founders were not confused.  THE DEBATE OVER DEBT MANAGEMENT VERSUS DEFAULT WAS SETTLED IN THE BEGINNING.  According to Article VI, Clause 1, “All debts contracted and engagements entered into, before the adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.”  And James Madison dismissed “...the pretended doctrine that a change in the political form of civil society has the magical effect of dissolving its moral obligations.”  (The Federalist Papers, No. 43, JM on “All debts and engagements”)  For under the Articles of Confederation, as Secretary of the Treasury Alexander Hamilton noted in the First Report on Public Credit, “ …(T)he last seven years have exhibited an earnest and uniform effort, on the part of the government of the union, to retrieve the national credit, by doing justice to the creditors of the nation; and that the embarrassments of a defective constitution, which defeated this laudable effort, have ceased.” 

     Hamilton gave force and effect to Article VI, Clause 1, which makes honoring our commitments, meeting our obligations, being true to our word a duty, not an option.  His measures, which were supported by President Washington, made meaningful the power “to borrow money on the credit of the United States” because he provided a way “to pay the debts...of the United States.”  (Article I, Section 8, Clause 2 & Article I, Section 8, Clause 1; emphasis added)  He established the good faith of the nation and gave us our good name.  Thus, Section 4 of the Fourteenth Amendment—“The validity of the public debt of the United States…shall not be questioned”—is a reaffirmation of Article VI, Clause 1 that was to overcome “the embarrassments of a defective constitution,”—the Articles of Confederation—“which defeated this laudable effort”; and, therefore, all debts and engagements entered into shall be valid against the United States under the Constitution. 

     The Second Liberty Bond of 1917 created the debt ceiling, “an aggregate limit on federal debt as well as limits on specific debt issues.”  (The Debt Limit:  History and Recent Increases, Summary, Congressional Research Service, November 2, 2015)  But the statute is curious because it sets up conflict with the power “to borrow money on the credit of the United States” and the duty “to pay the debts...of the United States.”   (Article I, Section 8, Clause 2 & Article I, Section 8, Clause 1; emphasis added)  Yet, according to Article VI, Clause 2, the Constitution is “the supreme law of the land” and all acts are to be made “in pursuance thereof.” 

     When “the preparatory plans of finance” became comprehensive under the Budget and Accounting Act of 1921, the debt ceiling was transformed from a curiosity to a glitch.  (Alexander Hamilton, The Federalist Papers, No. 72)  The President was required to submit a budget that was to be approved by Congress.  Later, because Nixon used impoundment as an item veto instead of a management tool, the process was modified by the Congressional Budget and Impoundment Control Act of 1974.  But the debt ceiling remained. 

     Nevertheless, no one doubted the grass is green and the sky is blue.  The debt ceiling was pro forma, before the curtain was raised to put on a performance.  Bad reviews should have cancelled the show, but somehow it goes on and on off Broadway to eye rolls, sighs, and expletives.  For what is drama to some is traumatic to others. 

     Ronald Reagan promised to cut taxes, raise defense spending, and balance the budget.  Thus, two plus two equals five—and the sky is green and the grass is blue.  But, while they battled for the GOP nomination, George Bush the Elder called it “voodoo economics.”  And it has been easier to cast a spell since Reagan got in the White House and ended the fairness doctrine. 

     Now, whenever there is a Democratic President, Republicans come out of the backroom in lockstep and say, “The deficit is too big and the national debt is astronomical.  You are not cleaning up our mess fast enough.”  Meanwhile, the Democrats have the truth on their side and cower.  Heaven forbid the President act on the Constitution that makes clear THE DEBATE OVER DEBT MANAGEMENT VERSUS DEFAULT WAS SETTLED IN THE BEGINNING. 

     Today, the crisis is over, but the problem remains.  For clipping crabgrass does not attack the roots.  Instead, prepare the ground to make a difference:  THE DEBATE OVER DEBT MANAGEMENT VERSUS DEFAULT WAS SETTLED IN THE BEGINNING. 

Copyright 2023 Marvin D. Jones.  All rights reserved.

 

 https://crsreports.congress.gov/product/pdf/RL/RL31967 

[The Debt Limit:  History and Recent Increases, Congressional Research Service, November 2, 2015]

https://marvindjones.blogspot.com/2023/05/a-long-train-of-abuses-and-usurpations.html

[A Long Train of Abuses and Usurpations]

 https://marvindjones.blogspot.com/2023/05/notes-for-may-9-2023-debt-ceiling.html

 [Notes for the May 9, 2023 Debt Ceiling Meeting]

Notes for the May 9, 2023 Debt Ceiling Meeting

THE DEBATE OVER DEBT MANAGEMENT VERSUS DEFAULT WAS SETTLED IN THE BEGINNING.  According to Article VI, Clause 1, “All debts contracted and engagements entered into, before the adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.”  And James Madison removed any doubt when he dismissed “...the pretended doctrine that a change in the political form of civil society has the magical effect of dissolving its moral obligations.”  (The Federalist Papers, No. 43; JM on “All debts and engagements”) 

     Alexander Hamilton, the former artillery officer in the Continental Army and aide de camp to the  Commander in Chief, gave force and effect to Article VI, Clause 1.  His measures made meaningful the related power “to borrow money on the credit of the United States.”  (Article I, Section 8, Clause 2)  He established the good faith of the nation and gave us our good name.  As Secretary of the Treasury, Hamilton began his report, requested by the House of Representatives, citing their resolution that “an adequate provision for the support of the public credit is a matter of high importance to the honor and prosperity of the United States”; and he continued:  (Emphasis Hamilton’s)

              If the maintenance of public credit, then, be truly so important, the next enquiry which                            suggests itself is:  By what means is it to be effected?  The ready answer to which question 

              is, by good faith; by a punctual performance of contracts.  States, like individuals, who 

              observe their engagements, are respected and trusted, while the reverse is the fate of 

              those who pursue an opposite conduct....

              …(T)he last seven years have exhibited an earnest and uniform effort, on the part of the                          government of the union, to retrieve the national credit, by doing justice to the creditors                          of the nation; and that the embarrassments of a defective constitution, which defeated                            this laudable effort, have ceased.

              In nothing are appearances of greater moment than in whatever regards credit.  Opinion                        is the soul of it; and this is affected by appearances as well as realities....  (Emphasis added) 

So if the “original intention” was to make our word true, can we act in a way that makes our word  worthless?  And should that even be a consideration?  Section 4 of the Fourteenth Amendment—“The validity of the public debt of the United States…shall not be questioned”—is a reaffirmation of Article VI, Clause 1 that was to overcome “the embarrassments of a defective constitution,”—the Articles of Confederation—“which defeated this laudable effort”; and, therefore, all debts and engagements entered into shall be valid against the United States under the Constitution.  Finally, as Hamilton noted in his report, it ought to be “a fundamental maxim, in the system of public credit of the United States, that the creation of debt should always be accompanied with the means of extinguishment.” 

     Although the appearance of an issue has been created by the debt ceiling threat of the House Republicans, their arguments are as empty as the cupboard of Old Mother Hubbard.  In reality, there is no debate, if the words of James Madison and the deeds of Alexander Hamilton and George Washington are accepted as precedent.  On the one side of the scale is the debt ceiling, a statutory provision, the technicality of technicalities and of dubious constitutionality.  On the other is the Fundamental Charter itself, The Federalist Papers, the reports of the first Secretary of the Treasury, and Chapter XIV of the Second Treatise of Civil Government by John Locke.  The oath requires the President to “preserve, protect and defend the Constitution”; and he must “take care that the laws be faithfully executed”—and the Constitution is the first law.  (Article II, Section 1, Clause 8 & Article II, Section 3)  Therefore, if forced to choose between the Constitution and the Second Liberty Bond Act of 1917, the Executive shall faithfully execute “the supreme law of the land” to “promote the general welfare and secure the blessings of liberty to ourselves and our posterity.”  (Article VI, Clause 2 & Preamble)  Such action is consistent with “the executive power” as conceived by the Founders and John Locke who stated that “(P)rerogative is nothing but the power of doing public good without a rule.”  (Article II, Section 1, Clause 1 & Second Treatise of Civil Government)  Accordingly, after giving due notice by a Proclamation on Public Credit to the press and the public and a delinquent Congress, the President would issue an Executive Order on the Means of Extinguishment and invoke the Gephardt Rule which simply stated that the debt ceiling was “deemed to have passed” when a budget resolution was approved, and therefore direct the Secretary of the Treasury to take appropriate action. 

Copyright 2023 Marvin D. Jones.  All rights reserved. 

 

https://founders.archives.gov/documents/Hamilton/01-06-02-0076-0002-0001 

[First Report on Public Credit]

A Long Train of Abuses and Usurpations

“The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex.”  (James Madison, The Federalist Papers, No. 48)

FROM CLASSICAL TIMES it was recognized that a republic exists to promote the general welfare.  The Constitution uses that phrase twice, in the Preamble and in Article I, Section 8, Clause 1.  But how is that to be done if the economy is destroyed? 

     The House GOP is a threat to national security.  They do so under color of law, the Second Liberty Bond Act of 1917 which created the debt ceiling—the technicality of technicalities.  And last week they used a veneer of legitimacy to put a knife to the nation’s throat. 

     Before the blood flows, the President must issue a Proclamation on Public Credit, a formal notice of intent to the Congress that, should the GOP drive the nation toward default, he will take action to maintain the good faith of the United States.  Within x number of days, if a clean debt resolution does not pass the House of Representatives, he would issue an Executive Order on the Means of Extinguishment and invoke the Gephardt Rule, which simply stated that the debt ceiling was “deemed to have passed” when a budget resolution was approved, and therefore direct the Secretary of the       Treasury to take appropriate action.  In the accompanying national address, the President would state that his order was based upon three things consistent with precedent.  It was necessary, specific, and limited.

     The predictable response?  Some would call the President a dictator.  Others would say he chose “the least unconstitutional option.”  To avoid misunderstanding, clarification is in order.

     The Declaration of Independence listed a number of grievances against King George III that exposed him as a despot.  It then concluded that, “A prince, whose character is thus marked by every act which may define a tyrant, is unfit to be the ruler of a free people.”

     A return to classical times finds Cincinnatus working in his fields when messengers from the Senate told him he had been appointed Dictator.  It was a constitutional office in which an individual served for a limited time to deal with a crisis.  Cincinnatus solved the problem and promptly returned to his farm.

     In our contemporary crisis, if the President were to raise the debt ceiling, those who will say he chose “the least unconstitutional option” need to consider that, actually, he would be doing his job.  For the oath requires him to “preserve, protect and defend the Constitution”—the whole point of which is to “promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.”   (Article II, Section 1, Clause 8 & Preamble)  Thus, he is not simply to keep watch over pieces of parchment at the Archives but guard the institutions of the Republic which that document established.

     The Constitution is “the supreme law of the land”; and the President’s must “take care that the laws be faithfully executed.”  (Article VI, Clause 2 & Article II, Section 3)  If original intention has any meaning at all, the debt ceiling is of dubious constitutionality.  Article VI, Clause 1 makes honoring our commitments, meeting our obligations, being true to our word a duty, not an option; and Section 4 of the Fourteenth Amendment reaffirms the same.  Furthermore, Congress exercised its power as to how "to pay the debts...of the United States" when the Department of the Treasury was created.  (Article I, Section 8, Clause 1; emphasis added)

     Alexander Hamilton noted the significance of the difference in phrasing in Article I and Article II during the debate over Washington’s Proclamation of Neutrality that took place in the exchanges of the Pacificus and Helvidius letters.  "All legislative powers herein granted..." read the former; and the latter, "The executive power shall be vested in a President of the United States of America."  (Emphasis added)  The Founders knew that no matter how wise the members of the Legislature, they could not foresee all circumstances that may arise.  They agreed with John Locke that on occasion the Executive would have to act independently for the benefit of the Republic.  “...(F)or prerogative is nothing but the power of doing public good without a rule.”  (Second Treatise of Civil Government, Chapter 14, 166)  That view was restated by Lincoln, TR, and JFK.  But perhaps it is best to recall how it was expressed shortly after the Convention.

     “Energy in the Executive is a leading character in the definition of good government.  It is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of the laws; to the protection of property against those irregular and high-handed  combinations which sometimes interrupt the ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy.  Every man the least conversant in Roman history, knows how often that republic was obliged to take refuge in the absolute power of a single man, under the formidable title of Dictator, as well against the intrigues of ambitious individuals who aspired to the tyranny, and the seditions of whole classes of the community whose conduct threatened the existence of all government, as against the invasions of external enemies who menaced the conquest and destruction of Rome.”  (Alexander Hamilton, The Federalist Papers, No. 70)

     To yield to “the legislative…vortex” would not be ”the least unconstitutional option.”  (James Madison, The Federalist Papers, No. 48)  It would be gross neglect of duty.

     “There can be no need however to multiply arguments or examples on this head.  A feeble executive implies a feeble execution of the government.  A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government.”  (Alexander Hamilton, The Federalist Papers, No. 70)

     Now, instead of a transition of administration, there must be a transition to action—to seize the initiative.  Put the chaos caucus on notice that the Proclamation on Public Credit and the Executive Order on the Means of Extinguishment may only be the beginning.

     The Battle of Capitol Hill did not end on January 6, 2021.  It has become an insurgency by some of the incumbents who were in danger during that insurrection.  Now the GOP has gone back in time to when the Continental Congress stood alone, a single house with neither an executive nor a judiciary—and the States were sovereign.  Those inadequacies of the Articles of Confederation were laid bare as the new Constitution was considered.  “The founders of our republics…seem never to have recollected the danger from legislative usurpations, which, by assembling all power in the same hands, must lead to the same tyranny as is threatened by executive usurpations.”  (James Madison, The Federalist Papers, No. 48) 

(c)2023 Marvin D. Jones.  All rights reserved.

 

 

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2239911

[“the least unconstitutional option”]

http://www.msnbc.com/the-last-word/o%E2%80%99donnell-rewrites-mcconnell%E2%80%99s-filibuster

[McConnell’s Filibuster Against His Own Bill (2012)]

Lindsay Sings the Blues

Should I keep back my opinions at such a time, through fear of giving offence, I should consider myself as guilty of treason towards my country, and of an act of disloyalty toward the majesty of heaven, which I revere above all earthly kings.                                                                                                                                                                                                                             Patrick Henry

I.  You don’t remember me… 

AFTER THE INDICTMENT, the GOP rallied to the defense of the accused.  Much was made of his previous status.  It was as if he was “sacred and inviolable.” 

II.  but I remember you 

     The Declaration of Independence begins with ideals—“all men are created equal”; “life, liberty, and the pursuit of happiness”; “the consent of the governed.”  Then a list of grievances against King George III leads to a summation:  “A prince, whose character is thus marked by every act which may define a tyrant, is unfit to be the ruler of a free people.”

     At the end of the Federal Convention, Benjamin Franklin and James McHenry were approached by Mrs. Powel of Philadelphia. 

     “Well, Doctor, what have got—a republic or a monarchy?” 

     “A republic,” Franklin replied, “if you can keep it.” 

     A monarchy is one thing, a republic another.  Alexander Hamilton compared and contrasted the position of George III with that of the proposed Chief Magistrate of the Union. 

     “The President of the United States would be an officer elected by the people for FOUR years; the king of Great Britain is a perpetual and HEREDITARY prince.  The one would be amenable to personal punishment and disgrace; the person of the other is sacred and inviolable.”  (The Federalist Papers, No. 69)  

     The Constitution makes clear that a monarchy is one thing, a republic another. 

     “The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”  (Article II, Section 4) 

     “Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment according to law.”  (Article I, Section 3, Clause 7) 

     “No person shall…hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath…to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”  (Fourteenth Amendment, Section 3) 

     Title 18, Section 2383 of the United States Code enforces the above. 

     “Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.” 

     “No title of nobility shall be granted by the United States:  And no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever from any king, prince, or foreign state.”  (Article I, Section 9, Clause 8) 

     “No State shall…grant any title of nobility.”  (Article I, Section 10, Clause 1) 

     The President has “power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment”; and that is to be used as a check on the judiciary and to restore domestic tranquility.  (Article II, Section 2, Clause 1 & Alexander Hamilton, The Federalist Papers, No. 74)  Thus, contrary to the assertion by the gentleman from New York that he had “the complete power to pardon,” it, like the other powers of the Presidency, are to be used for the benefit of the Republic.

III.  ‘Twas not so long ago, you broke my heart in two 

     One problem with the King was his failure to establish justice, as noted in the Declaration. 

     “He has obstructed the administration of justice, by refusing his assent to laws for establishing judiciary powers.” 

     “He has made Judges dependent on his will alone, for the tenure of their offices, and the amount and payment of their salaries.”  (Article III, Section 1 prohibits the same) 

     And he was faulted “for depriving us, in many cases, of the benefits of trial by jury.” 

     The Colonists desired “the rights of Englishmen.”  They wanted to be treated as if in “the mother country,” instead of a backwater province of the British Empire.  And, after the war, Anglo-American jurisprudence became more than a phrase, a reality reflected in the Bill of Rights, specifically, the Fifth Amendment, the relevant portion of which has figured in recent events:  “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury….”           

     William Blackstone’s Commentaries on the Laws of England did not just gather dust on the Founders’ shelves.  Anglo-American jurisprudence did indeed come to pass. 

     “A presentment, properly speaking, is the notice taken by a grand jury of an offense from their         knowledge or observation, without any bill of indictment laid before them at the suit of the king.”  (Volume 4, 298, italics his) 

     “An indictment is a written accusation of one or more persons of a crime or misdemeanor, preferred to, and presented upon oath by a grand jury….  (Volume 4, 299, italics his)  As many as appear upon this, are sworn upon the grand jury, to the amount of twelve at the least, and not more than twenty three, that twelve may be a majority….  (Volume 4, 299, italics his)  This grand jury are previously instructed in the articles of their enquiry, by a charge from the judge who presides upon the bench.  They then  withdraw, to sit and receive indictments, which are preferred to them in the name of the king, …and they are only to hear evidence on behalf of the prosecution: for the finding of an indictment is only in the nature of an enquiry or accusation, which is afterwards to be tried and determined; and the grand jury are only to enquire upon their oaths, whether there be sufficient cause to call upon the party to answer it.  A grand jury however ought to be thoroughly persuaded of the truth of an indictment, so far as their evidence goes; and not rest satisfied merely with remote possibilities: a doctrine, that might be applied to very oppressive purposes….  (Volume 4, 300) 

     “If they are satisfied of the truth of the accusation, they then endorse upon it, ‘a true bill’; antiently, ‘billa vera.’  …(I)f twelve of the grand jury assent, it is a good presentment, though some of the rest disagree.  And the indictment, when so found, is publicly delivered into court….”  (Volume 4, 301, italics his) 

     “To arraign is nothing else but to call the prisoner to the bar of the court, to answer the matter charged upon him in the indictment.  The prisoner is to be called to the bar by his name….  (Volume 4, 317)  When a criminal is arraigned, he either stands mute, or confesses the fact; which circumstances we may call incidents to the arraignment: or else he pleads guilty to the indictment, which is to be considered as the next stage of proceedings.”  (Volume 4, 318, italics his)

IV.  Tears on my pillow  

        The country’s birth certificate begins with ideals, then lists grievances against George III, and concludes that, “these United Colonies are, and of right ought to be, free and independent states; that they are absolved from all allegiance to the British Crown….”  Therefore American history is not a celebration of monarchy, nor an endorsement of despotism.  Thus, the Constitution makes it clear that there are to be no titles of nobility here and guarantees “to every State in this Union a republican form of government.”  (Article I, Section 9, Clause 8;  Article I, Section 10, Clause 1 & Article IV, Section 4)  And so, the one who temporarily resides at 1600 Pennsylvania Avenue is President of the Republic, not King of the Realm.

(c)2023 Marvin D. Jones.  All rights reserved.

BREAKING NEWS: 

https://youtu.be/6px-ITUKqSo 

Lindsay Graham is in the studio and will be recording his rendition of these songs: 

https://youtu.be/oGmVhwvq1LY 

Tears On My Pillow - Vikki Carr 

https://youtu.be/jBgbTB2DXGw 

The Blues Ain’t Nothin’ But A Woman Cryin’ For Her Man - Dinah Washington 

https://youtu.be/CJ1Wk-bVXBc 

I Can’t Teach My Old Heart New Tricks - Nancy Wilson 

https://marvindjones.blogspot.com/2017/09/the-schlesinger-moment.html 

[Pardons]

            

 

The Other Option

To every thing there is a season, and a time to every purpose under the heaven….  A time to rend, and a time to sew; a time to keep silence, and a time to speak.  (Ecclesiastes 3:1 & 7, KJV)   

WHY do we let liars dominate the stage?  For there is no excuse when an occasion presents an opportunity to tell the truth.   

     The President “shall from time to time give to the Congress information of the State of the Union.”   (Article II, Section 3)  And every address is, or should be, a chance to renew the commitment to the goals set forth in the Preamble, that is, “to form a more perfect Union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity…”  (Emphasis added)   

     As the President of the United States stands before a joint session sitting in the House of Representatives, a body whose majority has threatened to hold the economy hostage, he must execute a last resort and announce that, pursuant to Article VI, Clause 1 and Section 4 of the Fourteenth Amendment, as well as his duty to “take care that the laws be faithfully executed”—and the Constitution is the first law—he will raise the debt ceiling.  (Article II, Section 3)  Furthermore, he shall inform the Imperial Court, which will be present, that if they attempt to overrule him, he will paraphrase President Andrew Jackson and say, “Mr. Roberts, you have made your decision.  Now go and enforce it.”   

     For those who think such action is outlandish, John Locke, in the Second Treatise of Civil Government, stated, “…(P)rerogative is nothing but the power of doing public good without a rule”; and his influence on the Founders was made clear by someone who attended the Convention.  “Energy in the Executive is a leading character in the definition of good government….”  And without it, Alexander Hamilton noted, there are consequences.  “A feeble executive implies a feeble execution of the government.  A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government.”  (The Federalist Papers, No. 70)  Thus, there are times when a President must use the full powers of the office, as JFK said, "all that are specified and some that are not." 

(c)2023 Marvin D. Jones.  All rights reserved.

 

https://youtu.be/W4ga_M5Zdn4

[Turn, Turn, Turn] 

https://marvindjones.blogspot.com/2021/10/a-last-resort.html

[A Last Resort] 

https://marvindjones.blogspot.com/2022/01/the-imperial-court.html

[The Imperial Court]

Oath and Consequences

“This Constitution…shall be the supreme law of the land…any thing to the contrary notwithstanding.”  (Article VI, Clause 2) 

THE MAN WHO WOULD BE KING gave his word, with such a lack of irony that one suspects he needs Geritol.

     “A massive fraud of this type and magnitude allows for the termination of all rules, regulations, and articles, even those found in the Constitution.  Our great ‘Founders’ did not want, and would not  condone false and fraudulent elections.” 

     Anyone the least conversant in American history knows how often this nation has refused to take      refuge in the arms of monarchy.  The Declaration of Independence begins with ideals and then lists grievances against George III.  The Constitution makes it clear that there are to be no titles of nobility here and guarantees “to every State in this Union a republican form of government.”  (Article I, Section 9, Clause 8; Article I, Section 10, Clause 1 & Article IV, Section 4)  The Fourth Amendment stands in contrast to the writs of assistance—general search warrants—which allowed the agents of King George III to do as they pleased.  Thus, among other things, the Bill of Rights defines the role of a police officer in a republic, not a monarchy. 

I

     Thomas Jefferson’s concern over “governments deriving their just powers from the consent of the     governed” is now to apply only when one likes the results.  So, the self-styled “conservatives” and “strict constructionists” must have forgotten that James Madison, like the author of the Declaration, made the very same point—“A republic, by which I mean a government in which the scheme of representation takes place....”  (The Federalist Papers, No. 10)  And they must have also forgotten another minor observation by the Father of the Constitution that “The definition of the right of suffrage is very justly regarded as a fundamental article of republican government.”  (The Federalist Papers, No. 52) 

     It was not possible at the Convention to establish “one uniform rule” for voting.  (James Madison, The Federalist Papers, No. 52)  Instead, those who were eligible to vote for the lower House of the State Legislature could do so in Federal elections.  (Article I, Section 2)  Now, because of the Fourteenth, Fifteenth, Nineteenth, Twenty-fourth, and Twenty-sixth Amendments, there is a national standard with consequences for those States that deny or abridge the right to vote.  (Fourteenth Amendment, Section 2)  Thus, Article I, Section 4, Clause 1—“The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by law make or alter such regulations”—can have full force and effect. (Emphasis added) 

II

     Before he was deposed, King Chief Traitor I said, “I have an Article II where I have the right to do whatever I want as President.”  He also claimed, “the complete power to pardon.”  Apparently, no titles of nobility only applies to commoners.  (Article I, Section 9, Clause 8 & Section 10, Clause 1) 

     If a citizen said, “A fraud of this type and magnitude allows for Macbeth’s termination,” the Secret  Service would pay that individual a visit.  Yet the Chief Traitor can call for the death of the very thing we take an oath to defend—and no one knocks on his door.  Instead, he is protected. 

     The Chief Magistrate of the Union takes an oath to “preserve, protect and defend” the Constitution.  But the Chief Traitor is a certified sissy who never served, and he is an offense to all of us who meant it when we said, “So help me God.”  And since the oath requires us to support and defend the supreme law of the land “against all enemies, foreign and domestic,” he must be viewed as the latter.  Therefore, he is entitled to no respect beyond common courtesy, no deference but Mister lest Sir arouse thoughts of knighthood. 

III

     Turmoil is America’s middle name.  But according to the country’s birth certificate, “Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes….”  The exception occurs “when a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism….”  Shays’ Rebellion, which showcased the shortcomings of the Articles of Confederation with a bayonet point, did not meet the Declaration’s standard.  Neither did the Whiskey Rebellion, the first uprising under the Constitution, which was met with a firm response due to the previous experience.  And the Civil War was an act of treason; and treason—“levying war” against the United States—is the only crime defined in the supreme law of the land, because it is a threat to the life of the Republic.  (Article III, Section 3)  Thus, “light and transient causes” will not suffice; and, besides, the Fundamental Charter makes revolution within the framework of law possible through ballots, not bullets.  A republic is the means to an end that avoids “a long train of abuses and usurpations.” 

     The Attorney General assists with the “take care” clause day-to-day in regard to prosecutions.  But the Battle of Capitol Hill merits a response beyond criminal law. 

     To “insure domestic tranquility,” the Chief Magistrate must “take care that the laws be faithfully executed” in regard to national security.  (Preamble & Article II, Section 3)  The first law is the supreme law of the land and all actions must be “in pursuance thereof.”  (Article VI, Clause 2)  Therefore the President has to act like Washington and Lincoln—call up the Militia and suspend the writ of habeas corpus, which can be done “when in cases of rebellion or invasion the public safety may require it.”  (Article I, Section 8, Clauses 15 &16; Article II, Section Clause 1; and Article I, Section 9, Clause 2)  For domestic terrorism is rebellion by another name, as Grant recognized in taking such action against the KKK during Reconstruction.  Thus, by these deeds, the President of the United States is true to the oath to “preserve, protect and defend” the Constitution.  (Article II, Section 1, Clause 8)   

     With the separation of the wheat from the chaff, the Special Prosecutor can proceed with priority prosecutions.  Count 1 could be conspiracy to defraud the United States and Count 2 rebellion or insurrection.  (Title 18, Section 371 & Section 2383 of the United States Code, respectively; the latter enforces the Fourteenth Amendment, Section 3) 

     There is no statute of limitations on upholding the supreme law of the land.  It is a lifetime commitment, and those who call for the termination of the Constitution must know that their service is at an end and they will never hold any office under the United States again.  (Fourteenth Amendment, Section 3 & Title 18, Section 2383)  And while turmoil is America’s middle name—which is to be expected, having been born in dissent—an armed threat to the life of the Republic must be a death sentence for anyone who takes aim.  (Article III, Section 3 & Title 18, Section 2381 of the United States Code)

(c) Marvin D. Jones 2023.  All rights reserved.

 

https://www.dailykos.com/stories/2022/12/23/2143504/--Are-we-at-war-Bannon-exhorts-TPUSA-s-awakened-army-to-take-this-to-its-ultimate-conclusion

['Are we at war?’ Bannon exhorts] 

https://www.dailykos.com/stories/2022/12/24/2143600/-January-6th-Rioter-Arrested-Planned-to-Kill-37-FBI-Agents?utm_campaign=recent

[January 6^th Rioter Arrested: Planned to Kill 37 FBI Agents] 

https://quod.lib.umich.edu/j/jala/2629860.0029.205/--lincoln-s-suspension-of-the-writ-of-habeas-corpus?rgn=main;view=fulltext

[Lincoln’s Suspension] 

https://harvardlawreview.org/2012/02/the-forgotten-core-meaning-of-the-suspension-clause/

[Suspension] 

https://youtu.be/GVpUjmNN31Q

[Does it come in black?]