Newsletter | February 16, 2023
The Supreme Court of the United States, 1888
Over the last year, the Supreme Court has delivered several important decisions regarding issues directly affecting our families, communities, and country. These landmark decisions concerned areas of great public interest – abortion, Second Amendment rights, and the federal bureaucracy’s attempts to circumvent congressional authority substituting agency regulations in place of laws passed by the men and women we elect to represent us. The Court’s majority opinions were determined by careful and objective constitutional jurisprudence. And indeed, according to Alexander Hamilton, one of the authors of the Federalist Papers, our Supreme Court is the embodiment of the supreme law of the land.
We, at America’s Future, are grateful readers have responded so positively to our ongoing series on the Federalist Papers. This vital historical collection of essays written by three of our Founding Fathers —James Madison and John Jay along with Hamilton — urging their fellow Americans to ratify the Constitution helps us understand our current situation. The Federalist Papers show us not only how the supreme law of the land came to be but also the ideas and concerns that shaped the thinking of the visionaries who wrote it. This week we turn to Federalist No. 78, in which Hamilton discussed his ideas about the judicial branch.
Hamilton believed that the judicial branch was the weakest of the three branches — the executive branch controls the military and congress – the legislative branch – controls the money but the judiciary, he wrote, “may truly be said to have neither FORCE nor WILL, but merely judgment.” Because of the court’s weakness, the concern was that the judiciary might be vulnerable to corruption. The way to shield federal judges from politics, Hamilton answered, was to give them lifetime appointments.
And it is here where the anti-Federalists, who opposed a stronger federal government, made an important point against Hamilton and the Framers of the Constitution. They noted that the judges appointed for life would then be “independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel independent of heaven itself.”
It is true that we’ve seen activist judges using their position to advance their chosen causes, regardless of the Constitution. Indeed, this is what the legal debate, as opposed to the moral argument, over abortion came down to — Roe v Wade (1973) was bad law shaped by the political winds of the moment. The Supreme Court’s decision to overturn it last year rightly returned the power to regulate abortion back to America’s electorate and their representatives, as stipulated in the Constitution.
Hamilton would have surely cheered the Court’s ruling in the Dobbs (2022) case. For him, judicial review —that is, determining whether statutes, and their application in real world settings, are consistent with the supreme law of the land — was the judiciary’s highest purpose, insofar as it protected the liberties and freedoms guaranteed by the Constitution. Judges, he wrote, “ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental … [W]henever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.”
The ongoing fight to preserve our liberties is taking place across America, from federal courtrooms to public schoolrooms. We at America’s Future join hands with all who stand to meet the enemies, foreign and domestic, of our Constitutional Republic, all who are engaged in this generational battle for the future of our great country. Spread the word, let family, friends, and neighbors know — without fear, Americans stand and fight!
Please participate in our Reader’s Survey. Your insight and thoughts are important to us to learn what is on the minds and in the hearts of our fellow Americans. We read them all and share some of them every Monday at 9 a.m. during America’s Future live broadcasts with our Executive Director Mary O’Neill on America’s Mondays With Mary. Thank You!
Presidents’ Day Reflections
On Monday, February 20, 2023, America celebrates Presidents’ Day. It commemorates the birthday of one of America’s greatest Founding Fathers and the first President of our country, General George Washington. A well-known fact about the election of George Washington is that his election remains the only unanimous presidential election in our nation’s history. It is through this prism that we reflect on our electoral college, a process for electing U.S. presidents and a strong measure to ward off tyranny.
The Office of President and our presidential elections spring from our Constitution and are regulated under Title 3 of the United States Code.
The electoral college is the distinguishing feature separating our Republic form of government from what is called a “pure Democracy.” In a Republic, the ruling majority is restrained by minority interests and values because the electoral college serves as a “vote equalizer,” allowing the votes of a state populous to be pooled together, causing many rural areas with fewer residents to have as much of a voice as those who reside in populated cities. In a “pure Democracy,” the majority is not restrained in this way and can much more easily impose its will on the minority.
Here are some key facts in connection with our electoral college process for selecting the President of the United States:
On this Presidents’ Day and on every day, raise the American flag at your home or business, and once again, pledge allegiance to our nation and reflect upon the vision of our Founding Fathers, who have given us so much to be grateful for.
Seventeenth Amendment – Dismantling the “Millionaire’s Club”
Welcome back to our series surveying the 27 constitutional amendments ratified over the course of our history as a sovereign nation, a Constitutional Republic. Each amendment revises our Constitution, alters the course of history, and, in one way or another, advances America closer on her path to exceptionalism. In the last five editions of our newsletter, we covered the Eleventh Amendment through the Fifteenth Amendment, which brings us to the Seventeenth Amendment this week. Readers can find our examination of the first ten Amendments of the Constitution – the Bill of Rights – in the online version of our book, Exploring America’s Founding Documents, by clicking here. If you would like to receive a free print copy, please do so by clicking here.
America’s legislative branch is a bicameral system meaning our United States Congress is divided into two separate chambers: 1) the U.S. Senate; and 2) the U.S. House of Representatives. The U.S. Senate is made up of two senators from each state, no matter the size of the state or the population. The House of Representatives, on the other hand, is made up of “no more than 435” (as provided by law), and the states elect members in a manner proportionally representing the population of the 50 states.
Article I, Section 3 of the Constitution which conferred the power to elect two U.S. Senators, to seats in the U.S. Congress, to state lawmakers. The first clause of this section states,
The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.
The Seventeenth Amendment, passed by Congress in May 1912 and ratified by the states on April 8, 1913, divested that authority out of the hands of state politicians and turned it over to the people of the states. The text of the Seventeenth Amendment states, in part,
The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures…
The 180-degree about-face is straightforward. The underlying motivations for this course correction are multi-faceted, but were essentially four-fold, as follows:
First, in the years leading up to the Seventeenth Amendment, “several state legislatures deadlocked over the election of senators, which led to Senate vacancies lasting months and even years;”
Second, at the time the Seventeenth Amendment was ratified, members of the U.S. Senate were viewed by their constituents as out of touch with the people they purported to represent. Further, the U.S. Senate was seen as nothing more than a “‘millionaire’s club’ serving powerful private interests.”
Third, by the time the Seventeenth Amendment was ratified, 29 states had already enacted laws transferring the power to elect U.S. Senators to the residents of the states over concerns political corruption had taken refuge in their state legislatures; and
Fourth, America’s political landscape had changed dramatically during the 125 years since the Constitution was adopted; and by this time, special interest groups, lobbyists, the politically well-connected and degenerate political machines had gained a great deal of control over state legislatures, and therefore the Senators elected with their support were dismissed as puppets.
Ratification of the Seventeenth Amendment provided American citizens with the duty and privilege to hold their U.S. Senators accountable for actions, decisions, and conduct engaged in while in office. If our Republican form of government is to remain forever esteemed on the world stage, it will be through our voices and our votes.
We, at America’s Future, believe in free and fair elections and support the constitutional principle that America is self-governing, only by consent of “We the People.” Considering U.S. Senators are elected to serve in six-year increments, meaning triple the time members of the U.S. House of Representatives hold office, and two years longer than the four-year Presidential term, it is of utmost importance that the men and women who hold these offices and exercise great powers are accountable to the people they represent.
DOJ Uses the Espionage Act to Control Political Opponents
This is the seventh entry in our expanded IN FOCUS section addressing corruption in the U.S. Department of Justice and the self-destruction of the FBI. Readers will find the compilation of the complete series of articles at Unequal Justice Under Law.
In August of 2022, after the FBI seized documents from his Mar-a-Lago home, liberal media outlets reported that former President Trump could be imprisoned for up to 10 years for violations of the “Espionage Act.” Not surprisingly, when then-Vice President Biden was found to have taken classified documents, some conservative media personalities wezre happy to encourage similar Espionage Act charges be brought against Biden. If every President is now to be threatened by this law, it is time to learn its pedigree.
The Espionage Act of 1917 is one of the tools government prosecutors use to threaten Americans. That law, like other such laws, are usually enacted in wartime when constitutional liberties go out the window. Woodrow Wilson was re-elected President in 1916 using the slogan “He Kept Us Out Of War.” A few months later, in April 1917, he dragged America into the First World War. Two months after that, on June 15, 1917, he persuaded Congress to enact The Espionage Act. That law was made even worse the next year when it was amended by the Sedition Act of 1918. Those laws were applied with a heavy hand by the Wilson Justice Department to punish Americans who opposed America’s entry into World War I, opposed the draft, or otherwise dissented from Wilson’s policies.
The Espionage Act was written in vague terms to prevent gathering information about national defense, obstructing enlistment in the armed forces, or encouraging dissension within the military. It declared certain writings that urged “treason” to be unmailable — which Postmaster General Albert S. Burleson used to deny mailing “privileges” to 74 newspapers. In “late 1917, Wilson’s Attorney General Thomas Gregory warned dissenters not to expect mercy from ‘an outraged people’ and ‘an avenging government.’”
A highly regarded history by Stanford University Professor David M. Kennedy, Over Here: the First World War and American Society (Oxford University Press: 1982) catalogues the abuses of power by the Justice Department. AG Gregory “favored broad construction and vigorous application of the Espionage Act, on one occasion publicly chastised a federal judge who had instructed a jury to acquit a man for calling the President a “‘Wall Street tool.’” The courts vigorously applied the Espionage Act, in one case convicting a man for questioning the constitutionality of the wartime draft. AG Gregory even sought “an amendment [to the Act] that would allow him to prosecute ‘disloyal utterances.’” AG Gregory happily reported that “scores of thousands of men are under constant observation throughout the country. AG Gregory claimed to have recruited several hundred thousand private citizens keeping an eye on disloyal individuals and making reports of disloyal utterances. All this sounds quite familiar to those living through the Biden regime. Truly, “there is nothing new under the sun.” Ecclesiastes 1:9.
Thousands were indicted under the Espionage Act, and nearly 45 percent were convicted. Justice Department lawyers delayed appeals, fearing that the Supreme Court would strike down the laws they were applying. As “disloyalty” prosecutions began to ramp up, it was said that federal prosecutors had the power of “an angel of life and death clothed with the power to walk up and down in his district, saying, ‘This one will I spare, and this one will I smite.’”
One of those Justice Department prosecutions targeted Charles Schenck, who was accused of mailing socialist pamphlets to recent draftees which compared the draft to involuntary servitude and urging men to express their resistance to the draft. Schenck’s conviction was affirmed unanimously by the Supreme Court just as the war was ending. Justice Oliver Wendell Holmes fashioned the now-famous phrase, “[t]he most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Schenck v. United States, 249 U.S. 47, 52 (1919) (emphasis added). Today, that one sentence is repeatedly invoked by leftists to demonstrate that the First Amendment is not absolute, and certainly does not protect conservative political voices. (Interestingly, when leftists invoke that statement, they uniformly omit the word “falsely.”)
In that same 1918 term of court, the Supreme Court upheld a similar conviction for “disloyalty,” reasoning that the defendant’s newspaper articles criticizing U.S. military involvement might be circulated in quarters where a little breath would be enough to kindle a flame. Frohwerk v. United States, 249 U.S. 204, 209 (1919). A third case in this trilogy was Debs v. United States, 249 U.S. 211 (1919), where the Court upheld a conviction for a speech inciting a refusal of duty in the military and the recruiting and enlistment service.
It only took until the next term of the Supreme Court for Justice Holmes to begin to reverse his position: “It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned. Congress certainly cannot forbid all effort to change the mind of the country.” Abrams v. United States, 250 U.S. 616 (1919) (emphasis added). Holmes moved even further away from authoritarianism, dissenting in Gitlow v. New York, 268 U.S. 652 (1925).
Finally, in Brandenburg v. Ohio, 395 U.S. 444, 447-448 (1969), the Court overturned Schenck, explaining:
[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action…. A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments. [Emphasis added.]
Today, rogue Justice Department prosecutors are again becoming “an angel of life and death clothed with the power to walk up and down in his district, saying, ‘This one will I spare, and this one will I smite.’” Donald Trump draws an FBI swat team, while Joe Biden’s stolen documents don’t even draw flies. The Espionage Act needs to be buried in the grave along with Schenck, its judicial progeny. Americans of all political stripes should demand that the First Amendment again mean what it says — “Congress shall make no law.”
When the judiciary met a runaway Justice Department power in 1919, America was the loser. Rarely do nations get second chances. Rather than wait for the Courts, The Espionage Act of 1917 should be stricken from the weapons arsenal of federal prosecutors.
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