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Guarding Against Tyranny — Checks And Balances

Newsletter | February 2, 2023

We The People with Scales of Justice

Our Founding Fathers were revolutionaries, not idealistic dreamers. They knew that to introduce and maintain a system of government that had never been tried before, its principles would have to be grounded in an unsparing assessment of human nature derived from careful study of political history and scripture. Man is no angel. Even the most revered figures in the Bible, from Moses and David to the apostles, were deeply flawed characters.

As we continue our exploration of The Federalist Papers, one of our great nation’s central texts, we address Federalist No. 51 in this week’s newsletter. Federalist No. 51 is among the most important of the collection of 85 articles and essays. It is here where likely author James Madison, the fourth president of the United States and known as the “Father of the Constitution,” lays out the rationale for one of the most distinctive features of our political system — the checks and balances inherent in a government divided into three independent and equally powerful branches, the executive, legislative, and judicial.

“If men were angels,” Madison writes in Federalist No. 51, “no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

How could the government be counted on to “control itself?” After all, even a cursory knowledge of human nature shows that men will pursue their own interests as far as they can, and at the expense of their neighbors. The same holds for the institutions men build, like political bodies. There is no satisfying man’s thirst for power — but it is possible to check and balance their will to power by ensuring all are equally able. “Ambition,” wrote Madison, “must be made to counteract ambition.”

The Constitution did not seek to change human nature or, like communist regimes, build a new man. Rather, it institutionalized arrangements between political institutions that checked man’s most dangerous appetites and thereby created balance, the natural state of affairs for a polity based on the idea that all men are created equal.

As we have come to understand more forcefully of late, the threat to America’s peace and stability comes when one institution, one branch, or one faction becomes too powerful. Sometimes tyranny is one man alone, but the Founding Fathers also warned against the tyranny of small factions of wealthy elites. The latter is the tyranny we face today. Here at America’s Future, we urge you to keep bringing truth to light and fighting alongside us in our ongoing quest to protect and promote life, liberty, and the pursuit of happiness.

Please participate in our Reader’s Survey this week and share your thoughts and insights on the topic addressed in our article above. 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!


America’s Future Files Amicus Brief with 6th Circuit in “Gender Identity” Case

Gavel With Legal Papers

On Tuesday, January 31, 2023, America’s Future joined six other tax-exempt nonprofit organizations to submit an Amicus brief to the United States Court of Appeals for the Sixth Circuit in Tennessee, et al. v Department of Education, 6th Cir. Dkt. No. 22-5807 (2022), arguing the lower court appropriately issued a preliminary injunction enjoining the Department of Education (DOE) from implementing a Final Agency Interpretation document published in the Federal Register on June 22, 2021, which indicated an intent, on the part of the administration and its agencies, to wildly misinterpret and misapply the 2020 SCOTUS decision in Bostock v Clayton County, 140 S. Ct. 1731 (2020) in an effort to materially modify Title IX’s prohibition on sex discrimination.

In Bostock (2020), SCOTUS held, “[a]n employer who fires an individual merely for being gay or transgender violates Title VII.”  The misapplication of this ruling is clear.  First, the ruling only addresses Title VII, i.e., circumstances involving employment law – in fact, Title IX is not even mentioned in the majority opinion; and second, the ruling does not paint “gender identity” with a broad brush like this administration has attempted to push through by way of agency regulations since day one.  In fact, on day one in office, President Joe Biden issued Executive Order (EO) 13988, setting forth Biden’s misapplication of Bostock (2020) and requiring all executive branch agencies to assess all regulations in order to find ways to implement his distorted view of the ruling and his newly created definitions of “sex” and “gender.”

In fact, under the DOE interpretation at issue, a person could declare to be one gender on Monday and then, on Tuesday, declare to be a gender inconsistent with the day before and the day after.  Broadening Title IX’s restrictions to include prohibitions based on sexual orientation and/or gender identity without first accepting biologically-based definitions, to fit an absurd woke agenda leads to alarming and risky situations.  If the definitions of “sex” and “gender” are not concrete and clear, but rather they are redefined by Biden’s EO as fluid, it would be akin to denying biological differences between males and females and blurring lines of age-appropriate customs and behavior by permitting young biological males to identify as females at the blink of an eye (or vice versa) lends itself to kids, teens, and young adults finding themselves in precarious situations, e.g. being members of the same interscholastic and collegiate sports teams, using the same bathrooms, and changing clothes in the same locker rooms or confined areas.  The totality of these circumstances are not only unfair to kids, teens and young adults but to parents as well, causing confusion and degrading the family unit, as we know it. Children, particularly, are vulnerable to this sort of perverted DOE regulation and must be protected by rational adults and the courts.

Here, the executive branch, through the Biden administration and its DOE, has been emboldened by the employment law decision in Bostock (2020), deciding to “cash in” and advance their “gender identity” disturbing goals with reckless disregard for the Constitution and certainly for principles underlying America’s Separation of Powers doctrine.  The executive branch is prohibited from usurping the authority of the legislative branch, which is exactly what they are attempting to do by way of this Final Agency Interpretation document.

Additionally, the Biden administration is attempting to force a square peg in a round hole to further their agenda by conjuring up make believe definitions, issuing EO’s, and misapplying a SCOTUS ruling – all in contravene of the Constitution, particularly the Ninth and Tenth Amendments which limit the federal government’s power over subject matters like health, welfare, education, and the everyday affairs of citizens.  This administration continues to exhibit a total lack of restraint determined to usurp the authority of the other two branches.

Our Amicus brief recognizes and supports the district court’s jurisdiction and sound order enjoining the DOE from furthering its goals and agenda, which, as our Amicus brief states, “undermine the morality of the nation.”

To protect children and to protect discrimination targeting females in Title IX, we, at America’s Future hope the Sixth Circuit Court of Appeals affirms the lower court’s injunction preventing wide-scale chaos and dangerous behavior holds to account those who are willing to destroy America.

Editor’s Note: For more information on this case, read our previous article on this case: SCOTUS To Decide Blockbuster Social Media Censorship Case In October 2022 Term. To read our September 12, 2022 “comments” letter in response to the DOE’s redefinition of gender, please click here. 

Keeping You Informed

Latest Poll Shows Americans Are Paying Attention

Americans are fed up with their government. In Gallup’s latest poll conducted last month, and published Monday (January 30, 2023), respondents cited the government as the “most important U.S. problem” on a non-partisan basis. Coming in second place was inflation, and rounding out the top three problems in the US, was immigration.

With the constant unfolding of verifiable corruption in government agencies today, it’s no surprise that Americans are realizing our country is in peril. And, with skyrocketing food prices and other basic living expenses escalating for most Americans, it’s no wonder that inflation also tops their concerns.

Considering the aggressive invasion of illegal aliens into our nation occurring at the southern border and now a reported 743% uptick in illegal crossings into the interior of our country through our northern states by way of Canada, Americans are showing rightful anxiety about the nation’s sovereignty and security.

Citizens are aware that drug cartels are running rampant, bringing vast amounts of cocaine, methamphetamine, fentanyl, and other deadly drugs into our nation’s neighborhoods and states. Human trafficking, including children, is at an all-time high as well. And, as much as the Biden administration tries to downplay the reality that our borders to the south and to the north are porous, Americans are no longer buying their false talking points. 


The 15th Amendment – Constitutional Protections Against Discrimination

We The People with Quill

Welcome back to our series addressing the amendments to our Constitution. In the last four editions of our newsletter, we have covered the 11th through 14th amendments, which brings us to the Fifteenth Amendment this week. Readers can find the first 10 amendments to 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.

Tomorrow (February 3, 2023) marks 153 years to the date since the ratification of the Fifteenth Amendment, amending our Constitution in order to protect the right to vote for African American men who had recently been freed from slavery.  The Amendment’s text states,

Section 1 –  The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2 – The Congress shall have the power to enforce this article by appropriate legislation.

The Fifteenth Amendment was the third and final constitutional amendment to be ratified during America’s Reconstruction Era, a 10 to 15-year timeframe beginning in 1865, following the end of the Civil War, a war fought to end slavery in America.  The Thirteenth, Fourteenth, and Fifteenth Amendments, known together as the Reconstruction Era Amendments, confirmed America’s commitment to equality and reaffirmed our faith in the constitutionally enshrined divine rights of all to life, liberty, and the pursuit of happiness.

Congressional action and state ratification during this time in our history were designed to implement sweeping changes in America in an effort to fulfill the promises and declarations President Abraham Lincoln announced in his Emancipation Proclamation.  And, just three years after the ratification of the Fifteenth Amendment, the Supreme Court of the United States (SCOTUS) weighed in as well, explaining in the landmark Slaughter-House Cases, 83 U.S. 36 (1873),

On the most casual examination of the language of these [Thirteenth, Fourteenth and Fifteenth] Amendments, no one can fail to be impressed with the one pervading purpose found in them all, lying at the foundation of each, and without which none of them would have been even suggested; we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him.

The Fifteenth Amendment, in response to the end of the Civil War with the intent of addressing the right of suffrage, proscribed governmental action that denied or impaired the right to vote on account of race, color, or previous condition of servitude.  The amendment naturally extended the principles and tenants of the Fourteenth Amendment, including protection of civil rights, rights of due process, and rights of equal protection under the law for “all persons born or naturalized in the United States” less than three years earlier. The declaration under the Fourteenth Amendment that all men, no matter race or color, who are born in America or naturalized, are citizens entitled to equal protection of the law provided a clear mechanism to safeguard the right of suffrage and prevent discrimination at voting polls.

Notably, the Fifteenth Amendment protects the right to vote against infringement by both federal and state governments, unlike the guarantees enumerated in the first eight amendments of the Bill of Rights, which protects against violations solely by the federal government.

Historians attribute this additional protection to proactive measures set forth to prevent potentially rogue states from acting in contravene to the Emancipation Proclamation. Furthermore, and as noted by the SCOTUS in a 1915 opinion, although the Fifteenth Amendment does not actually replace powers conferred to the states to regulate suffrage, it does constrain those state powers insomuch as no state law or state constitution will be held valid upon offending the US Constitution, as amended.  Specifically, SCOTUS clarified,  

The Fifteenth Amendment does not, in a general sense, take from the States the power over suffrage possessed by the States from the beginning, but it does restrict the power of the United States or the States to abridge or deny the right of a citizen of the United States to vote on account of race, color or previous condition of servitude. While the Fifteenth Amendment gives no right of suffrage, as its command is self-executing, rights of suffrage may be enjoyed by reason of the striking out of discriminations against the exercise of the right.

We, at America’s Future, embrace freedom, liberty, and equal protection under the law for all American citizens.  Tomorrow, on the 153rd anniversary of the ratification of our Fifteenth Amendment, join us in prayer – that our country can one day soon come together just as soldiers faithfully believed we could, 150 years ago, when they sacrificed their lives and limbs during our Civil War.  We pray, too, that corrupt politicians and the soulless propaganda press will stand down to make way for truth and unity.

Unequal Justice Under Law
DOJ Collusion with the House Select Committee on January 6

This is the fifth 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.

The “House Select Committee to Investigate the January 6th Attack on the United States Capitol” labored for 18 months to convince the American people that MAGA Republicans were an existential threat to America.  Vice President Kamala Harris pushed this ridiculous narrative when she identified the three days when “our democracy came under assault” as “December 7th, 1941, September 11th, 2001, and January 6th, 2021.”  How absurd!

The good news is that the January 6 Committee disbanded as the Republicans took over the House of Representatives last month, ending the show trials and “made-for-TV” broadcasts of disinformation and this chest-thumping charade.  Now, House Republicans have promised to release the January 6 videos that Democrats withheld, giving Americans a chance to learn what Paul Harvey used to call — “the rest of the story.” 

First, the nation should pause to give thanks that Liz Cheney (R-WY) and Adam Kinzinger (R-IL) — the only two Republicans appointed by Nancy Pelosi to serve on the January 6 Committee — are no longer in Congress.  Cheney lost her effort at re-election, gathering only 29 percent of the vote in a Republican primary, but now pondering a run for President in 2024.  Kinzinger, seeing the writing on the wall, declined to seek re-election, but he too refuses to go away, as he seamlessly transitioned to the role of a CNN political pundit.

Certainly, the Committee’s effort to spread the lie that unarmed Americans tried to topple the federal government on January 6 has been accepted by those who Rush Limbaugh used to call “low information voters.”  But one of the most dangerous precedents established by the January 6 Committee may be its work acting on behalf of the Department of Justice.

On January 3, 2022, the New York Times described the Committee’s work as looking for evidence that crimes were committed:

[A]s the committee and its dozens of investigators issue subpoenas for documents, phone records and bank records, the panel is closely looking for evidence of criminality that the Justice Department might not have unearthed… [G]iven that the Jan. 6 committee’s staff is led by a…pair of former U.S. attorneys, any recommendation they make would most likely be taken seriously by federal prosecutors.  Investigators are looking into whether a range of crimes were committed…

Was that a legitimate goal for the Committee?  While the Democrats were still in charge of the House, one of their last actions was to try to prevent the American people from accessing the files of the January 6 Committee.  “[T]he vast majority of raw information the panel collected [was] slated to be sent to the National Archives, to be locked away for up to 50 years.”  It seems likely that the Committee did not want its close ties to DOJ to be revealed.  Fortunately, incoming Speaker Kevin McCarthy’s new House rules required the January 6 Committee to instead turn over all records to the House Committee on Administration, and also ordered the National Archives to return any records already in its possession.

When the Justice Department investigates people, there are many rules it must follow in obtaining evidence.  Targets of Grand Juries must be advised they are targets.  There are rules about subpoenas to lawyers and members of the press.  These rules were developed to protect the Constitutional rights of Americans.  But those rules do not apply to Congressional committees, and thus it is tempting for the Department of Justice to collude with Congressional committees to gather evidence not for any legislative purpose, but for DOJ lawyers to use in prosecutions.  There are many indications this happened.

When a legitimate Congressional investigation discovers evidence of a crime, it can make a “referral” to the Justice Department to investigate and, if required, prosecute.  It is quite another thing for a Congressional committee to work behind the scenes with DOJ to collect information that DOJ could not collect directly, thus circumventing the procedural protections afforded Americans during a criminal investigation.

After the January 6 Committee was in operations for nearly a year, in May 2022, the DOJ requested certain transcripts of interviews and depositions collected by the January 6 Committee.  The request stated that those transcripts “may contain information relevant to a criminal investigation we are conducting.”  In response, Committee Chairman Bennie Thompson (D-MS) was reported to have agreed to share the information they created, holding back only their draft report.  Eventually the Committee apparently shared evidence from its 1,000 witness interviews and thousands of documents.  It seems likely these files have also been shared with the Special Counsel appointed in November 2022 by Attorney General Garland to investigate the “transfer of power” following the 2020 Presidential election.

The Committee final report was issued on December 22, 2022, only days before Republicans took control.  The report’s Executive Summary (pages 98-112) contains criminal referrals against President Trump and numerous other persons.  Having gathered evidence without the need to comply with DOJ rules, the report is described as “an exhaustive legal roadmap” for the DOJ lawyers to pursue criminal charges.  Those charges center around challenging the certification of election votes – exactly what Democrats had done in prior elections.

When the January 6 Committee was attacking Trump, the establishment press was cheering them on.  Now that House Republicans are looking into misdeeds of Democrats, establishment “legal experts” are warning that the “Republicans’ roving investigation could do significant damage to criminal matters.”

Since Attorney General Garland has now appointed a Special Counsel to investigate President Trump on two separate matters, perhaps he could appoint just one Special Counsel to investigate his own Justice Department.  Americans deserve to know whether the Deep State’s agents in Congress have been doing the bidding of the Deep State at the Justice Department.

Before he was appointed to the Supreme Court, Justice Robert Jackson served as Attorney General under President Franklin Roosevelt.  In 1940, Jackson addressed the nation’s federal prosecutors, explaining that their duty was not to win cases, but to do justice: “Although the government technically loses its case, it has really won if justice has been done.”  The prosecutors in the Biden Justice Department would do well to heed Jackson’s advice.  And any DOJ prosecutors who may have conspired to have the January 6 Committee collect evidence on their behalf should be identified, exposed, and held to account.

To read the entire series of articles, please click here.


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