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“For it is a truth, which the experience of all ages has attested, that the people are commonly most in danger when the means of injuring their rights are in the possession of those of whom they entertain the least suspicion.” (Hamilton, The Federalist No. 25)

History tells the sad story of citizens whose rights were injured by leaders they trusted. For this reason the departments of power in the United States were not given the means of injuring the rights of the people. In making one nation out of thirteen states, our founders knew the danger of consolidated power, and therefore the 1787 Convention was driven by a two-fold objective: The creation of a national government armed with enough power to defend the people, but not enough power to enslave them. The final draft of our Constitution certifies that remarkable accomplishment.

Under the Articles of Confederation, the states lacked, among other things, a president. A review of the records of the 1787 Convention indicates that more time and deliberation went into the question of executive power – and the means of restraining it – than any other consideration at the Convention. On executive power, Alexander Hamilton wrote: “There is hardly any part of the system which could have been attended with greater difficulty than this.”There was more debate over this than preceded the famous Connecticut Compromise.

The current flurry of debate over the powers of our president would simmer down to a mere sigh if the contenders would stop trying to impress one another and simply review the founding objectives of these great United States. And such a consideration might be enhanced by a realization that the same old perfidy of man rolls on – perhaps even faster – in this new age of high tech, high speed, mass distribution of mistaken ideas. The debate rages with many because correct information is missing, and with some because misinformation is intended. But should little of enduring value come of this essay, please let at least one principle be engraved in the minds of all who read it:

Presidents of the United States do not have powers beyond those granted by the people as identified in the United States Constitution.

Many are surprised to learn that the Constitution makes no allowance for executive war powers or presidential emergency power of any kind. No, the president cannot commence or declare war, suspend the Constitution, ignore the Bill of Rights, declare martial law, or circumvent any restraint on his proper authority in times of exigency. This deliberate, carefully considered omission of power applies at all times to all U.S. presidents. Their power to manage military operations does not include power to determine or initiate war.

Our nation’s founders delegated the power to make war and all provisions for war entirely to Congress. Only Congress is authorized to declare war; raise and support our military forces; call up the national guard; appropriate the money for war; make all rules concerning captures on land and sea; provide and maintain a navy; make rules for the government and regulation of the armed forces; to provide for organizing, arming, and disciplining the national guard, and for governing such part of them as may be employed in the service of the United States. (See Article I, Section 8)

Why then do we hear so much regarding the president’s powerful military role? Consider the language in Article II, Section 2:

The president shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States.

Now, consider the purpose and extent of this power as granted by the men who created our country. Alexander Hamilton explained:

First. The President will have only occasional command of such part of the militia of the nation as by legislative provision may be called into the actual service of the Union. The King of Great Britain and the governor of New York have at all times the entire command of all the militia within their several jurisdictions. In this article [Article II] therefore, the power of the President would be inferior to that of either the monarch or the governor. Second. The President is to be commander in chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the Confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies – all of which, by the Constitution under consideration, would appertain to the legislature [Congress]. (Hamilton’s italics – The Federalist No.69)

From records of the Convention, we learn that “the Executive should be able to repel and not to commence war.” As commander in chief of US military forces he is to conduct the operations of war in defense of our country. He is our top military leader authorized to engage the enemy in response to a declaration of war issued by Congress, and he must look to Congress for the men, money, and materiel needed in such times of national emergency. And to further assure that national emergencies will not drag on indefinitely, funding for the support of armies is limited by the Constitution to two years. Long wars and high taxes are the road to captivity even when the US may appear to be the winner. With uncanny vision, James Madison observed:

Of all the enemies to public liberty, war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies and debts and taxes are the known instruments for bringing the many under the domination of the few…. No nation could preserve its freedom in the midst of continual warfare. (April 20, 1795; Works 4:491-2)

What is the corollary to Madison’s fundamental premise? Let’s put it this way: Continual warfare is one means of consolidating dictatorial power over the people. Surely continual warfare is the greatest gift ever conjured up by wolves dressed in executive clothing – those officers of whom we entertain the least suspicion. And if our nation has been led into one war under false pretenses, that means new, more fearful pretenses must begin immediately if continual warfare is intended to bring the many under the dominion of the few.

Most anyone can fill in the blanks on this. The unbroken flow of hostility is our transition from war in Iraq to war with Iran. It shouldn’t be too hard to understand that especially in times of national stress, when public emotions peak, our God-given rights are in peril. At such times the patriotic spirit of our nation is so highly aroused that we are willing to do whatever it takes to defend our country and preserve our freedom. Almost always in the first hours of a national crisis (whether created or pretended) presidents hurry to the podium and grab more powers than ever dreamt of by the most calloused monarch.

Where are the members of Congress during such moments? Most of them are anxiously watching the applause meter at the White House. Crises tend to elevate the popularity of tough-talking presidents and congressional wimps prefer to ride the sensational wave rather than stand up and say, now wait just a minute. America’s founders expected Congress to use its authority over all aspects of war to protect the nation from enemies abroad and executive temptation at home. “The constitution supposes,” wrote Madison to Jefferson, “what the history of all governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it.” He then added: “It [the Constitution] has accordingly with studied care, vested the question of war in the Legislature.” (Letter dated April 2, 1798) Congress: Are you listening?

Not only does the Constitution contain no such war power for the president, it makes no allowance for Congress to shift its constitutional authority to any other department. Congress cannot delegate its war power to the executive department or to an administrative officer, nor can any department or officer repeal, extend, or modify an act of Congress. Any act of Congress granting executive “war powers” is an abrogation of the duty of Congress and constitutes a serious violation of the separation of powers.

The Congressional Record is replete with various versions of “war powers acts,” and resolutions purporting to authorize the president to exercise his judgement in matters of going to war. None of these bills even hint at the solemn responsibility of Congress to issue a declaration of war. From the written testimony of our founders, and the simple logic of liberty, we know these bills to be worthless paper. They embody powers once wisely vested in Congress which have been illegally shunted off to the executive department.

The notion of presidential war power is just that — a terribly pervasive, dangerous, and baseless notion. Executive authority does not evolve through the passing of time. It is not gained by precedent, tradition, or even the presence of grave danger. Strict constitutional restraints on our chief executive are, in fact, more essential in times of war and terror (including threats of war and terror) than at any other time.

These perilous times cry desperately for truth, principle, and courage. In times of exigency we need a Congress fiercely jealous of its power, willing to remind the man in the White House that his wartime role is commander of our military forces, not the ruler of the world. Moreover, we expect members of Congress to actually read the Constitution of the United States, and if they have any doubt about its purpose and meaning, they must look into the founding documents that dispel every deceitful myth on questions of power.

Since the terrorist attacks of 9-11, the American Civil Liberties Union (ACLU) has challenged the federal government’s warrantless surveillance of telephone calls and emails. In this context, the ACLU properly employs the Bill of Rights as a force against federal usurpation. Is this the same ACLU that applies the Bill of Rights against the states in matters of religion, firearms, voting, and due process? It’s nice to pick your situation and apply your ethics at random, but when the ACLU goes to court, do they protect your rights or do they help centralize federal power? Amidst the outcry over federal assaults on our freedom of speech and privacy, there exists a more fundamental reason we should be alarmed. Those in Washington who wish to alienate the people from their “unalienable” rights, don’t even own the instrument they are using. The president of the United States is a captive of the Bill of Rights, not its guardian. The Bill of Rights is enforceable against Mr. Bush, Mr. Cheney, and their entire covert snoop department. It is not theirs to use as a weapon. Here they are, stealing our rights with a stolen weapon and all the ACLU can complain about is their marksmanship! How come the ACLU lawyers are merely upset over hits on the Fourth Amendment, and not challenging the federal government’s right to own the gun? A look into the origin of the Bill of Rights reveals how this fundamental protection has been turned upside-down and levied against the very people it was designed to defend. There was no Bill of Rights in the Constitution when George Washington declared it “DONE in convention by the unanimous consent of the States present…” Why was no bill of rights included? Because it would have been out of step with the whole theory on which the Constitution was written. The Convention carried out its work with the understanding that all powers intended for the federal government were identified, enumerated, and embodied in the text of the Constitution. In other words, the founder’s work was based primarily on powers granted; anything not granted was deemed prohibited. Thus, it hardly made sense for the convention to deny the federal government powers it never had. Alexander Hamilton explained it this way: “Why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained when no power is given by which restrictions may be imposed? (The Federalist No. 84) The same logic was applied to all rights and privileges not expressly denied in the Constitution, such as religious liberty, freedom of speech, assembly, ownership of firearms, and freedom to exercise an infinite number of other rights and immunities retained by the people. The Convention delegates worried that a listing of certain rights would leave a loophole in their work. They feared that anything not listed in the Constitution might sooner or later be used as a gap for infringement. Moreover, in consideration of the vast number of rights held by citizens of a free country, it would have been impossible to enumerate or anticipate all of them. But when the Convention finished its work and sent the Constitution to the states for approval, the absence of a bill of rights loomed up as a major roadblock. As far back as colonial times, the rights of the people had been protected by bills of rights in their local governments, and by the1780s, rights of the people were protected in the constitutions of nearly all thirteen states. In view of the strong centralized powers granted the new national government – and under plenty of agitation by the anti-federalists – the people refused to ratify the charter without some means of preventing federal abuse of certain treasured rights. They therefore urged the deputies to take the Constitution back into convention where it could be re-written to include, among other things, a bill of rights. The men who had worked all summer in Philadelphia to create this more perfect union were mortified over the thought of re-opening the convention. In reply, James Madison wrote, with some degree of emotion: “Having witnessed the difficulties and dangers experienced by the first Convention which assembled under every propitious circumstance, I should tremble for the result of a second…” (Letter to George Lee Turberville, November 2, 1788) It was George Washington who came to the rescue when he allayed all fears by suggesting that specific guarantees of freedom could be added by proper amendment after the Constitution itself was adopted. On Washington’s assurance, the states ratified the Constitution, and in the first session of the First Congress the Bill of Rights was proposed and ratified by the states in the form of ten amendments. It must be remembered that the Bill of Rights was demanded by the people and ratified by the legislatures of the states. The first eight amendments identify certain specific rights, while the ninth and tenth satisfied Hamilton’s concern by declaring that the enumeration of rights does not deny others retained by the people; and that any rights and powers not mentioned are reserved to the people or the states. Clearly, the Bill of Rights belongs to the people. It is a creation of the states and has force against the federal government. The language of the first line of the First Amendment is consistent with the purpose and force of the Bill of Rights: “Congress shall make no law….”* All of which brings us to the point of this essay. The whole concept, theory, and reason for the Bill of Rights has been completely turned upside down. The Bill of Rights is not federal property. Not one word of it has force against the people or their state governments. In 1791 when the Bill of Rights was adopted, and for many years thereafter, the federal government respected its proper place in the federal system. Federal officers clearly understood that the Bill of Rights was a power to restrain them, not a device to empower them. In those early days the federal government made no attempt to oppose the many state customs or traditions that were in conflict with rights identified in the federal Bill of Rights. Significantly, several states – including Connecticut, Virginia, and Massachusetts – upheld official state religions, and some states enforced laws taken literally from the tenets of their churches. The federal government (properly) took no action against those states because it was common knowledge that the people were answerable for their religious lives, and other private affairs, only to state authority, except with regard to powers which the Constitution specifically delegated to the federal government. The clearly designated purpose of the Bill of Rights was never questioned until 1868 when the Fourteenth Amendment was adopted. Section 1 of that amendment declares: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The language of Section 1 was unnecessary because due process is already guaranteed by the Fifth Amendment, and the other basic rights are guaranteed by every state constitution. Notwithstanding its redundant language, the damage inflicted on our country by the Fourteenth Amendment is astronomical, having brought the federal government into state cases far beyond its jurisdiction. Moreover, those groups and individuals who seek to expand federal power now insist the Fourteenth Amendment applies retroactively to the entire Bill of Rights, and on that spurious notion they claim the first eight amendments empower the federal government against the states. The Supreme Court has repeatedly denied that the Fourteenth Amendment constituted a grant of federal power over the Bill of Rights, as in the 1959 Bartcus case, page 124 of opinion: We have held from the beginning and uniformly that the Due Process Clause of the Fourteenth Amendment does not apply to the states any of the provisions of the first eight amendments as such. The relevant historical materials have been canvassed by this Court and by legal scholars. These materials demonstrate conclusively that the Congress and the members of the legislatures of the ratifying states did not contemplate that the fourteenth amendment was a short-hand incorporation of the first eight amendments making them applicable as explicit restrictions upon the states. As usual, in sifting through our nation’s greatest problems, we find ourselves enslaved by false notions that a little correct information could remedy. This does not mean knowledge alone would return the Bill of Rights to the people, for in addition to ignorance, the White House relies on a steady flow of crises for an excuse to clamp down on the freedom of the American people. Thus the return of sanity in the United States rests on a twofold premise: (1) a basic understanding of the United States Constitution, and (2) an understanding of the enemy within, a deadly and determined force that conspires to lead “we the people” quietly into captivity.   *”Congress” means the whole federal government “shall make no law…”

 

This article was originally published in our August 2007 Special Action Report.

America’s founders never intended for the people at large to choose a president, at least not directly. History and experience prove that most people do not do their homework and tend to be influenced by promises of political opportunists. This fact of life was well known by the men who laid the foundation of our country. Having learned from the colonial experience and other models dating back to Europe and Rome, our Founding Fathers were unwilling to leave the choice of president to a poorly informed — or misinformed — general public. Moreover, the creators of our country took great pains to prevent a national, billion dollar popularity contest every four years.

Rather, they conceived a method for keeping demagogues and pretenders out of the race. It was a brilliant, indirect way most likely to find the best man for the job. The system, explained Alexander Hamilton, incorporates the principle that “a small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to so complicated an investigation.” He then added, “It was also peculiarly desirable to afford as little opportunity as possible to tumult and disorder. This evil was not least to be dreaded in the election of a magistrate who was to have so important an agency in the administration of the government as the President of the United States.” (The Federalist, No. 68.)

Accordingly, the Convention of 1787 adopted an indirect method of electing a president. Each state would elect or appoint individuals well known for their wisdom to be presidential electors. The electors chosen in each state would, in turn, find private citizens of presidential caliber and nominate them by ballot. Each elector would vote for two, at least one of whom had to be from another state. No popular votes were to be counted. Congress would open the ballots and the individual with the most electoral votes, if that number also be a majority, would be president. This, the constitutional method of electing a president, was applauded by both friend and foe of the Constitution. In Hamilton’s evaluation of the process he wrote, “if the manner of it be not perfect, it is at least excellent.” Even the anti-federalists agreed.

The indirect system (later known as the Electoral College) provided for the office to seek the man, rather than the man to seek the office. We note with interest that this quiet, unemotional process, gave America its first and finest presidents. Washington, Adams, Jefferson, Madison and Monroe were men whose integrity and dignity met the qualifications our Founding Fathers had hoped to ensure. There were no demagogues in the nation’s highest office — that is, not until national political parties began to take charge of presidential elections.

Worst Fears Confirmed

Almost from the beginning the Electoral College was undermined by the rise of political parties. Our founders had taken every precaution to ensure quality presidential candidates and to prevent the electoral tumult and disorder characteristic of popular elections. But their worst fears were confirmed. The Electoral College was neutered by party control of the nomination and election process. Perhaps in anticipation of such a development, George Washington devoted a large part of his farewell address to warning Americans about the harmful effects of party and faction. In summary, he said:

I have already intimated to you the danger of parties…. Let me now take a more comprehensive view, and warn you in the most solemn manner against the baleful effects of the spirit of party…. It agitates the community with ill-founded jealousies and false alarms, kindles the animosity of one part against another…. [I]n governments purely elective, it is a spirit not to be encouraged…. A fire not to be quenched; it demands a uniform vigilance to prevent its bursting into a flame, lest, instead of warming, it should consume. (Writings of Washington, edited by L.B. Evans, p. 539.)

James Madison, often referred to as the “Father of the Constitution,” was no less fervent in warning against the rise of political faction, as he termed it:

By faction I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse or passion of interest, adverse to the rights of other citizens, or to the permanent aggregate interests of the community…. A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; for an attachment to different leaders ambitiously contending for pre-eminence and power … have in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them more disposed to vex and oppress each other than to co-operate for their common good. (The Federalist, No. 10.)

Washington and Madison were not alone in their aversion to political parties. Most delegates at the 1787 Convention were mutually wary of that “baleful spirit” and therefore made no allowance in the Constitution for party involvement. The Convention did not provide for partisan mass meetings, the appointment of party delegates, party nomination of candidates, campaign platforms, the caucus, or any of the party control mechanisms that now dominate the election of a U.S. president. In violation of constitutional intent, the party system has made a mockery of the Electoral College by controlling the votes of presidential electors, requiring them to “vote” only for the party’s pre-determined choice.

As we approach the next presidential election, the usual chorus of “experts” will again call for scrapping the Electoral College. They will insist that we need only count the popular vote and get on with naming the new president. Fortunately for America, what’s left of the Electoral College — even in its corrupted form — retains redeeming and restraining elements: 1) Election of the president is still determined by the number of electoral votes; and 2) the voting power of rural and less populous states is greater than it would be if the Electoral College were abandoned. These two principles of republican government yet stand as sentinels against our descent into total, unrestricted democracy.

In 1804 the Twelfth Amendment revised the Electoral College slightly with regard to the selection of vice president, in order to prevent two incompatible individuals from serving concurrently. This change still provided no authority for parties to control the election. The Constitution has never been amended to grant any such power.

Apparently no one is losing sleep over this, for we know of no amendments in the hopper for legalizing this power, which is now taken for granted by the major parties. That is one boat few politicians want to rock. It is far more likely that the Left — and its ever-willing right hand — will one day make a serious effort to abolish the Electoral College.

What Should Be Done?

Foremost, we must oppose any effort to abolish the Electoral College whether attempted with or without a constitutional amendment. We will do well to remind our friends and their officials in the small and less populous states that the Electoral College was designed, in part, to protect them, to help offset the voting power of large majorities in the more populous states. Every state, regardless of population, was given two senators (two extra electoral votes) for that very reason.

Unfortunately, an aggressive effort to correct the party control of presidential elections should probably not be undertaken until a much wider understanding of constitutional principles has been created. In the present climate, any momentum for reforming the presidential election process would all too likely be hijacked to our nation’s detriment.

In the meantime, it is vital to build organization to create that understanding. Tom Gow’s article, The Great American Swindle, certainly spells out the depth, deceitfulness, and danger of America’s love affair with presidential elections. As we enter another round of presidential campaigning, now is an excellent time to obtain the widest possible distribution and attention for this insightful summary of vital lessons. Surely you know many people who will benefit from this timely report, and we must not fail to send or email a copy to each of those individuals.

In his article, Tom Gow shows why new faces in the White House never seem to change the disastrous course of our country. The formula envisioned by our Founding Fathers was for the people to exercise control of the federal government, not through the courts, and not by electing a president, but through the House of Representatives.

Control Through the House

The far-sighted design of our federal system provided not only for the indirect appointment of the president, but also for the appointment of members of the Senate,* and justices of the Supreme Court. The House of Representatives balanced the scale by speaking for the people, and being directly accountable to them by virtue of their short two-year terms and frequent re-election. James Madison explained: “As it is essential to liberty that the government in general should have a common interest with the people, so it is particularly essential that the branch of it under consideration [the House] should have an immediate dependence on, and an intimate sympathy with, the people.” (The Federalist, No. 52.)

In the same essay, Madison cites unique checks on the House of Representatives. He noted that “it has, on occasion, been shown that the federal legislature will not only be restrained by its dependence on the people, as other legislative bodies are, but that it will be, moreover, watched and controlled by the several collateral [Senate and state] legislatures, which other legislative bodies [in other countries] are not.” It was fully expected that the House would stand firmly with the people and not be seduced by pressures from the executive branch.

On a wide, national scale, this avenue for rolling back the accumulated encroachments has not yet been tested. But on isolated issues, particularly in districts where sufficient understanding has been created and in which citizens have spoken up, a majority in the U.S. House have in fact taken the constitutional high ground.

Whenever a constitutional position has wide public support, even when the public is not fully informed or well led, the Conspiracy must orchestrate major deceptions and use its influence over the national parties in order to manipulate the House. The large number of legislative districts and the natural ties of the people to their men and women in the House make it far more difficult for the Insiders to apply pressure in the House contrary to sound, widely held positions at home.

The 1787 Convention placed a powerful check in the hands of the House of Representatives. It comes as a surprise to many Americans that the Constitution grants greater power to this body than is accorded the president of the United States. When more Americans awaken to this reality, and understand the power they have to take control of their government through the U.S. House, party domination of the Electoral College and false heroes in the White House will vanish, along with a vast number of other problems affecting the freedom and independence of our country.

Our chances of success through the U.S. House may not be perfect, but they are at least excellent.

* This held true prior to the Seventeenth Amendment.