Articles for the Constitutional Freedom Foundation

ARTICLES:

by Tim Lewis
of the Constitutional
Freedom Foundation

"The Constitutional
Convention and the
Meaning of Liberty"
Constitutional Primer#1
4/21/04

Federalism &
The Limitation of Powers
Constitutional Primer # 2
4/28/04

The Proper Role of the Judiciary
Constitutional Primer #3
5/5/04
a
Virtue & Morality:
Freedom's Prerequisites
Constitutional Primer #4
5/12/04

The 14th Amendment and
"Selective Incorporation"
Constitutional Primer #5
5/19/04

The Commerce Clause And
Other Power-Expanding
Mechanisms
Constitutional Primer #6
5/26/04

The Importance of
Property Rights
Constitutional Primer #7
6/2/04

The Meaning of Justice
#8 in a Series on the Constitution
6/9/04

The Meaning of Equality
Constitution and Law Series, #9
6/18/04

The Meaning of Rights
Constitution and Law Series, #10
6/23/04

What Can Be Done About
Judicial Usurpation?
Constitution and Law Series, #11
10/14/05

Articles/White Papers

As appeared in the April M E R I D I A N M A G A Z I N E
The Constitutional Convention and the Meaning of Liberty
Constitutional Primer # 1
by Timothy B. Lewis* of the Constitutional Freedom Foundation - 4/21/04

Before considering specific aspects of the Constitution, perhaps we should establish its underlying philosophical base by reviewing a little American history and some basic principles. That is what the first several articles in our series will do.

Before the American Revolution, the colonists felt they had too little say in the laws that governed them and that the British Crown had too much say. They protested in several ways, but perhaps the most famous was the Boston Tea Party.

After the Boston Tea Party, Parliament passed a series of bills known in the colonies as the "Intolerable Acts." They closed the Boston harbor, changed the government of the Massachusetts Bay Colony, changed the judicial system in that colony and allowed the quartering of troops in private homes without paying compensation. CONTINUED..................

As appeared in the M E R I D I A N M A G A Z I N E
Federalism & The Limitation of Powers
Constitutional Primer # 2

by Tim Lewis of the Constitutional Freedom Foundation - 4/28/04

The Federalist Papers

When the Constitution was finalized and sent to the national congress and the states for adoption, some states were thought to be linchpin states. In other words, if any of them rejected it, the worry was that it would cause a stampede away from adoption. One of those states was New York.

The influential Governor of New York was publicly opposed to adoption. [i] Alexander Hamilton, one of the New York delegates to the Constitutional Convention, took it upon himself to try to sway public opinion in New York in favor of adoption. He started submitting articles to the New York papers under the pen name of "Publius." This series of articles analyzed the language of the Constitution and indicated what it would do and not do. Hamilton did not write all of the articles. John Jay wrote five of them, James Madison about thirty, and Hamilton about fifty.[ii]

Nobody knew who the authors were initially but the articles generated much debate in New York and in the various other states where the articles were reprinted. They were eventually compiled as a set and called "The Federalist Papers" or sometimes simply referred to as “The Federalist.” The group of people who were in favor of adoption were called "Federalists" while those who were against passage were called "Anti-Federalists."........COUNTINUED

As appeared in the M E R I D I A N M A G A Z I N E
The Proper Role of the Judiciary
Constitutional Primer #3

by Timothy B. Lewis of the Constitutional Freedom Foundation - 5/5/04

Jeffersonian Prognostications

Let us begin this article with some riveting observations and prognostications from Thomas Jefferson:

“Our government is now taking so steady a course as to show by what road it will pass to destruction, to-wit: by consolidation first, and then corruption, its necessary consequence. The engine of consolidation will be the federal judiciary; the two other branches, the corrupting and corrupted instruments.”^{^[1]}“It has long, however, been my opinion, and I have never shrunk from its expression,... that the germ of dissolution of our federal government is in the constitution of the federal judiciary; an irresponsible body, (for impeachment is scarcely a scare-crow,) working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped from the States, and the government of all be consolidated into one. To this I am opposed; because, when all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power, it will render powerless the checks provided of one government on another, and will become as venal and oppressive as the government from which we separated.”^{^[2]}
[In other words, he predicted that the U.S. Supreme Court would destroy the idea of vertical checks and balances (i.e. federalism) which Jefferson thought to be a critical feature of our federal structure in preserving liberty. As one considers the present day political impotency of the states relative to the federal government, one can see that he was right.]

CONTINUED

As appeared in the M E R I D I A N M A G A Z I N E
Virtue & Morality: Freedom's Prerequisites
Constitutional Primer #4

by Timothy B. Lewis of the Constitutional Freedom Foundation - 5/12/04

Forward by George B. Brunt, Chairman of the Constitutional Freedom Foundation:

In making the following observations we are not arguing that the Supreme Court should apply “natural law” and therefore make decisions outside of the bounds of the written constitution. That argument is a two-edged sword depending on one’s view of “natural law.” Rather we prefer that the Supreme Court stick to the written constitution as we have earlier discussed. In this article Professor Lewis is attempting to educate the populace as to the context in which the constitution was adopted and the importance of both virtue and its guardian, religion, in maintaining the freedoms and liberties we now enjoy. Consistent with his prior articles, he argues that considerations of natural law should be made in democratic, rather than judicial, venues.

Natural Law

From time immemorial, people have disputed whether or not there is such a thing as natural law which governs the affairs of men. “Positive law” is man-made law. “Legal positivists,” in their most extreme sense, believe that there are very few, if any, natural laws regarding right and wrong, good and evil, etc. They believe that we are free to define these things however we want.

Natural law theorists believe that just as there are natural laws regarding physics, chemistry, etc., there are natural laws or basic truths regarding good and evil, right and wrong, etc. that are independent of our ability to properly discern them and which carry natural consequences for obedience or disobedience to them. They believe that to the extent societies can properly discern and implement these laws, such societies prosper politically, economically, culturally, aesthetically, artistically, etc. relative to other societies which don’t. CONTINUED..........

As appeared in the M E R I D I A N M A G A Z I N E
Constitutional Primer #5
The 14th Amendment and "Selective Incorporation"

by Timothy B. Lewis of the Constitutional Freedom Foundation - 5/19/04

Now that we have set the basic groundwork, we should focus on how our constitutional form of government was changed so radically without any democratic input. To set the stage, however, we need to review the original intents behind the 1^st Amendment and discuss the first U. S. Supreme Court case dealing with the Bill of Rights -- Barron v. Baltimore.^{^[1]}

The Original Intents Behind The 1^st Amendment

Consider the exact language of the 1^st Amendment:

“Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

I think most people today would tend to look at that language as representing the idea that (1) the rights discussed therein are so important that they should be looked at as absolute rights, (2) the government should take a totally hands-off approach to them and (3) this is some sort of global philosophic statement of principle that should apply to all governments everywhere. This seems to be the practical upshot of the U.S. Supreme Court’s approach to them over the last 75 years or so. But could there be a different meaning intended by the explicit prohibitive nature of the language? CONTINUED.....

As appeared in the M E R I D I A N M A G A Z I N E
Constitutional Primer #6
The Commerce Clause &
Other Power-Expanding Mechanisms"

by Timothy B. Lewis of the Constitutional Freedom Foundation - 5/26/04

Inherent in the notion of government is the power to regulate human conduct. Under the compact theory of government, the people themselves determine the limits and extents of their government’s authority to so regulate. In our federal form of government, a key constitutional question is which level of government has the authority to regulate a given sphere of activity – the central government or the states? Chief Justice John Marshall observed:

“In our complex system, presenting the rare and difficult scheme of one general government, whose action extends over the whole, but which possesses only certain enumerated powers, and of numerous state governments, which retain and exercise all powers not delegated to the Union, contests respecting power must arise.”^{^[1]}

In the last article, we discussed how the U. S. Supreme Court assumed greatly-expanded powers to control the states through its “interpretation” of the 14^th Amendment’s due process clause. It is probably universally conceded that the prime function of the judiciary is to interpret and apply the law to the facts and controversies brought before it. But at some point it becomes ridiculous to say that they are merely “interpreting” the Constitution when in fact, they are changing or amending it by judicial fiat. They did that regarding the 14^th Amendment and they also did it concerning the commerce clause of Article 1, Section 8 which is the main focus of this article. CONTINUED........

As appeared in the M E R I D I A N M A G A Z I N E
Constitutional Primer #7
The Importance of Property Rights"

by Timothy B. Lewis of the Constitutional Freedom Foundation - 6/2/04

In John Locke’s Second Treatise of Government (1689), chapter five discusses property. He said

“every man has a property in his own person. This nobody has a right to but himself. The labor of his body, and the works of his hands, we may say, are properly his. Whatsoever then he removes out of the state of nature... [and] mixes his labor with...makes it his property.”^{^[1]}[For example, planting and harvesting grain, catching fish or game, etc.]

“God, by commanding to subdue, gave authority so far to appropriate. And the condition of humane life, which requires labor and materials to work on, necessarily introduces private possessions.”^{^[2]}

He then talked about how man’s cultivation of an acre of land might produce more useful things than grow naturally on a hundred acres of raw land and that when we invented permanent mediums of exchange like gold, silver, etc. that could facilitate commerce between people in trading the various surpluses they created from their labors, we allowed people to store the value of their labor and thus induced them to be industrious and productive. And we also allowed people to specialize in the application of......CONTINUED

As appeared in the M E R I D I A N M A G A Z I N E
#8 in a Series on the Constitution
The Meaning of Justice

By Timothy B. Lewis of the Constitutional Freedom Foundation - 6/9/04

The first seven articles I called “Constitutional Primers” since they were designed to reacquaint people with our constitutional roots and to show how far we have removed ourselves from our founding philosophy.

One of the characteristics of the great civilizations that have risen and fallen throughout history, is the fact that over time they departed from their basic founding principles. Drunken by the success caused by the principles established by their forebears, later generations became blinded to actual cause and effect relationships. They seemed to assume that prosperity was somehow their natural birthright regardless of what they themselves did and the principles they followed.

Both the departures from their founding principles and the results caused thereby were very gradual -- so much so, that at any point along the way, the resulting effects on the psyche of the people was almost imperceptible. Only in cumulative hindsight could the results be seen. Any call of warning along the way was easily dismissed as being irrationally reactionary.
CONTINUED.....

As appeared in the M E R I D I A N M A G A Z I N E
#9 in a Series on the Constitution
The Meaning of Equality

By Timothy B. Lewis - 6/18/04

There are several words that carry instant credibility and which drive much of the political debate about what the law should or should not do. In the prior article I discussed one of these words, “justice.” Here I discuss a related word, “equality.”

The Declaration of Independence– What did the Term “Equality” Mean There?

Probably the most famous expression of equality appears in the Declaration of Independence where it says:

“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.”
What did Jefferson and the other signers mean by this type of equality? Grammatically, the sentence builds from the most general to the most specific and each successive refinement clarifies what was said earlier and meant by the word “equal.”
CONTINUED..................

As appeared in the M E R I D I A N M A G A Z I N E
#10 in a Series on the Constitution & Law
The Meaning of Rights

By Timothy B. Lewis of the Constitutional Freedom Foundation - 6/23/04

As I explained in prior articles, there are certain words that are so impressive to us that we tend to use them regularly in arguments. However, the meaning of such terms is not static. Through widespread misuse, a word’s meaning can change radically. In the prior two articles I discussed the meaning of the words “justice” and “equality.” The purpose of this article is to consider another such word – “rights.”

Declaration of Independence

It used to be that rights were associated with status – for example, the rights of a king, the rights of a Baron, the rights of a peasant, etc. Our American Revolution moved the concept along towards the notion of universal human rights. Our most famous description of rights is found in the Declaration of Independence. We discussed it in the prior article on equality, let us now consider it for the purpose of understanding the true meaning of the word “rights:”

"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, that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it...."
There are several different philosophic aspects worthy of comment in that statement. First, fundamental rights are God-given. Second, they equally apply to all people. Third, they pre-date government and the fundamental purpose of government is to protect them. CONTINUED.....

Does the Fourteenth Amendment Incorporate the Bill of Rights?

The Original Understanding

Charles Fairman, Stanford Law Review, Vol. 2, 1949-50, pp.5-139
Summary by Timothy B. Lewis

[In his dissenting opinion in Adamson v. California (332 U.S. 46,71 (1947)), Justice Black (joined by three other justices) stated his opinion that one of the “chief objects” of the 14th Amendment was to make the federal Bill of Rights applicable to the states. In the prior eighty years, only 3 out of 31 justices
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