Our Founding Principles Class 6

1. Our Founding PrinciplesClass 6 "Sometimes it is said that man cannot be trusted with the government of himself. Can he, then, be trusted with the government of others?" --Thomas Jefferson, First Inaugural Address, 1801 October Saw Near-Record Debt Despite the government being "shut down" for half the month of October, the federal debt increased by $409 billion -- the second biggest one-month leap in history. The biggest leap was October 2008, which featured the bank bailout. According to CNS News, "At the close of business on Sept. 30, 2013, the last day of fiscal 2013, the federal debt subject to limit stood at $16,699,396,000,000. At the close of business on Oct. 31, 2013, the first month of fiscal 2014, the debt subject to limit stood at approximately $17,108,378,000,000.” Both courtesy of The Patriot Post (PatriotPost.us) • Class Rules • No Politics – Stick to Principles • Use/Identify/Find Facts • Distinguish Belief vs. Truth • Interactive – Learn – Ask - Comment

2. Class 6 Agenda Review www.freedom101.us site wrt Class Posts “Catechism” of Class Finish “General Welfare” Clause Quotes Commerce Clause – What it is Break Commerce Clause – Implementation wording Commerce Clause – Founders’ Quotes Commerce Clause – How Used Today – Courts Cases PowerPoint posted at: www.freedom101.us/category/TELOS1/

3. Preview of Telos Classes Next Quarter On November 22nd , from 1 to 3pm TELOS is sponsoring an Open House session for prospective students prior to the opening of 2014 Winter quarter classes.  The Open House will be held on the Bellevue College North campus in room 1125. 

4. “Catechism” of This Class • Started Wondering What Made US Different • Concern of Future of Country

5. History of Civilization X US Constitution Agriculture US Constitution, Wealth of Nations Science & Medicine Government Magna Carta Printing Press Telescope Democracy Animal Labor 0 2000 1000 1000 2000 BC AD

6. Description: Date: Source: Author: Federal Debt Held by the Public (as a percentage of gross domestic product) from 1790 to 2013, projected until 2038 under CBO’s Extended Baseline 24 September 2013 The 2013 Long-Term Budget Outlook, Page 10, Figure 1-1 Congressional Budget Office

7. “Catechism” of Class • Started Wondering What Made US Different • Concern of Future of Country • Spent years studying – found the “secret” – Natural Law

8. Natural LawThe Most Fundamental Difference Between the US and Any Other Country • Phrase: “We are a country of laws, not men” • Should be: “We are a country based on Natural Law, not law and rule of the majority.” • Natural Law has three roots: • Judeo-Christian Religion • Reason, what we know instinctively, philosophers • Freedom – John Locke Concept

9. Freedom 100% 80% 0% 50% Anarchy Republic Autocratic Democratic Natural Lower Limit of Freedom Determined by Natural Law + Fed. & State Law Law Upper Limit of Freedom constrained by Natural Law + Fed. & State Law Government Majority Citizens Citizens Citizens F. Constitution Citizens Government F. Government Minority Citizens S. Constitution S. Government L. Government

10. “Catechism” of Class • Started Wondering What Made US Different • Concern of Future of Country • Spent years studying – found the “secret” – Natural Law • When we quit following the Constitution, then we become a Democracy

12. Freedom 50% 80% Republic Democratic Natural Law Majority Citizens Citizens F. Constitution F. Government Government S. Constitution S. Government Minority Citizens L. Government

13. “Catechism” of Class • Started Wondering What Made US Different • Concern of Future of Country • Spent years studying – found the “secret” – Natural Law • When we quit following the Constitution, then we become a Democracy • We, the Citizens are the caretakers of our Country, therefore, we cannot be good caretakers if we do not understand the principles behind the country. • We do not learn these principles in school, or anywhere else, thus purpose of this class is to expound them.

14. Class 6 Agenda Review www.freedom101.us site wrt Class Posts “Catechism” of Class Finish “General Welfare” Clause Quotes Commerce Clause – What it is Break Commerce Clause – Implementation wording Commerce Clause – Founders’ Quotes Commerce Clause – How Used Today – Courts Cases PowerPoint posted at: www.freedom101.us/category/TELOS1/

15. Hamilton on the “General Welfare” “The plan of the [constitutional] convention declares that the power of Congress…shall extend to certain enumerated cases. This specification of particulars evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd, as well as useless, if a general authority was intended… ” Federalist No. 83, P7

16. Madison on “General Welfare” Clause “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.  The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.  The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people…” Federalist No. 45 (9thpara)

17. Madison on “General Welfare” Clause “…the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects….“ Federalist No.39 (3rdpara from end)

18. Madison on General Welfare Clause “… the general [federal] government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects...” Federalist No. 14, P. 8

19. Hamilton on “General Welfare” Clause “…It merits particular attention in this place, that the laws of the Confederacy [the federal government], as to the ENUMERATED and LEGITIMATE objects of its jurisdiction, will become the SUPREME LAW of the land…Thus the legislatures, courts, and magistrates, of the respective members, will be incorporated into the operations of the national government AS FAR AS ITS JUST AND CONSTITUTIONAL AUTHORITY EXTENDS…” Federalist No. 27, (last para.)

20. Thomas Jefferson on Brutus’s Concerns “For the Laying of taxes is the power, and the general welfare the purpose, for which the power is to exercised. Congress are not to lay taxes ad libitum, for any purpose they please; but only to pay the debts, or provide for the general welfare of the Union. [otherwise, it would be a grant of a “distinct and independent power to do any act [Congress] pleased.” [Such a grant “would reduce the [Constitution, A1,S8] to a single phrase, that of institution a congress with power to do whatever would be for the good of the United States; and, as they would be the sole judges of good and evil, it would also be a power to do whatever evil they pleased” Joseph Story, Commentaries on the Constitution of the United States, 4th ed., Tomas M. Cooley, ed., vol. 1 P.923 (Boston: Little, Brown, 1873) (citing Thomas Jefferson)

21. Class 6 Agenda Review www.freedom101.us site wrt Class Posts “Catechism” of Class Finish “General Welfare” Clause Quotes Commerce Clause – What it is Break Commerce Clause – Implementation wording Commerce Clause – Founders’ Quotes Commerce Clause – How Used Today – Courts Cases PowerPoint posted at: www.freedom101.us/category/TELOS1/

22. Wording of the Commerce Clause • To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

23. Definitions – Noel Webster’s 1829 Dictionary • Among (amongst), prep. 1. In a general or primitive sense, mixed or mingled with; as tares among wheat. 2. Conjoined or associated with. • Commerce n. 1. In a general sense, an interchange of mutual change of goods, wares, production or property of any kind, between nations or individuals, either by barter, or by purchase and sale; trade; traffick. Commerce is foreign or inland. Foreign commerce is the trade which one nation carries on with another; inland commerce, or inland trade, is the trade in the exchange of commodities between citizens of the same nation or state. Active commerce. 2. Intercourse between individuals; interchange of work, business, civilities or amusements; mutual dealings in common life. 3. Familiar intercourse between the sexes. 4. Interchange; reciprocal communications; as, there is a vast commerce of ideas. • Commerce v.i. 1. To traffick; to carry on trade. 2. To hold intercourse with.

24. Harvard Law Prof. Raoul Berger: “The focus on trade alone was not fortuitous; the Framers were fastidious in their choice of words. For them, “trade” did not, for example, include agricultural production, which plainly was “local.” In the Convention, George Mason said that the “general government could not know how to make laws for every part[state]-such as respects agriculture.” And [Alexander] Hamilton wrote in Federalist No. 17 that that “the supervision of agriculture and of other concerns of a similar nature…which were proper to be provided for by local legislation, can never be desirable cares of a general jurisdiction.” In Federalist No. 12, he adverted to the “rivalship that once subsisted” between agriculture and commerce…Hamilton referred separately in Federalist No. 36 to “agriculture, commerce, [and] manufactures” as “different…kinds” of “wealth, property, and industry,” not as fused in commerce. In sum, the Founders conceived of “commerce” as “trade,” the interchange of goods by one State with another. Raoul Berger, “Judicial Manipulation of the Commerce Clause,” 74 Texas Law Review 695, 702-3 (March 1996)

25. Berger, Continued 1 “The Founders’ all-but-exclusive concern was with exactions by some states from their neighbors. [James] Madison said, “It would be unjust to the States whose produce was exported by their neighbours, to leave it subject to be taxed by the latter.” [James Wilson] “dwelt on the injustice and impolicy of leaving New Jersey, Connecticut &c any longer subject to the exactions of the commercial neighbours.” Madison stated that it was necessary to remove “existing & injurious retaliations among the States.” that “the best guard against [this ‘abuse’] was the right in the Government to regulate trade between State and State.” [Roger] Sherman stated that “the oppression of the uncommercial States was guarded agst. by the power to regulate trade between the States.” And Oliver Ellsworth said that the “power of regulating trade between the States will protect them agst. each other.” Given the jealous attachment to state sovereignty, the absence of objection that the Commerce Clause invaded State autonomy indicates that such an intrusion was simply unimaginable.

26. Berger, Continued 2 [Thomas Jefferson] accurately reflected the Founder’ view when he stated in 1791 that “the power given to Congress by the Constitution does not extend to the internal regulation of the commerce of a state…which remains exclusively with its own legislature; but to its external commerce only, that is to say, its commerce with another state, or with foreign nations…” That no more was intended was made clear by Madison in a letter to J.C. Cabell: “among the several States… grew out of the abuses of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government…” Internal citations of the Berger quote are not included….. This Berger quote is cited from “The Liberty Amendments” by Mark Levin, 2013

27. Founding Fathers from Berger Quote • James Wilson - Signed Declaration of Independence, was Associate Justice of the Supreme Court of the United States • Roger Sherman – American lawyer and politician, on the Committee of Five that drafted the Declaration of Independence, and only person to sign all four great US papers: Continental Association, the Declaration of Independence, the Articles of Confederation and the Constitution. • Oliver Ellsworth – American Lawyer and politician, drafter of the Constitution, US Senator, and third Chief Justice of the United States

28. Randy E. Barnett Barnett is a law professor from Georgetown University that in 2001, examined the documents, including Constitutional Convention notes, including the Federalist Papers and ratification debates from the founding era, to determine the Founders’ intent

29. Randy Barnett Findings Barnett “found…that the term ‘commerce’ was consistently used in the narrow sense and that there is no surviving example of it being used in either source in any broader sense. The same holds true for the use of the word ‘commerce’ in the Federalist Papers. Randy e. Barnett, “The Original Meaning of the Commerce Clause,” 68 University of Chicago Law Review 101, 104 (Winter 2001) (emphasis in original) Cited from “Liberty Amendments” by Mark Levin, 2013

30. Randy Barnett Finding, Con’t. “In Madison’s notes for the Constitutional Convention, the term ‘commerce’ appears thirty-four times in the speeches of the delegates. Eight of these are unambiguous references to commerce with foreign nations which can only consist of trade. In every other instance, the terms ‘trade’ or ‘exchange’ could be substituted for the term ‘commerce’ with the apparent meaning of the statement preserved. In no instance is the term ‘commerce’ clearly used to refer to ‘any gainful activity’ or anything broader than trade.”

31. Randy Barnett Finding, Con’t. “In none of the sixty-three appearances of the term ‘commerce’ in the Federalist Papers is it ever used unambiguously refer to any activity beyond trade or exchange. Having examined every use of the term ‘commerce’ that appears in the reports of the state ratification conventions, I found that the term was uniformly used to refer to trade or exchange, rather than all gainful activity. If anyone in the Constitutional Convention or the state ratification conventions used the term ‘commerce’ to refer to something more comprehensive than ‘trade’ or ‘exchange,’ they either failed to make explicit that meaning or their comments were not recorded for posterity.” Randy e. Barnett, “The Original Meaning of the Commerce Clause,” 68 University of Chicago Law Review 101, 104 (Winter 2001) (emphasis in original) Cited from “Liberty Amendments” by Mark Levin, 2013

32. James Madison on the Commerce Clause “A very material object of this power was the relief of the States which import and export through other States from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former.” James Madison, Federalist No. 41

33. Joseph Story QuoteSupreme Court Justice 1811 to 1845 “It is hardly possible to exaggerate the oppressed and degraded state of domestic commerce, manufactures, and agriculture, at the time of the adoption of the Constitution. Our ships were almost driven from the ocean; our work-shops were nearly deserted; our mechanics were in a starving condition; and our agriculture was sunk to the lowest ebb. These were the natural results of the inability of the General Government to regulate commerce, so as to prevent the injurious monopolies and exclusions of foreign nations, and the conflicting, and often ruinous regulations of the different States.” Joseph Story, A familiar Exposition of the Constitution of the Unided States, §163 (Washington, DC: Regnery Gateway, 1986), 139-40. Cited from “Liberty Amendments” by Mark Levin, 2013

34. Class 6 Agenda Review www.freedom101.us site wrt Class Posts “Catechism” of Class Finish “General Welfare” Clause Quotes Commerce Clause – What it is Break Commerce Clause – Implementation wording Commerce Clause – Founders’ Quotes Commerce Clause – How Used Today – Court Cases PowerPoint posted at: www.freedom101.us/category/TELOS1/

35. Commerce Clause – Precedence SetGibbons v. Ogden, 1824, Chief Justice Marshall said re Commerce Clause: Comprehensive as the word “among” is, it may very properly be restricted to that commerce which concerns more States than one… The genius and character of the whole government seem to be, that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the States generally; but not to those which are completely within a particular State, which do not affect other States, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government. The completely internal commerce of a State, then, may be considered as reserved for the State itself. Gibbons v. Ogden, 22 U.S. 1, 190 (1824), Cited from Freedom Amendments by Mark Levin, 2013

36. Precedence Broken, New Precidence • Jones v. Laughlin Steel Corp., 1937, a direct result of threat by FDR to pack the court • “Poster Child” case Wickard v. Filburn, 1942

37. Supreme Court on Wickard v. Filburn “It can hardly be denied that a factor of such volume and variability as home-consumed wheat would have a substantial influence of price and market conditions. This may arise because being in marketable condition such wheat overhangs the market and if induced by rising prices tends to flow into the market and check price increases. But if we assume that it is never marketed, it supplied a need of the an who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce. The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restriction on them.”

38. Precedence Broken, New Precedence…. • Jones v. Laughlin Steel Corp., 1937, a direct result of threat by FDR to pack the court • “Poster Child” case Wickard v. Filburn, 1942 • Ignores “in state” activity attribute of Commerce Clause • Ignores definition of Commerce (trade, not agriculture) • Claims that “home grown” negatively stimulates commerce………….. • This ruling sets the precedence for the Federal Government to virtually regulate business in any way it wishes………

39. Precedence, Brutus, Anti-Federalist 11 “The real effect of this system of government, will therefore be brought home to the feelings of the people, through the medium of the judicial power. It is, moreover, of great importance, to examine with care the nature and extent of the judicial power, because those who are to be vested with it, are to be placed in a situation altogether unprecedented in a free country. The are to be rendered totally independent, both of the peope and the legislature… No errors they may commit can be corrected by any power above them, if any such power there be, nor can they be removed from office for making ever so many erroneous adjudications…”

40. Judicial Concerns Precedence, Brutus, Antifederalist 15 Perhaps nothing could have been better conceived to facilitate the abolition of th state governments than the constitution of the judicial. They will be able to extend the limits of the general government gradually, and by insensible degrees, and to accommodate themselves to the temper of the people. Their decisions on the meaning of the constitution will commonly take lace in cases which arise between individuals, with which the public will not be generally acquainted; on adjudication will form a precedent to the next, and this to a following one.

41. Chief John Marshall wrote re. Marbury v. Madison, 1803 “The judicial power of the United States is extended to all cases arising under the constitution.” Marbury v. Madison, 5 U.S. 137, 178 (1803) This “read” on the constitution by Marshall has been interpreted to mean that the Supreme Court is the final authority on the constitutionality of any federal law passed, a view not shared by other founders, and not specifically granted in the constitution.

42. Jefferson’s view on Court Authority “The Constitution… meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.” Thomas Jefferson, “Letter to Abigail Adams, September 11, 1804” in The Writings of Thomas Jefferson, Albert Ellery Bergh, ed., vol. 11 (Washington, DC: Thomas Jefferson Memorial Association of the United States, 1904), 50-51.

43. Jefferson’s view on Court Authority “[To] consider judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps… and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.” Thomas Jefferson, “Letter to William Chareles Jarvis, September 28, 1820” in The Writings of Thomas Jefferson, Albert Ellery Bergh, ed., vol. 15-16 (Washington, DC: Thomas Jefferson Memorial Association of the United States, 1907), 277.

44. More Quotes on Court Power • Abraham Lincoln: Carl Sandburg, Abraham Lincoln: The War Years, vol. 1 (New York: Harcourt, Brace & World, 1939), 132 • Woodrow Wilson, Constitutional Government in the United States (New York: Columbia University Press, 1908), 16. • Bruce Ackerman, “Ackerman on Renewing the Promise of National Citizenship,” March 15, 2005, American Constitutional Society, ACS blog, http://www.acslaw.org/acsblog/ackerman-on-renewing-the-promise-of-national-citizenship (April 18, 2013) • Louis Michael Seidman, “Let’s Give Up on the Constitution,” New York Times, Dec. 30, 2012, http://www.nytimes.com/2012/12/31/opinion/lets-give-up-on-the-constitution.html?pagewanted=all&_r=2& (April 18, 2013)

45. Court Deviations from Constitution • Court is final arbitrator of Constitutionality - Marbury v. Madison, 1803 • Power to Tax for any purpose, beyond enumerated powers - various New Deal acts • Welfare Clause – SS Act, 1935 • Commerce Clause – Wickward v. Filburn, 1942 • Religion “Wall of Separation” - Everson v. Board of Education, 1947 • Penalty is a Tax, Obamacare decision, 2012