The Heritage Guide to the Constitution: Essay Nos. 151–175

To continue my preview of The Heritage Guide to the Constitution, which will ship on October 14, here are the authors of essays 151–175.

Essay No. 151: Prohibition On Amendment—Migration, Importation, And Apportionment —Robert G. Natelson

Essay No. 152: Prohibition On Amendment—Equal Suffrage Of The States —Robert G. Natelson

Essay No. 153: The Debts And Engagements Clause —Judge Paul B. Matey

Essay No. 154: The Supremacy Clause —Gary S. Lawson

Essay No. 155: The Oath Or Affirmation Clause —Judge Gregory G. Katsas & Andrew W. Smith

Essay No. 156: The Religious Test Clause —Gerard V. Bradley

Essay No. 157: The Ratification Clause —John P. Kaminski

Essay No. 158: The Attestation Clause —John P. Kaminski

Essay No. 159: The Establishment Clause —Stephanie Barclay

Essay No. 160: The Free Exercise Of Religion Clause —Vincent Phillip Muñoz

Essay No. 161: The Freedom Of Speech And Of The Press Clause —Eugene Volokh

Essay No. 162: The Freedom Of Assembly Clause —Tabatha Abu El-Haj

Essay No. 163: The Freedom Of Petition Clause —David E. Bernstein & R. Trent Mccotter

Essay No. 164: The Right To Keep And Bear Arms Amendment —Nelson Lund

Essay No. 165: The Quartering Troops Amendment —Andrew P. Morriss

Essay No. 166: The Unreasonable Searches And Seizures Clause —Orin S. Kerr

Essay No. 167: The Warrant Clause —Judge Elizabeth L. Branch, Francis Aul, & Austin Mayron

Essay No. 168: The Grand Jury Requirement Clause —Judge Julius N. Richardson

Essay No. 169: The Grand Jury Exceptions Clause —Judge Gregory E. Maggs & Robert Leider

Essay No. 170: The Double Jeopardy Clause —Judge Timothy M. Tymkovich & Adam Steinhilber

Essay No. 171: The Self-Incrimination Clause —Paul G. Cassell

Essay No. 172: The Due Process Clause —Gary S. Lawson

Essay No. 173: The Takings Clause —William Baude & Sarah Leitner

Essay No. 174: The Speedy Trial Clause —Judge Andrew Brasher & Jack Tucker

Essay No. 175: The Public Trial Clause —Judge Patrick R. Wyrick & Tyler Shannon

Comments

[SRG2]

Essay No. 176: the secret Trump Exception Clause -- Josh Blackman

[Jack Jordan]

Professor Blackman, did anyone write about the significance of Article III providing that all federal "Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour." Many judges and purported pundits misrepresent that Article III affords judges life tenure, but it did not use the words "life tenure," and it did not even imply life tenure.

Only federal “judges” who “behave properly, will be secured in their places for life.” Federalist No. 79 (Alexander Hamilton). “The tenure by which the judges are to hold their places, is, as it unquestionably ought to be, that of good behavior.” Federalist No. 39 (James Madison). Ours is “a republic, where every magistrate ought to be personally responsible for his behavior in office.” Federalist No. 70 (Hamilton). Having “courts composed of judges holding their offices” only “during good behavior” is a “powerful means” for ensuring “the excellences of republican government may be retained and its imperfections lessened or avoided.” Federalist No. 9 (Hamilton).

[Jack Jordan]

Professor Blackman, did anyone write about the sovereignty of the people to elaborate on the significance of our sovereignty? This is a crucial aspect of our Constitution that all judges (and all lawyers and law professors and even all Americans) need to re-learn and learn to really respect.

For example, the starting point for a careful consideration of the powers of the president must begin with our Constitution's Preamble. It emphasized that "We the People" did "ordain and establish" our "Constitution" to "establish Justice" and "secure the Blessings of Liberty to ourselves."

This is the heart and soul of our Constitution. It emphasizes a crucial, overarching principle that is only implicit in our Constitution's text and structure. As Justice James Wilson emphasized in 1793 in Chisholm v. Georgia, “the term SOVEREIGN” is not used in our “Constitution.” But the Preamble is the “one place where it could have been used with propriety.” Only those “who ordained and established” our “Constitution” could “have announced themselves ‘SOVEREIGN’ people of the United States.”

Justice Wilson highlighted how the first and foremost separation of powers in our Constitution is between the sovereign people and all public servants: “The PEOPLE of the United States” are “the first personages introduced.” After introducing the sovereign (the people), the text and structure of Articles I, II and III further emphasized the people’s sovereignty. They introduced our directly-elected representatives (Congress), then, our indirectly-elected representative (the president), and, last, our unelected representatives (judges). The people “vested” only limited powers in public servants in and under “Congress” (U.S. Const. Art. I, §1), the “President” (Art. II, §1) and the “supreme Court” and “inferior Courts” that “Congress” was delegated the power to “ordain and establish” (Art. III, §1).

After seeing the truth about the foregoing, then we can see the true significance of the oaths of office of our public servants. Article VI emphasizes that the first, foremost and constant duty of every legislator and "all executive and judicial Officers" (state and federal) is "to support" our "Constitution" in everything they do. Article II more specifically emphasizes that the president's first, foremost and constant duty is to "preserve, protect and defend the Constitution of the United States" to "the best of" his "Ability."

The true significance of the oaths of office, the first sentences of Articles I, II and III (the people vesting limited powers in public servants) and the Preamble is clearly that no public servant--no legislator, no president, no judge, no DOJ attorney--was given any power to say or do whatever they want. Everything our public servants say or do officially must be to fulfill their oaths to support our Constitution.

These days, it is especially important to emphasize the true significance of the oaths of office of every public servant to support our Constitution.

Chief Justice John Marshall (writing for SCOTUS) in Marbury v. Madison in 1803 specifically addressed the great significance of the oath required by Article VI of our Constitution, and their pronouncements necessarily are equally relevant to the oath required by Article II and 5 U.S.C. 3331 and any other relevant law.

"[I]t is apparent, that the framers of the constitution contemplated that instrument, as a rule for the government of courts, as well as of the legislature.

Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character."

Any person violating the oath in Article II, Article VI, 5 U.S.C. 3331 or other federal or state law prescribing an oath to support our Constitution commits “worse than solemn mockery” of our Constitution, and any person who dares “take this oath” without believing it commits “a crime.”

“Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of [any] legislature" (ANY act of ANY public servant) "repugnant to the constitution, is void.”

Obviously, "the constitution is to be considered, in court, as a paramount law," so courts cannot "close their eyes on the constitution, and see only the law." Any purported "doctrine" to the contrary "would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void; is yet, in practice, completely obligatory." It "thus reduces to nothing what we have deemed the greatest improvement on political institutions—a written constitution."

[Jack Jordan]

Professors Blackman and Volokh, did any writing about our First Amendment rights or freedoms emphasize that they flow from the individual sovereignty of the people (over our own thoughts, expression, communications, association) and our collective political sovereignty (over our public servants)?

In The Federalist No. 37, James Madison emphasized that "[t]he genius of republican liberty seems to demand . . . not only that all power should be derived from the people, but that those intrusted with it should be kept in dependence on the people." The most democratic aspect of our Constitution is documented in the First Amendment, but the most important aspect of the First Amendment is that it elaborates on the most important principle in our Constitution.

In our “republic” clearly “the people are sovereign” and “the ability” (the power) “of the citizenry to make informed choices” about public servants and public issues “is essential.” Citizens United v. FEC, 558 U.S. 310, 339 (2010). “Speech is an essential mechanism of democracy,” in part, because it is “the means to hold officials accountable to the people.” Id.

More importantly and more fundamentally, “[t]he right of citizens to inquire, to hear, to speak, and to use information” is essential “to enlightened self-government and a necessary means to protect it.” Id. Accord id. at 339-341, 344-350. “Premised on mistrust of [all] governmental power, the First Amendment stands against attempts to disfavor” the “subjects or viewpoints” of speech, especially regarding our public servants’ purported performance of their public service. Id. at 340.

The First Amendment expresses and secures the sovereignty of the people. In 1964, SCOTUS unanimously emphasized that very point, including by quoting James Madison. In New York Times Co. v. Sullivan, a unanimous SCOTUS emphasized that the first great fight for the freedom of speech was waged less than a decade after the First Amendment was ratified and why it was won. When and by whom the fight was waged is important--between at least 1798 and 1801 by people who were profoundly influential in the writing and ratification of the original Constitution and the first 10 amendments. Why and how the fight was won is vastly more important.

“This is the lesson to be drawn from the great controversy over the Sedition Act of 1798," which "first crystallized a national awareness of the central meaning of the First Amendment.” “[T[he Act was vigorously condemned as unconstitutional in an attack joined in by Jefferson and Madison. In the famous Virginia Resolutions of 1798 [written by Madison], the General Assembly of Virginia” emphasized that making (and even more so executive and judicial branch employees purporting to enforce) the Sedition Act plainly and egregiously usurped “a power not delegated by the Constitution” and even “expressly and positively forbidden by one of the amendments thereto—a power which, more than any other, ought to produce universal alarm, because it is levelled against the right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed the only effectual guardian of every [American] right.”

Subsequently, “Madison prepared the [Virginia Report of 1800] in support of the protest” against the Sedition Act, and the Report emphasized a vastly more important truth than even the foregoing: “the Constitution created a form of government under which ‘The people, not the government, possess the absolute sovereignty.’ The structure of the government dispersed power in reflection of the people’s distrust of concentrated power, and of power itself at all levels. This form of government was ‘altogether different’ from the British form, under which the Crown” (actually, Parliament) “was sovereign and the people were subjects.”

“Earlier, in a debate in the House of Representatives, Madison” emphasized that in “Republican Government,” generally, “the censorial power is in the people over the Government, and not in the Government over the people.” “The right of free public discussion of the stewardship of public officials was thus, in Madison’s view, a fundamental principle of the American form of government.”

SCOTUS emphasized that “[t]he invalidity of the Act has also been assumed by Justices of this Court.” The first cited authority was Justices Holmes and Brandeis dissenting in Abrams v. United States. Others also were cited. “These views reflect a broad consensus that the Act, because of the restraint it imposed upon criticism of government and public officials, was inconsistent with the First Amendment.”

“What" public servants "may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of [the] civil law of libel.” “In deciding the question now, we are compelled by neither precedent nor policy to give any more weight to the epithet ‘libel’ than we have to other ‘mere labels’ of [purported] law.” As with all “the various other formulae for the repression of expression" the label "libel can claim no talismanic immunity from constitutional limitations. [All repression of expression] must be measured by standards that satisfy the First Amendment.”

In America, the people are sovereign and all public officials are public servants. Officials are representatives, not rulers. In the Report of 1800, Madison emphasized this principle even more powerfully than SCOTUS in Sullivan.

To oppose the misconduct of the President, Congress, SCOTUS Justice Chase and other federal judges by making and purporting to enforce the Sedition Act of 1798, Madison emphasized the enduring need to remind our public servants of first principles established by our Constitution. Madison publicly accused the foregoing purported public servants of "reproachful inconsistency, and [even] criminal degeneracy."

Madison emphasized that we must consider exercises of power by our public servants “with a reverence for our constitution, in the true character in which it issued from the sovereign authority of the people.”

"[A] frequent recurrence to fundamental principles [in our constitutions] is solemnly enjoined by most of the state constitutions, and particularly by our own [Constitution], as a necessary safeguard against the danger of degeneracy to which republics are liable . . . . The authority of constitutions over governments, and of the sovereignty of the people over constitutions, are truths which are at all times necessary to be kept in mind; and at no time perhaps more necessary than at the present."

“The essential difference between the British government, and the American constitutions, will place this subject in the clearest light.” In Britain, the legislature (Parliament) was and is sovereign and the people were and are mere subjects.

"In the United States, the case is altogether different. The people, not the government, possess the absolute sovereignty. The legislature, no less than the executive, is under limitations of power. Encroachments are regarded as possible from the one, as well as from the other. Hence in the United States, the great and essential rights of the people are secured against legislative, as well as against executive [and judicial] ambition. They are secured, not [only] by laws paramount to prerogative; but [even more strongly] by constitutions paramount to laws."