Inspired Constitution :: The Constitution of the Founding Fathers

The Constitution of the Founding Fathers


	The Constitution of the Founding Fathers Table of Contents Introduction Part 1 Part 2 Part 3 Part 4 Appendix 1 Appendix 2 Appendix 3

Part IV. Amendments Subsequent To Bill Of Rights

DIFFERENCES BETWEEN BILL OF RIGHTS AND SUBSEQUENT AMENDMENTS
1. Bill of Rights amendments were in harmony with Constitution and largely a clarification of concepts it was represented to contain but which the people wanted spelled out in detail
2. Many of the subsequent amendments were of a different time and based on philosophical concepts incompatible with those of the Framers
TESTS FOR DETERMINING WHETHER SUBSEQUENT AMENDMENTS ARE CONSISTENT WITH OR INCOMPATIBLE WITH PRINCIPLES OF FRAMERS
1. Specific tests under first forgotten fundamental of a moral and religious citizenry (Elders p. 170-171)
2. Specific tests under second forgotten fundamental of a complete freedom way of life, including free enterprise and private property (Elders p. 177-178)
3. Specific tests under third forgotten fundamental of protecting freedom against human nature weaknesses of both government officials and people themselves (Elders p. 188-190)
4. Same tests can be used to judge any proposed current law or any other existing or proposed political position
AMENDMENT 11—CLARIFICATION OF FEDERAL JUDICIAL POWER
1. Under common law a sovereign could not be sued by an individual without its consent
  1. Theory was logical—judgment of court is executed by sovereign—recognized that might be a vain act to expect it to execute judgment against itself
  2. Therefore contracts between a sovereign and an individual are binding only on the conscience of the sovereign—cannot use court system (compulsory force of sovereign) to enforce them [p. 77]
2. One of arguments against adoption of Constitution was that federal jurisdiction of cases between a state and citizens of another state changed common law rule and authorized suits against states without their consent by citizens of other states
  1. In Federalist No. 81 Hamilton explained that there was no change in the common law rule—while such a case might be heard in the federal courts it was a forced and unwarrantable interpretation to conclude that the power of the federal courts to hear the case eliminated the requirement of the state’s consent to bring the case at all
  2. In 1793 in Chisolm v. Georgia the Supreme Court ruled contrary to Hamilton’s assurance and held that under Article III, Section 2, Clause 1 states could be sued without their consent in the federal courts by citizens of other states
  3. There was much concern that states might be sued by many people under this decision because of the financial difficulties the states were having
  4. This amendment was adopted to return to what was apparently the original intent set forth in representations made to secure adoption of the Constitution
  5. While the concept of immunity of the sovereign from suit without its consent may seem undesirable, any change in that concept should be worked out by the people in the individual states—it is not something to be imposed on all the states by the central government—particularly since the Constitution was not intended to change the underlying common law
AMENDMENT 12—CHANGING ELECTORAL COLLEGE SYSTEM TO ACCOMMODATE PARTY POLITICS
1. One of the great dangers to freedom foreseen by the Framers was an excess of democracy—yet most of the remaining amendments are steps in that direction—democracy does not just mean more direct control of the government by the people, but perhaps more importantly the will of the majority being enforced by the compulsory power of the law even in violation of individual rights (Federalist No. 10; Elders Chapter 7, p. 43-48)
2. Following is an extract from an essay published by Lord Acton in 1861 on the causes of the Civil War which he refers to as the American Revolution—speaking of the Constitutional Convention. he wrote: [p. 78]
  “Far from being the product of a democratic revolution . . . . the Constitution of the United States was the result of a powerful reaction against democracy . . . . no contradiction was given to such speeches as the following. Madison said: ‘In all cases where a majority are united by a common interest or passion, the rights of the minority are in danger. What motives are to restrain them? . . . Respect for character I always diminished in proportion to the number among whom the blame or praise is to be divided. Conscience, the only remaining tie, is known to be inadequate in individuals; in large numbers little is to be expected from it.’
  “Mr. Gerry said: ‘The evils we experience flow from the excess of democracy. The people do not want virtue, but are the dupes of pretended patriots . . . . He had been too republican heretofore; he was still, however, republican, but had been taught by experience the danger of the levelling spirit.’ Mr. Mason ‘admitted that we had been too democratic . . . . ’ Mr. Randolph observed ‘that the general object was to provide a cure for the evils under which the United States labored; that, in tracing these evils to their origin, every man had found it in the turbulence and follies of democracy.’”
3. Political parties are the machinery through which popular majorities exercise power—they are also the machinery through which popular majorities are manipulated like a huge steam roller being driven by an ordinary man at the controls (Washington’s Farewell Address; Elders Chapter 6, p. 37-42)
4. Political parties are generally spoken of favorably as being important to the proper working of our system of government—but most people are not aware of our Church experience showing how effectively and how harmoniously a government can function without them when people are united—political parties tend to destroy unity and harmony by dividing people into opposing factions
5. The Framers were much opposed to direct election of the president—they felt that it would be a deceptive popularity contest that would result in election of a demagogue (See note under Article II, Section 1, Clauses 2-4)
6. They provided for selection of the president by the electoral college system to achieve two basic purposes (Federalist No. 68; Elders p. 15-18)
  1. Avoid the evils they foresaw if the selection were made by the people
  2. Have the selection made by a chosen group of men of such high caliber that they would be uninfluenced by agitation and sham that deceive the people and would make their decision based on principle [p. 79]
7. In that situation there was no need for separate voting for President and Vice President—the President was the person with the most votes and the Vice President was the person with next most votes
8. Also since the Vice President was the candidate for President who received the second highest number of votes there was no need to specify qualifications for Vice President
9. By the election of 1800 the country was divided between the Federalists and the Republicans—the Framers’ hope of unity in selecting high caliber individuals who would independently choose the best man for President was unfulfilled—the electors had become party functionaries pledged to vote for their own party candidates
10. The Republicans elected a majority of the electors—the Republican candidates were Thomas Jefferson for President and Aaron Burr for Vice President—since all the Republican electors voted for both of them, they had the same number of votes and the selection went to the House of Representatives where Jefferson was finally made President after much difficulty
11. The 12th Amendment was adopted in 1804 to accommodate the electoral college to party politics
  1. Voting for President and Vice President to be by separate lists so no question as to who is intended for which office
  2. Voting for Vice President in Senate made more similar to voting for President in House of Representatives
  3. Vice President must meet same eligibility requirements as President
WHY SO RAPID A DEPARTURE FROM THE SYSTEM OF THE FRAMERS
1. The Constitution did not fail the people—the people failed the Constitution—but why so soon?
2. Compare with Paul writing of apostasy: “I marvel that ye are so soon removed from him that called you into the grace of Christ unto another gospel.” (Gal 1:6)
3. Compare also with instruction to Joseph Smith at First Vision: “I was answered that I must join none of them, for they were all wrong . . . all their creeds were an abomination in his sight; that those professors were all corrupt.” (JS 2:19) Corrupt refers to departure from original soundness [p. 80]
4. Following statement by President Joseph F. Smith has bearing on cause of apostasy from both gospel truth and political truth: “Let it not be forgotten that the evil one has great power in the earth and that by every possible means he seeks to darken the minds of men and then offers them falsehood and deception in the guise of truth. Satan is a skillful imitator, and as genuine gospel truth is given the world in ever-increasing abundance, so he spreads the counterfeit coin of false doctrine.” (LDS Reference Encyclopedia, p. 104)
5. An important fact we are especially familiar with is that the influence of the spirit in a person’s life (amount of inspiration he receives) can wax and wane depending on the situation he is in and his own actions—tends to be especially strong when sitting in council with others seeking inspiration—such as First Presidency and Quorum of Twelve or Stake Presidency and High Council
6. In Constitutional Convention Framers were unitedly groping for political truth—common objective was preservation of freedom—their disputes were over “how” rather than “what”
7. In that situation of the interplay of ideas as they sat in council together the Lord guided and inspired them to the extent that he could later declare that they were instruments through which he worked—“I established the Constitution of this land, by the hands of wise men whom I raised up unto this very purpose.” (D&C 101:80)
8. But after they went their separate ways they did not reassemble in a similar group unitedly groping for eternal political truth—to an extent they were left more to themselves spiritually and were less able to discern and withstand the unsound deceptive influences of Satan—also known as the adversary or deceiver
THE. FRENCH REVOLUTION AS A CORRUPTING COUNTERFEIT
1. Results generally flow from multiple rather than single causes—but often causes having great significance go unnoticed—perhaps because people’s attention is pointed in a different direction—the influence of the French Revolution in this country may be such a cause
2. Tendency today to interpret history in economic and social terms—more accurate to interpret history in an eternal context including purpose for which earth was created (See Moses 1 and Abraham 3 and 2 Nephi 2) [p. 81]
3. Recall that when the Lord brings forth something good, the Devil counters with a deceptive counterfeit that looks like the Lord’s program, but which is calculated to destroy instead of build
4. The American Revolution and establishment of our constitutional system were God inspired and constituted one of the high points in the history of the world
5. The French Revolution that followed shortly after has often been pointed to with gratification as an example of the desirable spread of our freedom example to other parts of the world
6. Many people don’t realize that in spite of superficial similarities the French Revolution was actually a Satanic counterfeit based on opposite principles
7. Helpful to briefly contrast the underlying ideas of the American and French Revolutions
  1. The American Revolution was based on a religious orientation including recognition of each man’s God-given inalienable rights to life, liberty and property, and the establishment of a government strong enough to protect man from having his rights (freedom) violated by others—but at the same time there was recognition of the human nature tendency of government officials to exercise improper dominion and the government itself was to be so bound down by the chains of the Constitution that acting through human officials government could not itself violate men’s rights—stress was placed on orderly development based on experience and not tearing apart the fabric of society—by protecting the freedom of the people from the compulsion of government in their daily lives they would become happy and prosperous as they individually strove to better their own condition
  2. The French Revolution was based on an atheistic orientation that excluded God—in his place was substituted a man-centered religious philosophy built on the assumption that a better society could be built through man’s wisdom—the better society would be built by overthrowing existing government and destroying the existing fabric of society—unlimited compulsory power would be taken over in the name of the people by the revolutionary elite who would use that power combined with a reign of terror to overcome opposition and mold the remaining people to the leaders’ idea of what would be best—thus the greatest good for the people would come through government organizing and controlling their lives in contrast to the American [p. 82] concept that the greatest good would come from individual freedom and limited government
    1. While the rhetoric of the French Revolution included liberty and human rights, these were theoretical words separated from the realities of life because they were to be secured by the compulsion of a powerful government—promises were fictional and impossible of fulfillment because contrary to reality of human nature—like Satan promising salvation in exchange for freedom when all he can deliver is death and misery
    2. In contrast Framers recognized that the realities of human nature teach that powerful government destroys rather than secures freedom and that freedom is. to be found through limitation of the power of government rather than using the power of government to provide it—but government must be powerful enough to perform its proper protection function
THE INFLUENCE OF THE FRENCH REVOLUTION IN AMERICA
1. Just as communism today spreads from country to country like a contagious disease, the principles of the French Revolution which are fundamentally the same as modern communism spread to this country and infected our body politic
2. We were like a ship of state that was torpedoed soon after launching—our ship was strong enough that the torpedo did not sink it—but ever since then we have been sailing with a great wound that has been gradually worsening—we are now reaching the point where our freedom ship is beginning to founder for the second time (the first was the Civil War) and may soon sink unless heroic steps are taken to correct the great and worsening breach
3. Important to briefly consider somewhat of how the sickness came to us—its source has not been quarantined so that our body poltic is receiving repeated reinfections of the deadly disease
4. We have all heard of Citizen Edmond Genet and the difficulty he caused during Washington’s administration through his efforts to recruit Americans and outfit privateers here to right for France—less well known are his efforts to undermine our government—he was involved with the organization of what were called Democratic Clubs all over the country
  1. The Democratic Clubs which were sometimes called Jacobin Clubs [p. 83]
  2. Samuel Eliot Morison in The Oxford History of The American People refers to the Jacobin Clubs as “corresponding roughly to the Communist cells of our own time.” (p. 337)
  3. Washington was one of first to see the great danger that was developing—he early expressed the opinion “that if these societies were not counteracted (not by prosecutions, the ready way to make them grow stronger) . . . . they would shake the government to its foundations.” (Washington: The Indispensable Man, by James T. Flexner, p. 297)
  4. Washington considered the Whiskey Rebellion to be an insurrection fomented by the Democratic Clubs—when the federal troops reached Harrisburg to put down the insurrection they found the French flag flying over the courthouse (The Life of John Marshall, by Albert J. Beveridge, Vol. 2, p. 88)
  5. Washington also recognized that the real objectives of the Democratic Societies were different from their publicly professed objectives; he said their real aim was “not the cause of France, nor, I believe, of Liberty”—rather their real goal was “nothing short of the subversion of the Government of these States, even at the expense of plunging this country in the horrors of a disastrous war.” (George Washington, by Douglas Southall Freemen, Vol. 7, p. 131)
  6. Eventually the Democratic Clubs seemed largely to have disappeared, but many of them apparently went underground rather than disbanded—John Jay declared that “the Jacobins are still more numerous, more desperate, and more active in this country than is generally supposed.” (John Jay, Defender of Liberty, by Frank Monaghan, p. 417)
5. In considering the deadly danger this country passed through in its weak infancy it seems appropriate to recall that in 1820 when Joseph Smith began to pray in the woods in connection with the opening of the restoration of the gospel he was nearly destroyed by the Adversary who tried to stop the work in its inception
6. Even though Washington’s denunciations caused many people to terminate their association with the Jacobin Clubs and most of those clubs appear to have disbanded, the influence of their philosophical ideas would surely have continued although we cannot say to what extent (See Sidney Webb statement in Elders p. 164) [p. 84]
7. Regardless of the extent to which the Jacobin Clubs continued underground in this country, the influence of the French Revolution was very great both through the manner of thinking promoted in those clubs when they were popular and otherwise
8. The principal result of that influence was a shift in the direction of democracy which in essence meant control of the government by the people—including strong trend toward the concept that the will of the majority should control—and toward universal suffrage without any property qualification for the vote—and a strengthened political party organization through which the will of the majority would be marshalled and exercised
9. But under such a political philosophy what was to prevent the majority from ignoring the constitutional safeguards and using its power to violate the rights of the minority
  1. The human nature checks and balances safeguard would be undermined by political party allegiance
  2. The human nature protection of freedom (inviolate property rights) would be undermined by elimination of the property qualification for the vote
10. With key chains of the Constitution by-passed, the majority chose then as it does today to ignore the verbal restrictions of the Constitution
11. The tyranny of the majority, once it has gained ascendancy, is not essentially different from the dictatorship of the proletariat—the people as a mass cannot rule so the ruling is done in their name through political organizations—those in key positions in such organizations are nominally the people’s representatives or agents—actually through using their positions to manipulate the people they become the real rulers behind the scenes
12. The concept of nullification (the right of a state to nullify an unconstitutional federal law) that developed before the Civil War is usually referred to as an illogical misinterpretation of the Constitution—but the reason for it is generally not adequately explained—it was an extra-Constitutional theory developed to counter unconstitutional actions by the majority that controlled the federal government
13. In his debate with Webster the following comment was made by Hayne which helps put the real issue into perspective. Speaking of the concept that the will of the majority should control, he said, “This I know is a popular notion, and it is founded on the idea that as all the States are represented here, nothing [p. 85] can prevail which is not in conformity with the will of the majority; and it is supposed to be a republican maxim, ‘that the majority must govern’ . . . If the will of a majority of congress is to be the supreme law of the land, it is clear the Constitution is a dead letter, and has utterly failed of the very object for which it was designed—the protection of the rights of the minority.”
14. Later when Webster gave another mighty speech in opposition to the doctrine of state’s rights he was sent a congratulatory message by Madison who was then near the end of his life. In that message Madison made a most perceptive comment as to the real issues involved—referring to Webster’s speech he wrote: “It crushes nullification, and must hasten an abandonment of secession. But this dodges the blow by confounding the claim to secede at will with the right of seceding from intolerable oppression.” (Acton Essay)
15. Today our government is involved in so many unconstitutional activities that they don’t stand out because they have become the rule rather than the exception—a spot of dirt stands out on a white sheet—but if most of the sheet is dirty the single spot blends in with the general dirtiness of the sheet
  1. Also people are tempted not to look too closely—in a sense they are bribed by illegal gifts in the form of unconstitutional benefits—interesting comment in Acton essay in context of tariff receipts beyond needs of government—“The increase of the revenue beyond the ordinary wants of the government placed in its hands a tempting and dangerous instrument of influence. Means must be devised for the disposal of these sums, and the means adopted . . . was the execution of public works, by which the people of the different States were bribed to favour the central power.”
  2. Some unconstitutional actions of federal government today include confiscating without compensation our property it is supposed to be protecting and then giving that property to others to gain their political support—depriving us of our freedom to associate or not associate with whom we choose—depriving us of our freedom to contract on what terms we choose with whom we choose including such areas as employment, buying, selling, renting, etc.
  3. Some may adhere to a philosophy favoring such government impairment of our freedom—but the fact is that such actions are incompatible with the freedom and prosperity system established by the Framers [p. 86]
16. With nullification rejected there was no remedy left but secession as a means of escape from the intolerable unconstitutional oppression by the majority in Washington
17. This brings us to the Civil War which involved an attempt of the South to escape what seemed to it to be an intolerable prospect of increasing unconstitutional tyranny of the Northern majority in Congress, and an attempt by the North to preserve the Union by forcibly keeping the South from seceding
18. It should be remembered that the tyranny of the majority and politics go hand in hand—while it is not appropriate to ascribe too much to the influence of the French Revolution, it may be mentioned that elements of that influence included intolerance and contention. The following from an essay entitled “A Blundering Generation”by James G. Randall seems to shed additional light on the origin off the Civil War: “If one word or phrase were selected to account for the war, the word would not be slavery, or economic grievance, or states’ rights, or diverse civilizations. It would have to be such a word as fanaticism (on both sides), misunderstanding, misrepresentation, or perhaps politics.” (See Joseph Smith statement on politics on Elders p. 40)
AMENDMENT 13—SLAVERY ABOLISHED IN SPITE OF CONTRARY STATE LAWS
1. The Constitution recognized slavery as a state matter
  1. Some states permitted it and others prohibited it
  2. The Northern abolitionists ignored the Constitution and fanatically insisted that the practice of slavery in the South must be stopped by force if necessary
2. Joseph Smith’s position
  1. “The North had no more right to say that the South shall not hold slaves, than the South had to say the North shall . . . . When [ see persons in the free states signing documents against slavery, it is no less, in my mind, than an army of influence, and a declaration of hostilities, against the people of the South. What course can sooner divide our union?” (Joseph Smith, Prophet-Statesman, by G. Homer Durham, p. 46-47)
  2. While he considered the abolitionists as trouble makers who made it [p. 87] temperate reasonable way called upon the individual states to abolish slavery with every man paid a reasonable price for his freed slaves—the money to come from sale of western lands
3. As a war measure President Lincoln issued the Emancipation Proclamation freeing the slaves in those areas of the United States still in open insurrection
4. Several months later in his annual message of December 1, 1863 he advocated a constitutional amendment freeing the slaves
5. A constitutional amendment was needed because the federal government had no authority to deprive slaveholders of their property
6. Regardless of what one thinks about slavery, federal abolition of it represented a major precedent away from recognition of the states’ sphere of authority under our dual sovereignty system and toward thinking of the federal government as having authority beyond the limited powers delegated to it in the Constitution
AMENDMENT 14—USING FEDERAL POWER TO UNDERMINE POLITICAL STRENGTH OF SOUTH
1. Following the assassination of President Lincoln the 14th and 15th Amendments were engineered by a tyrannical group of Radical Republicans who had control of Congress and great political power
2. While their ostensible objective was protecting the rights of the freed slaves from devices being used in the South to keep the former slaves in subjection, their real objective was to undermine the political power of the South—especially to prevent two potential threats to their own political control from materializing
  1. There were millions of freed slaves who under the Constitution had been counted at 3/5 of their actual number—if these were counted at their full number the Southern representation in the House of Representatives would be greatly increased
  2. The Southern political leaders included men of great stature and ability—their presence in the government might be a real impediment to the highhanded operations of the Radical Republicans—also they could be expected to ally themselves with the Northern Democrats and break the power of the Radical Republicans [p. 88]
AMENDMENT 14—SECTION 1—ALL PERSONS BORN OR NATURALIZED IN THE UNITED STATES, AND SUBJECT TO THE JURISDICTION THEREOF, ARE CITIZENS OF THE UNITED STATES AND OF THE STATE WHEREIN THEY RESIDE
1. Question had been raised as to whether former slaves were citizens—did not have education to be naturalized—born in United States but were slaves at time—this provision makes them citizens
2. Generally only citizens can vote—this provision set the foundation for depriving the South of its increased representation in the House of Representatives (See material under Section 2)—diminished representation based on population to extent of citizens deprived of the right to vote—were sure South would not give former slaves right to vote
AMENDMENT 14—SECTION 1—NO STATE SHALL MAKE OR ENFORCE ANY LAW WHICH SHALL ABRIDGE THE PRIVILEGES OR IMMUNITIES OF CITIZENS OF THE UNITED STATES
1. Note that the prohibition is against government action—not actions of private individuals
2. Privileges and immunities meant freedom—inviolate rights to life, liberty and property—they did not mean equality or the right to attend the same schools
3. The ground covered was intended to be the same as in the Civil Rights Bill with respect to which the following statement was made: “What do these terms mean? Do they mean that in all things, civil, social, political, all citizens, without distinction of race or color, shall be equal? By no means can they be so construed . . . Nor do they mean that all citizens shall sit on juries, or that their children shall attend the same schools. These are not civil rights and immunities. Well, what is the meaning? What are civil rights? I understand civil rights to be simply the absolute rights of individuals, such as “The right of personal security, the right of personal liberty, and the right to acquire and enjoy property.” (Government by Judiciary, by Raoul Berger, p. 27)
4. Privileges and immunities clearly did not include the right to vote—Section 2 recognized the right of the states to deprive some of their citizens of the right to vote [p. 89]
AMENDMENT 14—SECTION 1—NO STATE SHALL.. DEPRIVE ANY PERSON OF LIFE, LIBERTY, OR PROPERTY WITHOUT DUE PROCESS OF LAW
1. Government action can’t deprive anybody of freedom (inviolate rights to life, liberty and property) unless after a fair trial it is shown that it is proper to do so
2. Same provision with respect to states as 5th Amendment with respect to federal action
3. Still dealing with fundamental rights of freedom—not requiring or authorizing violating rights of other people
AMENDMENT 14—SECTION I—NO STATE SHALL . . . DENY TO ANY PERSON WITHIN ITS JURISDICTION THE EQUAL PROTECTION OF THE LAW
1. Legislative history indicates that intent was not to require equality across the board—provisions to that effect were offered and rejected
2. What was intended was that state legislatures could not enact laws that would indirectly deprive former slaves of their freedom (inviolate rights to life, liberty, and property) by providing different legal protection procedures depending on whether a person is black or white
3. This was not an enlargement of the rights protected (so that the former slaves would be more than free) but only provides that the laws protecting the basic rights of free men shall apply the same to all men regardless of whether they are black or white—“Whatever law punishes a white man for a crime shall punish the black men precisely in the same way . . . Whatever law protects the white man shall afford equal protection to the black man. Whatever means of redress is afforded to one shall be afforded to all. Whatever law allows the white man to testify in court shall allow the man of color to do the same. (Government by Judiciary, by Raoul Berger, p. 172)
AMENDMENT 14—SECTION 2—APPORTIONMENT OF REPRESENTATION IN THE HOUSE OF REPRESENTATIVES
1. With millions of slaves now free, Southern representation in the House of Representatives would greatly increase since the former slaves would be counted at their full number instead of 3/5 of their number [p. 90]
2. This section was intended to prevent that
  1. Representation in the House of Representatives would be diminished in proportion to the number of 21 year old male citizens deprived of the right to vote
  2. This included the former slaves who were made citizens by Section 1 of this Amendment
  3. The Radical Republicans were certain the Southerners would not give the former slaves the right to vote so this provision could even reduce Southern representation in the House of Representatives—the South would be deprived of counting even 3/5 of the former slaves unless they were given the right to vote
  4. Reduction in representation would apply even if voting restriction applies only to state officers
3. This was a political power play contrary to the political philosophy of the Framers built into the Constitution
  1. Representation in the House of Representatives is to be apportioned according to the number of people in each state—regardless of whether citizens or voters
  2. Voting rights are to be determined by states—not federal government
    1. Federal government has no authority whatsoever over voting for state officials (See Elders p. 56-58)
    2. Constitution, Article I, Section 2, Clause 1 provides for states determining manner of election of federal Congressmen subject to power of Congress to alter those provisions to prevent states from using that power to damage federal government
AMENDMENT 14—SECTION 3—DISQUALIFICATION OF SOUTHERN LEADERS FROM POLITICAL OFFICE
1. South had many leaders of stature and ability—Radical Republicans wanted to minimize their possible opposition
2. Easy to identify Southern leaders as a group—those who had held state or federal office before the Civil War [p. 91]
  1. Recall that under Constitution, Article VI, Clause 3 all state and federal officials are required to take an oath to support the Constitution of the United States
  2. Those who having taken that oath and then helped the Southern cause are the group to be disqualified
3. Another political power play contrary to our basic concepts of freedom—prohibits opposition from holding either state or federal office—compare with practices of modern dictatorships
AMENDMENT 14—SECTION 4—ECONOMIC REPRESSION AGAINST SOUTH
1. Money is needed for political activity—if only to be able to take time away from occupation
2. Northern war debts recognized and to be paid
3. Southern war debts repudiated—payment illegal
4. Illegal to make any payment for loss of slaves
AMENDMENT 14—SECTION 5—ENFORCEMENT BY CONGRESS
1. The Radical Republicans were extremely critical of the courts—the legislative history of the 14th Amendment show that this section was included to keep enforcement of the 14th Amendment in Congress and away from the courts
2. This is confirmed by the following contemporary statement concerning Section 5: “It casts upon Congress the responsibility of seeing to it, for the future, that all the sections of the amendment are carried out in good faith, and that no State infringes the rights of person and property . . . I look upon this clause as indispensable for the reason that it thus imposes upon Congress this power and this duty.” (Government by Judiciary, by Raoul Berger, p. 227-228)
3. The 14th Amendment was declared adopted in 1868—some 11 years later in 1879 when the debates over the 14th Amendment were still recent the Supreme Court recognized that it had no power to enforce the 14th Amendment unless such power were conferred upon it by Congress: “It is not said that the judicial power of the general government shall extend to enforcing the prohibitions and protecting the rights and immunities guaranteed. It is not said that branch of government shall be authorized to declare void any action of a state in violation of the prohibitions. It is the power of Congress which has been enlarged. Congress is authorized to enforce [p. 92] the prohibitions by appropriate legislation. Some legislation is contemplated to make the amendment fully effective.” (Ex parte Virginia, 100 US 339)
AMENDMENT 15—COMPELLING STATES TO GIVE VOTE TO FORMER SLAVES
1. Giving the freed slaves the right to vote was not forced on the Southern states for the benefit of the blacks—its objective was political power for the Radical Republicans
2. The freed slaves were mostly illiterate—the Radical Republicans themselves had previously declared them unfit to vote
3. But through their effective control of the political machinery of the South they felt they could control the black vote—they would use the black vote to strengthen their own power
4. A Congressman from Kentucky taunted the Radical Republicans by asking “if there is a single man among you who would vote for negro suffrage if he believed the negroes would vote the Democratic ticket.’? Not one, and you know it.” (Government by Judiciary, by Raoul Berger, p. 53)
5. Includes election of state officials—not just federal officials
6. High-handed violation of sovereignty of states and contrary to freedom system of Constitution (Federalist p. 59, Elders p. 58)
AMENDMENT 16—AUTHORIZING FEDERAL GOVERNMENT TO VIOLATE PROPERTY RIGHTS THROUGH INCOME TAX
1. Article I, Section 2, Clause 3 and Article 1, Section 9, Clause 4 prohibit direct taxation unless apportioned among the states according to population
2. Civil War income tax was held constitutional on ground that it was an excise tax and not a direct tax—hard to justify that conclusion because it applied directly on people and was not a tax they could avoid by choosing not to consume
3. 1894 income tax was held unconstitutional as a direct tax not apportioned according to census
4. This amendment was intended to make the income tax constitutional [p. 93]
5. An example of tyranny of the majority acting to deprive the minority of their rights
  1. The purpose of the government was to protect individual freedom—inviolate rights to life, liberty and property (Madison on just government, Elders p. 86)
  2. The purpose of the income tax was to violate property rights the government was supposed to protect—a form of indirect, legalized theft (sometimes called plunder)—they have more money so we will use our voting power to transfer some of it to ourselves—either through direct benefits to us or through reducing the amount of taxes we have to pay
  3. May not be violation to extent people with more income receive more government services—but that is not real intent of income tax
  4. Can’t plead that not responsible because legislators and other government officials do it rather than ourselves—we are responsible for what the government does in our behalf (D&C 134:1)
AMENDMENT 16—INCOME TAX AND FOURTH AMENDMENT RIGHT OF PRIVACY
1. Fourth Amendment guarantees that freedom includes not having to reveal to government officials your personal affairs
2. This is so strong a right that the only time the government can require information about your affairs is by going to judge for a search warrant
3. A judge may not issue a search warrant except where there has been evidence presented under oath showing why it should be issued—such as that a crime has been committed and you have a specific piece of evidence
4. The information called for on income tax returns and required to be furnished on audit is the type of private information the Fourth Amendment says you cannot be compelled to reveal—recognition of the private nature of that information is confirmed by repeated assurances that it will be kept confidential
5. Comment by T. Coleman Andrews, former Commissioner of Internal Revenue: “Congress (in implementing the Sixteenth Amendment) went beyond merely enacting an income tax law and repealed Article IV of the Bill of Rights, by empowering the tax collector to do the very things from which that Article says we were to be secure. It opened up our homes, our papers [p. 94] and our effects to the prying eyes of government agents and set the stage for searches of our books and vaults and for inquiries into our private affairs whenever the tax men might decide, even though there might not be any justification beyond mere cynical suspicion.” (Manion Forums Radio Network, Broadcast 89, June 10, 1956)
AMENDMENT 16—INCOME TAX AND FIFTH AMENDMENT PRIVILEGE AGAINST SELF INCRIMINATION
1. Pertinent to both filing income tax returns and audits
2. Recall application of privilege against self incrimination
  1. Accused does not have to testify at all
  2. Witness must testify but can refuse to answer specific questions
3. Some have argued that since they were the person involved and were giving information about themselves, they were the potential accused and therefore did not have to testify at all—that is should not be required to file income tax returns
4. Argument has been rejected by courts on theory that returns are for collecting revenue and are neutral with respect to accusation of a crime—therefore situation of taxpayer is like witness rather than accused—must testify but can claim constitutional privilege as to specific questions
5. Most people do not know that they can refuse to answer questions on income tax returns on ground of possible self incrimination
  1. Suggestion has been made that Miranda type warnings be printed on income tax returns
  2. Desirability seems highlighted by Supreme Court case of Roy B. Garner (76-I USTC par. 9301)—taxpayer gave incriminating information on income tax return when no criminal charge pending against him—information on return used to convict him on charge brought later—court held that by answering question had waived privilege against self incrimination
6. In audits may deal with two types of agents
  1. Revenue agents who are ordinary agents conducting routine audits [p. 95]
  2. Special agents who conduct audits where possible criminal action is involved
7. Government has instructed special agents to give Miranda type warnings—but not ordinary revenue agents
  1. Seems desirable that ordinary revenue agents should give Miranda type warnings—self incriminating information given them can be used against taxpayer
  2. Special agent coming into investigation at all may be because of incriminating information given revenue agent
  3. Special agent may suggest to revenue agent what information to get and then come forward and give the Miranda warning after he has the incriminating information
8. Necessity for various technical distinctions that still don’t fully protect individual rights confirms disturbing feeling that whole area is fundamentally incompatible with freedom guarantees of Bill of Rights
9. Restless impression that fundamental freedom rights are being undermined as unconstitutional tyranny of majority controls are extended further and further gains support from statement in recent Supreme Court opinion: “Technological progress creates an ever-expanding need for governmental information about individuals. If the individual’s ability in any particular case to perceive a genuine risk of self- incrimination is to be a sufficient condition for imposition of use restrictions on the government in all self-reporting contexts, then the privilege threatens the capacity of the government to respond to societal needs with a realistic mixture of criminal sanctions and other regulatory devices.” (California v. Byers, 402 US 424, 1971)
10. Contraction of Fifth Amendment privilege in income tax area as well as other areas should be considered in the light of the following:
  1. The underlying purpose of the Fifth Amendment privilege is to protect from government retribution those who speak out against improper government policies and practices
  2. The human nature tendencies of government officials to exercise improper dominion (D&C 121:39, Thomas Jefferson, James Madison, Elders p. 7-8) [p. 96]
  3. Examples that have already come to light of the Internal Revenue Service being used to harass individuals who are out of favor with those in power
AMENDMENT 16—INCOME TAX IN RELATION TO FIFTH AMENDMENT RIGHT NOT TO BE DEPRIVED OF PROPERTY WITHOUT DUE PROCESS OF LAW
1. Taxing power is exercisable for the lawful purposes of government—to enable it to perform its proper functions
2. To a large extent income tax is used for redistributing wealth—take from some to give to others
  1. Not a constitutional purpose—government is supposed to be impartially protecting property rights of all (James Madison, Elders p. 86)
  2. Only time property rights can be regarded as forfeited is after a fair trial (due process of law)
  3. In income tax redistribution property is simply taken—requirement of justified forfeiture after a fair trial is ignored
AMENDMENT 16—INCOME TAX IN RELATION TO FIFTH AMENDMENT RIGHT NOT TO HAVE PRIVATE PROPERTY TAKEN FOR PUBLIC USE WITHOUT JUST COMPENSATION
1. Redistribution schemes are said to be for general welfare—overall public benefit—same general concept as public use
2. Under Fifth Amendment where person is required to give up property for public use he must receive just compensation in exchange for it
3. Taking property of some to give to others is confiscation without compensation—if pay for it would be nothing to give to others (Thomas Jefferson, Elders p. 89)
AMENDMENT 16—INCOME TAX IN RELATION TO SIXTH AMENDMENT RIGHT TO JURY TRIAL IN CRIMINAL CASES
1. Criminal action for income tax violation may be used to silence opposition [p. 97]
2. For jury to adequately protect individual in that situation must have recognized right to judge law as well as facts—that right was clearly recognized when Sixth Amendment was adopted (See discussion of Sixth Amendment)
AMENDMENT 16—INCOME TAX IN RELATION TO SEVENTH AMENDMENT RIGHT TO JURY TRIAL IN CIVIL CASES
1. IRS hearing procedures have no provision for jury trials
2. Tax Court has no jury trials
3. If want a jury trial in a civil tax matter must first pay the tax the IRS says you owe and then sue for refund in District Court
  1. May be great hardship to raise and give IRS money you don’t really owe anyhow
  2. In District Court taxpayer is now the plaintiff with the burden of proving he doesn’t owe the tax instead of the IRS having the burden of proving he does owe it—the burden of proof can be the controlling factor in a close case
AMENDMENT 16—INCOME TAX IN RELATION TO THIRTEENTH AMENDMENT PROHIBITION AGAINST INVOLUNTARY SERVITUDE
1. Before Second World War income tax was paid in one payment when return was filed
2. At time of Second World War income taxes were raised so that income tax on workers receiving average compensation came to several hundred dollars
  1. Much hardship because many had spent salary as received and didn’t have money to pay tax
  2. Much indignation about excessive taxation
3. Government shifted to withholding system under which tax is collected in small amounts from each pay check
  1. Easier to collect without indignation because in small installments
  2. Often taxes actually higher than when thought so excessive [p. 98]
4. But employer who must keep records and forward tax is involuntary public servant working without compensation
  1. Deprives him of his labor which is itself property
  2. Requires him to pay for bookkeepers and accountant out of his own pocket
  3. Making the employer an involuntary, uncompensated tax collector not only violates 13th Amendment prohibition against involuntary servitude—but also violates his 5th Amendment right not to have his property (his own labor and the payments he must make to bookkeepers and accountants for doing the tax collecting work taken without just compensation)
AMENDMENT 16—INCOME TAX IN RELATION TO SEPARATION OF POWERS
1. J. Reuben Clark comment on Constitution: “It gave us, for perhaps the first time in all history, a republic with three basic divisions of government—the legislative, executive, and judicial—mutually and completely independent the one from the other, under which it is not possible for any branch of government legally to set up a system by which that branch can first conceive what it wants to do, then make the law ordering its doing, and then itself, judge its own enforcement of its own law, a system that has always brought extortion, oppression, intimidation, tyranny, despotism—a system that every dictator has employed and must employ.” (Stand Fast by Our Constitution, p. 187)
2. Recall James Madison’s comment that the accumulation of legislative, executive, and judicial powers in the same hands is the very definition of tyranny (Federalist No. 47, Elders p. 41)
3. The IRS exercises all three functions—legislative, executive and judicial
  1. It exercises the legislative function in making regulations which J. Reuben Clark pointed out really involve legislating (Stand Fast by Our Constitution, p. 151)
  2. It exercises the judicial function in making decisions in disputes between itself and taxpayers
4. Recall J. Reuben Clark statement concerning government agencies that [p. 99] despotism . . . . It is not possible to condemn too strongly this growing perversion of our constitutional principles.” (Stand Fast by Our Constitution, p. 152)
AMENDMENT 16—INCOME TAX AND CONTRACTION OF FREEDOM
1. Framers equated freedom with inviolate rights to life, liberty and property
2. Function of government is to protect those rights (James Madison on just government, Elders p. 86)
3. Freedom is not yes or no but more or less
4. Income tax laws are a major contraction of freedom
  1. Violation of property rights (essential part of freedom) government is supposed to protect
  2. Deprived of right to make own decisions on use of tax money collected above payment for proper government services rendered
  3. Business and personal decisions strongly influenced (sometimes almost to the point of being controlled) by income tax laws intended to have that effect
AMENDMENT 16—INCOME TAX AS A DETERRENT TO NATIONAL AND INDIVIDUAL PROSPERITY
1. The economic philosophy that works and that has brought prosperity to this country is that of Adam Smith (Elders p. 117)
2. The income tax undermines the working of that prosperity formula
  1. Destroys incentive by depriving individuals of the fruit of their success
  2. Hampers efforts by enormous burden of ascertaining requirements and complying with them
  3. Deprives the society of the increased goods and services that would otherwise be produced by those who now devote their efforts to administering and complying with income tax laws [p. 100]
AMENDMENT 16—INCOME TAX AND NATIONAL UNITY
1. Nations as well as individuals can be healthy or sick
2. National unity is an important element of national health
3. The income tax undermines national unity
  1. It causes contention and ill will as each group tries to shift a greater portion of the burden to other groups
  2. Its redistribution function also causes contention and iii will as each group tries to increase its portion of the take
AMENDMENT 16—INCOME TAX REBELLION
1. Income tax rebellion refers to movement under which many people refuse to pay their income taxes with the idea that the income tax is so contrary to constitutional principles that they feel they must refuse to comply with it
2. Participation in the income tax rebellion is generally not for financial gain—it is very hazardous and often much more expensive than paying the tax
3. LDS should not participate in income tax rebellion
  1. Instructed not to by First Presidency
  2. Disobedience to law weakens government—we want to get it back on the right track—not help destroy it—respect for law is essential to orderly government
  3. Hinders main effort to save constitutional freedom
    1. Attacking symptoms rather than causes—primary struggle is to teach true constitutional principles
    2. Neutralizes efforts of some of our best people by taking them out of the primary struggle and isolating them in an ineffective skirmish—many of their legal interpretations are right but by taking a stand on them they take themselves out of the main struggle where they are desperately needed
    3. Promotes undesirable attitude of contention—causes people who need to be taught true constitutional principles to think of [p. 101] potentially good teachers as fanatics who should not be listened to—should be wise as serpents and harmless as doves and feed milk to strengthen people rather than meat to give them indigestion
4. Should love those in tax rebellion
  1. Hope they will disengage there and help in main struggle
  2. Extreme need for knowledgeable patriots who can teach and promote true constitutional principles with love, respect and dignity and without contention
AMENDMENT 17—DEPRIVING STATES OF REPRESENTATION IN FEDERAL GOVERNMENT
1. Recall necessity for human nature checks and balances (Federalist No. 51, Elders p. 8-11)
2. “’The State legislatures,’ said Colonel Mason, ‘ought to have some means of defending themselves against encroachments of the national government. In every other department we have studiously endeavoured to provide for its self-defence. Shall we leave the States alone unprovided with means for this purpose?’” (Acton essay)
3. The Senate was established as that part of the government where the states were represented so that no federal law could be passed without the concurrence of a majority of the states. (Federalist No. 62, Elders p. 14)
4. The people were induced to adopt the 17th Amendment providing for direct election of Senators by the people instead of the state legislatures by two principal arguments
  1. The Framers were old fashioned but we should be more modem and progressive—the modem idea is to be more democratic and give the people more direct control of the government
  2. The states are too easily controlled by business interests—it takes the national government to stand up to them
5. Both arguments were wrong but the people were not well enough informed to see through them [p. 102]
  1. Recall Framers’ true human nature recognition that democracy leads to turbulence and contention and is incompatible with freedom and prosperity—should be some democracy but it should be carefully limited to avoid the evils that flow from an excess of democracy
  2. It is much more difficult to control improper relationships between government officials and business when they are far away than when they are nearby—J. Reuben Clark: “This (constitutional) system puts the great bulk of our daily life activities in the hands of our own neighbors who know us and our surroundings, and not in the hands of a bureaucrat in a far-away national capitol . . . . Liberty will never depart from us while we have local self-government controlling and directing matters pertaining to our personal liberties and to the security of our private property; it will not abide with us if we shall lose this local self-government.” (Stand Fast by Our Constitution, p. 187-188)
6. The 17th Amendment deprived the states of the weapon they needed to prevent unconstitutional federal encroachment in local matters
  1. It has been suggested that it is all right to have senators elected by the people because if the federal government tries to propagandize the people the state governments can engage in a competing propaganda campaign to oppose the federal position
  2. That argument shows the realism of the Framers—checks and balances requires real power to protect separation—not hope of being able to convince someone to support your position
  3. Also federal government is a single government and much more powerful than any individual state—to oppose it with equivalent propaganda power would have to organize many states and get them to agree on united program which would be very difficult and expensive
  4. Also would be further in wrong direction of additional use of government propaganda to influence voters
7. 17th Amendment also undermined state sovereignty by depriving states of control over treaties and appointment of judges and other federal officials
  1. Treaties not intended to be binding until ratified by states as independent sovereignties through their representatives in Senate—recall that Constitution is dual sovereignty system [p. 103]
  2. Persons nominated as federal judges and other federal officials are supposed to be subject to approval of states through confirmation in Senate
AMENDMENT 18—DEPRIVING STATES OF RIGHT TO DECIDE WHETHER TO PROHIBIT INTOXICATING LIQUORS
AMENDMENT 19—COMPELLING STATES TO GIVE VOTE TO WOMEN
1. Applies even to state elections
2. Recall that federal control over state elections referred to as premeditated engine for destruction of state governments (Federalist No. 59, Elders p. 58)
3. Another example of forcing particular philosophy on all states in area not intended for federal authority
  1. Another step in the undermining of state sovereignty contrary to Constitution
  2. Recall that states were to have local sovereignty—federal authority was to extend only to delegated powers
  3. Maintaining separation of powers is essential to freedom
4. Issue is not whether women should have right to vote—many states had already provided that—problem is federal government assuming authority that really belongs to states
AMENDMENT 20—“LAME DUCK” AMENDMENT—SHORTENED DELAY BETWEEN ELECTION AND TAKING OFFICE
1. Includes provisions for possible death before taking office or failure to qualify of persons elected as president or vice president
2. Also provides for possible death of nominees for president or vice president before election where choice is not made by electors and falls to House of Representatives or Senate
AMENDMENT 21—REPEALED 18TH AMENDMENT
AMENDMENT 22—LIMITED PRESIDENT TO TWO TERMS
1. Not intended that president be permanent [p. 104]
2. Power tends to corrupt
AMENDMENT 23—PEOPLE IN DISTRICT OF COLUMBIA AUTHORIZED TO VOTE FOR PRESIDENT AND VICE PRESIDENT
1. Giving vote to more people without qualifications intended by Framers
2. Note unvarying trend to change the electorate step by step to people whose human nature motivation is to destroy rather than preserve freedom
AMENDMENT 24—DEPRIVED STATES OF RIGHT TO REQUIRE EVEN MINIMAL PROPERTY QUALIFICATION TO VOTE IN FEDERAL ELECTIONS
1. Addition of a new compulsory anti-Constitution theme
2. Have been moving more and more in the direction of democracy which the Framers considered to be incompatible with liberty
3. Now imposing federal prohibition of voting qualification the Framers felt necessary (Elders p. 118-121)
  1. Recall that freedom is inviolate rights to life, liberty, and property
  2. Those given power in any part of government must have human nature motivation to exercise that power in the direction of preserving rather than destroying freedom system
  3. Those with property have human nature motivation to exercise their right to vote to preserve property rights (freedom)
  4. Those without property have human nature motivation to destroy freedom by exercising their right to vote to violate property rights (freedom) by voting themselves other people’s property
  5. Therefore only those with property can be given the right to vote
4. Karl Marx confirmed Framers’ position (Elders p. 120)
5. Adoption of this amendment made position of Karl Marx mandatory and the position of the Framers unconstitutional in federal elections [p. 105]
AMENDMENT 25—INTERIM REPLACEMENT OF VICE PRESIDENT AND PRESIDENTIAL DISABILITY
1. Provision for filling interim vacancy in office of Vice President
  1. Nominated by President and confirmed by majority of both Houses of Congress
  2. In effect gives President power to choose own successor
  3. Much easier procedure than when no candidate has majority and Vice President is selected by Senate
    1. Only one nominee to approve rather than two highest to choose from
    2. No 2/3 quorum required to be present
    3. Majority of those present sufficient rather than absolute majority
  4. Participation of House of Representatives much more heavily weighted in favor of large population centers than when that House is involved in selection of President—vote by individual Congressmen rather than one vote for all the representatives from each state
2. Presidential disability sections include both declaration of inability by President himself and procedure for others declaring President incapacitated
AMENDMENT 26—COMPELLING STATES TO GIVE VOTE TO 18 YEAR OLDS
1. Another step away from the constitutional freedom system established by the Framers
2. Compelling all the states to adopt a uniform philosophy in an area the Framers intended to leave to the states
3. Interfering in internal state matter since applies to state elections as well as federal elections
  1. A violation of the dual sovereignty state-federal relationship of the Constitution by assuming a position of across-the-board supremacy of the federal government [p. 106]
  2. Under the Constitution the federal government is supreme only in the limited sphere of authority delegated to it—the states are supreme over the federal government in their sphere of authority
4. Another step in the direction of increased democracy and giving the vote to those who are not likely to have the qualifications that would motivate them to preserve freedom
  1. Voters are supposed to be people with property
    1. Evidence of judgment and ability to manage
    2. A person with property has a human nature motivation to protect property rights which with life and liberty equal freedom
  2. 18 year olds are likely to be supported by parents without either experience in managing own affairs or property of own to protect
    1. More likely to be interested in what can get—have government take from others and give to them
    2. Also likely to be interested in what good deeds can do with compulsory charity—feel doing good without coming out of own pocket—depriving people of property rights government is supposed to protect
AMENDMENT 27—NO LAW, VARYING THE COMPENSATION OF THE SENATORS AND REPRESENTATIVES, SHALL TAKE EFFECT, UNTIL AN ELECTION OF REPRESENTATIVES SHALL HAVE INTERVENED.
1. Proposed in 1789, declared ratified in 1992
2. Prevented Congressmen from raising own salaries to take effect immediately—an election of representatives must intervene
3. Constitution Article I, Section 6 pertains to compensation of senators and representatives
  1. Provides that salaries of senators and representatives to be fixed by law
  2. Provides that they may not be appointed to any office created or the salary for which has been increased while they were members of Congress [p. 107]
  3. But does not prevent them from increasing their own salaries
  4. This amendment provides that must go to people for election of representatives before salary change can be effective
4. Applies to reduction also—prevents reducing salaries to put economic pressure on senators or representatives dependent on salary for livelihood
5. Compare with Constitution Article II, Section 1, clause 7 which provides that President’s salary may not be increased or decreased effective during current term
6. Compare with Constitution Article III, Section 1 which provides that salaries of federal judges may not be diminished
  1. Cannot pressure judges by salary reduction
  2. No limit on salary increase because of long term in office and fact that they have no vote or veto power in deciding salary changes
7. This amendment is in harmony with overall focus of Constitution on protecting against human nature tendencies of government officials. [p. 108]

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