Tuesday, July 5, 2016

Hillary, The FBI & A Travesty Of Justice

“Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case.”

– FBI Director James Comey, 5 July 2016, announcing that the FBI had concluded its investigation of Hillary's handling of our nation's classified information and would not recommend that DOJ file charges (full text here).

I could not believe this morning's press conference. First, FBI Director James Comey laid out facts establishing that Hillary Clinton violated our laws regarding classified information. Then, he said that he would not recommend prosecution. Good God, we are now living in a banana republic. The politically connected are above the law.

Hillary Clinton set up a private e-mail system in order to hide her activities while Secretary of State from being made public pursuant to FOIA requests and legal process. She sent and received classified information across her private system, she stored the information on her private system, and the system was not only subject to hacking, but being run by people almost certainly without the security clearances to allow them such access. She should be in jail for life plus several centuries. Had anyone else done this, they would be.

What Comey did to exonerate Hillary was make up his own set of “straw men” laws, then burn them down. Let me explain.

The facts Comey laid out in his press conference can only be described as damning. They don't present a judgment call, they present jury questions under at least three statutes.

Here are the facts that Comey laid out in his speech. All are quotations, with my comments in brackets:

1. From the group of 30,000 e-mails returned to the State Department, 110 e-mails in 52 e-mail chains have been determined by the owning agency to contain classified information at the time they were sent or received. Eight of those chains contained information that was Top Secret at the time they were sent; 36 chains contained Secret information at the time; and eight contained Confidential information, which is the lowest level of classification.

2. Separate from those, about 2,000 additional e-mails were “up-classified” to make them Confidential; the information in those had not been classified at the time the e-mails were sent. [I have never seen information “up-classified” during my decade of working with classified information. I suspect that these were all emails sent from foreign officers directly to Clinton for her eyes only, and that the State Dept. is taking the position that, while the information in them is clearly sensitive, Clinton – who should have classified them – did not. Thus they cannot serve as the basis for prosecution. I find that highly questionable, but at this point, to quote a scurrilous as of yet unconvicted felon, “what difference does it make?”]

3. The FBI also discovered several thousand work-related e-mails that were not in the group of 30,000 that were returned by Secretary Clinton to State in 2014.

4. “We found seven e-mail chains concern matters that were classified at the Top Secret/Special Access Program level when they were sent and received. [We knew of at least two e-mail chains that included this information. The investigation shows it was worse than we thought.]

5. These chains involved Secretary Clinton both sending e-mails about those matters and receiving e-mails from others about the same matters. [That kills Hillary's best defense, that these email ended up on her system without her knowledge out of mere negligence]

6. There is evidence to support a conclusion that any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for that conversation. [In other words, Hillary's good heart, empty head defense is bullshit.]

7. In addition to this highly sensitive information, we also found information that was properly classified as Secret by the U.S. Intelligence Community at the time it was discussed on e-mail (that is, excluding the later “up-classified” e-mails).

8. None of these e-mails should have been on any kind of unclassified system, but their presence is especially concerning because all of these e-mails were housed on unclassified personal servers not even supported by full-time security staff, like those found at Departments and Agencies of the U.S. Government—or even with a commercial service like Gmail. [Comey fails to address whether the people responsible for and with access to these servers had adequate security clearances. That is an important point that he ignored.]

9. [W]e assess it is possible that hostile actors gained access to Secretary Clinton’s personal e-mail account. [So much for the claim that the absence of evidence means that she was not hacked. So what happens if Iran, Russia, China, and a host of other nations now have all of Hillary's e-mails, even those that the FBI was not able to reconstruct from the “wiped” servers? And what if those emails contain damning statements about which she could be blackmailed?]

10. Separately, it is important to say something about the marking of classified information. Only a very small number of the e-mails containing classified information bore markings indicating the presence of classified information. But even if information is not marked “classified” in an e-mail, participants who know or should know that the subject matter is classified are still obligated to protect it. [Thank you, Director Comey, for making clear a point that everyone who has ever held a security clearance understands, but which Hillary deliberately tried to obfuscate for the many ignorant of how the system operates]

At least Comey put the lie to Clinton's many claims regarding this email system. Hillary's claim that the information was not marked classified was always a red herring to fool those many useful idiots who wanted to believe her innocent. Further, Comey made clear that anyone in Hillary's position knew or should have known that the information they were discussing was sensitive and should have been handled as classified material. Indeed, with those two issues settled, the question of whether Hillary should be prosecuted should have been a slam dunk.

Yet Comey declined. Why?

Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case. Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent. Responsible decisions also consider the context of a person’s actions, and how similar situations have been handled in the past.

In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.

Comey misstated the applicable laws. Under his formulation of new security law, Hillary could only be convicted if she was intentionally divulging our national secrets to a foreign party or the press. The fact that she broke every actual law hundreds if not thousands of times, that she did so in order to hide her activities in violation of other laws, and the fact that she destroyed several thousand government records is meaningless to Comey. That is not the **** law.

Let's match the facts up with the laws Hillary violated. The laws at issue are:

18 USC 793 – Gathering, Transmitting or Losing Defense Information
(f) Whoever . . . having lawful possession or control of any document . . . or information, relating to the national defense, (1) – through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior office ------ Shall be fined under this title or imprisoned not more than ten years, or both.

18 USC 1924 - Unauthorized removal and retention of classified documents or material
(1) Whoever, being an officer . . . of the United States, and, by virtue of his office . . . becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than one year, or both

18 USC 1519 - Destruction, alteration, or falsification of records in Federal investigations and bankruptcy
Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.

Let's match facts to law now.

Under 18 USC 793(f), Hillary had lawful possession of top secret documents which, by definition, relate to national defense. According to Comey, any reasonable person in her position would have known this. And yet she uses her private system to send and receive e-mails discussing this information. In addition, she stored those emails on a private server that was not the “proper place of custody.” She is guilty of violating this statute more than eight times. Whether she intended to make the information available to foreign nations to the detriment of our nation is wholly irrelevant. The standard is whether she was grossly negligent. And as pointed out below, the purpose of that standard is to make sure that people entrusted with our nation's secrets take required measures to safeguard them. As Comey states explicitly, Clinton did not.

Under 18 USC 1924 (1), with Comey saying that Hillary knew that she was dealing with classified information and that markings are irrelevant to this law, Hillary doesn't even have a bare patina of a defense against this statute. She intentionally retained classified information at an unauthorized location. Period.

Then there is 18 USC 1519. Oh my word. Comey doesn't give us enough information to fully assess this one, but if she destroyed tens of thousands of documents that were in fact government records, the likelihood of her being in violation of this statute is extremely high. Indeed, Comey appears to ignore the interplay between Clinton's actions, the Benghazi committees that were seeking documents while Hillary was still in office, and the various FOIA law suits. If any of those emails were responsive to the Congressional investigations or the FOIA lawsuits, Hillary should be facing multiple felony counts. I would be amazed if Hillary does not stand in violation of this statute hundreds, if not thousands of times over.

Bottom line, we now live in a nation that the progressive left has turned into a banana republic. Every day this woman spends outside of a jail cell is an affront to justice and the rule of law in this nation.

Looking around the internet, I see several others have reached similar conclusions.

Rudy Giulaiani:

Austin Bay: James Comey Sells Out

Today, the FBI sold out the Rule of Law in America. After describing clear evidence of extensive mishandling of classified national security information, FBI Director James Comey announced that the FBI will not recommend indicting former secretary of state Hillary Clinton. This is naked crony government, ugly and exposed. Comey’s decision will go down as one of the government’s worst assaults on truth in its War on Honesty.

Today’s press conference was, in many respects, an exercise in legal and cognitive dissonance. Comey acknowledged Clinton sent and received Top Secret emails that “any reasonable person” understands not to discuss on an unclassified system.

Red flags? Excuse me, sir—that’s a crime

Andrew McCarthy: FBI Rewrites Federal Law To Let Hillary Off The Hook

There is no way of getting around this: According to Director James Comey (disclosure: a former colleague and longtime friend of mine), Hillary Clinton checked every box required for a felony violation of Section 793(f) of the federal penal code (Title 18) . . .

In essence, in order to give Mrs. Clinton a pass, the FBI rewrote the statute, inserting an intent element that Congress did not require. The added intent element, moreover, makes no sense: The point of having a statute that criminalizes gross negligence is to underscore that government officials have a special obligation to safeguard national defense secrets; when they fail to carry out that obligation due to gross negligence, they are guilty of serious wrongdoing. The lack of intent to harm our country is irrelevant. People never intend the bad things that happen due to gross negligence.

Paul Mirengoff (Powerline): "Comey simply ignored the statutory standard he laid out. A first year associate at a law firm wouldn’t dare present an analysis like this."

Scott Johnson (Powerline): "Comey’s additional assertion that the applicable laws have never been enforced under these facts is inexplicable. Have we ever had a case remotely similar to this one? What we have here is Comey comity with the Clinton exception to the criminal laws."

Chris Cizzilla (Wapo): Hillary Clintons E-Mail Problems Might Be Even Worse Than We Thought

FBI Director James B. Comey dismantled large portions of Clinton's long-told story about her private server and what she sent or received on it during a stirring 15-minute news conference, after which he took no questions. While Comey exonerated Clinton, legally speaking, he provided huge amounts of fodder that could badly hamstring her in the court of public opinion. . . .

It’s hard to read Comey’s statement as anything other than a wholesale rebuke of the story Clinton and her campaign team have been telling ever since the existence of her private email server came to light in spring 2015. She did send and receive classified emails. The setup did leave her — and the classified information on the server — subject to a possible foreign hack. She and her team did delete emails as personal that contained professional information.

Those are facts, facts delivered by the Justice Department of a Democratic administration. And those facts run absolutely counter to the narrative put forth by the Clinton operation: that this whole thing was a Republican witch-hunt pushed by a bored and adversarial media. . . .


Wednesday, March 16, 2016

Trump, Clinton, The American Republic & The Ides Of March

Caesar: Who is it in the press that calls on me? I hear a tongue shriller than all the music cry "Caesar!" Speak, Caesar is turn'd to hear.

Soothsayer: Beware the ides of March.

Caesar: What man is that?

Brutus: A soothsayer bids you beware the ides of March.

Julius Caesar Act 1, scene 2, 15–19

On the 15th of March, 44 B.C., the Roman Republic signed its death warrant when the Senators conspired to kill Julius Caesar. It was perhaps the most famous political assassination in history. It certainly was an inflection point in world history, marking the demise of the Roman Republic and its degeneration into rule by emperors. Somehow, I think we are seeing a variant on that history play out today on both the left and the right. The election of Trump could well spell the end our Republic. The plot to steal the nomination from him at a contested convention would surely be the end of the Republican Party. And the refusal to indict Hillary would be a de facto end to our nation as a nation of laws existing under the Constitution.

The nation has just suffered through nearly eight years seeing what rule by a progressive left ideologue looks like -- a combination of extra-constitutional rule, cronyism, and identity politics reaching to its ludicrous conclusions. We have an economy that is failing a declining middle class and has been propped up -- barely and only -- by a Fed running the printing presses non-stop and now considering negative interest rates. And Obama will leave the White House in 2017 with America in a much more precarious position in terms of national security -- his insane deal to give Iran a glide path to a nuclear arsenal being the suicidal cherry on top.

Much of what the Obama and the progressive left have accomplished has been enabled by a Court system whose progressive members consider themselves a politburo not bound by the Constitution or democracy, by closed public sector unions that pump incredible sums of laundered taxpayer money back into politics on behalf of progressives, an education system that indoctrinates for progressivism, a system of crony capitalism that operates to disadvantage the middle class and crush entrepreneurship, and by a progressive regulatory bureaucracy that operates outside of the Constitution, passing rules - none voted on by Congress yet still with the force of law -- that are working fundamental change to our nation.

I will admit to high hopes coming into the 2016 election. If you look hard at most of these issues, you will see that they are systemic problems that can only be solved by affirmative political action. Reining in the court system requires action by Congress, as does ending closed sector public unions and putting the regulatory bureaucracy wholly under Congressional control. And I had high hopes that this year, the pendulum would swing far enough to the right that we could elect a conservative for President who would address these systemic issues. Cruz, I thought and still think, understood all of these issues and would be most likely to address them. That said, we had 17 candidates on the Republican side at the start this year and almost all of them would have made decent presidents, if not as effective as Cruz. Rubio understood the national security picture best of all of them. Fiorina understood the problems with cronyism, regulation and Congressional accounting. Carson was an honorable man whose heart was in the right place. Even the weakest of the lot, Kasich and Bush, could have been expected to govern at least as milquetoast centrists, addressing none of the systemic problems but at least making none of them worse.

Instead we get Donald Trump, a narcissist megalomaniac and snake oil salesman extraordinaire. He is a progressive crony capitalist wearing the coat of a Republican because it suits his needs of the moment. He is Obama's mirror image in white face. He is the ultimate black swan. I do not expect a Trump, if elected, to address any of the systemic issues facing our nation. Indeed, his understanding of the issues seems about on par with a modern high school student, so what he will do in any particular situation is an unknown though his knee jerk seems to be to the progressive left. Nor do I expect him in any case to be any more of an effective leader than was Schwarzennager in California or Ventura in Minnesota. Victor Davis Hanson makes the point in a recent article that Trump is, at least, no more debased or worse than any other of the Democrats who have held the Presidency since 1961 and the ascension of JFK. True enough, and 20 years ago I would have broken out the popcorn for a Trump candidacy. But this comes at a time when the progressive left is pushing hard to take a permanent position of dominance and we are in a very precarious position on all fronts. I agree with Thomas Sowell (see here and here) that our nation no longer has the luxury of time to absorb another national leadership / political disaster:

The "Super Tuesday" primaries may be a turning point for America — and quite possibly a turn for the worse. After seven long years of domestic disasters and increasing international dangers, the next President of the United States will need extraordinary wisdom, maturity, depth of knowledge and personal character to rescue America.

Instead, if the polls are an indication, what we may get is someone with the opposite of all these things, a glib egomaniac with a checkered record in business and no track record at all in government — Donald Trump.

If so, the downward trajectory of America over the past seven years may well continue on into the future, to the point of no return. . . .

My fear is not that Trump will be an existential disaster as a President -- though I think he would be disaster. My real fear is that he will be ineffective, address none of the systemic problems, and yet be painted as the embodiment of all things conservative by a progressive media. After four years of Trump, I am afraid that it would be the death knell for the conservative movement and assure our national suicide with the ascendancy of the progressive left.

Having said all of that, there are various people talking about denying Trump the nomination at a contested convention. Indeed, Gov. Kasich, with all of a total of I believe it's 88 or so delegates at the moment, is justifying staying in the race under precisely that scenario. He is living in a dangerous fantasy land.

Perhaps if we arrive in July at a close delegate count without anyone having won the nomination outright with a 50% + 1 delegate count, then a contested convention might be justified. But if Trump is significantly ahead in the delegate count as seems likely and the Republican leadership denies him the nomination, that would be the end for a Republican Party already seen as being completely out of touch with its voting base. Indeed, the rise of Trump can largely be tied to the fact that Republicans in Congress have been completely ineffective in carrying out -- or even trying to carry out -- the wishes of the voters who elected them to office in wave elections. As much as I see Trump as being very likely the end for the conservative movement, shenanigans by the Republican leadership to deny him the nomination at the convention should he prove the clear favorite would absolutely spell the end for the Republican Party. It truly would be the equivalent of Rome's political class assassinating Julius Caesar.

A last note on Trump. The progressive left seems to believe that they have the freedom to shut down all speech with which they disagree. They have been able to get away with this most notably on progressive college campuses because the administrations agree with their positions. They are now seeking to export their tactics into society at large and shut down Trump -- with grandiose plans for much bigger disruption in the future. They succeeded in Chicago, with Trump cancelling his appearance there because of security concerns. And to the extent that there has been some violence involving protestors at Trump rallies, some have sought to blame Trump for this. That is utter horse manure. Trump is not responsible for progressives who believe that they are entitled to disrupt his speech, nor for the response of Americans who refuse to acquiesce to these progressive tactics. As David French wrote recently in National Review:

It will be impossible, over the long term, to maintain peace and even national unity if elite media and the Democratic party continue to condone and even encourage political violence and the systematic violation of individual rights by its radical progressive base. From Occupy to Ferguson to Baltimore to the unrest on campus, Americans have watched the liberal establishment trip over itself to express solidarity and sympathy with protesters who’ve burned, looted, shut down roads and parks, and violated the fundamental rights of American citizens.

. . . For the better part of two years, millions of Americans have watched as violence and disruption actually work. At college campuses, radical students and allied professors and administrators will shout down dissenters, intimidate fellow students, disrupt the educational process, and win. In the streets of American cities, protesters will riot, vandalize, block traffic, and invade shops and restaurants, and they win. When the narratives (“Hands up, don’t shoot,” or “It’s open season” on black males) are debunked by facts, protesters still prevail. Police tactics change even as the national murder rate seems set for its largest spike in 25 years. In the nation’s 50 largest cities, 770 more people were murdered in 2015 than in the previous year. Yet with the exception of a few courageous progressives, the Left largely hails this unrest. Even riots are excused or minimized by leading figures in the liberal intelligentsia, and mob actions that violate the free-speech rights of fellow citizens — by shouting down or shutting down events the Left doesn’t like — are whitewashed as “peaceful protest.” . . .

To try to paint violence at Trump rallies as Trump's fault is one hundred eighty degrees of wrong. One of two things must happen. Either the police must act to arrest these individuals and they be held accountable under the law or they need, in fact to be subject to real violence. The nonviolence of Ghandi and Martin Luther King Jr. only worked because they were appealing to a moral people on the other side. There is no morality on the progressive left beyond a desire for power and control. If they are to be given free reign to act without legal consequence, than they must be made to pay a physical consequence. That or we must bow down to progressives who are willing to use quasi-violent tactics to achieve their goals. It is as simple as that.

And that is the perfect lead-in to the other layer in this crap sandwich, Hildabeast, the likely nominee of the left. This is a woman who should be indicted and facing a lifetime in jail for her utter disregard of our national security. I have held a security clearance. I have worked with classified material. I am quite familiar with the need to safeguard such material, the lengths to which all people who hold such clearances are required to go, and the seriousness with which it is treated. This is an issue that transcends politics. Those on the left who are willing to give her a pass on this are both an utter disgrace and traitors to our Constitutional system, predicated as it is on the foundation that no one is above the law.

There is enough information in the public domain now to say categorically that Hillary Clinton has violated multiple laws regarding the handling of classified materials and should be facing indictment. ANYONE else who had done what she has done would be, at best, out on bail and awaiting trial. That the FBI appears to be slow walking this investigation at the moment is doing a tremendous disservice to our nation. That the media is letting her off the hook by allowing her to continue to make the claim that, because the information on her server was not marked classified, that has the slightest thing to do with her criminal negligence is doing a tremendous disservice to our nation. If she is not indicted, then we are no longer a nation of laws and it is time for blood in the streets.

This year should have been an inflection point spelling the end of the progressive toxins built into our system of government over the past century. Instead, we are reliving 44 BC, when the Republic hung in the balance and Rome went down the path to its dissolution. God help us and our nation.


Saturday, July 4, 2015

July 4, 1776 - The Declaration of Independence

Happy Fourth of July. On this day in 1776, our Founders signed The Declaration of Independence, severing ties with Great Britain and announcing the birth of a new nation.

On July 4, 1776, the American colonists were then in the midst of a war that would see battles in all thirteen colonies, with the outcome of the war very much in doubt right up until victory came in the aftermath of British General Cornwallis's Surrender at Yorktown, Virginia in 1781. For the British, the American Revolution ignited a world war with France, Spain and Holland that would not end until 1782.

The American Revolution began long before 1775. John Adams would later write that it began 1761, when British officials began a corrupt, concerted and heavy handed effort to end smuggling and increase revenues in the colonies, with these efforts falling hardest in the Massachusetts Bay Colony. The period between 1761 and 1774 saw tensions increase steadily between Britain and their colonies as Parliament and King George III attempted to exert ever greater control. The final straw came when Parliament placed a tax on East India Tea and had it shipped to the ports of Boston, New York, Philadelphia and Charleston. It was a negligible tax, designed not to raise revenue, but to establish the precedent that Parliament had the right to tax the colonists, irrespective of the fact that each colony, by virtue of their respective charters, held the right to set internal taxes, and irrespective of the fact that the colonists were not represented in Britain's Parliament.

The tea was turned back at every port but Boston. There, the Royal Governor Hutchinson and his family had a financial stake in the tea and he refused to return it to Britain. On the night before the tea would, by law, have to be unloaded, colonists disguised as Indians raided the ships in port and dumped all of the tea in Boston Harbor. Britain's response was draconian. They passed the Intolerable Acts, among other things unilaterally suspending colonial government in Massachusetts. Most importantly, Britain, bent on punishing all of Boston for the Boston Tea Party, established a complete naval blockade of Boston's harbor.

It wasn't long after that the actual shooting war began. On April 19, 1775, the British marched to Concord, Massachusetts in order to disarm the colonists. Along the way, British soldiers fired upon some local colonial militia at Trenton. The alarm bells sounded, and thousands of American militia mustered. The British found themselves marching through a gauntlet of fire on the twenty mile march back to Boston, and thereafter found themselves surrounded. Two months later, the British forces planned an offensive to break out of Boston, but the colonials learned of it and took the initiative. In the dead of night on 16 June, the colonials occupied and dug in on Breeds Hill, overlooking Boston. The British had no choice but to attack. In what would later be called, incorrectly, the Battle of Bunker Hill, the British won a Pyrrhic victory. They ultimately dislodged the Americans, but only when the Americans ran out of powder and shot. It was the costliest battle of war for the British.

And yet, it was by no means clear, until July 2, 1776 that the colonists would declare themselves independent of Britain. When the Second Continental Congress convened in May, 1775, the colonists still saw themselves as loyal citizens of Britain and their individual colonies. They had no desire to permanently join together the thirteen colonies. The colonies united simply for defense. Their was not independence, but a return to the pre-1761 relationship that the individual colonies enjoyed with Britain.

In the end, it was not the colonists who declared war on Britain and started a revolution in the lead-up to 4 July, 1776; it was the other way around. For over a decade, Britain had been passing ever more draconian laws and taxes which would have had the effect, if meekly accepted, of stripping from the colonists all of the rights enjoyed by British citizens living in Britain proper. Then, in the aftermath of the Boston Tea Party, it was King George himself who decided that "blows should decide the issue." It was the King of Britain who declared the colonies to be in a state of rebellion, who sent the largest expeditionary force of the 18th century to the colonies to establish military rule, who authorized a naval war on the colonies, and who resolutely refused all formal entreaties from the colonists to engage in peaceful discussions. It was Britain's forces in the colonies that started the shooting war by forcing the colonist's hand at Lexington and Concord and that soon thereafter committed acts of pure terrorism in the attacks on civilian targets, including the burning of Falmouth. It was Britain that allied with the Indians to attack the colonists from the west, and it was Britain that sought to use slaves as a military force against the colonists.

What the colonists were willing to fight and die for was not some new concept of freedom or rights, but rather the ancient rights of British citizens won over half a millenia and enumerated in such documents as the Magna Carta (1215), The Petition of Right (1628), and the English Bill of Rights of 1689. Indeed, that last document was written to establish once and forever the rights of Englishmen after a brutal civil war in Britain that saw with the execution of King Charles I in 1649, and then a second, bloodless revolution that toppled King James II in 1688.

The ideological case for declaring independence was made to the colonists by Thomas Paine in a pamphlet published in January, 1776, Common Sense. It was, relative to population, the greatest selling piece of literature but for the Bible in all of our nation's history before or since. Incredibly influential in moving public opinion towards accepting the creation of a new and independent America, it timely set the stage for the Second Continental Congress to consider the issue in June, 1776.

When the Congress took up the issue, the strongest argument for declaring independence was purely pragmatic -- the colonists needed allies and assistance if they were to win, or at least not be conquered, in a war with Britain. France, Britain's greatest enemy, was the most likely candidate for an alliance, but France would never ally with the colonists if the colonists' intention was to return to the British fold. In June, 1776, the Virginia delegation submitted a resolution to the Second Continental Congress, stating that Britain had severed all ties with her colonies and declared war, and that the colonies should declare themselves independent. The resolution met with opposition from five colonies and the motion was tabled, though a committee of five, and ultimately Thomas Jefferson himself, was tasked with drawing up a Declaration of Independence for consideration. The purpose of the document was not merely to declare the colonies independent of Britain, but to justify and explain to the world why this declaration was necessary.

Deciding to approve this Declaration of Independence came with extreme personal risk for the members of the Second Continental Congress. They were among the richest and most successful men in the colonies. They were virtually assured of being executed if the revolution failed -- and the odds of the revolution succeeding were not great. When they wrote, as the last line of the Declaration of Independence, that, "with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor," that was not fluff. And Britain's punishment for treason at the time was not mere hanging, but the gruesome torture of being hung, drawn and quartered.

On July 1, 1776, the Continental Congress again voted on whether to declare independence. This time, only two colonies voted against it, South Carolina and Pennsylvania. After a day of debates, a vote was held again on 2 July, 1776, and the colonists agreed unanimously - but for New York whose delegates were still waiting on their orders - that independence should be declared. For the next two days, Congressmen debated Thomas Jefferson's draft of the Declaration of Independence and edited it near ninety times. And on the fourth of July, 1776, they voted to approve the edited version and sent it to the printers. It was a positive and pivotal day in world history. It was also the zenith of perhaps the greatest era of civilization, the Age of Enlightenment. Thomas Jefferson's preamble in the Declaration of Independence perfectly captured the ideals of the Enlightenment, and it was the only part of the document not edited by the other members of Congress.

Here is the text of the Declaration of Independence. You will note that text includes dashes. These were put in the original by the Continental Congress with the expectation that the Declaration was a document that would be read to large groups of citizens. They were suggestions for where the person reading the document out loud should pause. I have added some additional formatting for ease of reading I have also taken the liberty, in parentheticals, to identify the events to which Thomas Jefferson was likely referring in his list of grievances. Below the text of the Declaration of Independence are two article discussing and analyzing Jefferson's famous preamble:


IN CONGRESS, July 4, 1776.

The unanimous Declaration of the thirteen united States of America,

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,

--That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.

But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.--Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.
[According to U.S. History.org, Jefferson is referring here to the refusal of the King to allow westward expansion after the Royal Proclamation of 1763. A more likely explanation from Claremont is that this is a generic complaint against the King for retaining power to veto duly passed local laws and, in particular, the King's continuing veto of laws passed by Pennsylvania to restrict the slave trade in that colony. ]

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.
[U.S. History.org: "In 1764, New York wanted to pass a law to include the Indian tribes, particularly the Six Nations, among the colonies. British Governor Colden agreed privately, but the King sent back instructions to all his governors to stop pursuing this notion until further notice. The colonists waited, but the King "utterly neglected to attend to them."]

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.
[This refers to the 1774 Quebec Act, that ignored the complaints of British citizens living in Canada and did away with representative government there, establishing in its place a legislative council appointed by the King. ]

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.
[The Boston Port Act, part of the Intolerable Acts designed to punish Boston and the colony of Masachusetts after the Tea Party, provided in part that the legislature of Massachusetts Bay Colony would, in the future, meet in Salem, not Boston. Similar events happened in Virginia and South Carolina as Royal Governors tried to disrupt intransigent legislatures.]

He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.
[In 1768 and 69, Britain's colonial Secretary ordered all legislatures be dissolved if they adopted the Mass. Circular Letter seeking to unify the colonies and petition the government to rescind the Townshend Acts as unconstitutional. It also refers to the Massachusetts Government Act of 1774, part of the Intolerable Acts, that functionally ended representative government in Massachusetts. The royal legislatures of the colonies were dissolved individually by the Royal Governors, most in 1775, as they lost control of each colony to the patriots.]

He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.
[Britain's practice of dissolving colonial legislative bodies was meant to stop troublesome legislatures and prevent them from conducting the jobs they were elected to do. Though complaining of this practice, this indictment also states the principle that the source of all local law is the people, not the King, and that such dissolutions has among its effects an abrogation of the sovereign's fundamental duties to defend the colony and maintain the peace. ]

He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.
[See British Nationality Laws in the American Colonies. This was a minor source of irritation between the colonies and Parliament.]

He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.
[According to Claremont, this refers to the difficulty the colonies experienced in getting the Board of Trade to approve election districts, judicial bodies and administrative bodies for numerous new communities forming in their "back country." In SC and NC, this occurred because people in the Board of Trade had a financial interest in the Court fees that accrued in existing courts, which fees would have been diluted had the Board approved creation of new courts. It led to the vigilante Regulator Movement in NC and SC. ]

He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.
[Assuring an independent judiciary was an important theme in British history from the 15th to 18th centuries. It was solved in 1701 by The Act Of Settlement which provided that judges had tenure, subject only to recall by Parliament for cause. But Parliament passed a law in 1761 providing that judges in the colonies, most often appointed from among the local populace, served solely at the King's pleasure and could be removed from office at any time for any reason. ]

He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.
[This was a very significant cause of the revolution. Beginning with provisions of the Sugar Act of 1764, Britain severely burdened American commerce in an effort to raise revenue and stop smuggling. Parliament significantly increased the number of customs agents in the colonies and gave these agents, as well as judges in the Admiralty Courts and Royal Governors, a large financial stake in increasing administrative fees and prosecutions for smuggling. The end result was a very abusive and corrupt system that made a mockery of the law and British rights.]

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.
[In the 18th century, people were very distrustful of standing Armies as history, from the time of Julius Caesar to Oliver Cromwell, showed that standing armies were always a threat to civilian governments. Indeed, prohibitions against standing armies and forced quartering of armies both appear in the Bill of Rights of 1689. Yet in 1763, after the French Indian War, Britain opted to maintain an army of 10,000 men in the American colonies, ostensibly to protect against Indians. Colonists objected to the standing army, which they did not see as necessary, and strongly objected to being forced by Parliament to bear part of the cost and maintenance of the army.]

He has affected to render the Military independent of and superior to the Civil power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:
[This begins a series of charges against Parliament, for passing legislation effecting and taxing colonists directly, and against the King for his role in approving their laws. The colonists were not represented in Parliament and most colonies, by their charters, had been given the sole right to raise taxes and pass laws locally applicable. When Parliament began impinging on those rights and legislating laws on behalf of the colonists without their consent, this became the rallying cry of the colonists.]

For Quartering large bodies of armed troops among us:
[Quartering Act of 1765 and the Quartering Act of 1774, the latter of which was part of the Intolerable Acts and which authorized, in certain cases, forced quartering of British soldiers on private property.]

For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:
[This refers to Administration of Justice Act, also part of the Intolerable Acts, allowed Royal Governors to direct that trials brought against British soldiers and officers for crimes they committed in the colonies be moved to Britain. This would have placed such a burden on local witnesses to spend months travelling to and from Britain, as well as attending trial, all with no compensation other than travel expenses, that it effectively placed British soldiers and officers outside of the law. In addition, in 1773, a customs official was convicted of a local jury in Boston for the murder of 11 year old Christopher Seider when the official fired his gun directly into the middle of a crowd to disperse them. King George III immediately granted the murderer a full pardon.]

For cutting off our Trade with all parts of the world:
[Britain's mercantilist system of trade long restricted the colonies ability to trade with any nation but Britain for important exports and imports. This was not contested by the colonists but for imports of molasses and tea. This indictment to the Restraining Acts of 1775 and the Prohibitory Acts two punitive provisions passed by Britain to break the economic back of those colonies that adopted an embargo against British trade over the Intolerable Acts. The Prohibitory Act went further, declaring the colonies to be in a state of rebellion. It amounted to a declaration of war and authorized a total blockade of the colonies. ]

For imposing Taxes on us without our Consent:
[Stamp Act of 1765; Townshend Acts of 1767, Tea Act of 1773]

For depriving us in many cases, of the benefits of Trial by Jury:
[In 1764, with the Sugar Act, Britain began using Admiralty Courts to hear criminal and civil cases involving smuggling. These courts were a mockery of British Rights. Cases were heard and decided by a single judge with no jury. A defendant was presumed guilty and had to prove his innocence. Standards for admitting evidence were much lower than in normal courts. There was no right to confront witnesses. And to make it completely corrupt, Admiralty Court judges received commissions based on the value of ships and trade goods they ordered forfeit. ]

For transporting us beyond Seas to be tried for pretended offences
[This likely refers to two policies. A provision of the Sugar Act allowed a British official to direct that a trial for smuggling be held not in the local Admiralty Court, where the judge would have been a colonist, but in the Vice Admiralty Court that sat in Nova Scotia with a judge appointed directly by the King. The second policy was one proclaimed by Britain but never put into effect. In 1768, the British Secretary for the colonies charged that the attempt, through the Massachusetts Circular Letter, to unify the colonies in peaceful opposition to the Townshend Acts amounted to high treason. Referring to a long outdated law passed under the reign of Henry VIII, Britain claimed the right to bring any colonist to Britain to be tried for a crime amounting to high treason. The colonists strenuously objected to this law in light of their own colonial Charters. The only serious attempt to arrest people for high treason and send them to Britain for trial was General Gage's march on Concord, one goal of which was to arrest Samuel Adams and John Hancock.]

For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies:
[This refers to the Quebec Act, of which the colonists were deeply distrustful and angry. One, it expanded the boundaries of Canada into territory claimed by several of the American colonies. Two, it ended representative government in Canada. Three, it did away with British civil law in Canada in favor of French civil law Four, it favored French Roman Catholics. The American colonists religiously pluralistic but for Catholicism which had been the bete noir of British protestants since the days of Europe's brutal religious wars. The purpose of the Quebec Act was to satisfy the largely French population of that country and insure that Canada did not join the lower thirteen colonies in opposition to the Crown.]

For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:
[Britain attempted to do this on more than one occasion in colonial history, but by 1776, this indictment probably only referred to the Massachusetts Government Act, also a part of the Intolerable Acts. By this law, the King unilaterally abrogated the charter governing the colony, in all but name did away with representative democracy, going so far as to outlaw town meetings not pre-approved. This was a clear warning to all of the other colonies that they needed to submit to British demands or Britain would impose a form of martial law upon them. The colonists chose a third option.]

For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.
[This repeats the indictment about the Massachusetts Government Act, but adds a specific complaint against the Declaratory Act, which provided that Parliament had unlimited power to legislate for the colonies in all matters. The Declaratory Act was passed in 1766, at the same time Parliament rescinded the Stamp Act, as a means for Parliament to save face.]

He has abdicated Government here, by declaring us out of his Protection and waging War against us.
[This refers to the Prohibitory Act and the clash of arms at Lexington and Concord, then Bunker Hill.]

He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people.
[In late 1775, the Royal Navy engaged in several raids against civilian targets in coastal towns, culminating most notoriously in the burning of the town of Falmouth. These were shocking acts of terrorism and, in particular, convinced at least one still uncommitted colony, South Carolina, that the colony should join in active rebellion against Britain.]

He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.
[Britain made extensive use of German mercenaries to augment their forces in the colonies. This was seen as particularly treacherous by the colonists.]

He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.
[The Prohibitory Act authorized not merely the capture of American ships, but the impressment of any of her crewmen into service aboard British naval ships.]

He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.
[The Southern colonies had large slave populations. The Royal Governor of Virginia, in late 1775, issued what became known as Dunmore's Proclamation, offering freedom to any slave owned by a patriot who would take up arms against the patriots. As to the Indians, those who engaged in warfare against the colonists over the past century had a well earned reputation for savagery and attacking civilians of all ages and sexes. For instance, The Long Canes Massacre and the ordeal of Hannah Duston are but two examples. The colonists viewed British efforts to enlist the various Indian tribes to war against the colonists as acts of particular evil. And while the Congress did not know it, when they drafted this passage, the Cherokee Indians, acting at the behest of Britain, had already started their war against the colonists in SC, NC, Georgia and Virginia, in a series of attacks that were supposed to be timed to coincide with the first British offensive of the Revolutionary War outside of Boston, the British attack on Charleston, S.C..]

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.
[1774 Petition to the King; 1776 Olive Branch Petition]

Nor have We been wanting in attentions to our Brittish brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.

And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.


Prof. Randy Barnett has published two articles in the Washington Post (here and here) taken from a book he is writing on our Founding documents (available at Amazon), discusses Jefferson's sources for drafting the Preamble and the Preamble's meaning. I include the relevant portions from those two articles below. In his first article, Prof. Barnett writes:

. . . Needing to work fast, Jefferson had to borrow, and he had two sources in front of him from which to crib. The first was his draft preamble for the Virginia constitution that contained a list of grievances, which was strikingly similar to the first group of charges against the King that ended up on the Declaration. The second was a preliminary version of the Virginia Declaration of Rights that had been drafted by George Mason in his room at the Raleigh Tavern in Williamsburg where the provincial convention was being held.

Unlike today, when such cribbing might detract from Jefferson’s accomplishment, achievement in the Eighteenth Century “lay instead in the creative adoption of preexisting models to different circumstances, and the highest praise of all went to imitations whose excellence exceeded that of the examples that inspired them.” For this reason, younger men “were taught to copy and often memorize compelling passages from their readings for future use since you could never tell when, say, a citation from Cicero might come in handy.”

Mason’s May 27th draft proved handy indeed in composing the Declaration’s famous preamble. Its first two articles present two fundamental ideas that lie at the core of a Republican Constitution.

The first idea is that first come rights, and then comes government. Here is how Mason expressed it:

“THAT all men are born equally free and independent, and have certain inherent natural rights, of which they cannot, by any compact, deprive or divest their posterity; among which are, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.”

So, in Mason’s draft, not only do all persons have “certain natural rights” of life liberty and property, but these rights cannot be taken away “by any compact.” As we shall see, Mason’s words became even more canonical than Jefferson’s more succinct version in the Declaration of Independence, as variations were incorporated into several state constitutions.

Article 2 of Mason’s draft then identified the persons who comprise a government as the servants of the sovereign people, rather than their master:

“That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them.” As trustees and servants, those people who serve as governing magistrates are to respect the inherent natural rights retained by the people.

All this was compressed by Jefferson into fifty-five compelling words:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

John Adams later recalled that Jefferson took only a day or two to write the first draft, which was then turned over to the committee for its feedback before it was submitted to Congress. Although this draft was then heavily edited and shortened by Congress sitting as a Committee of the Whole, its Preamble was left pretty much as Jefferson had submitted it. I turn now to that Preamble, for these two paragraphs identify the theory of what I am calling our Republican Constitution.

And in Prof. Barnett's second article:

. . . Today, while all Americans have heard of the Declaration of Independence, all too few have read more than its second sentence. Yet the Declaration shows the natural rights foundation of the American Revolution and provides important information about what the founders believed makes a constitution or government legitimate. It also raises the question of how these fundamental rights are reconciled with the idea of “the consent of the governed,” another idea for which the Declaration is famous.

When reading the Declaration, it is worth keeping in mind two very important facts. The Declaration constituted high treason against the Crown. Every person who signed it would be executed as traitors should they be caught by the British. Second, the Declaration was considered to be a legal document by which the revolutionaries justified their actions and explained why they were not truly traitors. It represented, as it were, a literal indictment of the Crown and Parliament, in the very same way that criminals are now publicly indicted for their alleged crimes by grand juries representing “the People.”

But to justify a revolution, it was not thought to be enough that officials of the government of England, the Parliament, or even the King himself had violated the rights of the people. No government is perfect; all governments violate rights. This was well known.

So the Americans had to allege more than mere violations of rights. They had to allege nothing short of a criminal conspiracy to violate their rights systematically. Hence the Declaration’s famous reference to “a long train of abuses and usurpations” and the list that followed. In some cases, these specific complaints account for provisions eventually included in the Constitution and Bill of Rights.

But before this list of particular grievances come two paragraphs succinctly describing the political theory on which the new polity was founded. To appreciate all that is packed into these two paragraphs, it is useful to break down the Declaration into some of its key claims.

“When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.” This first sentence is often forgotten. It asserts that Americans as a whole, rather than as members of their respective colonies, are a distinct “people.” And this “one people” is not a collective entity, but an aggregate of particular individuals. So “they” not it should “declare the causes which impel them to the separation.”

To “dissolve the political bands” revokes the “social compact” that existed between the Americans and the rest of the people of the British commonwealth, reinstates the “state of nature” between Americans and the government of Great Britain, and makes “the Laws of Nature” the standard by which this dissolution and whatever government is to follow are judged. As Committee of Five delegate Roger Sherman observed in 1774, after hostilities broke out with the British, “We are Now in a State of Nature.” [Note that a "state of nature" is a phrase coined by Thomas Hobbes in his book Leviathan and which he used to mean a state of anarchy, where no government exercised power, where no law held sway, and where individuals were subject to rule by the strongest.]

But what are these “Laws of Nature”? To answer this, we can turn to a sermon delivered by the Reverend Elizur Goodrich at the Congregational Church in Durham Connecticut on the eve of the Philadelphia constitutional convention. At the time of the founding, it was a common practice for ministers to be invited to give an “election sermon” before newly-elected government officials, in this case the delegates to the Constitutional convention, to encourage them to govern according to God’s ways.

In his sermon, Goodrich explained that “the principles of society are the laws, which Almighty God has established in the moral world, and made necessary to be observed by mankind; in order to promote their true happiness, in their transactions and intercourse.” These laws, Goodrich observed, “may be considered as principles, in respect of their fixedness and operation,” and by knowing them, “we discover the rules of conduct, which direct mankind to the highest perfection, and supreme happiness of their nature.” These rules of conduct, he then explained, “are as fixed and unchangeable as the laws which operate in the natural world. Human art in order to produce certain effects, must conform to the principles and laws, which the Almighty Creator has established in the natural world.”

In this sense, natural laws govern every human endeavor, not just politics. They undergird what may be called “normative disciplines,” by which I mean those bodies of knowledge that guide human conduct—bodies of knowledge that tell us how we ought to act if we wish to achieve our goals. To illustrate this, Goodrich offered examples from agriculture, engineering, and architecture:

He who neglects the cultivation of his field, and the proper time of sowing, may not expect a harvest. He, who would assist mankind in raising weights, and overcoming obstacles, depends on certain rules, derived from the knowledge of mechanical principles applied to the construction of machines, in order to give the most useful effect to the smallest force: And every builder should well understand the best position of firmness and strength, when he is about to erect an edifice.

To ignore these principles is nothing short of denying reality, like jumping off a roof imagining that one can fly. “For he, who attempts these things, on other principles, than those of nature, attempts to make a new world; and his aim will prove absurd and his labour lost.” By making “a new world,” Goodrich meant denying the nature of the world in which we live. He concludes: “No more can mankind be conducted to happiness; or civil societies united, and enjoy peace and prosperity, without observing the moral principles and connections, which the Almighty Creator has established for the government of the moral world.”

The fact that Goodrich was a relatively obscure public figure—though his son would go on to serve as a Federalist congressman from Connecticut—shows the commonplace understanding of natural law. And Goodrich’s task was to remind the Connecticut delegates of the proper understanding “the Laws of Nature and of Nature’s God.”

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

The most famous line of the Declaration, and for some the only line they know. The Committee of Five’s draft referred to these as “inalienable” rights, but for reasons unknown the word was changed to “unalienable” sometime in the process of printing it for the public.

What are inalienable or “unalienable” rights? They are those you cannot give up even if you want to and consent to do so, unlike other rights that you can agree to transfer or waive. Why the claim that these rights are inalienable? The Founders want to counter England’s claim that, by accepting the colonial governance, the colonists had waived or alienated their rights. The Framers claimed that with inalienable rights, you always retain the ability to take back any right that has been given up.

The standard trilogy throughout this period was “life, liberty, and property.” For example, in its Declaration and Resolves of the First Continental Congress (1774), Congress had previously asserted that “the inhabitants of the English colonies in North America, by the immutable laws of nature, the principles of the English constitution, and the several charters or compacts,” have the following rights: “That they are entitled to life, liberty and property: and they have never ceded to any foreign power whatever, a right to dispose of either without their consent.” Or, as the influential British political theorist John Locke wrote, “no one ought to harm another in his life, health, liberty, or possessions.”

Perhaps the most commonly repeated formulation combines the right of property with the pursuit of happiness. This was the version drafted by George Mason for the Virginia Declaration of Rights—not the version actually approved by the Virginia convention in Williamsburg on June 11th, 1776, the very day that the Committee of Five was formed in Philadelphia to draft the Declaration for the nation.

The Virginia Convention balked at Mason’s specific wording “on the ground that it was not compatible with a slaveholding society. They changed ‘are born equally free’ to ‘are by nature equally free,’ and ‘inherent natural rights’ to ‘inherent rights.’” The adopted version read:

That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

As we will see, the language of Mason’s radical draft—rather than either Virginia’s final wording or Jefferson’s more succinct formulation—became the canonical statement of first principles. Massachusetts, Pennsylvania and Vermont adopted Mason’s original references to “born equally free” and to “natural rights,” into their declarations of rights. In 1783, this language was used by the Massachusetts supreme court to invalidate slavery in that state. And in 1823, it was invoked in an influential opinion by Justice Bushrod Washington explaining the meaning of “privileges and immunities” of citizens in the several states.

On the one hand, this sentence of the Declaration will become a great embarrassment to a people who allowed the continuation of chattel slavery. On the other hand, making a public claim like this has consequences. That is why people make them publicly — to be held to account. Eventually, the Declaration became a lynchpin of the moral and constitutional arguments of the nineteenth-century abolitionists. It had to be explained away by the Supreme Court in Dred Scott. It was much relied upon by Abraham Lincoln. And ultimately it needed to be repudiated by defenders of slavery in the South because of its inconsistency with that institution.

“That to secure these rights, Governments are instituted among Men. . . .’’

Another overlooked line, but for our purposes, possibly the most important. For it states what will later become the central underlying “republican” assumption of the Constitution: that “first come rights and then comes government.” Here, even more clearly than Mason’s draft, the Declaration identifies the ultimate end or purpose of republican governments as securing the pre-existing natural rights that the previous sentence affirmed is the measure against which all government—whether of Great Britain or the United States—will be judged.

“. . . deriving their just powers from the consent of the governed.”

For reasons I will explain in this book, there is a tendency today to focus entirely on the second half of this sentence to the exclusion of the first part that references the securing of our natural rights. Then, by reading “the consent of the governed” as equivalent to “the will of the people,” the second part of the sentence seems to support majoritarian rule by the people’s “representatives.” In this way, the “consent of the governed” is read to mean “consent to majoritarian rule.” Put another way, the people can consent to anything, including rule by a majority in the legislature who will decide the scope of their rights as individuals.

But read carefully, one sees that the Declaration speaks of “just powers,” suggesting that only some powers are “justly” held by government, while others are beyond its proper authority. And notice also that “the consent of the governed” assumes that the people do not themselves rule or govern, but are “governed” by those individual persons who comprise the “governments” that “are instituted among men.”

The Declaration stipulates that those who govern the people are supposed “to secure” their pre-existing rights, not impose the will of a majority of the people on the minority. And, as the Virginia Declaration of Rights made explicit, these inalienable rights cannot be surrendered “by any compact.” So the “consent of the governed” cannot be used to override the inalienable rights of the sovereign people.

So we should recognize that there has arisen a tension between the first part of this sentence and the second. In political discourse, people tend to favor one of these concepts over the other — either preexistent natural rights or popular consent — which leads them to stress one part of this sentence in the Declaration over the other. The fact that rights can be uncertain and disputed leads some to emphasize the consent part of this sentence and the legitimacy of popularly-enacted legislation. But the fact that there is never unanimous consent to any particular law, or even to the government itself, leads others to emphasize the rights part of this sentence and the legitimacy of judges protecting the “fundamental” or “human” rights of individuals and minorities.

If we take both parts of this sentence seriously, however, I believe this apparent tension can be reconciled by distinguishing between (a) the ultimate end or purpose of any legitimate governance and (b) how any particular government gains jurisdiction to rule. So, while the protection of natural rights or justice is the ultimate end of governance, particular governments only gain jurisdiction to achieve this end by the consent of those who are governed.

In Chapter 3, we will see how the concepts of “natural rights” of the people and “the consent of the governed,” were reconciled by the idea of presumed consent. The people as a whole can only be presumed to have consented to what was actually expressed in the written Constitution and, absent a clear statement to the contrary, they cannot be presumed to have consented to surrender any of their natural rights.

Later in our history, the uncertainty of ascertaining natural rights will be addressed by shifting the question from specifying particular rights to critically examining whether any particular restriction of liberty can be shown to be within a “just power” of government—that is, a power to which any rational person would have consented, such as the equal protection of their fundamental rights, including their health and safety.

“That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”

This passage restates the end of government—human safety and happiness—and identifies the “form of government” as a means to this end. Therefore, the people have a right to alter and abolish any form of government when it is destructive of these ends, as the Americans declared the British government to be in the list that followed.

Jefferson adopted it from Article 3 of George Mason’s draft Declaration of rights, which affirmed “that whenever any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, unalienable, indefeasible right, to reform, alter, or abolish it, in such manner as shall be judged most conductive to the publick Weal.”

The political theory announced in the Declaration of Independence can be summed up by the proposition I mentioned above: First come rights, and then comes government. According to this view:

The rights of individuals do not originate with any government, but pre-exist its formation.

The protection of these rights is both the purpose and first duty of government.

Even after government is formed, these rights provide a standard by which its performance is measured and, in extreme cases, its systemic failure to protect rights—or its systematic violation of rights—can justify its alteration or abolition.

At least some of these rights are so fundamental that they are “inalienable,” meaning they are so intimately connected to one’s nature as a human being that they cannot be transferred to another even if one consents to do so.


Tuesday, June 30, 2015

Krauthammer & The Tyranny of The Supreme Court

Anyone who celebrates this decision, wholly irrespective of where they fall on the issue of gay marriage, is an idiot who has no understanding of the law or the Constitution. If this stands, we are no longer are nation of laws; we are no longer a democracy.


Hillary The Cipher


Watcher's Council Forum: Is It Time To Replace The GOP? Would You Support A New Party?

Each week the Watcher's Council host a forum, in addition to a contest for best post of the week among the Council members. This week's forum is posted here. Do click over and read the considered opinions of several very intelligent bloggers on the issue and see with whom you agree.


Friday, June 26, 2015

Our Court's Modern Dred Scott Decision

Five members of the unelected politburo that is our Supreme Court have created a new Constitutional right out of thin air - the right of homosexual to marry, in today's 5-4 decision in Obergefell v. Hodges. In so holding, they give their newly preferred policy decision a bare patina of bull shit legalese. But at the same time, they don't even try to hide the fact that this was a pure policy decision.

I won't bother to recount from the majority decision that claims justification under the Equal Protection clause and substantive due process, then pats themselves on the back for effecting social change not supported by the people of this nation. Their arrogance is beyond stomaching. Let's go to the dissents. Ironically, the dissent from CJ Roberts, infamous for his decisions in Obamacare, is directly on point:

Over and over, the majority exalts the role of the judiciary in delivering social change. In the majority’s telling, it is the courts, not the people, who are responsible for making “new dimensions of freedom . . . apparent to new generations,” for providing “formal discourse” on social issues, and for ensuring “neutral discussions, without scornful or disparaging commentary.”

Nowhere is the majority’s extravagant conception of judicial supremacy more evident than in its description — and dismissal — of the public debate regarding same-sex marriage. Yes, the majority concedes, on one side are thousands of years of human history in every society known to have populated the planet. But on the other side, there has been “extensive litigation,” “many thoughtful District Court decisions,” “countless studies, papers, books, and other popular and scholarly writings,” and “more than 100” amicus briefs in these cases alone. Ante, at 9, 10, 23. What would be the point of allowing the democratic process to go on? It is high time for the Court to decide the meaning of marriage, based on five lawyers’ “better informed understanding” of “a liberty that remains urgent in our own era.” Ante, at 19. The answer is surely there in one of those amicus briefs or studies.

Those who founded our country would not recognize the majority’s conception of the judicial role. They after all risked their lives and fortunes for the precious right to govern themselves. They would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges. And they certainly would not have been satisfied by a system empowering judges to override policy judgments so long as they do so after “a quite extensive discussion.” . . .

By deciding this question under the Constitution, the Court removes it from the realm of democratic decision. There will be consequences to shutting down the political process on an issue of such profound public significance. Closing debate tends to close minds. People denied a voice are less likely to accept the ruling of a court on an issue that does not seem to be the sort of thing courts usually decide. As a thoughtful commentator observed about another issue, “The political process was moving . . . , not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.” Indeed, however heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause. And they lose this just when the winds of change were freshening at their backs.

Federal courts are blunt instruments when it comes to creating rights. They have constitutional power only to resolve concrete cases or controversies; they do not have the flexibility of legislatures to address concerns of parties not before the court or to anticipate problems that may arise from the exercise of a new right. Today’s decision, for example, creates serious questions about religious liberty. Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right imagined by the majority — actually spelled out in the Constitution.

Respect for sincere religious conviction has led voters and legislators in every State that has adopted same-sex marriage democratically to include accommodations for religious practice. The majority’s decision imposing samesex marriage cannot, of course, create any such accommodations. The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. Ante, at 27. The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.

Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage. . . There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today. . . .

If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.

This decision will make the controversy set off by Roe v. Wade seem like the smallest of ant hills. It will be used by the left to punish the religious and further drive religion from all aspects of public life. It may well set this nation on a path to insurrection, much like the Dred Scott was a trigger for the Civil War and much like the punitive laws stipping the colonists of their rights set this nation on a path to Revolution. The five members of the Supreme Court who decided this case will no doubt be toasted around D.C. tonight and go to sleep quite happy with themselves. They will, I think, have a lot of blood on their hands before this one ends.

As I wrote below, our Court system needs to root and branch reform. As Chief Justice Roberts correctly notes, our Founders could not possibly imagine the role the activist judiciary has taken upon itself.

Update: After composing the above, I see that Mike Huckabee has come to the same conclusions. That said, I prefer the way he styles this as judicial tyranny. This from Hot Air:

“The Supreme Court has spoken with a very divided voice on something only the Supreme Being can do-redefine marriage. I will not acquiesce to an imperial court any more than our Founders acquiesced to an imperial British monarch. We must resist and reject judicial tyranny, not retreat.

“This ruling is not about marriage equality, it’s about marriage redefinition. This irrational, unconstitutional rejection of the expressed will of the people in over 30 states will prove to be one of the court’s most disastrous decisions, and they have had many. The only outcome worse than this flawed, failed decision would be for the President and Congress, two co-equal branches of government, to surrender in the face of this out-of-control act of unconstitutional, judicial tyranny.”

“The Supreme Court can no more repeal the laws of nature and nature’s God on marriage than it can the laws of gravity. Under our Constitution, the court cannot write a law, even though some cowardly politicians will wave the white flag and accept it without realizing that they are failing their sworn duty to reject abuses from the court. If accepted by Congress and this President, this decision will be a serious blow to religious liberty, which is the heart of the First Amendment.”

Bobby Jindal has a similar take.

Bookworm has some very cogent thoughts on the importance of this decision and how the left will try to use it:

This ruling may be the most consequential ruling ever to issue from the Supreme Court. Why? Because the Left will use it to destroy all religions except Islam (which they’re afraid to touch). They’ll use a magical new right to destroy one of the bedrock First Amendment rights.

Do read her entire insightful post.

And how did I miss Justice Scalia's dissent:

. . . [I]t is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact — and the furthest extension one can even imagine — of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves. . . .

. . . It would be surprising to find a prescription regarding marriage in the Federal Constitution since, as the author of today’s opinion reminded us only two years ago (in an opinion joined by the same Justices who join him today):

“[R]egulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.”

“[T]he Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations.”

But we need not speculate. When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases. When it comes to determining the meaning of a vague constitutional provision—such as “due process of law” or “equal protection of the laws”—it is unquestionable that the People who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification. We have no basis for striking down a practice that is not expressly prohibited by the Fourteenth Amendment’s text, and that bears the endorsement of a long tradition of open, widespread, and unchallenged use dating back to the Amendment’s ratification. Since there is no doubt whatever that the People never decided to prohibit the limitation of marriage to opposite-sex couples, the public debate over same-sex marriage must be allowed to continue.

But the Court ends this debate, in an opinion lacking even a thin veneer of law. Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its “reasoned judgment,” thinks the Fourteenth Amendment ought to protect. That is so because “[t]he generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions . . . . ” One would think that sentence would continue: “. . . and therefore they provided for a means by which the People could amend the Constitution,” or perhaps “. . . and therefore they left the creation of additional liberties, such as the freedom to marry someone of the same sex, to the People, through the never-ending process of legislation.” But no. What logically follows, in the majority’s judge-empowering estimation, is: “and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.” The “we,” needless to say, is the nine of us. “History and tradition guide and discipline [our] inquiry but do not set its outer boundaries.” Thus, rather than focusing on the People’s understanding of “liberty” — at the time of ratification or even today — the majority focuses on four “principles and traditions” that, in the majority’s view, prohibit States from defining marriage as an institution consisting of one man and one woman.

This is a naked judicial claim to legislative — indeed, super-legislative — power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ “reasoned judgment.” A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.

. . . [T]o allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.

But what really astounds is the hubris reflected in today’s judicial Putsch. . . . They are certain that the People ratified the Fourteenth Amendment to bestow on them the power to remove questions from the democratic process when that is called for by their “reasoned judgment.” These Justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago, cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution.