The Rule of Law and the Executive Branch

During the last forty three presidencies, two noticeable tools of the president concerning the rule of law and the executive branch can be observed and should be considered as to the encroachment of the executive on the legislative and judicial branches. Executive orders and signing statements first used with scarcity have played an important tool for the executive and have increased in number and complexity over the years. The proper use of these tools enables the president to faithfully execute powers or administer the agencies underneath him. The improper use of them can lead to usurpation of the legislative power, aggrandize the office of the executive, or to attempt to establish legal precedent and justify an alternative position to the Judiciary.

Several presidents, including the current forty third president, has used signing statements at the time of signing a bill into law to publicly declare that certain provisions within the bill would not either be enforced or declared unconstitutional and that the president will disregard the bill as it pertains to the office of the executive. There are three primary problems with presidents who take these positions.

First, to declare that a provision of the law will not be enforced is a violation of the oath of office to uphold the constitution and the laws of the United States. It should also be considered an anticipatory breach of the law, as the president has declared intentions not to adhere to certain sections of it, thus violating the law he just signed. It is unclear as to why and how the congress has allowed any sitting president to declare this and not act upon it. But any violation of the law could be grounds for impeachment and removal from office. The secondary failure here is upon the congress who did not act knowing that a sitting president might be violating US law.

Second, the president has not used his veto power under the constitution to reject the law. The law must be signed in whole, not in part, or it must be rejected via veto authority granted to him. This is an express authority granted to the president and a fundamental part of creating legislation in the United States. The president does not have the authority to selectively implement certain sections of the law and not others. To the extent this is done materially alters the spirit of the law created by congress and is an encroachment upon their authority.

And lastly, by act of declaring something unconstitutional and seeking to claim the president does not need to comply with certain aspects of the law, the executive branch has stated that the office of the executive is outside or above the law. Any president who claims to be outside the law after 1974 is in contempt. In the United States vs Nixon Supreme Court decision, the Supreme Court determined that no person, even the president of the United States is above the law or outside it. Thus any president publicly declaring such after the US vs Nixon decision is in contempt of the Supreme Court. An in each instance, the Congress has been negligent and not acted to protect the population.

The primary control concern with this failure of government is the creation of ‘negative approval'. To explain further, if congress passes law (A) and the president declares through a signing statement that he is not going to obey a provision of law (A) unless congress objects. This places the ownership of congress having to either create a second law related to law (A), subject to his veto, to make the president comply with all provision of law (A) or impeach him. But it must be noted that the president would merely sign the new law and again state that he is outside obeying that law, thus negating any affect of that law or enforcing the law. Thus, the only real option would be impeachment but that would require catching him in not obeying the law (A), and take up valuable congressional time doing the investigation as the Justice department reports to the president and its head appointed by the president. This in of itself is a serious control failure and to be discussed in a later essay.

In August of 2006, the American Bar Association put together a task force to study signing statements and the president’s use of them and the constitutionality of using them in the ways described above. Their findings give reasonable provisions and preventive controls as a starting point to the constitution and should be adopted either in an amendment or be incorporated into a new constitution as a result of a constitutional convention to resolve all the problems with our current form of government. Their recommendations are listed below and the full report at the following website: http://www.abanet.org/op/signingstatements/

RESOLVED, That the American Bar Association opposes, as contrary
to the rule of law
and our constitutional system of separation of powers, the issuance of presidential signing
statements that claim the authority or state the intention to disregard or decline to enforce all or
part of a law the President has signed, or to interpret such a law in a manner inconsistent with the
clear intent of Congress;

FURTHER RESOLVED, That the American Bar Association urges the President, if he
believes that any provision of a bill pending before Congress would be unconstitutional if enacted,
to communicate such concerns to Congress prior to passage;

FURTHER RESOLVED, That the American Bar Association urges the President to
confine any signing statements to his views regarding the meaning, purpose and significance of
bills presented by Congress, and if he believes that all or part of a bill is unconstitutional, to veto
the bill in accordance with Article I, § 7 of the Constitution of the United States, which directs
him to approve or disapprove each bill in its entirety;

FURTHER RESOLVED, That the American Bar Association urges Congress to enact
legislation requiring the President promptly to submit to Congress an official copy of all signing
statements he issues, and in any instance in which he claims the authority, or states the intention,
to disregard or decline to enforce all or part of a law he has signed, or to interpret such a law in a
manner inconsistent with the clear intent of Congress, to submit to Congress a report setting forth
in full the reasons and legal basis for the statement; and further requiring that all such submissions
be available in a publicly accessible database; and

FURTHER RESOLVED, That the American Bar Association urges Congress to enact
legislation enabling the President, Congress, or other entities or individuals, to seek judicial
review, to the extent constitutionally permissible, in any instance in which the President claims the
authority, or states the intention, to disregard or decline to enforce all or part of a law he has
signed, or interprets such a law in a manner inconsistent with the clear intent of Congress, and
urges Congress and the President to support a judicial resolution of the President's claim or
interpretation.


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The Executive Branch’s misuse of Military authority

As of this year, forty-three examples of the Executive branch can be examined to understand the weaknesses and failings that have occurred over time. These failings can occur in two ways, independently of the other two branches or in conjunction with one or possibly both of the other two branches. The former will be the object of this essay rather than the latter. One might consider that if all three branches exercise one judgment, then how is this weakness? But history has shown us that the passions of the people and the government can produce sufficient cause for concern of the populace in part that produce a violation to civil liberties and property. However, the uniqueness of the Executive branch filled by some individuals has used the vagueness of the constitution to aggrandize the power and authority of the office. It is the Executive branch that has encroached not only on the powers of the Legislative, but attempts to thwart judicial precedence, rule of law, and threatens civil liberty and property directly based upon the executive’s increasing belief in expanding inherent powers.

While many notable novelists have researched and documented numerous examples of presidential abuses and encroachments, these essays will focus on limited key aspects of the executive branch to satisfy the argument of reform and not attempt to document each instance over the last two hundred years.

The executive branch, being designated as the commander-in-chief of the military forces of the United States, has improperly misused those forces in both matters of war and civil liberties. In two instances over the last century alone, the executive branch has declared wars on sovereign nations without the express declaration of Congress. In absence of the Congress’s constitutional declaration, the president has demeaned the office to despot. In both the Korean and Vietnam wars, the president ordered troops to invade societies and countries without proper authority. These wars resulted roughly in fifty four thousand and fifty eight thousand American military deaths, respectively. And while one of them had to be ended by congress’s refusal to continue funding, the other is technically still unresolved after fifty years.

The basic deficiency resulting in both these wars is the president’s ability to give an executive order to attack that is wrongly obeyed by the military, or that the president orders forces into such a provocative position that it invites attack. To further explain ‘wrongly obeyed’, the American citizen and their military commanders must believe that a moral and constitutional preponderance exists to the contrary of a presidential order to attack. A military commander must have a duty under the constitution to know that an immoral or unconstitutional order should not and cannot be obeyed, especially when American lives are to be considered. The order to attack is expressly given solely to the Legislative branch, and not the president. Thus, it is not only a failing of the president, but of the generals who concur and blindly obey orders. The military forces seem to be beholden to the president and not the American citizen nor their constitution.

A second and alarming issue has arisen in the daily news articles and publications on the misuse of the military that is expressly against the rule of law. Both, the Washington Post and Army Times are reporting that US troops will be used on US soil for homeland security. While this deficiency has not yet occurred, there is every reason to believe that it will come to pass especially given in light of the Executive branch’s attempt to expand their control and power over the other branches and the people. In the name of security, current and future presidents are going to quarter troops in a occupation on American soil as they direct the Department of Homeland Security. Abuses to civil liberties is likely to occur from this action.

And contrary to assurances given to the public, news agencies have learned that a mere forty five hundred soldiers has now ballooned into twenty thousand soldiers. But the amount is not to be believed. For if one thing the last two hundred years has shown us, it is the insatiable desire of the American government to expand its authority and invasiveness into the lives of the American citizen and their liberties.

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Breach of the Social Compact by the Judiciary

Alexander Hamilton acknowledged that while the Judiciary branch of our government was the weakest in its ability to attack either of the other two branches, the Supreme Court was in fact superior to the other branches of our government. The highest court in the land he observed was given the power to strike down laws and actions of the other two branches and thus, any branch able to void the action of the other branches was superior to them. Given these facts, observing the behavior and actions of the court is of paramount importance as the court is the final say to which all agree. And any deficiency found should be construed doubly dangerous to that of any defect of the other two branches.

Stari Decisis , the primary principal upon which the court makes decisions based upon precedents of other decisions, can be used properly or improperly by the court. Once the court establishes a precedent, future cases can then be heard in light of a prior resolved case that may in fact expand or clarify law. But the mere fact of accuracy in any one decision is not what is important by these statements, it’s the establishment of precedent that is of concern to the American citizen, especially of a particular case in which the court decided to hear and set precedent for future cases that is to be noted with great importance. The case in question set precedent for the Supreme Court to hear future cases regarding the election of the executive branch. And at the heart of this case is the question of validity by the Supreme Court in its ability to hear this case and make a judgment and whether or not the Supreme Court violated the social compact of our Constitution.

The Constitution being the highest law in the land was written to give powers to our government and to establish the first precedent of law. Since it is the highest law in the land, the Supreme Court’s function is to interpret the Constitution’s meaning when competing principals or vagueness occur that would require interpretation. Hamilton, in Federalist paper # 78, stated the following concerning competing principals in the constitution when Justices interpret the constitution: “They teach us that the prior act of a superior ought to be preferred to the subsequent act of an inferior and subordinate authority; and that accordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former”, meaning the written Constitution or items actually written in the Constitution are to be held in greater esteem than those items not specifically written in the constitution or statutes at a lower state level that might contravene the constitution. Again, Hamilton confirms this by stating, “If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”

The two competing laws in question in the election of 2000 are the State of Florida’s right to select its electors for president of the United States versus the rights of the candidates in said election to have equal protection under the law and whether or not the Supreme Court is justified in actually hearing and deciding this case under the Constitution. The following questions need to be examined when considering this case. (1)Which of these competing laws is superior to the other and which is inferior, or are they equal in consideration? (2) Can an individual receive equal protection under the law at the state level or is this only possible at the federal level? (3) And was this case a valid case to be heard by the Supreme Court?

When looking at which competing law is superior, two ways can be identified. One way would be by saying laws that are expressly written are superior to laws that are only implied like equal protection under the law. The State’s right to choose its electors in a presidential election is only too well documented in the Constitution and no where do you find any writing in the Constitution regarding equal rights under the law. But fairness, even not stated, is a fundamental belief in all societies implied or otherwise. The other way to look at superiority is on the equity basis by comparing the equity of two groups of citizens upon which each law affects. To state simply, group A consists of 2 persons trying to obtain the highest office in the government. Group B consists of 6 million registered voters who wish to express their right to choose a person to occupy the office of the presidency. Which is more superior and fair? Is it fairer to upset one individual from group A or is it more unfair to upset nearly 3 million persons from group B? Thus, one can conclude that the State’s right to select its own electors in a presidential election is superior to the equal protection under the law principal in this case.

Persons can receive equal protection under the law at the state level. Even in this case where it was found that the State Supreme court was in error, the Federal Supreme court could have ordered them to reconsider. And it cannot be assumed that persons sitting on the bench at the state level are somehow less capable of judging fairness and providing for equal protection even though they may need guidance from an appellate court.

But in the case of Bush versus Gore, the Federal Supreme Court’s reasoning was this, ‘there is not enough time to meet the safe harbor provision date’. This ended the Florida recount. Thus, the Supreme Court was saying that the inferior statute of the safe harbor provision was more important than the expression of state’s rights in the Constitution and the will of the American public to select its president. Furthermore, the Constitution clearly outlines how to resolve such disputes. The Florida legislature could have sent two sets of electors and have the House of Representatives vote on president. And historically, this would not have been the first such instance. And most constitutional scholars regard the presidential election process as a political question, not a judicial question.

Tyranny lusts for order and the Supreme Court has suppressed the expressions, desires, and rights of the American citizen in their right to choose a president to satisfy an orderly transition of one administration to the next. But in the Court’s efforts, the Court has furthered its interference in our elections by establishing more precedent where none should exist. For this one case alone and these reasons, a constitutional amendment is warranted at a minimum to correct further suppression of American voting rights.



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The Framer’s Insight for the need for a Constitutional Convention

When the American citizen contemplates structural change to its government, prudence is warranted and insight is gained by reviewing the arguments and discussions of this topic from the Framers of the Constitution. And where better to gain insight to this topic by review of the Federalist Papers published in 1787-1788 by the fellowship known as Publius, who in all construct were, James Madison, John Jay, and Alexander Hamilton. And the answer to be sought in such a review commence with the following question; Did the Framers envision the reasons for need of a constitutional convention in the future, under what circumstances should occur that gives rise to a convention, and who’s responsibility to hold the convention and correct the government should such action be warranted?

In Federalist paper number forty-nine, Madison addresses complaints from the opposition to the new form of government and the opposition recommends the following, “His proposition is, "that whenever any two of the three branches of government shall concur in opinion, each by the voices of two thirds of their whole number, that a convention is necessary for altering the constitution, or correcting breaches of it, a convention shall be called for the purpose." While article five of the constitution gives the right of constitutional convention to both the congress and by the people, this control does indeed indicate that if problems are found in the government that there is mechanism for correction but the timing and action for it was left open to be interpreted by Congress or the people.

And upon further investigation, Madison states that none of the three branches is capable of enforcing either the other two into their respective boundaries and that the American citizen must act, a problem that has been shown in previous essays. Madison states, “The several departments being perfectly co-ordinate by the terms of their common commission, none of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers”. Thus he concludes the following must be the case in the previous statement, “and how are the encroachments of the stronger to be prevented or the wrongs of the weaker to be redressed, without an appeal to the people themselves, who, as the grantors of the commissions, can alone declare its true meaning, and enforce its observance”.

The final conclusion by Madison is that if and when a constitutional convention is needed for reform that the source must be the citizens and not the government as it is the citizen that is the source of all power and commission to the government’s charter. Madison confirms this in the following statement; “As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived, it seems strictly consonant to the republican theory, to recur to the same original authority, not only whenever it may be necessary to enlarge, diminish, or new-model the powers of the government, but also whenever any one of the departments may commit encroachments on the chartered authorities of the others.”

And as it has been shown in previous essays that two of the three branches of our government have in fact breached their constitutional authority, and so initiation of a constitutional convention should commence to reason out the problems and put in place corrections. And as it is discussed and debated what form of modification should take place, Madison offers one last portion of advice concerning the nature of establishing written rules in the Constitution to restrict any branch of the government in an effort to enforce compliance to their respective boundaries. He states, “that mere declarations in the written constitution are not sufficient to restrain the several departments within their legal rights”. So what is meant by this is that amending the constitution to force the branches into their boundaries may not be possible, and thus one can conclude that basic structural reconsideration of the branches is the more likely outcome in repairing the encroachments or deficiencies within the federal government.

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With Regards to Selecting Governing Officials

When considering a constitutional convention or amendment, various reforms and changes to the selection process of elected officials could be reconsidered in an attempt to rectify problems that have occurred in the American political process. The first and foremost problems to be addressed could be the sometimes unexpected issues that arise from having an electoral college. Another important consideration would be the affect that money, campaigns, and special interest groups play in the selection process.

During the history of the Electoral College, there have been three instances after the civil war where the presidential election was decided by the candidate who received the minority of the popular vote and had enough electors to claim the presidency as was the case in the election of George Bush in 2000. In the case of George W. Bush, there is another entirely unique constitutional issue that will be addressed by another essay when considering the actions of the Judiciary. Suffice to say, the will of the people by simple majority has not been reflected in several elections in the history of the Electoral College, and that having a constitutional convention is an opportunity to change or modify the selection process to avoid these problems.

The Framers intentionally selected this process and weighted it toward smaller states by comprising all representation within the congress. Each state receives one elector for each representative in the House of Representatives and one elector for each senator. Today, that amounts to 538. If the number of electors was modified to have one elector for each representative in the House and only one elector for each state, instead of two as is now, this would have resulted in resolving two of the three instances and given the person who had the most popular votes also the most electoral votes. The exception to this was the election of 1888, where Grover Cleveland failed to carry his own state of New York that had thirty-six electoral votes that would have given him the presidency instead of Harrison. Of course there are several other ways of selecting a president and each one should be explored to give the best balance to the needs of each state as well as the general population.

One method of curtailing special interest monies in the election process is to possibly remove the election process altogether from one of the two houses of Congress. If we change one of the two houses to be more like a selection process rather than an election process with requirements attached, this would eliminate one round of elections and thus limit special interest.

For instance, let’s say we are going to use a lottery process to select our senators or representatives instead of candidates running for office, much like jury duty. This would be a more direct democracy where senators or representatives are directly chosen from the people to hold the office instead of an election to the office. And as we do with our president, we could set an age limit or some other requirement such as education to ensure a standard to be held for the seat. And the pool of candidates could be on a voluntary basis so Joe-the-plumber who has no interest in holding the office can be left out of the pool of candidates.

Another variation of this method would be to select from the pool a slate of candidates and have people vote on those persons selected. There could be a series of 1-3 publicly sponsored televised local debates for candidates to make statements with little or no time for a huge campaign.

Changing how we put people into offices in our bicameral legislative branch would greatly curtail the minority special interest voices that plague our lifetime federal employees. By having more of a selection process instead of an election process in just one of the two houses, the big money campaigns for senators or congressmen could be limited but not silenced as each new term most likely would bring a new legislator to the government and have no need to be influenced by re-election.

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With Regards to Taxation and Federal Spending

When analyzing the need for a constitutional convention, one must examine the behavior of the federal government with regards to taxation and federal spending. Ironically, one of reasons the Framers created the new system of government was the inability of the confederation to raise funds from each state to pay for expenditures. Today, the federal government has the power to raise taxes for its expenditures, but has relied, to an unprecedented amount, on the clause in the constitution that gives it the power to borrow on the credit of the United States. And thus, the federal government has not raised taxes to pay for its spending.

In a nation of laws, there is accountability. And when accountability is lacking, citizens should expect their government to respond with legislation to provide for punishment and accountability. When a citizen breaks a law, there are courts and prisons. When a business or agency breaks the law, there are fines, injunctions, or prisons for those in charge who mislead their shareholders or injure society. But when the federal government acts so willfully and negligently in spending to the point it threatens economic stability worldwide, accountability and action must be taken by the American citizen because the government will not take action upon itself.

The federal government has recently taken over the banking system and is trampling the rights of banking institutions and individuals to make decisions regarding credit and commerce. The government has injected itself and taken over an entire industry and at the same time increased the federal debt by another four-fifths of a trillion dollars.

The link between federal spending and taxation has been severed completely and the government is behaving as the two are not connected. This is a fundamental flaw with respects to taxation and spending that must be corrected by the American citizen. Taxes must be raised by government to pay for its spending, and the republic and citizens must provide the proper check and balance to these powers as it is the most important power a government has domestically that affects the lives of Americans. The president’s veto right over the budgetary process is limited and dysfunctional as we have seen the national debt grow from five trillion to 10 trillion dollars in just eight years. If the belief that the elected official is a constituency unto themselves, then it is apparent to see how they feel unaccountable for spending taxpayer dollars. An elected official is more apt to pass along the problem to the next administration. The proper check should be to someone or something more permanent such as the states or citizens.

In the previous government, the congressional confederation had to get permission from the states to raise funds. While this is certainly not the solution to over-spending by the government, it must be noted that there was direct interaction between the states of the republic and the federal government on this issue of allocation of state burden regarding taxation. And that this communication which is now missing most likely provided for a check to federal spending and in some form, and must be restored. The states and the federal government must communicate with regards to taxation and spending. Senators and congressmen and congresswomen bring back to their states over eighteen billion dollars each year to their states and somehow expect another state to pay for that spending.

Seventeenth century philosopher John Locke noted that governments were in most respects social contracts with the citizens of the country, and that if the government disregarded the contract or was in breach or violation of the contract, that citizens have a duty and right to enact punishment by dissolving that government. While adjournment of the government may or may not be the solution, it is within our rights of citizens to convene a constitutional convention to address the lack of checks and balances to the federal government’s spending and taxation powers.

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The Terminus

The Terminus

Our constitution allows for separation of powers and gives the branches of government certain powers that interrelate and affect each other. But separation of powers is only effective if the other two branches adhere to their duties of keeping each other within their respective boundaries. It is not a replacement for defined control system or body of enforcement. The federal government is left up to itself for correction. The founders argued that the congress needed to be large enough in numbers so elected officials would behave properly in the American interest and be held accountable by each other in the legislature. Our constitution does not give enough countervailing powers to the branches to keep each branch within their constitutional boundaries.

It is imperative to the American citizen to consider the further ramifications of a government that is responsible for regulating itself. If our government is unable to regulate itself, it leaves itself open to future abuse and inefficiency. The American citizen must consider at what level of change should be exacted upon the government. The election cycle of a new president is underway, and of course both candidates promise change. But will they or can they bring about real change that prevents the judicial from interfering in elections? Can he bring about change to curb executive abuse or prevent future administrations from creating secret prisons and locking away anyone in the world based on their authority? The constitution stands for more than just our rights as citizens, it also outlines that basic human rights exist and that the executive branch should not infringe nor the congress infringe upon them.

If the American citizen believes in real change, then it is really the level of change that should be discussed. If the American citizen believes that the principal problem with the government is the creation of a separate faction is born by the election of elected officials, then the American citizen believes in the deepest problem of the offices upon which the constitution created. Thus, the solution would have to be adjournment and recreation of a new federal government. If the citizens believe that the problem with the government is behavior of the individual bodies within the government, such as the office of the judiciary, then basic reforms through the amendment process should be examined more closely. And if the American citizen believes that the basic problem is unique and non-recurring, then disciplinary actions of removal and banishment is the solution.

However, if the American citizen believes that no real problem with our federal government exists, then the citizens merely need elect more officials and hope they learn to change themselves along with the behavior of the federal government. But a call for one last convention is so offered to the American citizen should they elect to contact their governors and demand it; a constitutional convention to enact real change to address the real problems with our federal government.

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The Alternatives

The Alternatives

When contemplating changes to the government, the American citizen must consider all levels of change, the affect on the society, and the effect with regards to other nations, and the advantages and disadvantages each level of change offers. It is the duty of a thoughtful citizenry to be objective and provide for the consideration of the weaker members of society and how the changes will affect them. Any proposals for change should be carefully and respectfully scrutinized for flaws, and be able to soundly address the aforementioned problems with the current government and how and why those problems will be solved by the proposed changes. No idea for change should be summarily dismissed or not reasonably considered and should be given a chance to make a proper argument and then critiqued as thoughtfully and respectfully as warranted.

The highest level of change to be considered would be an adjournment of our current government and to put in place an entirely new structure. This suggestion is not without American precedent. The founders of our current government created this government in 1787, and the United States first government was a confederacy of states that lasted from 1776 to 1787. The American citizen should now consider the advantages and disadvantages of this idea. But to bring about this level of change would require that the American citizen demand from his state’s governor that they invite a delegation of leading members of the academic world and other public institutions and foundations to a constitutional convention where a new government could be designed and offered to the American citizen. And it would be each state’s governor to clearly communicate how changing the government is the best solution to be ratified.

The advantages and disadvantages of adjournment are many and all will not or could be fully detailed here. It is sufficient to say that the election process, ethical reforms, and the size and authority of the government could now be reconsidered and proposed with a new form of government to be adopted. The size and membership of the government could be considered and changed to be able to yield legislation more quickly and fairly. The election process and the very little choices of candidates offered to the American citizen could be rectified. And the disadvantages of adjournment are equally compelling. It could and most certainly would lead to a certain level of civil discourse in the republic as Americans debate the affects of this level of change. But caution is offered here as some would argue for nostalgic reasons not to change the government. Those persons would have Americans live with a flawed government than to admit change was needed and that their government was somehow not perfect. And give caution to those who would claim patriotism and support for a government that does not respect the highest law in the land, the constitution. It is the cry of patriotism that has led the current administration to such abuses of power against the constitution. Another potential disadvantage would be the uncertainty of American policy in the world as the United States might be perceived as turbulent. Unfriendly nations might attempt to take advantage in some way the transition period that is sure to occur with the adjournment and replacement of a government.

The next level of change to be considered is structural change through the amendment process. A single amendment or series of amendments could be put initiated and put in place through state legislatures by way of our governors. New powers of oversight and enforcement could be explicitly added to the current constitution thereby attempting to correct the current lack of enforcement of the boundaries and limits on the three branches of the federal government. Some examples could include transferring the power to raise the debt ceiling back to the American citizen. By transferring this power back to the American citizen, it would require congress to act within an overall budget and could not exceed the debt ceiling unless approval was given from the American public through the voting process. This would force congress to make the necessary choices concerning financial matters and require fiscal responsibility. Another oversight power to be considered would be judicial review of all executive orders for constitutionality. This would allow another branch of government to strike down executive orders that are unconstitutional. One other consideration would be modifying the judicial nominations process. Currently the senate is to play a role of advise and consent and does so with very little say in the selection process. The president hand picks the appointee and unless the senate has serious objections, the appointee is usually confirmed to the court. Having the senate pick a slate of qualified candidates from which the president chooses will improve the quality of the court, but it could also lead to vacancies should the president refuse. One last remedy would be the imposition of a power in the senate to remove Supreme Court justices, and censure the Supreme Court if it is about to interfere in congressional matters.

The advantages, disadvantages, and remedy options of government reform through the amendment process is also too numerous to give full detail. The solutions that will be needed will be more than a handful and must be given serious consideration and debate before implementation by the American citizen. The advantages are that the original formation of the government is left in tact and no transition period occurs. There will be little or no international concern about the policies or any uncertainties about the American government and its policies as this would most likely be seen as an internal correction or debate. The disadvantages are that explicit language to limitations in the different branches of government may impede the flexibility of the government. But that of course is the goal of these reforms. The government has proven itself to be incapable of self-regulation and self-control.

The last alternative to be discussed by these writings will be disciplinary and punitive action upon the elected official of the government. A single amendment dismissing the entire congress and senate could be ratified and every sitting congressman and senator could be discharged from their duties for a period of ten years. Critics of this option will be quick to point out that this option already exists by way of the voting process. But the entire nation speaking with one voice through the power of an amendment that affects senators and congressmen of all districts is not the same thing as an elected official coming up for re-election who only faces his district inhabitants. In this case, the entire nation speaks as a single constituency against the elected officials and their dereliction of responsibility to the American citizen.

The advantages and disadvantages are few and some unseen. The advantages are that an entire new legislative body will be put in place with knowledge of the anger of the American citizen and thus more likely to move quickly to resolve open issues not previously addressed. Secondly, a disadvantage will be that our most experienced leaders will be dismissed and not allowed to hold congressional position for ten years. Newly elected officials may be more susceptible to lobbyists. Also, there may be a lack of leadership on procedural matters in the execution of new legislation.

It must be noted that the alternatives offered here are not an exhaustive list by any means. There may very well be other alternatives to carefully consider and may lend themselves in a better position that what was addressed here. And those alternatives should be made public as well and argument for and against change considered thoughtfully.

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The Charges

The Charges

When the branches of the federal government, either through action or inaction disregard the powers entrusted to them, the boundaries and limitations placed by constitution, a delinquency or neglect is born. It is with caution and a watchful eye that the American citizen should recognize and warrant such action against delinquencies that arise from the federal government. But as instances of delinquency appear, the delinquencies must be recognized publicly and debated in good conscience among the American citizenry. For it is out of a repetition of delinquencies that a pattern of abuse develops. And out of recognition of these patterns that accusations must be spoken and considered.

The executive branch on numerous circumstances has overstepped its boundaries and violated the powers given it by the constitution. The executive branch on occasion has engaged and commanded war against countries without proper authorization for which only the congress can give. Both the Korean and Vietnam wars are evidenced by this. The executive branch has also breached the fourth amendment for unreasonable searches against the citizens of this nation without the benefit of proper warrants. The office of the presidency has conducted wiretapping and intrusion into the privacies of American citizens. The current president has asserted his right to imprison anyone in the world without cause, trial, or warrant, including any citizen of the United States. It is currently known that at least two citizens were held against their will by the president. These are the actions and arrogance of tyrants, not of elected officials to which the American citizen must respond to with conviction. These actions are in direct violation of our sixth amendment regarding due process and right to trial and face the accusers. And as this president has set a precedent for others that hold the office will surely point to this presidency and claim the same right not given by the constitution. It is for reasons of disregard of the boundaries and limitations of the office that the American citizen must now consider its right to exercise actions and contemplate structural changes to our government.

The executive branch for several administrations has indeed disregarded the constitution’s authority derived of the legislative branch. The executive branch has overstepped its authority by issuing decrees known as executive orders that in fact become legislation or affect areas of the government from which it is disallowed. It is has been a practice of several presidents when they fail through normal legislative processes, do indeed issue executive orders that are ignored by congress and the judiciary and in fact act as law within the United States. The very first sentence in our constitution after the preamble in Article 1, section 1, clearly states, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives”. It does not say, some legislative powers, and it does not give exceptions and thus, grant legislative powers to the judiciary or the executive branches. A danger exists to both civil liberties and human rights from the abuse of the executive order over people and property. Neither the congress of the judiciary has either accepted oversight of these orders, or challenged their constitutionality. Because of the history and nature of executive decrees and the unwillingness of the congress or the judiciary to challenge them, the use of executive orders invites corrupt practices of the human condition.

The delinquencies noted with regards to the legislative branch are inaction, disregard, and breach of the trust of the American citizen. Congress’ ineffectiveness in its ability to manage the affairs of the American citizen has become the embodiment of neglect. It has allowed and provided for an almost insurmountable debt and has failed to act with reason and properly provide for its spending though the raising of taxes and revenues or to cut expenditures in other areas. The congress has allowed our military forces to be improperly used by the executive branch in conducting wars upon other nations and has failed to intervene when necessary upon the executive in these matters. The legislative branch has also allowed the executive to impugn against its constitutional authority.

The congress, in breach of its trust to the American citizen, relinquished its power under the constitution by allowing encroachment of the executive branch upon its constitutional authority over the military. Whilst the executive is commander and chief of the military and may direct the military in matters of the military, it is the responsibility and duty of the congress to make rules for the capture on land and sea and rules for the government and regulation of the land and naval forces at all locations and bases as stated so in Article 1, section 8 of the constitution. The congress has allowed the executive to modify rules surrounding military evidence and proceedings in an attempt to hold citizens of our country and other countries captive at bases in Cuba and throughout Europe. These powers over the military are an explicitly stated power of the congress granted in our constitution. The congress also has constitutional authority to construct courts that are inferior to the Supreme Court. And after several years, the congress still has not constructed a court or tribunal to be exacted upon the prisoners held at the military base in Cuba. Many Americans blame the office of the president for this situation, but the elected officials in congress must bear a greater share of this American misadventure.

The congress also surrendered its authority over the military by not intervening in the Iraq war before inspectors could finish the search. A sovereign nation, albeit a known past combatant and enemy of the United States, was complying with United States demands and United Nations mandates for searches within it borders. Although the United States executive branch obtained its every condition requested from the Iraqi government, the administration refused and rejected diplomacy and claimed imminent threat. The congress failed to intervene, and let us not forget that this congressional authorization was not a declaration of war, but an authorization to use force if non-compliance occurred from the Iraq government. It must be noted that no such non-compliance was offered at the time. In fact, the Iraq government did comply with all requests. The American president under his omnipotent powers of observation refuted this compliance. In these facts, the congress had a moral obligation to the American citizen and as a leading member of the United Nations to intervene and force compliance to an overstepping president.

The sole complaint to the judiciary made herein is its overstepping its authority under the constitution is with respects to the political process. The judiciary has interfered in the political selection process of an American president during the presidential election in the year two-thousand. The selection of elected officials by the American citizen is a choice clearly defined by the constitution and is a founding principle of the republic.

Our states choose electors that the American citizens vote upon and each state’s electors are sent to vote upon the president as prescribed by our constitution. The selection of a president is the states right under the constitution and each state, while not bound to participation in the selection process, has set its own rules regarding the selection of electors. This is our Electoral College process and interference in this process is inherently dangerous and unconstitutional for the judiciary. The actions taken by the judiciary in this case are tantamount to declaring that an individual’s rights to equal protection under the law are greater than the states rights to choose a president. No state is bound to send electors to vote for a president. And in fact, if a state chooses to not send electors, would the judiciary then select them instead? States are not bound by law to send electors in a presidential election. And there is a deadline or date by which states agree to send electors and that those electors will not be challenged by congress in a heated battle to decide the office of the presidency. The state of Florida could have sent electors after that date guaranteed by law. But in doing so, there would have been a congressional debate and congress would have chosen the Florida electors, not the voters of Florida. It was for this reason that the state was not allowed to resolve its own process and the justification used in the ruling by the Supreme Court. The Supreme Court has interfered in a congressional matter. And in doing so, it has opened the door for further delinquencies in the future.

And because of its interference, any recipient to the office of the presidency would find himself in a state of conflicted interest with regards to the actions taken by the judiciary. It is the office of the executive branch that so nominates and removes individuals from the high court. Thus, any victor in a presidential election that was interfered with by the Supreme Court would not be so inclined as to punish the individuals responsible on the court for interfering with the election. This is an inherent conflict of interest on the office of the presidency no matter who occupies it. But it is doubly so for the current president as it was his own father who had nominated some members of this Supreme Court that came to this decision by the court.


Vox Vocis res Publica.

Preamble

The Preamble

Through the course of the American experiment, the American citizen has contemplated through a watchful eye, changes upon its government. Changes to our government have come in both peaceful and non-peaceful means through an expression of or dissatisfaction with, events or policies of the federal government. Whether through the peaceful ways of the amendment process or the violent ways of civil war, the American citizenry has found ways of correcting inherent injustice, obscure definitions, or lack of explicit rights of citizens in the constitution of the United States. It is with the advantage of history that the American citizen should now consider the depth, the reasons, and the advantages and disadvantages of exacting change upon our current federal government in both form and substance.

Our amendment process provides flexibility with respect to the constitution and the relationship that exists within the social contract between the federal government and the people of the United States. The process has allowed rights that were in question to be clearly defined, especially in the case of the right to vote or to explicitly state the rights of citizens that the federal government could not infringed upon. The amendment process is used to exact limitations upon the federal government and to provide an avenue for the citizens of the American nation to modify or allow changes to the federal government be made. The articles of our constitution are used to define the roles and boundaries of our federal government and that those roles and boundaries are subject to the will and expression of the citizens of the United States and are in no way, permanent.

The American citizen under its contract with the government has certain rights and duties to be performed even if not so stated in the constitution. Those rights and duties consist of, but not limited to, active participation in the election process, keeping a watchful eye, and initiating changes or exacting limitation upon the federal government when the need arises. The American citizen invites abuse of the federal government not only upon itself, but upon others in the world if no action is taken and the federal government is allowed to do so unrestrained. And while there are checks and balances designed in our constitution, the constitution does not clearly give guidance upon when the citizenry should exact changes upon the government. But through other documents and writings, it can be argued that a healthy fear of abuse of our government existed at the time of its creation, and that we should keep a watchful eye for signs of those abuses as to better be able to remedy them.

Because of the existence of the amendment process, the powers transferred to the federal government by us are at best temporary, not permanent. Those powers are held in trust for us to the elected officials for whom they promised to execute in full faith to the best of their abilities and promised to preserve and protect our constitution, physical boundaries, and citizens. The trust that exists between the citizens of this country and its federal government are at the will of the American people and it is within our rights to exact limits upon or to dissolve our government should the need demand such action. Some might argue that our civil war defined the permanency of the federal government. However, it must be noted that this war was fought over the legitimacy of a state’s right to secede from the union and thus dissolving it, not the right of the American citizen from using the amendment process to dissolve it. These are two quite different perspectives and motives. And the powers given to the federal government are in fact temporary as we the citizens could deny them such powers through the amendment process should the need and circumstances warrant such action.

At the founding of our federal government, the founders of our constitution regarded and considered factions existing within the United States and how their voices were heard within our government. It was assumed that the will of the people was expressed through their elected officials and thus, their voice heard within policies and actions of the federal government. And to an extent, this still may be true. But the American citizen must consider why after so many election cycles, does it appear progress is so slow to come or their grievances, cycle after cycle, seem to go unanswered. It can also be said that the goals and objectives of citizens elected to office are at times in conflict with goals and objectives of the American citizen. Once into office, whether it is from the internal workings of government, or by conflicts of seeking the next election, the voice of the American citizen is diminished to that of a whisper. And the voice of the citizens is diminished by the monetary bequests of other factions. Those factions seek to promote their voices which are independent, minority agendas and at odds by and large with the overall will of the American citizen. And that the only avenue for the American will is the voting process, their voices are only placated to during the election season. Thus, it can be reasonable surmised that the elected officials and American citizens as a whole, separate from that of the private citizen, are unique and separate factions to be considered in the governing process. It is the election process that has given rise to the diminished voice as the elected official is more concerned about the costs of election cycles. Thus the agenda for the official is now set by the need for contributions rather than listening to the voice of the united American will and is only at risk by his district constituency whom he bribes though pork-barrel projects into his district.

The question to be answered by these writing is, “Why is now the time to be considering more than remedial changes to the federal government?” It has happened time and again that changes when agreed upon were exacted through the amendment process and that such goals were clear and defined. The reasons for these amendments were needed out of social injustices that occurred or to further define powers of certain offices or actions to be taken in the course of certain events. The reasons for these amendments exist because of discrepancies or vagueness in our constitution that gives rise to fault or abuse of our federal government. And over the past one hundred years, we can now look at what events have occurred and can see with more clarity and certainty overall weaknesses within our government. And that now is the time to thoughtfully consider with the utmost sincerity and objectivity, more than remedial changes to our government. That in fact, certain events and patterns within our federal government are now known to us and to ignore these events and patterns are done so at our own imperil. And it is with this in mind that charges and reforms against the government should be levied and acted upon by the American citizens.

Vox Vocis Res Publica