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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.

The Declaration of Independence[1]

 [Hi! This is Larry, and I’m taking over because I have a beef about how people, even intelligent ones, talk about the Constitution[2] of these United States. It’s supposed to be the supreme law of this land[3], but, to hear them tell it, it’s actually a collection of opinions, many of which contradict what’s actually written in the document with that name. The true pinheads reduce the Constitution to a few words, like those quoted above, taken from the Declaration of Independence which, of course, isn’t the Constitution, and then proceed to lecture us about what’s good or bad. And they do it all without getting into any details, fussy legalities or decided cases relevant to whatever issue they’re ranting about.

 I’ll get into the argument soon enough, but first, on a related topic, let’s talk about my trip to the dermatologist. I went because I had a problem, i.e., a recurrence of unsightly but not malignant growths on my face and upper body. The standard treatment for that is to freeze the little monsters, which the doctor did, to my great discomfort. The side effect is, once the treatment’s over, the affected areas tend to swell, discolor, etc., for a while, until they clear up and heal. So looking for some sympathy I said to the doctor: “I’m sure all this is worth the trouble; it’s been so in the past; but when it’s all over, will I be beautiful again?”

“No,” he said: “That would require a head transplant, which we don’t do here.  And if we did one, we’d have to follow it in a year or so with a body transplant to finish the job.” My medical plan won’t cover that kind of thing, so I gave up. Perhaps when the Republicans are done reforming the Affordable Care Act I’ll be able to buy insurance to cover transplants like that, but the deductible, no doubt, will be at least a million dollars. I probably won’t have that kind of spare change then, either.

But the doctor and I might have stumbled onto the solution to something I’ve noticed more and more with the mainstream media. Today’s pundits, commentators, etc. seem a bit old and set in their ways. Perhaps they’re not really up to coping with history in motion. Now big guns in the media have contracts, good ones for sure, so they can’t just be thrown out on the street. [That’s something only you and I have to worry about.] But no doubt they have medical plans – also very good – so why not send some elderly news hounds in for head transplants? If the employer springs for a body transplant the next year, it could have a whole new pundit in relatively short order. That might be more cost effective than firing expensive talent and paying them tens of millions of dollars in breach-of-contract damages simply to make them go away. And it should improve the TV experience for those of us who still watch it.

But enough of that! Let’s get back to the U.S. Constitution, and how it’s really its own thing, rather than a collection of odd quotes from other documents. There are a few basics that everybody should remember.]

 The Declaration of Independence is Not Our Constitution

  1. And our Constitution is not the Declaration of Independence. The Declaration was ratified on July 4, 1776[4] and basically stated the case for 13 English Colonies in North America to secede from England and the control of King George III.
  2. This was followed in 1777 by Articles of Confederation, which established a weak central government to manage the Colonies’ affairs, including the war with England.[5] The Articles were adopted by the Continental Congress on November 15, 1777 and effectively served as the first constitution of the United States. They were in force from March 1, 1781 until 1789, when the present Constitution took over.
  3. The currently operative Constitution was drafted and reported out of its Constitutional Convention on September 17, 1787, and adopted by 11 states by 1788. It went into force on March 4, 1789, and was accepted by all 13 of the former colonies by 1790.[6]The Constitution has been amended 27 times.[7]

The Declaration is Inspired but Confusing

  1. The Declaration starts on a grand note, stating that “all men are created equal.” But what does that mean? Does it mean that all men [and women] are identical? Probably not, although babies do tend to look pretty much alike. Does it mean that all babies, when they grow up, will have the same abilities, skills, intelligence or just plain luck in their lives? Probably not. There doesn’t seem to be much scientific evidence that that’s the case, something no doubt even the signers of the Declaration knew.
  2. So does it mean that all men [and women] are equal because the Creator has given us the same “unalienable rights”? Perhaps. So what are those rights? Well, they’re not all listed, but three are: the rights to “Life,” to “Liberty” and to pursue “Happiness.”
  3. If everybody has a right to Life, then how can one justify the death penalty for anything? Or, for that matter, pre-emptive war, abortion, or any sport activity that might be dangerous? And what happens when one’s right to Life infringes on someone else’s rights, say the right to Liberty?
  4. Liberty is a very big thing in some circles. Higher taxes for high earners are resisted in some quarters because, guess why? Because they take money from one group to provide services to another. “Taking my money, or property, is the same as taking my Liberty!” That’s what some people say. So how should we choose between the unalienable rights the Creator has given to all of us? Does one person’s right to Life outweigh another’s right to Liberty, and if so, when? Should the wealthier among us pay for medical care for the poor, so that poor people might enjoy their right to Life a bit longer?
  5. Well, what about everybody’s right to “pursue” Happiness? That one’s easier to understand, I think. We all have a right to “pursue” it, but no one is guaranteed to succeed. On the other hand, suppose the poor complain that their paths to Happiness are obstructed by barriers created by the rich. Why is college so expensive these days? Not because it’s so much better than, say, 50 years ago. Rather, it’s expensive mostly to keep out the riffraff. So is there something that needs to be done about that? How about scholarships for special classes of people? How do they ensure that everybody has a fair shot at Happiness?
  6. Here’s where people who like the Declaration of Independence as a constitution might have a problem. While the Declaration prizes Liberty, it likes Life and Happiness as well. And it says that Governments exist “to secure [all] these rights…” for the people. So perhaps Government is there to arbitrate disputes, as between the rich and the poor, etc. Pure Libertarians probably won’t like that idea.

The Declaration Never Was Incorporated into Our Constitution

  1. I looked, and I can’t find any cross reference between the Declaration of Independence of 1776 and the Constitution of 1789. The 1789 document doesn’t expressly incorporate the earlier one by reference nor, I would argue, does it do that by implication. Indeed, it’s perfectly clear that those who set up our Government really hadn’t fully bought into the notion that “all men are created equal.”
  2. For example, under the Articles of Confederation, drafted immediately after the Declaration, not all inhabitants of the member states had the same rights. To enjoy the privileges and immunities of a free citizen one had to be, well, free; that is, not a slave. Also one had to be not a “pauper, vagabond or fugitive from justice.”[8] If you were in any one of those disfavored categories, you definitely were shortchanged as to Liberty.
  3. And the problem of slavery continued under the Constitution of 1789, until – 70+ years later – it was resolved by a bloody and violent civil war and a Constitutional Amendment. The 13th Amendment says: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” [9] That, not the Declaration of Independence, put an end to lawful slavery in this country.

Conclusion

The next time someone lectures you about our Constitution and “unalienable” rights, escape as soon as possible. And if he [or she] chases you down again, don’t buy any bridges or gold bricks to make him/her go away. Vitamins might be OK to buy; you might just get what you pay for.

But the gold bricks are almost certainly phony. And if someone claims to own a bridge that’s for sale, I’ll bet they can’t produce a clear title to prove it, These are scams, in my opinion.

Just remember, you don’t have to buy things just because the sales persons are loud!

 

 

[1] You can get transcripts of the Declaration of Independence, the United States Constitution and the Bill of Rights direct from the National Archives, at https://www.archives.gov/founding-docs/constitution . These are transcripts made by or for the custodian of those documents, so presumably they are accurate. And the price is right. They’re free.

[2] That’s the U.S. Constitution. See n. 1 for a transcript.

[3] See U.S. Constitution, Article VI: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

[4] The text was completed on July 2 and ratified on July 4, 1776. Wikipedia has a pretty good discussion of the politics and procedures in play at that time. See the Wikipedia entry at https://en.wikipedia.org/wiki/United_States_Declaration_of_Independence .

[5] See Articles of Confederation (November 15, 1777, effective March 1, 1781), available at https://www.ourdocuments.gov/doc.php?flash=false&doc=3 .  The Articles were adopted by the Continental Congress on November 15, 1777, after considerable debate. This document served as the United States’ first constitution, and was in force from March 1, 1781, until 1789 when the present day Constitution went into effect.  Dates are provided courtesy of the National Archives web site.

[6] Wikipedia has a somewhat muddled explanation of the process at https://en.wikipedia.org/wiki/United_States_Constitution#1788_Ratification .

[7] The first 10 amendments are the so-called “Bill of Rights.” The remaining 17 are just that. They don’t have a collective name. You can find transcripts of all of them by rummaging around in the National Archives web site. See n. 1.

[8] See Articles of Confederation at Article IV: “The better to secure and  perpetuate mutual friendship and intercourse among the people of the different states in this union, the free inhabitants of each of these states, paupers, vagabonds and fugitives  from Justice excepted, shall be entitled to all privileges and immunities of free citizens in the several states;  and the people of each state shall have free ingress and regress to and from any other state, and shall  enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions and  restrictions as the inhabitants thereof respectively, provided that such restrictions shall not extend so far as  to prevent the removal of property imported into any state, to any other State of which the Owner is an  inhabitant; provided also that no imposition, duties or restriction shall be laid by any state, on the property  of the united states, or either of them.”

[9] See U.S. Constitution at Amendment 13 (passed by Congress on January 31, 1865; ratified on December 6, 1865). See n. 1.

 

[I’ve been watching the news for the last week and trying not to write a blog about it. Goodness me! It has been hard! The Benghazi “cover-up” is back[1], the IRS was targeting conservatives[2], the Secretary of HHS is accused of soliciting contributions from people she will regulate[3], sex is a problem in the military[4], and the FBI wire-tapped the Associated Press![5] And it’s only May! What will we talk about when the dogs bark in August?]

Of course, there are opinions here at Elemental Zoo about what’s really going on – lots of them – but even the most dedicated agree that, right now, hard facts are elusive. Only ideologues and fools pretend to know the real stories. The rest of us wait for more information, i.e., for reports the Government’s investigators, our worthy legislators or the news media will develop over the next few months. As the old proverb goes, “Look before you leap.[6]

So we’re looking, not leaping. But some other media types are hopping around quite a bit – they’re developing a narrative to tie all the current stories together into one big ball of wax. And what might that narrative be? Why, Nixon, Watergate and Impeachment. And it’s not surprising that they think this way, either.

First, let’s have some context. Our Constitution provides “The President … shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”[7]So far as I know, that’s the only process we have. Impeach the President in the House of Representatives, and then convict him in the Senate of the offense(s) alleged by the House.

It’s not easy to remove a Chief Executive for “high Crimes and Misdemeanors;” in fact it’s never been done. Andrew Johnson, Lincoln’s successor, and Bill Clinton were impeached, but each beat his charges in the Senate trial.[8] What about Richard Nixon? Well, strictly speaking he wasn’t impeached; he heard it was coming and resigned before the House voted; so, of course, he also wasn’t tried in the Senate.[9] There was no indictment and no conviction.

Let’s get back to our original question.  Why do people today still talk about the Nixon Impeachment even though, technically, there wasn’t one? Well, and this is speculation, probably because that was the only time a President ever resigned on the spot because of a media frenzy. It was a unique event, and I’ll bet ambitious young reporters would love to repeat the experience, if possible. So they obsess over all possible scandals and buzz on about Watergate.

Don’t get excited. After all, it’s only my opinion. But if I’m right, I guess we have to look at the Nixon experience, draw what lessons we can and apply them today. The press won’t have it any other way. Of course, that would be a major project for an historian, probably involving a lifetime of research. But luckily Elemental Zoo is a blog, not a history project. So we’re going to take a shortcut, for the sake of the discussion.

What shortcut? Why not look at some original documents from that 40 year old battle? Why not examine the Articles of Impeachment that were prepared at the time, but ultimately not used against President Nixon? Arguably they provide a pretty good executive summary of the Congress’ grievances against him. And, they’re readily available, even today. [10]

There were three Articles. The central point in each of them was that the President swore to “preserve, protect and defend” the Constitution of the United States;[11] and under the Constitution must “take care that the laws be faithfully executed.[12]” But, for various reasons, President Nixon broke this oath and violated his duty to ‘faithfully execute” the laws. Or so it was said.

Article 1.

The first dealt with the campaign year of 1972, and illegal activities by Nixon’s Committee for the Re-election of the President (CRP). At one point CRP broke into DNC headquarters in Washington, D.C., looking for “political intelligence.”[13] President Nixon wasn’t charged with the break-in; nobody argued he set it up. But, according to Article 1, he did take an active role in concealing it and “other unlawful covert activities.”

Specifically, he did “one or more” of the following: made false or misleading statements to investigators; withheld relevant and material evidence; counseled witnesses to lie; interfered with DOJ investigations; authorized or approved “hush money” to witnesses; or “[made] or [caused] to be made false or misleading public statements for the purpose of deceiving the people of the United States.[14]

Article 2

There was more. In addition to blocking the Watergate investigation,[15] it was said, he misused the IRS to (i) obtain taxpayer information for political purposes, and (ii) conduct investigations and audits in a discriminatory manner.[16]

He also misused the FBI to conduct electronic surveillance ”for purposes unrelated to national security;”[17] maintained a “secret investigative unit” in the White House that was unauthorized by law; and used CIA assets to engage in “covert and unlawful” activities.[18]

Article 3

Finally, the President refused to comply with subpoenas issued by the House in its impeachment investigation. He failed “without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas issued by the Committee on the Judiciary of the House of Representatives on [numerous occasions] and willfully disobeyed such subpoenas.”[19]

In so doing he substituted his judgment for that of the House of Representatives, “thereby assuming to himself functions and judgments necessary to the exercise of the sole power of impeachment vested by the Constitution in the House of Representatives.”[20]

What about Tomorrow?

So the three Articles, taken together, portrayed President Nixon as a very bad boy. Assume for a moment that, in 2016, Republicans take control of the Senate and keep their majority in the House. If control of the Congress flips to the Republicans, and Conservatives continue to strangle GOP management, might we see a Watergate II style offensive against Barrack Obama? Who knows?

OK, let’s get back to a question that’s more answerable. Suppose Conservatives get serious about trying to impeach President Obama. What lessons from the Nixon Impeachment proceedings still apply today? I can think of three.

  • Articles of Impeachment must originate in the House of Representatives. If the House wants to impeach Barrack Obama, it must first investigate. So, expect to see a blizzard of subpoenas from that quarter, asking for everything, relevant and irrelevant, having to do with Barrack Obama. Who knows, perhaps they might request all documents related to the President’s birth certificate. Anyway, expect the Administration to resist some of the subpoenas, and the House to take exception to any such resistance. Relying on Article 3, discussed above, the House will say that it has the “sole power” of impeachment, and will determine what’s relevant, and what isn’t. In this matter the President can’t substitute his judgment for that of the House. Or so the Speaker will say.
  • It’s not good to misuse the IRS. As Article 2 demonstrates, it was a very sensitive institution back in 1972, and that hasn’t changed. Everybody – and I mean reporters, investigators and citizens – will be looking at this story as it develops. And the principle question? Who in the White House knew about the goings-on at the IRS, and when did they know. Theoretically if a Chief Executive knows about illegal activity in his Administration, he should put a stop to it. That comes under the heading of taking care “that the laws be faithfully executed.”
  • It’s not the offense, it’s the “cover up” that can be the most dangerous. Most of the charges against President Nixon, at least with respect to Article 1, fell in the area of “obstruction of justice.” You know, lying, advising others to lie, concealing evidence, that sort of thing. What’s the best rule when the investigators are running around in your office, grabbing documents and asking questions? Hire your own lawyers, follow their advice, and don’t interfere.

Hopefully this is all just idle speculation. But as the saying goes, “If you don’t speculate, you can’t accumulate,”[21] or, in this case, defend yourself.


[1] See ABC News, Cass, A Look at Why the Benghazi Issue Keeps Coming Back (May 20, 2013) at http://abcnews.go.com/Politics/wireStory/benghazi-issue-coming-back-19214412

[2] See The Washington Post, O’Keefe, IRS  scandal focus of Senate Hearing (May 21, 2013) at http://www.washingtonpost.com/politics/irs-scandal-focus-of-senate-hearing/2013/05/21/ce4ccad4-c190-11e2-8bd8-2788030e6b44_story.html

[3] See Thomson Reuters, Newsmax, Republicans See New Scandal in Sebelius Fundraising (May 21, 2013) at http://www.newsmax.com/Newsfront/sebelius-obamacare-fundraising/2013/05/21/id/505508

[4] See The Californian, Editorial, Military sex crimes must end (May 2013) at http://www.thecalifornian.com/article/DN/20130521/OPINION01/305210020/Military-sex-crimes-must-end

[5] See Newton Daily News, Editorial, AP wiretapping is a serious overstep by government (May 17. 2013) at http://www.newtondailynews.com/2013/05/17/ap-wiretapping-is-a-serious-overstep-by-government/adlwx8l/

[6] See Oxford Dictionary of Quotations (6th edition) (Oxford, 2004) at Proverbs, p. 625, n. 39. It’s not a new idea. It’s from the 14th Century. Henceforth, the Dictionary will be cited as ODQ at __.

[7] See Transcript of Constitution of the United States (1787), Art. II, Sec. 4 at http://www.ourdocuments.gov/doc.php?doc=9&page=transcript You can download a copy from the Government Printing Office; just go to http://www.gpo.gov/fdsys/search/pagedetails.action?granuleId=CDOC-110hdoc50&packageId=CDOC-110hdoc50

[8] If you want to know more about impeachment in general, Wikipedia has an interesting discussion, although it is a work in progress. Just go to the Wikipedia website and search Impeachment in the United States, or simply click here: http://en.wikipedia.org/wiki/Impeachment_in_the_United_States

[9] If you want to know more about President Nixon, Wikipedia has a reasonably thorough article. To see it, click here: http://en.wikipedia.org/wiki/Richard_Nixon

[10] These are the Articles adopted by the House Judiciary Committee on July 27, 1974. They’re available at Watergate.info, http://watergate.info/impeachment/articles-of-impeachment  Henceforth, they’ll be cited as Articles of Impeachment, at Article __.)

[11] See Transcript of Constitution of the United States (1787), Art. II, Sec. 1: “Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:–“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” See note 7 for the online version.

[12] See Transcript of Constitution of the United States (1787), Art. II, Sec. 3. See note 7 for the online version.

[13] See Articles of Impeachment at Article I, intro. This is, of course, the famous Watergate break in. If you want to know more about that, see the Wikipedia entry entitled “Watergate scandal,” at http://en.wikipedia.org/wiki/Watergate_scandal

[14] See Articles of Impeachment at Article I, §§ 1 – 9.

[15] See Articles of Impeachment at Article II, §§ 4 & 5.

[16] See Articles of Impeachment at Article II, § 1.

[17] See Articles of Impeachment at Article II, § 2.

[18] See Articles of Impeachment at Article II, § 3.

[19] See Articles of Impeachment at Article III.

[20] See Articles of Impeachment at Article III.

[21] See ODQ at Proverbs, p. 623, n. 16.