THE UNCONSTITUTIONALITY of the 14th AMENDMENT: When Will the Truth Finally Come Out?

by Diane Rufino, 2014- January 19, 2023

This article is about the Fourteenth Amendment – the amendment directly responsible for the cruel Reconstruction era and restructuring of the defeated Southern states. The amendment is so controversial and so questionable, and is most frequently used as the legal basis for constitutional and civil rights challenges.

This is a very long and a very well-researched article, and so I’m presenting the material in several distinct sections, offering a lot of historical evidence and plenty of reason:


I – Introduction & Overview

II – Presentation to Congress of State Disapproval of the Amendment (from the Congressional Record),

III – Joint Resolution Proposing the Amendment Ineffective

IV – The Unconstitutional Congress (short excerpt from a treatise by Judge Leander H. Perez)

V – The Amendment Goes to the Court

VI – The Unconstitutionality of the Fourteenth Amendment (by Judge Leander H. Perez)

VII – The Constitution Strikes the 14th Amendment With Nullity

I.  INTRODUCTION & OVERVIEW —

In 1957, David Lawrence wrote an article in U.S. News & World Report in which he wrote that there is a “mistaken belief that there is a valid article in the Constitution known as the Fourteenth Amendment.”  In a brief overview of the history – the “fuzzy haze” of history that surrounded the Civil War and Reconstruction – he concluded that no such amendment was ever legally ratified by three fourths of the States of the Union as required by the Constitution itself.  There were 37 States in the Union at the time, so ratification by at least 28 was necessary to make the amendment an integral part of the Constitution.  But only 21 States legally ratified it. So it failed of ratification.  Nevertheless, on July 28, 1868, William Seward, the US Secretary of State issued a proclamation certifying the ratification of the 14th Amendment by the states.  President Andrew Johnson expressed doubt that the amendment was legitimate because of the Reconstruction process put in place to force and coerce the defeated southern states into ratifying it.

On April 9, 1865, the Civil War ended on a quiet field at Appomattox, Virginia.  General Robert E. Lee surrendered his remaining 28,000 confederate troops to northern General Ulysses S. Grant.  Six days later, on April 15, President Lincoln died from an assassin’s bullet.  In keeping with his wishes for a peaceful re-building of the Union (“With malice toward none, with charity for all, with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in, to bind up the nation’s wounds…”), President Andrew Johnson issued a Proclamation of Amnesty to former rebels and then established provisional governments in all the southern states.  They were instructed to call Constitutional Conventions, which they did.  New State governments were elected and quickly became functional. By presidential proclamation, the states were deemed to have duly-constitued governments with all the powers which belong to free states of the Union. So by 1865, the southern states were readmitted to the Union. They were restored to their “constitutional relationship with the federal government.” Or so it seemed.

While the newly and duly-constituted state governments of the South selected their senators and representatives,   when they appeared at the opening of Congress in 1866 to take their seats, they were refused admission. Each House of Congress excluded all legally-selected representatives from the ten Southern States of Virginia, North Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, Arkansas and Texas. Note, however, that the State governments, however, continued to function during that time.  While the Southern states were part of the Union and subject to all its laws, they would be denied representation in the government that made those laws.  (Remember what stirred the hearts and minds towards their independence – “No Taxation Without Representation!”).

Perhaps the reason the representatives were denied their seats was because of the opposition they would have presented to Congress’ plans to advance the civil rights of newly-liberated blacks.  In 1866, Congress passed the Civil Rights Act which had its roots in the Emancipation Proclamation but went further – to reinforce the grant of freedom to blacks and counter the discriminatory codes that the South had already put in place. With the radical Republicans in power and the southern democrats excluded, the bill passed.  But President Johnson tried to veto it.  In his veto message he argued that Congress lacked the constitutional authority to enact the bill because “eleven of the thirty-six States are unrepresented in Congress at the present time.” Johnson also made clear, however, that he rejected the very idea of federal protection of civil rights for blacks, arguing that such a practice would represent a “disturbing move toward centralization and the concentration of all legislative powers in the national government.”  He also objected to the Act on the grounds that it established “for the security of the colored race safeguards which go infinitely beyond any that the general government has ever provided to the white race. In fact, the distinction of race and color is by the bill made to operate in favor of the colored and against the white race.”  

The radical Republicans were able to over-ride Johnson’s veto with no problem. Then they decided to enshrine the Civil Rights Act into an amendment – the Fourteenth Amendment – to remove all doubt about Congress’ power to pass this sort of protective legislation and to remove it from the threat of legal challenge. The Fourteenth Amendment was proposed by Congress (as Resolution 48) – first by the Senate and then the House – on June 13, 1866. 

Article V of the US Constitution sets forth the precise process for legally amending the Constitution.  The pertinent section reads: “Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution…which… shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States…”  The amendment process, therefore, is a two-step process.  Congress takes the first step, which is the proposal and then its submission to the states. The next step – the ratification – is up to the States.  When at least 3/4 of the states ratify the proposed amendment in their respective legislatures, the amendment is legally adopted and becomes valid. 

The entire amendment process, with respect to the 14th Amendment, was fraught with constitutional violations. 

First of all, the Congress which proposed the amendment was an illegitimate one. Representatives from ten southern states were not seated.  President Johnson referred to the Congress as a “rump” Congress – an illegitimate or unconstitutional one – because of that reason. Using the provision listed in the Constitution – Article I, Section 5 – that “Each House shall be the judge of the Elections, Returns and Qualifications of its own Members…” –  each House of Congress excluded the representatives from the Southern states, even though they were legally selected, had proper credentials, and the states were functioning with duly-constitued governments and recognized, by presidential proclamation, as having all the powers which belong to free states of the Union.        This exclusion, through the exercise of an unreviewable constitutional prerogative, constituted a gross violation of the essence of two other constitutional provisions – Article V which states that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate” and Article I, Section 2 which provides that “each State shall have at least one Representative…”  Both of these provisions are intended to protect the rights of the States to representation in Congress.

Even disregarding this technicality, however, when the vote of those who were seated as part of the House at the time – they were 184 representatives in number – only 120 voted in favor of the resolution. Two thirds of the 184 would have required 123 to vote in favor. In spite of the failure to get sufficient votes to constitutionally pass the resolution, the leadership of Congress arbitrarily declared the Resolution passed.

Congress then deliberately submitted this illegitimate amendment proposal to the then existing legislatures of the several States.  Not surprisingly, it was rejected by all but one of the southern states and all of the so-called “border” states, and so it was soundly defeated.  Note that initially, Iowa and Massachusetts also rejected it.   The radicals had only 21 ratifications of the 28 needed. (As mentioned earlier, there were 37 states in the Union at the time, so at least 28 needed to ratify in order to meet the “3/4” constitutional requirement for ratification).. So it failed of ratification. What were they to do?

Turns out that the ambitious radical Republicans weren’t about to be defeated in their plans. Already by year 1865, the government’s “open arms” policy was replaced by a desire to punish the South – for its secession, for the economic toll the war took on the northern states, and for the assassination of beloved President Lincoln by southern sympathizer John Wilkes Booth.  And so, they still had other maneuvers planned.

And so, in 1867, the radical Republicans in Congress passed the Reconstruction Acts of 1867, which essentially put the South under military rule and forced their conduct.  The official title of the legislation (4 statutes) was “An act to provide for the more efficient government of the Rebel States” and it was passed on March 2, 1867.  Fulfillment of the requirements of the Acts were necessary for the former Confederate States to be readmitted to the Union. President Johnson vetoed them but they were passed over his veto.  In the Senate, the Reconstruction Acts were amended in such fashion that any State could escape from military rule and be restored to its full rights if it drafted a suitable new state constitution (which would have to be approved by Congress), ratified the Fourteenth Amendment, and permitted blacks to vote. (The Reconstruction Acts excluded Tennessee, which had already ratified the 14th Amendment and had been readmitted to the Union). 

In challenging the constitutionality, President Andrew Johnson said in his veto message: “I submit to Congress whether this measure is not in its whole character, scope and object without precedent and without authority, in palpable conflict with the plainest provisions of the Constitution, and utterly destructive of those great principles of liberty and humanity for which our ancestors on both sides of the Atlantic have shed so much blood and expended so much treasure.”

This incredible abuse of Congressional power abolished the legal governments of all ten of the southern States which had refused to ratify the 14th Amendment and placed all of them under military dictatorship. The northern generals placed in command of these dictatorships were required by the Reconstruction Act to prepare the “rolls of voters” for conventions which would formulate governments acceptable to Congress. Anyone who had served in the Confederate Army was denied the right to vote or to hold office – in spite of presidential proclamations by both Lincoln and Johnson granting amnesty to southern veterans who would swear allegiance to the U.S.  The Reconstruction Act provided that when these “new” legislatures ratified the 14th Amendment they would be admitted to the union.

In other words, for purposes representation in the government, the Congress considered the Southern states OUT of the Union. But for purposes of getting the 14th Amendment ratified, the Congress considered the states IN the Union.  Yet if they refused to ratify it, they were again treated as OUT of the Union until they did so.  

By July 9,1868, Iowa and Massachusetts and six of the “reconstructed” states had ratified this 14th Amendment which would have added 8 states to the original 21 states for a total of 29 ratifications. South Carolina and Louisiana were the last states to approve the amendment to achieve the necessary 3/4 majority. However, the legislators of two northern states – Ohio and New Jersey – were so offended by the dubious manner in which this amendment was being forced through that they had ”withdrawn” their earlier assent.  (In retaliation, a legislator from New Jersey was unseated by the members of Congress). Accordingly, on July 20, 1868, Secretary of State William Seward certified that the amendment had become a part of the Constitution if the said withdrawals were ineffective. On July 21, however, Congress passed a joint resolution declaring the amendment a part of the Constitution and directing the Secretary to promulgate it as such. And so on July 28, Secretary Seward certified without reservation that the amendment was a part of the Constitution.  [Note that in the interim, two other States, Alabama (on July 13) and Georgia (on July 21, 1868) ratified the amendment].

Johnson proved to be such a political obstacle that Congress tried – almost successfully – to impeach and remove him from office in February of 1868.  He was able to remain in office due to a single vote. When a challenge was brought against the constitutionality of the 14th Amendment – in Ex Parte McCardle (1868), as will be discussed later – Congress quickly engaged in some sleight of hand.  They passed a bill on February 5, 1867 (Section 2 of the 39th Congress, Session II)  removing jurisdiction from the Supreme Court to hear appeals of habeas corpus from Circuit Courts.  As the Court wrote: “It is quite clear, therefore, that this court cannot proceed to pronounce judgment in this case, for it has no longer jurisdiction of the appeal, and judicial duty is not less fitly performed by declining ungranted jurisdiction than in exercising firmly that which the Constitution and the laws confer.”

The federal legislature during the Reconstruction Era had run amok and was threatening both the Executive and the Judiciary.  And these are just a few arguments against the constitutionality of the 14th Amendment.

The American people have been hoodwinked with the 14th Amendment.

While the 14th Amendment is clearly not legitimate, we have to ask ourselves what does this gross violation of the US Constitution mean.  We all know that the federal courts will not likely give consideration to this issue of the constitutionality of the 14th Amendment.  The Supreme Court and inferior courts have used the 14th Amendment for years and in all kinds of situations to assume powers without limit or reserve, and most importantly, to usurp powers from the States and from the People. 

This review will center on a treatise by Judge Leander H. Perez, of Louisiana, which addresses the unconstitutionality of the Fourteenth Amendment, based upon the most comprehensive research and documentation of every angle in the unlawful procedures involved in its purported adoption.  The reason this treatise is so important, aside from its research and its annotations, is because it was presented to the US Congress to have official notice taken of its arguments.

The presentation to Congress and the treatise are presented below.

II. PRESENTATION TO CONGRESS OF STATE DISAPPROVAL OF THE AMENDMENT

From the US Congressional (House) Record of June 13, 1967; H7161 (House Record, pp. 15641-15646) 

[Mr. Rarick of Louisiana (at the request of Mr. Pryor, the US House Pro Tem) was granted permission to extend his remarks on the issue of the constitutionality of the 14th Amendment in the Record and to include extraneous matter.)]

Mr. Rarick (of Louisiana):  “Mr. Speaker, arrogantly ignoring clear-cut expressions in the Constitution of the United States, the declared intent of its drafters notwithstanding, our unelected Federal judges read out prohibitions of the Constitution of the United States by adopting the fuzzy haze of the 14th Amendment to legislate their personal ideas, prejudices, theories, guilt complexes, aims, and whims. 

      Through the cooperation of intellectual educators, we have subjected ourselves to accept destructive use and meaning of words and phrases. We blindly accept new meanings and changed values to alter our traditional thoughts.

       We have tolerantly permitted the habitual misuse of words to serve as a vehicle to abandon our foundations and goals. Thus, the present use and expansion of the 14th Amendment is a sham – serving as a crutch and hoodwink to precipitate a quasi-legal approach for overthrow of the tender balances and protections of limitation found in the Constitution.

       But, interestingly enough, the 14th Amendment – whether ratified or not – was but the expression of emotional outpouring of public sentiment following with war Between the States.  Its obvious purpose and intent was but to free human beings from ownership as a chattel by other humans. Its aim was no more than to free the slaves.

      As our politically appointed Federal judiciary proceeds down their chosen path of chaotic departure from the peoples’ government by substituting their personal law rationalized under the 14th Amendment, their actions and verbiage brand them and their team as secessionists – rebels with pens instead of guns – seeking to divide our Union.

      They must be stopped.  Public opinion must be aroused. The Union must and shall be preserved.

      Mr. Speaker, I ask to include in the Record, following my remarks, House Concurrent Resolution 208 of the Louisiana Legislature urging this Congress to declare the 14th Amendment illegal. Also, I include in the Record an informative and well-annotated treatise on the illegality of the 14th Amendment – the play toy of our secessionist judges – which has been prepared by Judge Leander H. Perez of Louisiana (entitled “The Unconstitutionality of the 14th Amendment”).

The material referred to follows:

Louisiana House Congressional Resolution 208:

A concurrent resolution to expose the unconstitutionality of the 14th Amendment to the Constitution of the United States; to interpose the sovereignty of the State of Louisiana against the execution of said amendment in this State; to memorialize the Congress of the United States to repeal its joint resolution of July 28, 1868, declaring that said amendment had been ratified; and to provide for the distribution of certified copies of this resolution

Whereas the purported 14th Amendment to the United States Constitution was never lawfully adopted in accordance with the requirements of the US Constitution because:

(i) eleven states of the Union were deprived of their equal suffrage in the Senate in violation of Article V, when eleven southern states, including Louisiana, were excluded from deliberation and decision in the adoption of the Joint Resolution proposing said 14th Amendment;

(ii)  said Resolution was not presented to the President of the United States in order that the same should take effect, as required by Article I, Section 7;

(iii)  the proposed amendment was not ratified by 3/4 of the states, but to the contrary, fifteen states of the then thirty-seven states of the Union rejected the proposed 14th Amendment between the dates of its submission to the states by the Secretary of State on June 16, 1866 and March 24, 1868, thereby nullifying said Resolution and making it impossible for ratification by the constitutionally-required 3/4 of such states;

(iv)  said southern states which were denied their equal suffrage in the Senate had been recognized by proclamations of the President of the United States to have duly-constitued governments with all the powers which belong to free states of the Union, and the Legislatures of seven of said southern states had ratified the 13th Amendment which would have failed of ratification but for the ratification of said seven southern states; and

Whereas, the Reconstruction Acts of Congress unlawfully overthrew their existing governments, removed their lawfully-constituted legislatures by military force and replaced them with rump legislatures which carried out military orders and pretended to ratify the 14th Amendment;  and

Whereas, in spite of the fact that the Secretary of State in his first proclamation, on July 20, 1866, expressed doubt as to whether 3/4 of the required states had ratified the 14th Amendment, Congress nevertheless adopted a resolution on July 28, 1868, unlawfully declaring that 3/4 of the states had ratified the 14th Amendment and directed the Secretary of State to so proclaim, said Joint Resolution of Congress and the resulting proclamation of the Secretary of State included the purported ratifications of the military-enforced rump legislatures of ten southern states whose lawful legislatures had previously rejected said 14th Amendment, and also included purported ratifications by the legislatures of the States of Ohio and New Jersey although they had withdrawn their legislative ratifications several months previously, all of which proves absolutely that said 14th Amendment was not adopted in accordance with the mandatory constitutional requirements set forth in Article V of the Constitution and therefore the Constitution itself strikes with nullity the purported 14th Amendment. 

How therefore, be it resolved by the Legislature of Louisiana, the House of Representatives and the Senate concurring:

      (1)  That the Legislature go on record as exposing the unconstitutionality of the 14th Amendment, and interposes the sovereignty of the State of Louisiana against the execution of said 14th Amendment against the State of Louisiana and its people;

      (2)  That the Legislature of Louisiana opposes the use fo the invalid 14th Amendment by the Federal courts to impose further unlawful edicts and hardships on its people;

      (3)  That the Congress of the United States be memorialized by this Legislature to repeal its unlawful Joint Resolution of July 28, 1868, declaring that 3/4 of the states had ratified the 14th Amendment to the US Constitution;

       (4)  That the Legislatures of the other states of the Union be memorialized to give serious study and consideration to take similar action against the validity of the 14th Amendment and to uphold and support the Constitution of the United States which strikes said 14th Amendment with nullity; and

       (5)  That copies of this Resolution, duly certified, together with a copy of the treatise “The Unconstitutionality of the 14th Amendment” by Judge L. H. Perez, be forwarded to the Governors and Secretaries of State of each state in the Union, and to the Secretaries of the United States Senate and House of Congress, and to the Louisiana Congressional delegation, a copy hereof to be published in the Congressional Record.

                                                                        Vail M. Delony, Speaker of the House of Representatives

                                                                        C. C. Aycock, Lieutenant Governor and President of the Senate

Reference of this Record:  “The 14th Amendment: Equal Protection of the Laws or Tool of Usurpation?,” US Congressional Record – House, June 13, 1967; page 15641.  http://www.civil-liberties.com/cases/14con.html

The U. S. Constitution provides:

Article I, Section 3. “The Senate of the United States shall be composed of two Senators from each State”

Article V provides: “No State, without its consent, shall be deprived of its equal suffrage in the Senate.”

The fact that 23 Senators had been unlawfully excluded from the U. S. Senate, in order to secure a two-thirds vote for adoption of the Joint Resolution proposing the 14th Amendment is shown by Resolutions of protest adopted by the following State Legislatures:

The New Jersey Legislature by Resolution of March 27, 1868, protested as follows:

       “The said proposed amendment not having yet received the assent the three-fourths of the states, which is necessary to make it valid, the natural and constitutional right of this state to withdraw its assent is undeniable. “

       “That it being necessary by the Constitution that every amendment to the same should be proposed by two-thirds of both houses of Congress, the authors of said proposition, for the purpose of securing the assent of the requisite majority, determined to, and did, exclude from the said two houses eighty representatives from eleven states of the union, upon the pretense that there were no such states in the Union: but, finding that two-thirds of the remainder of the said houses could not be brought to assent to the said proposition, they deliberately formed and carried out the design of mutilating the integrity of the United States Senate, and without any pretext or justification, other than the possession of the power, without the right, and in palpable violation of the Constitution, ejected a member of their own body, representing this state, and thus practically denied to New Jersey its equal suffrage in the senate, and thereby nominally secured the vote of two-thirds of the said houses.” [1]

The Alabama Legislature also protested against being deprived of representation in the Senate of the U. S. Congress. [2]

The Texas Legislature by Resolution on October 15, 1866, protested as follows:

     “The amendment to the Constitution proposed by this joint resolution as article XIV is presented to the Legislature of Texas for its action thereon, under Article V of that Constitution. This article V, providing the mode of making amendments to that instrument, contemplates the participation by all the States through their representatives in Congress, in proposing amendments. As representatives from nearly one-third of the States were excluded from the Congress proposing the amendments, the constitutional requirement was not complied with; it was violated in letter and in spirit; and the proposing of these amendments to States which were excluded from all participation in their initiation in Congress, is a nullity.” [3]

The Arkansas Legislature, by Resolution on December 17, 1866, protested as follows:

“The Constitution authorized two-thirds of both houses of Congress to propose amendments; and, as eleven States mere excluded from deliberation and decision upon the one now submitted, the conclusion is inevitable that it is not proposed by legal authority, but in palpable violation of the Constitution.” [4]

The Georgia Legislature, by Resolution on November 9, 1866, protested as follows:

       “Since the reorganization of the State government, Georgia has elected Senators and Representatives. So has every other State. They have been arbitrarily refused admission to their seats, not on the ground that the qualifications of the members elected did not conform to the fourth paragraph, second section, first article of the Constitution, but because their right of representation was denied by a portion of the States having equal but not greater rights than themselves. They have in fact been forcibly excluded; and, inasmuch as all legislative power granted by the States to the Congress is defined, and this power of exclusion is not among the powers expressly or by implication, the assemblage, at the capitol, of representatives from a portion of the States, to the exclusion of the representatives of another portion, cannot be a constitutional Congress, when the representation of each State forms an integral part of the whole.”

       This amendment is tendered to Georgia for ratification, under that power in the Constitution which authorizes two-thirds of the Congress to propose amendments. We have endeavored to establish that Georgia had a right, in the first place, as a part of the Congress, to act upon the question, ‘Shall these amendments be proposed?’  Every other excluded State had the same right.

       The first constitutional privilege has been arbitrarily denied.

       Had these amendments been submitted to a constitutional Congress, they never would have been proposed to the States. Two-thirds of the whole Congress never would have proposed to eleven States voluntarily to reduce their political power in the Union, and at the same time, disfranchise the larger portion of the intellect, integrity and patriotism of eleven co-equal States.” [5]

The Florida Legislature, by Resolution of December 5, 1866, protested as follows:

      “Let this alteration be made in the organic system and some new and more startling demands may or may not be required by the predominant party previous to allotting the ten States now unlawfully and unconstitutionally deprived of their right of representation to enter the Halls of the National Legislature. Their right to representation is guaranteed by the Constitution of this country and there is no act, not even that of rebellion, can deprive them of its exercise.” [6]

The South Carolina Legislature by Resolution of November 27, 1866, protested as follows:

      “Eleven of the Southern States, including South Carolina, are deprived of their representation in Congress. Although their Senators and Representatives have been duly-elected and have presented themselves for the purpose of taking their seats, their credentials have, in most instances, been laid upon the table without being read, or have been referred to a committee, who have failed to make any report on the subject. In short, Congress has refused to exercise its Constitutional functions, and decide either upon the election, the return, or the qualification of these selected by the States and people to represent us. Some of the Senators and Representatives from the Southern States were prepared to take the test oath, but even these have been persistently ignored, and kept out of the seats to which they were entitled under the Constitution and laws.

      Hence this amendment has not been proposed by ‘two-thirds of both Houses’ of a legally constituted Congress, and is not, Constitutionally or legitimately, before a single Legislature for ratification.” [7]

The North Carolina Legislature protested by Resolution of December 6, 1866 as follows:

       “The Federal Constitution declares, in substance, that Congress shall consist of a House of Representatives, composed of members apportioned among the respective States in the ratio of their population, and of a Senate, composed of two members from each State. And in the Article which concerns Amendments, it is expressly provided that ‘no State, without its consent, shall be deprived of its equal suffrage in the Senate.’ The contemplated Amendment was not proposed to the States by a Congress thus constituted. At the time of its adoption, the eleven seceding States were deprived of representation both in the Senate and House, although they all, except the State of Texas, had Senators and Representatives duly elected and claiming their privileges under the Constitution. In consequence of this, these States had no voice on the important question of proposing the Amendment. Had they been allowed to give their votes, the proposition would doubtless have failed to command the required two-thirds majority.

       If the votes of these States are necessary to a valid ratification of the Amendment, they were equally necessary on the question of proposing it to the States; for it would be difficult, in the opinion of the Committee, to show by what process in logic, men of intelligence could arrive at a different conclusion.” [8]

[NOTE: Remember the protest that inspired the colonies to separate from Great Britain: “No Taxation Without Representation.” The sentiment behind that protest was that the colonists, as British subjects, should not be subject to laws pronounced by a government body that did not allow them representation.]

Reference: “The 14th Amendment: Equality Protection Law or Tool of Usurpation,” from the US Congressional (House) Record of June 13, 1967; H7161  (House Record, pp. 15641-15646) 

III.  THE JOlNT RESOLUTlON (proposing the Amendment) WAS INEFFECTIVE (Unconstitutional) –

A. Not Presented to the President for Approval (per Article I)

Article I, Section 7 addresses those objects which must be presented to the President for approval. It provides that:   

      “Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him shall be re-passed by two-thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.” [Art I, Sect. 7]

The Joint Resolution proposing the 14th Amendment [9] was never presented to the President of the United States for his approval, as President Andrew Johnson stated in his message on June 22, 1866. [10]

Therefore, the Joint Resolution did not take effect.


B. Never Ratified by Three-Fourths of the States (per Article V)

[By December 1865, the Southern States repealed their ordinances of secession, accepted the 13th Amendment, repudiated their war debt, and drafted state constitutions which were approved by Congress, and were thereby re-admitted or restored to the Union.  Furthermore, the governments of several Southern States were re-established by Presidential proclamation several months earlier.]

1).  Fifteen (15) States out of the then thirty-seven (37) States of the Union rejected the proposed 14th Amendment between the date of its submission to the States by the Secretary of State on June 16, 1866 and March 24, 1868, thereby further nullifying said resolution and making it impossible for its ratification by the constitutionally required three-fourths of such States, as shown by the rejections thereof by the Legislatures of the following states:

Texas rejected the 14th Amendment on Oct. 27, 1866. [11]
Georgia rejected the 14th Amendment on Nov. 9, 1866. [12]
Florida rejected the 14th Amendment on Dec. 6, 1866. [13]
Alabama rejected the 14th Amendment on Dec. 7, 1866. [14]
North Carolina rejected the 14th Amendment on Dec. 14, 1866. [15]
Arkansas rejected the 14th Amendment on Dec. 17, 1866. [16]
South Carolina rejected the 14th Amendment on Dec. 20, 1866. [17]
Kentucky rejected the 14th Amendment on Jan. 8, 1867. [18]
Virginia rejected the 14th Amendment on Jan. 9, 1867. [19]
Louisiana rejected the 14th Amendment on Feb. 6, 1867. [20]
Delaware rejected the 14th Amendment on Feb. 7, 1867. [21]
Maryland rejected the l4th amendment on Mar. 23, 1867. [22]
Mississippi rejected the 14th Amendment on Jan. 31, 1867. [23]
Ohio rejected the 14th amendment on Jan. 16, 1868. [24]
New Jersey rejected the 14th Amendment on Mar. 24, 1868. [25]

There was no question that all of the Southern states which rejected the 14th Amendment had legally-constituted governments, were fully recognized by the federal government, and were functioning as member states of the Union at the time of their rejection.

President Andrew Johnson, in his Veto message of March 2, 1867, [26] pointed out that: “It is not denied that the States in question have each of them an actual government with all the powers, executive, judicial and legislative, which properly belong to a free State. They are organized like the other States of the Union, and, like them they make, administer, and execute the laws which concern their domestic affairs.”

If further proof were needed that these States were operating under legally-constituted governments as member States in the Union, the ratification of the 13th Amendment by December 8, 1865 undoubtedly supplies this official proof. If the Southern States were not member States of the Union, the 13th amendment would not have been submitted to their Legislatures for ratification.

2).  The 13th Amendment to the United States Constitution was proposed by Joint Resolution of Congress [27] and was approved February 1, 1865 by President Abraham Lincoln, as required by Article I, Section 7 of the United States Constitution. The President’s signature is affixed to the Resolution. 

The 13th Amendment was ratified by 27 states of the then 36 states of the Union, including the southern states of Virginia, Louisiana, Arkansas, South Carolina, Alabama, North Carolina and Georgia. This is shown by the Proclamation of the Secretary of State December 18, 1865. [28]  Without the votes of these 7 southern state Legislatures, the 13th Amendment would have failed. There can be no doubt but that the ratification by these 7 southern states of the 13th Amendment again established the fact that their Legislatures and State governments were duly and lawfully-constituted and functioning as such under their state constitutions.

3).  Furthermore, on April 2, 1866, President Andrew Johnson issued a proclamation which stated, “the insurrection which heretofore existed in the States of Georgia, South Carolina, Virginia, North Carolina, Tennessee, Alabama, Louisiana, Arkansas, Mississippi and Florida is at an end, and is henceforth to be so regarded.” [29]

On August 20, 1866, President Andrew Johnson issued another proclamation [30] which pointed out the fact that the House of Representatives and Senate had adopted identical Resolutions on July 22nd [31] and July 26th, 1861, [32] that the Civil War forced by disunionists of the Southern States, was not waged for the purpose of conquest or to overthrow the rights and established institutions of those States, but to defend and maintain the supremacy of the Constitution and to preserve the Union with all equality and rights of the several states unimpaired, and that as soon as these objects were accomplished, the war ought to cease. The President’s proclamation on June 13, 1866, declared the insurrection in the State of Tennessee had been suppressed. [33]   The President’s proclamation on April 2, 1866, [34] declared the insurrection in the other Southern States, except Texas, no longer existed.  The proclamation of August 20, 1866, [35]  announced that the insurrection in the State of Texas had been completely ended and civil law was re-established throughout the nation:

       “The insurrection which heretofore existed in the State of Texas is at an end and is to be henceforth so regarded in that State, as in the other States before named in which the said insurrection was proclaimed to be at an end by the aforesaid proclamation of the second day of April, one thousand, eight hundred and sixty-six.

       And I do further proclaim that the said insurrection is at an end, and that peace, order, tranquility, and civil authority now exist, in and throughout the whole of the United States of America.”

4).  When the State of Louisiana rejected the 14th Amendment on February 6, 1867, it was the 10th state to do so. This was significant because in order for the amendment to take effect, at least 27 states (out of the total of 36 which were admitted to the Union at the time) needed to adopt it (meeting the requirement under Article V – for an amendment to be valid, it must be “ratified by the Legislatures of three fourths of the several States”). In other words, no more than 9 states could have rejected it.  Hence, the Amendment was not ratified – in fact or in law – and it could not have been revived except by a new Joint Resolution of the Senate and House of Representatives in accordance with Constitutional requirement.

5).  Faced with the positive failure of ratification of the 14th Amendment, both Houses of Congress passed three Acts known as the Reconstruction Acts, over President Johnson’s veto – between the dates of March 2 and July 19, 1867.  Of these three Acts, the most notable one was the third Act – 15 Stat. p. 14 – which was designed illegally to remove with “Military force” the lawfully constituted State Legislatures of the 10 Southern States of Virginia, North Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi, Arkansas, Louisiana and Texas.

In President Andrew Johnson’s Veto message on the Reconstruction Act of March 2, 1867, [36] he pointed out these unconstitutionalities:

        “If ever the American citizen should be left to the free exercise of his own judgment, it is when he is engaged in the work of forming the fundamental law under which he is to live. That work is his work, and it cannot properly be taken out of his hands. All this legislation proceeds upon the contrary assumption that the people of each of these States shall have no constitution, except such as may be arbitrarily dictated by Congress, and formed under the restraint of military rule. A plain statement of facts makes this evident.

       In all these States there are existing constitutions, framed in the accustomed way by the people. Congress, however, declares that these constitutions are not ‘loyal and republican,’ and requires the people to form them anew. What, then, in the opinion of Congress, is necessary to make the constitution of a state ‘loyal and republican?’ The original act answers the question: ‘It is universal negro suffrage, a question which the federal Constitution leaves exclusively to the States themselves.

All this legislative machinery of martial law, military coercion, and political disfranchisement is avowedly for that purpose and none other. The existing constitutions of the ten States conform to the acknowledged standards of loyalty and republicanism. Indeed, if there are degrees in republican forms of government, their constitutions are more republican now, than when these States – four of which were members of the original thirteen – first became members of the Union.”

     In President Andrew Johnson’s Veto message on the Reconstruction Act on July 19, 1867, he pointed out various unconstitutionalities as follows:

      “The veto of the original bill of the 2d of March was based on two distinct grounds, the interference of Congress in matters strictly appertaining to the reserved powers of the States, and the establishment of military tribunals for the trial of citizens in time of peace.

      A singular contradiction is apparent here. Congress declares these local State governments to be illegal governments, and then provides that these illegal governments shall be carried on by federal officers, who are to perform the very duties on its own officers by this illegal State authority. It certainly would be a novel spectacle if Congress should attempt to carry on a legal State government by the agency of its own officers. It is yet more strange that Congress attempts to sustain and carry on an illegal State government by the same federal agency.

      It is now too late to say that these ten political communities are not States of this Union. Declarations to the contrary made in these three acts are contradicted again and again by repeated acts of legislation enacted by Congress from the year 1861 to the year 1867.

      During that period, while these States were in actual rebellion, and after that rebellion was brought to a close, they have been again and again recognized as States of the Union. Representation has been apportioned to them as States. They have been divided into judicial districts for the holding of district and circuit courts of the United States, as States of the Union only can be districted. The last act on this subject was passed July 28, 1866, by which every one of these ten States was arranged into districts and circuits.

      They have been called upon by Congress to act through their legislatures upon at least two amendments to the Constitution of the United States. As States they have ratified one amendment, which required the vote of twenty-seven States of the thirty-six then composing the Union. When the requisite twenty-seven votes were given in favor of that amendment – seven of which votes were given by seven of these ten States – it was proclaimed to be apart of the Constitution of the United States, and slavery was declared no longer to exist within the United States or any place subject to their jurisdiction. If these seven States were not legal States of the Union, it follows as an inevitable consequence that in some of the States slavery yet exists. It does not exist in these seven States, for they have abolished it also in their State constitutions; but Kentucky not having done so, it would still remain in that State. But, in truth, if this assumption that these States have no legal State governments be true, then the abolition of slavery by these illegal governments binds no one, for Congress now denies to these States the power to abolish slavery by denying to them the power to elect a legal State legislature, or to frame a constitution for any purpose, even for such a purpose as the abolition of slavery.

      As to the other constitutional amendment having reference to suffrage, it happens that these States have not accepted it. The consequence is, that it has never been proclaimed or understood, even by Congress, to be a part of the Constitution of the United States. The Senate of the United States has repeatedly given its sanction to the appointment of judges, district attorneys, and marshals for every one of these States; yet, if they are not legal States, not one of these judges is authorized to hold a court. So, too, both houses of Congress have passed appropriation bills to pay all these judges, attorneys, and officers of the United States for exercising their functions in these States.

      Again, in the machinery of the internal revenue laws, all these States are districted, not as ‘Territories,’ but as ‘States.’

      So much for continuous legislative recognition. The instances cited, however, fall far short of all that might be enumerated. Executive recognition, as is well known, has been frequent and unwavering. The same may be said as to judicial recognition through the Supreme Court of the United States.

      To me these considerations are conclusive of the unconstitutionality of this part of the bill now before me, and I earnestly commend their consideration to the deliberate judgment of Congress.

      Within a period less than a year the legislation of Congress has attempted to strip the executive department of the government of some of its essential powers. The Constitution, and the oath provided in it, devolve upon the President the power and duty to see that the laws are faithfully executed. The Constitution, in order to carry out this power, gives him the choice of the agents, and makes them subject to his control and supervision. But in the execution of these laws the constitutional obligation upon the President remains, but the powers to exercise that constitutional duty is effectually taken away.  The military commander is, as to the power of appointment, made to take the place of its President, and the General of the Army the place of the Senate; and any attempt on the part of the President to assert his own constitutional power may, under pretence of law, be met by official insubordination. It is to be feared that these military officers, looking to the authority given by these laws rather than to the letter of the Constitution, will recognize no authority but the commander of the district and the General of the army.

      If there were no other objection than this to this proposed legislation, it would be sufficient.”

No one can contend that the Reconstruction Acts were ever upheld as being valid and constitutional.

They were brought into question, but the Courts either avoided rendering an opinion/decision or were prevented by Congress from finally adjudicating upon their constitutionality.

      In Mississippi v. President Andrew Johnson, (4 Wall. 475-502; 71 U.S. 475), the state of Mississippi brought suit sought to enjoin the President of the United States from enforcing provisions of the Reconstruction Acts. The U.S. Supreme Court held that the President cannot be enjoined because for the Judicial Department of the government to attempt to enforce the performance of the duties by the President might be justly characterized, in the language of Chief Justice Marshall, as “an absurd and excessive extravagance.” The Court further said that if the Court granted the injunction against enforcement of the Reconstruction Acts, and if the President refused obedience, it is needless to observe that the Court is without power to enforce its process.

     It was looking as if the courts would not use their power to curb this act of tyranny, as it was meant to do.

IV. “THE AMENDMENT IS UNCONSTITUTIONAL,” from a treatise by Judge Leander H. Perez

The purported 14th Amendment to the United States Constitution is and should be held to be ineffective, invalid, null, void and unconstitutional for the following reasons:

1. The Joint Resolution proposing said amendment was not submitted to or adopted by a Constitutional Congress per Article I, Section 3, and Article V of the U. S. Constitution.

2. The Joint Resolution was not submitted to the President for his approval as required by Article I, Section 7 of the U. S. Constitution.

3. The proposed 14th Amendment was rejected by more than one-fourth of all the States then in the Union, and it was never ratified by three-fourths of all the States in the Union as required by Article V of the U. S. Constitution.

V. THE AMENDMENT GOES TO THE COURT

      In a joint action, Georgia v. Stanton (1867), the states of Georgia and Mississippi brought suit against the Secretary of War, Edwin Stanton (6 Wall. 50-78; 73 U.S. 50) to enjoin him and other officers who represent the Executive authority of the United States from carrying into execution certain Reconstruction Acts on the ground that such execution would annul and totally abolish the existing state government of the state and establish another and different one in its place.

    The Court wrote:

      “The bill then sets forth that the intent and design of the acts of Congress, as apparent on their face and by their terms, are to overthrow and annul this existing state government, and to erect another and different government in its place, unauthorized by the Constitution and in defiance of its guaranties; and that, in furtherance of this intent and design, the defendants, the Secretary of War, the General of the Army, and Major-General Pope, acting under orders of the President, are about setting in motion a portion of the army to take military possession of the state, and threaten to subvert her government and subject her people to military rule; that the state is holding inadequate means to resist the power and force of the Executive Department of the United States; and she therefore insists that such protection can, and ought to be afforded by a decree or order of his court in the premises.”

     The applications for injunction by these two states to prohibit the Executive Department from carrying out the provisions of the Reconstruction Acts directed to the overthrow of their government, including the dissolution of their state legislatures, were denied on the grounds that the organization of the government into three great departments, the executive, legislative and judicial, carried limitations of the powers of each by the Constitution. This case went the same way as the previous case of Mississippi against President Johnson and was dismissed without adjudication upon the constitutionality of the Reconstruction Acts.

     In another case, Ex parte William H. McCardle (7 Wall. 506-515), a petition for the writ of habeas corpus for unlawful restraint by military force of a citizen not in the military service of the United States was before the United States Supreme Court. After the case was argued and taken under advisement, and before conference in regard to the decision to be made, Congress made a slick move. It passed an emergency Act, (Act March 27, 1868, 15 Stat. at L. 44), which repealed the jurisdiction of the US Supreme Court in such a case. The Act was vetoed by President Johnson but Congress was able to over-ride his veto. Accordingly, the Supreme Court dismissed the appeal without passing upon the constitutionality of the Reconstruction Acts, under which the non-military citizen was held by the military without benefit of writ of habeas corpus, in violation of Section 9, Article I of the U. S. Constitution which prohibits the suspension of the writ of habeas corpus.

That Act of Congress placed the Reconstruction acts beyond judicial recourse and avoided tests of constitutionality.

     It is recorded that one of the Supreme Court Justices, Justice Grier, protested against the action of the Court as follows:

     “This case was fully argued in the beginning of this month. It is a case which involves the liberty and rights, not only of the appellant, but of millions of our fellow citizens. The country and the parties had a right to expect that it would receive the immediate and solemn attention of the court. By the postponement of this case we shall subject ourselves, whether justly or unjustly, to the imputation that we have evaded the performance of a duty imposed on us by the Constitution, and waited for legislative interposition to supersede our action, and relieve us from responsibility. I am not willing to be a partaker of the eulogy or opprobrium that may follow. I can only say… I am ashamed that such opprobrium should be cast upon the court and that it cannot be refuted.”

     The ten States were organized into Military Districts under the unconstitutional “Reconstruction Acts,” their lawfully-constituted legislatures illegally were removed by “military force,” and they were replaced by remnant or puppet legislatures, seven of which carried out military orders and pretended to ratify the 14th Amendment, as follows:

Arkansas on April 6, 1868; [38]
North Carolina on July 2, 1868; [39]
Florida on June 9, 1868; [40]
Louisiana on July 9, 1868; [41]
South Carolina on July 9, 1868; [42]
Alabama on July 13, 1868; [43]
Georgia on July 21, 1868. [44]

      Of the above 7 States whose legislatures were removed and replaced by remnant or puppet legislatures, six legislatures of the States of Louisiana, Arkansas, South Carolina, Alabama, North Carolina and Georgia had ratified the 13th amendment, as shown by the Secretary of State’s Proclamation of December 18, 1865.  Without the ratification by those six States, the 13th Amendment could not and would not have been ratified because the said six States made a total of 27 out of 36 States or exactly three-fourths of the number required by Article V of the Constitution for ratification.

     Furthermore, governments of the States of Louisiana and Arkansas had been re-established under a Proclamation issued by President Abraham Lincoln December 8, 1863. [45] The government of North Carolina had been re-established under a Proclamation issued by President Andrew Johnson dated May 29, 1865. [46]

The government of Georgia had been re-established under a proclamation issued by President Andrew Johnson dated June 17, 1865. [47]  The government of Alabama had been re-established under a Proclamation issued by President Andrew Johnson dated June 21, 1865. [48] And the government of South Carolina had been re-established under a Proclamation issued by President Andrew Johnson dated June 30, 1865. [49]

     These three “Reconstruction Acts” [50] under which the above State legislatures were illegally removed and unlawful puppet legislatures were substituted in a mock effort to ratify the 14th amendment, were unconstitutional, null and void, ab initio, and all acts done thereunder were also null and void, including the purported ratification of the 14th Amendment by said six Southern puppet State legislatures of Arkansas, North Carolina, Louisiana, South Carolina, Alabama and Georgia.

     Those Reconstruction Acts of Congress and all acts and thing unlawfully done thereunder were in violation of Article IV, Section 4 of the United States Constitution, which required the United States to guarantee every State in the Union a republican form of government. They violated article I, Section 3, and article V of the Constitution, which entitled every State in the Union to two Senators, because under provisions of these unlawful acts of Congress, ten (10) States were deprived of having two Senators, or equal suffrage in the Senate.

     The Secretary of State expressed doubt as to whether three-fourths of the required states had ratified the 14th Amendment, as shown by his Proclamation of July 20, 1868. [51]  Promptly on July 21, 1868, a Joint Resolution [52] was adopted by the Senate and House of Representatives declaring that three-fourths of the several States of the Union had ratified the 14th Amendment. That resolution, however, included purported ratifications by the unlawful puppet legislatures of five States – Arkansas, North Carolina, Louisiana, South Carolina and Alabama – which had previously rejected the 14th Amendment by action of their lawfully-constituted Legislatures, as above shown. This Joint Resolution assumed to perform the function of the Secretary of State in whom Congress, by Act of April 20, 1818, had vested the function of issuing such proclamation declaring the ratification of Constitutional Amendments.

     The Secretary of State bowed to the action of Congress and issued his Proclamation of July 28, 1868, [53] in which he stated that he was as acting under authority of the Act of April 20, 1818, but pursuant to said Resolution of July 21, 1868. He listed three-fourths or so of the then 37 states as having ratified the 14th Amendment, including the purported ratification of the unlawful puppet legislatures of the States of Arkansas, North Carolina, Louisiana, South Carolina and Alabama. Without said six (6) unlawful purported ratifications there would have been only 26 states left to ratify out of 37 when a minimum of 28 states was required for ratification by three-fourths of the States of the Union.

      The Joint Resolution of Congress and the resulting Proclamation of the Secretary of State also included purported ratifications by the States of Ohio and New Jersey, although the Proclamation recognized the fact that the Legislatures of said states, several months previously, had withdrawn their ratifications and effectively rejected the 14th Amendment in January 1868, and April 1868.

     Therefore, deducting these two states from the purported ratifications of the 14th amendment, only 23 State ratifications at most could be claimed; whereas the ratification of 28 States, or three-fourths of 37 States in the Union, were required to ratify the 14th Amendment.

From all of the above documented historic facts, it is inescapable that the 14th Amendment never was validly adopted as an article of the Constitution, that it has no legal effect, and it should be declared by the Courts to be unconstitutional, and therefore null, void and of no effect.

VI:  THE UNCONSTITUTIONALITY OF THE FOURTEENTH AMENDMENT (by Judge Leander H. Perez)

The purported Fourteenth Amendment to the U.S. Constitution is and should be held to be ineffective, invalid, null, void, and unconstitutional for the following reasons:

          1.  The Joint Resolution proposing said Amendment was not submitted to or adopted by a Constitutional Congress as required by Article 1, Section 3, and Article V of the U.S. Constitution.

          2.  The Joint Resolution was not submitted to the President for his approval as required by Article 1, Section 5 of the Constitution.

          3.  The proposed Fourteenth Amendment was rejected by more than one fourth of all the States in the Union, and it was never ratified by three fourths of all the States in the Union as required by Article V, Section 1 of the Constitution.

The U.S. Constitution provides: “The Senate of the United States shall be composed of two Senators from each State….”  (Article I, Section 3)  and  “No State, without its consent, shall be deprived of its equal suffrage in the Senate.” (Article V)

The fact that twenty-three Senators had been unlawfully excluded from the U.S. Senate in order to secure a two-thirds vote for the adoption of the Joint Resolution proposing the Fourteenth Amendment is shown by Resolutions of protest adopted by the following State Legislatures.

The New Jersey Legislature by Resolution on March 27, 1868, protested as follows:

      “The said proposed amendment not having yet received the assent of three fourths of the States, which is necessary to make it valid, the natural and constitutional right of this State to withdraw its assent is undeniable….

       That it being necessary by the Constitution that every amendment to the same should be proposed by two thirds of both houses of Congress, the authors of said proposition, for the purpose of securing the assent of the requisite majority, determined to, and did, exclude from the said two houses eighty representatives from eleven States of the Union, upon the pretense that there were no such States in the Union; but, finding that two thirds of the remainder of the said houses could not be brought to assent to the said proposition, they deliberately formed and carried out the design of mutilating the integrity of the United States Senate, and without any pretext or justification, other than the possession of the power, without the right, and in the palpable violation of the Constitution, ejected a member of their own body, representing this State, and thus practically denied to New Jersey its equal suffrage in the Senate, and thereby nominally secured the vote of two thirds of the said house.” [3]

  The Alabama Legislature protested against being deprived of representation in the Senate of the U.S. Congress. [4] The Texas Legislature, by Resolution on October 15, 1866, protested as follows:

The Amendment to the Constitution proposed by this joint resolution as Article XIV is presented to the Legislature of Texas for its action thereon, under Article V of that Constitution. This Article V, providing the mode of making amendments to that instrument, contemplates the participation by all the States through their representatives in Congress, in proposing amendments. As representatives from nearly one third of the States were excluded from the Congress proposing the amendments, the constitutional requirement was not complied with; it was violated in letter and in spirit; and the proposing of these amendments to States which were excluded from all participation in their initiation in Congress, is a nullity.” [5]

  The Arkansas Legislature, by Resolution on December 17, 1866, protested as follows:

The Constitution authorized two thirds of both houses of Congress to propose amendments; and, as eleven States were excluded from deliberation and decision upon the one now submitted, the conclusion is inevitable that it is not proposed by legal authority, but in palpable violation of the Constitution.” [6]

  The Georgia Legislature, by Resolution on November 9, 1866, protested as follows:

      “Since the reorganization of the State government, Georgia has elected Senators and Representatives. So has every other State. They have been arbitrarily refused admission to their seats, not on the ground that the qualifications of the members elected did not conform to the fourth paragraph, second section, first Article of the Constitution, but because their right of representation was denied by a portion of the States having equal but not greater rights than themselves. They have in fact been forcibly excluded; and, inasmuch as all legislative power granted by the States to the Congress is defined, and this power of exclusion is not among the powers expressly or by implication defined, the assemblage, at the capital, of representatives from a portion of the States, to the exclusion of the representatives of another portion, cannot be a constitutional Congress, when the representation of each State forms an integral part of the whole.

      This amendment is tendered to Georgia for ratification, under that power in the Constitution which authorizes two thirds of the Congress to propose amendments. We have endeavored to establish that Georgia had a right, in the first place, as a part of the Congress, to act upon the question, “Shall these amendments be proposed?” Every other excluded State had the same right. The first constitutional privilege has been arbitrarily denied. Had these amendments been submitted to a constitutional Congress, they would never have been proposed to the States. Two thirds of the whole Congress never would have proposed to eleven States voluntarily to reduce their political power in the Union, and at the same time, disfranchise the larger portion of the intellect, integrity, and patriotism of eleven co-equal States.” [7]

The Florida Legislature, by Resolution on December 5, 1866, protested as follows:

Let this alteration be made in the organic system and some new and more startling demands may or may not be required by the predominant party previous to allowing the ten States now unlawfully and unconstitutionally deprived of their right of representation as guaranteed by the Constitution of this country and there is no act, not even that of rebellion, can deprive them.” [8]

   The South Carolina Legislature, by Resolution on November 27, 1866, protested as follows:

       “Eleven of the Southern States, including South Carolina, are deprived of their representation in

Congress. Although their Senators and Representatives have been duly elected and have presented themselves for the purpose of taking their seats, their credentials have, in most instances, been laid upon the table without being read, or have been referred to a committee, who have failed to make any report on the subject. In short, Congress has refused to exercise its Constitutional functions, and decide either upon the election, the return, or the qualification of these selected by the States and people to represent us. Some of the Senators and Representatives from the Southern States were prepared to take the test oath, but even these have been persistently ignored, and kept out of the seats to which they were entitled under the Constitution and laws.”

   Hence this amendment has not been proposed by “two thirds of both Houses” of a legally constituted Congress, and is not, Constitutionally or legitimately, before a single Legislature for ratification. [9]

   The North Carolina Legislature, by Resolution on December 6, 1866, protested as follows:

“The Federal Constitution declares in substance, that Congress shall consist of a House of Representatives, composed of members apportioned among the respective States in the ratio of their population and of a Senate, composed of two members from each State. And in the Article which concerns Amendments, it is expressly provided that “no State, without its consent, shall be deprived of its equal suffrage in the Senate.” The contemplated Amendment was not proposed to the States by a Congress thus constituted. At the time of its adoption, the eleven seceding States were deprived of representation both in the Senate and House, although they all, except the State of Texas, had Senators and Representatives duly elected and claiming their privileges under the Constitution. In consequence of this, these States had no voice on the important question of proposing the Amendment. Had they been allowed to give their votes, the proposition would doubtless have failed to command the required two thirds majority….”

   If the votes of these States are necessary to a valid ratification of the Amendment, they were equally necessary on the question of proposing it to the States; for it would be difficult, in the opinion of the Committee, to show by what process in logic, men of intelligence, could arrive at a different conclusion. [10]

   Article I, Section 7 of the United States Constitution provides that not only every bill have been passed by the House of Representatives and the Senate of the United States Congress, but that:

Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him, or being disapproved by him shall be re-passed by two thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill.

  The Joint Resolution proposing the Fourteenth Amendment [11] was never presented to the President of the United States for his approval, as President Andrew Johnson stated in his message on June 22, 1866. Therefore, the Joint Resolution did not take effect.

    Pretermitting the ineffectiveness of said Resolution, as demonstrated above, fifteen States out of the then thirty-seven States of the Union rejected the proposed Fourteenth Amendment between the date of its submission to the States by the Secretary of State on June 16, 1866, and March 24, 1868, thereby further nullifying said Resolution and making it impossible for its ratification by the constitutionally required three fourths of such States, as shown by the rejections thereof by the Legislatures of the following States: Texas rejected the Fourteenth Amendment on October 27, 1866. [12] Georgia rejected it on November 9, 1866. [13] Florida rejected it on December 6, 1866. [14] Alabama rejected it on December 7, 1866. [15] Arkansas rejected it on December 17, 1866. [16] North Carolina rejected it on December 17, 1866. [17] South Carolina rejected it on December 20, 1866. [18] Kentucky rejected it on January 8, 1867. [19] Virginia rejected it on January 9, 1867. [20] Louisiana rejected it on February 6, 1867. [21] Delaware rejected it on February 7, 1867. [22] Maryland rejected it on March 23, 1867. [23] Mississippi rejected it on January 31, 1868. [24] Ohio rejected it on January 15, 1868. [25] New Jersey rejected it on March 24, 1868. [26]

    There is no question that all of the Southern States which rejected the Fourteenth Amendment had legally constituted governments, were fully recognized by the Federal Government, and were functioning as member States of the Union at the time of their rejection. President Andrew Johnson in his veto message of March 2, 1867, pointed out: “It is not denied that the States in question have each of them an actual government with all the powers, executive, judicial, and legislative, which properly belong to a free State. They are organized like the other States of the Union, and, like them, they make, administer, and execute the laws which concern their domestic affairs.” [27]

    If further proof were needed that these States were operating under legally constituted governments as member States of the Union, the ratification of the Thirteenth Amendment on December 8, 1865 undoubtedly supplies this official proof. If the Southern States were not member States of the Union, the Thirteenth Amendment would not have been submitted to their Legislatures for ratification.

    The Thirteenth Amendment to the United States Constitution was proposed by Joint Resolution of Congress [28] and was approved February 1, 1865 by President Abraham Lincoln, as required by Article I, Section 7 of the United States Constitution. The President’s signature is affixed to the Resolution. The Thirteenth Amendment was ratified by twenty-seven States of the then thirty-six States of the Union, including the Southern States of Virginia, Louisiana, Arkansas, South Carolina, North Carolina, Alabama, and Georgia. This is shown by the Proclamation of the Secretary of State on December 18, 1865. [29] Without the votes of these seven Southern State Legislatures the Thirteenth Amendment would have failed. There can be no doubt but that the ratification by these seven Southern States of the Thirteenth Amendment again established the fact that their Legislatures and State governments were duly and lawfully constituted and functioning as such under their State constitutions.

     Furthermore, on April 2, 1866, President Andrew Johnson issued a proclamation that stated, “The insurrection which heretofore existed in the States of Georgia, South Carolina, Virginia, North Carolina, Tennessee, Alabama, Louisiana, Arkansas, Mississippi, and Florida is at an end, and is henceforth to be so regarded.” [30] On August 20, 1866, President Johnson issued another proclamation [31] pointing out the fact that the Senate and House of Representatives had adopted identical Resolutions on July 22 [32] and July 25, 1861, [33] that the Civil War forced by disunionists of the Southern States, was not waged for the purpose of conquest or to overthrow the rights and established institutions of those States, but to defend and maintain the supremacy of the Constitution and to preserve the Union with all the equality and rights of the several States unimpaired, and that as soon as these objects were accomplished, the war ought to cease. The President’s proclamation on April 2, 1866 [34] declared that the insurrection in the other Southern States, except Texas, no longer existed. On August 20, 1866, the President proclaimed that the insurrection in the State of Texas had been completely ended. He continued, “And I do further proclaim that the said insurrection is at an end, and that peace, order, tranquility, and civil authority now exist, in and throughout the whole of the United States of America.” [35]

    The State of Louisiana rejected the Fourteenth Amendment on February 6, 1867, making it the tenth State to have rejected the same, or more than one fourth of the total number of thirty-six States of the Union as of that date. Because this left less than three fourths of the States to ratify the Fourteenth Amendment, it failed of ratification in fact and in law, and it could not have been revived except by a new Joint Resolution of the Senate and House of Representatives in accordance with the constitutional requirement.

     Faced with the positive failure of ratification of the Fourteenth Amendment, both Houses of Congress passed over the veto of the President three Acts, known as the Reconstruction Acts, between the dates of March 2 and July 19, 1867. The third of said Acts [36] was designed to illegally remove with “Military force” the lawfully constituted State Legislatures of the ten Southern States of Virginia, North Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi, Arkansas, Louisiana, and Texas. In President Andrew Johnson’s veto message on the Reconstruction Act of March 2, 1867, he pointed out these unconstitutionalities:

     “ If ever the American citizen should be left to the free exercise of his own judgment, it is when he is engaged in the work of forming the fundamental law under which he is to live. That work is his work, and it cannot be properly taken out of his hands. All this legislation proceeds upon the contrary assumption that the people of these States shall have no constitution, except such as may be arbitrarily dictated by Congress, and formed under the restraint of military rule. A plain statement of facts makes this evident.”

     In all these States there are existing constitutions, framed in the accustomed way by the people. Congress, however, declares that these constitutions are not “loyal and republican” and requires the people to form them anew. What, then, in the opinion of Congress, is necessary to make the constitution of a State “loyal and republican”? The original act answers this question: “It is universal negro suffrage” — a question which the federal Constitution leaves exclusively to the States themselves. All this legislative machinery of martial law, military coercion, and political disfranchisement is avowedly for that purpose and none other. The existing constitutions of the ten States, conform to the acknowledged standards of loyalty and republicanism. Indeed, if there are degrees in republican forms of government, their constitutions are more republican now, than when these States — four of which were members of the original thirteen — first became members of the Union. [37]

In President Johnson’s veto message regarding the Reconstruction Act of July 19, 1867, he pointed out various unconstitutionalities as follows:

    “The veto of the original bill of the 2d of March was based on two distinct grounds — the interference of Congress in matters strictly appertaining to the reserved powers of the States, and the establishment of military tribunals for the trial of citizens in time of peace….

     A singular contradiction is apparent here. Congress declares these local State governments to be illegal governments, and then provides that these illegal governments shall be carried on by federal officers, who are to perform the very duties on its own officers by this illegal State authority. It certainly would be a novel spectacle if Congress should attempt to carry on a legal State government by the agency of its own officers. It is yet more strange that Congress attempts to sustain and carry on an illegal State government by the same federal agency….

     It is now too late to say that these ten political communities are not States of this Union. Declarations to the contrary made in these three acts are contradicted again and again by repeated acts of legislation enacted by Congress from the year 1861 to the year 1867.

    During that period, while these States were in actual rebellion, and after that rebellion was brought to a close, they have been again and again recognized as States of the Union. Representation has been apportioned to them as States. They have been divided into judicial districts for the holding of district and circuit courts of the United States, as States of the Union only can be distracted. The last act on this subject was passed July 23, 1866, by which every one of these ten States was arranged into districts and circuits.

    They have been called upon by Congress to act through their legislatures upon at least two amendments to the Constitution of the United States. As States they have ratified one amendment, which required the vote of twenty-seven States of the thirty-six then composing the Union. When the requisite twenty-seven votes were given in favor of that amendment, it was proclaimed to be a part of the Constitution of the United States, and slavery was declared no longer to exist within the United States or any place subject to their jurisdiction. If these seven States were not legal States of the Union, it follows as an inevitable consequence that in some of the States slavery yet exists. It does not exist in these seven States, for they have abolished it also in their State constitutions; but Kentucky not having done so, it would still remain in that State. But, in truth, if this assumption that these States have no legal State governments be true, then the abolition of slavery by these illegal governments binds no one, for Congress now denies to these States the power to abolish slavery by denying them the power to elect a legal State legislature, or to frame a constitution for any purpose, even for such a purpose as the abolition of slavery.

    As to the other constitutional amendment having reference to suffrage, it happens that these States have not accepted it. The consequence is, that it has never been proclaimed or understood, even by Congress, to be a part of the Constitution of the United States. The Senate of the United States has repeatedly given its sanction to the appointment of judges, district attorneys, and marshals for every one of these States; yet, if they are not legal States, not one of these judges is authorized to hold a court. So, too, both houses of Congress have passed appropriation bills to pay all these judges, attorneys, and officers of the United States for exercising their functions in these States. Again, in the machinery of the internal revenue laws, all these States are distracted, not as “Territories,” but as “States.”

    So much for continuous legislative recognition. The instances cited, however, fall far short of all that might be enumerated. Executive recognition, as is well known, has been frequent and unwavering. The same may be said as to judicial recognition through the Supreme Court of the United States.

    To me these considerations are conclusive of the unconstitutionality of this part of the bill before me, and I earnestly commend their consideration to the deliberate judgment of Congress.”

(And now to the Court)  Within a period of less than a year, the legislation of Congress has attempted to strip the executive department of the government of its essential powers. The Constitution, and the oath provided in it, devolve upon the President the power and duty to see that the laws are faithfully executed. The Constitution, in order to carry out this power, gives him the choice of the agents, and makes them subject to his control and supervision. But in the execution of these laws the constitutional obligation upon the President remains, but the powers to exercise that constitutional duty is effectually taken away. The military commander is, as to the power of appointment, made to take the place of the President, and the General of the Army the place of the Senate; and any attempt on the part of the President to assert his own constitutional power may, under pretense of law, be met by official insubordination. It is to be feared that these military officers, looking to the authority given by these laws rather than to the letter of the Constitution, will recognize no authority but the commander of the district and the General of the Army.

    If there were no other objection than this to this proposed legislation, it would be sufficient. [38]

No one can contend that the Reconstruction Acts were ever upheld as being valid and constitutional. They were brought into question, but the courts either avoided decision or were prevented by Congress from finally adjudicating upon their constitutionality. In Mississippi v. President Andrew Johnson, [39] where the suit sought to enjoin the President of the United States from enforcing provisions of the Reconstruction Acts, the U.S. Supreme Court held that the President could not be adjoined because for the Judicial Department of the government to attempt to enforce the performance of the duties of the President might be justly characterized, in the language of Chief Justice Marshall, as “an absurd and excessive extravagance.” The Court further said that if it granted the injunction against the enforcement of the Reconstruction Acts, and if the President refused obedience, it was needless to observe that the Court was without power to enforce its process.

    In a joint action, the States of Georgia and Mississippi brought suit against the President and the Secretary of War. The Court said:

       The bill then sets forth that the intent and design of the Acts of Congress, as apparent on their face and by their terms, are to overthrow and annul this existing State government, and to erect another and different government in its place, unauthorized by the Constitution and in defiance of its guaranties; and that, in furtherance of this intent and design, the defendants, the Secretary of War, the General of the Army, and Major General Pope, acting under orders of the President, are about setting in motion a portion of the army to take military possession of the State, and threaten to subvert her government and subject her people to military rule; that the State is holding inadequate means to resist the power and force of the Executive Department of the United States; and she therefore insists that such protection can, and ought to be afforded by a decree or order of this court in the premises. [40]

  The applications for injunction by these two States to prohibit the Executive Department from carrying out the provisions of the Reconstruction Acts directed to the overthrow of their government, including this dissolution of their State Legislatures, were denied on the grounds that the organization of the government into three great departments — the Executive, Legislative, and Judicial — carried limitations of the powers of each by the Constitution. This case went the same way as the previous case of Mississippi against President Johnson and was dismissed without adjudicating upon the constitutionality of the Reconstruction Acts.

    In another case, ex parte William H. McCradle, [41] a petition for the writ of habeas corpus for unlawful restraint by military force of a Citizen not in the military service of the United States was before the United States Supreme Court. After the case was argued and taken under advisement, and before conference in regarding the decision to be made, Congress passed an emergency act, [42] vetoed by the President and repassed over his veto, repealing the jurisdiction of the U.S. Supreme Court in such case. Accordingly, the Supreme Court dismissed the appeal without passing upon the constitutionality of the Reconstruction Acts, under which the non-military Citizen was held without benefit of writ of habeas corpus, in violation of Article I, Section 9 of the U.S. Constitution. That Act of Congress placed the Reconstruction Acts beyond judicial recourse and avoided tests of constitutionality.

It is recorded that one of the Supreme Court Justices, Grier, protested against the action of the Court as follows:

       This case was fully argued in the beginning of this month. It is a case which involves the liberty and rights, not only of the appellant, but of millions of our fellow citizens. The country and the parties had a right to expect that it would receive the immediate and solemn attention of the court. By the postponement of this case we shall subject ourselves, whether justly or unjustly, to the imputation that we have evaded the performance of a duty imposed on us by the Constitution, and waited for Legislative interposition to suppress our action, and relieve us from responsibility. I am not willing to be a partaker of the eulogy or opprobrium that may follow. I can only say… I am ashamed that such opprobrium should be cast upon the court and that it cannot be refuted.

     The ten States were organized into Military Districts under the unconstitutional Reconstruction Acts, their lawfully constituted Legislatures were illegally removed by “military force,” and were replaced by rump, so-called Legislatures, seven of which carried out military orders and pretended to ratify the Fourteenth Amendment as follows: Arkansas on April 6, 1868; [43] North Carolina on July 2, 1868; [44] Florida on June 9, 1868; [45] Louisiana on July 9, 1868; [46] South Carolina on July 9, 1868; [47] Alabama on July 13, 1868; [48] Georgia on July 21, 1868. [49]

   Of the above seven States whose Legislatures were removed and replaced by rump, so-called Legislatures, six Legislatures of the States of Louisiana, Arkansas, South Carolina, Alabama, North Carolina, and Georgia had ratified the Thirteenth Amendment as shown by the Secretary of State’s Proclamation of December 18, 1865, without which ratifications, the Thirteenth Amendment could not and would not have been ratified because said six States made a total of twenty-seven out of thirty-six States, or exactly three fourths of the number required by Article V of the Constitution for ratification.

    Furthermore, governments of the States of Louisiana and Arkansas had been re-established under a Proclamation issued by President Abraham Lincoln dated December 8, 1863. [50] The government of North Carolina had been re-established under a Proclamation issued by President Andrew Johnson dated May 29, 1865. [51] The government of Georgia had been re-established under a Proclamation issued by President Johnson dated June 17, 1865. [52] The government of Alabama had been re-established under a Proclamation issued by President Johnson dated June 21, 1865. [53] The government of South Carolina had been re-established under a Proclamation issued by President Johnson dated June 30, 1865. [54]

    These three Reconstruction Acts, under which the above state Legislatures were illegally removed and unlawful rump, or so-called Legislatures were substituted in a mock effort to ratify the Fourteenth Amendment, were unconstitutional, null and void, ab initio, and all acts done thereunder were also null and void, including the purported ratification of the Fourteenth Amendment by said six Southern puppet Legislatures of Arkansas, North Carolina, Louisiana, South Carolina, Alabama, and Georgia.

    Those Reconstruction Acts of Congress and all acts and things unlawfully done thereunder were in violation of Article IV, Section 4 of the United States Constitution, which required the United States to guarantee a republican form of government. They violated Article 1, Section 3, and Article V of the Constitution which entitled every State in the Union to two Senators because under provisions of these unlawful Acts of Congress, ten States were deprived of having two Senators, or equal suffrage in the Senate.

    The Secretary of State expressed doubt as to whether three fourths of the required States had ratified the Fourteenth Amendment, as shown by his Proclamation of July 20, 1868. [55] Promptly on July 21, 1868, a Joint Resolution was adopted by the Senate and House of Representatives declaring that three fourths of the several States of the Union had indeed ratified the Fourteenth Amendment. [56] That Resolution, however, included the purported ratifications by the unlawful puppet Legislatures of five States — Arkansas, North Carolina, Louisiana, South Carolina, and Alabama — which had previously rejected the Fourteenth Amendment by action of their lawfully constituted Legislatures, as shown above. This Joint Resolution assumed to perform the function of the Secretary of State in whom Congress, by Act of April 20, 1818, had vested the function of issuing such Proclamation declaring the ratification of Constitutional Amendments.

    The Secretary of State bowed to the action of Congress and issued his Proclamation of July 28, 1868, [57] in which he stated that he was acting under authority of the Act of April 20, 1818, but pursuant to said Resolution of July 21, 1868. He listed three fourths or so of the then thirty-seven States as having ratified the Fourteenth Amendment, including the purported ratification by the unlawful puppet Legislatures of the states of Arkansas, North Carolina, Louisiana, South Carolina, and Alabama. Without said five purported ratifications there would have been only twenty-five States left to ratify out of thirty-seven when a minimum of twenty-eight States was required by three fourths of the States of the Union.

    The Joint Resolution of Congress and the resulting Proclamation of the Secretary of State also included purported ratifications by the States of Ohio and New Jersey, although the Proclamation recognized the fact that the Legislatures of said States, several months previously, had withdrawn their ratifications and effectively rejected the Fourteenth Amendment in January, 1868 and April, 1868. Therefore, deducting these two States from the purported ratification of the Fourteenth Amendment, only twenty-three State ratifications at most could be claimed — five less than the required number required to ratify the Amendment.

     From all of the above documented historic facts, it is inescapable that the Fourteenth Amendment was never validly adopted as an article of the Constitution, that it has no legal effect, and it should be declared by the Courts to be unconstitutional, and therefore, null, void, and of no effect.

    The defenders of the Fourteenth Amendment contend that the U.S. Supreme Court has decided finally upon its validity. In what is considered the leading case, Coleman v. Miller, the U.S. Supreme Court did not uphold the validity of the Fourteenth Amendment. In that case, the Court brushed aside constitutional questions as though they did not exist. For instance, the Court made the following statement:

     The legislatures of Georgia, North Carolina, and South Carolina had rejected the amendment in November and December, 1866. New governments were erected in those States (and in others) under the direction of Congress. The new legislatures ratified the amendment, that of North Carolina on July 4, 1868, that of South Carolina on July 9, 1868, and that of Georgia on July 21, 1868. [58]

  The Court gave no consideration to the fact that Georgia, North Carolina, and South Carolina were three of the original States of the Union with valid and existing constitutions on an equal footing with the other original States and those later admitted into the Union. Congress certainly did not have the right to remove those State governments and their Legislatures under unlawful military power set up by the unconstitutional Reconstruction Acts, which had for their purpose the destruction and removal of legal State governments and the nullification of the Constitution.

     The fact that these three States and seven other Southern States had existing constitutions, were recognized as States of the Union, again and again, had been divided into judicial districts for holding their district and circuit courts of the United States, had been called by Congress to act through their Legislatures upon two Amendments — the Thirteenth and the Fourteenth — and by their ratifications had actually made possible the adoption of the Thirteenth, as well as their State governments having been re-established under Presidential Proclamations, as shown by President Johnson’s veto message and proclamations, were all brushed aside by the Court in Coleman v. Miller by the statement, “New governments were erected in those States (and in others) under the direction of Congress,” and that these new legislatures ratified the Amendment.

     The U.S. Supreme Court overlooked that it previously had held that at no time were these Southern States out of the Union. [59] In Coleman v. Miller, the Court did not adjudicate upon the invalidity of the Acts of Congress which set aside those State constitutions and abolished their state Legislatures. The Court simply referred to the fact that their legally constituted Legislatures had rejected the Fourteenth Amendment and that the “new legislatures” had ratified it. The Court further overlooked the fact that the State of Virginia was also one of the original States with its constitution and Legislature in full operation under its civil government at the time.

    In addition, the Court also ignored the fact that the other six Southern States, which were given the same treatment by Congress under the unconstitutional Reconstruction Acts, all had legal constitutions and a republican form of government in each State, as was recognized by Congress by its admission of those stated into the Union. The Court certainly must take judicial cognizance of the fact that before a new State is admitted by Congress into the Union, Congress enacts an Enabling Act to enable the inhabitants of the territory to adopt a constitution to set up a republican form of government as a condition precedent to the admission of the State into the Union, and upon approval of such constitution, Congress then passes the Act of Admission of such stated. All this was ignored and brushed aside by the Supreme Court in the Coleman v. Miller case. However, the Court inadvertently stated:

      “Whenever official notice is received at the Department of State that any amendment to the Constitution of the United States has been adopted, according to the provisions of the Constitution, the Secretary of State shall forthwith cause the amendment to be published, with his certificate, specifying the States by which the same may have been adopted, and that the same has become valid, to all intents and purposes, as a part of the Constitution of the United States.”

In Hawke v. Smith, the U.S. Supreme Court unmistakingly held:

      The fifth article is a grant of authority by the people to Congress. The determination of the method of ratification is the exercise of a national power specifically granted by the Constitution; that power is conferred upon Congress, and is limited to two methods, by action of the Legislatures of three fourths of the States. Dodge v. Woolsey, 18 How. 331, 15 L.Ed. 401. The framers of the Constitution might have adopted a different method. Ratification might have been left to a vote of the people, or to some authority of government other than that selected. The language of the article is plain and admits of no doubt in its interpretation. It is not the function of courts or legislative bodies, National or State, to alter the method which the Constitution has fixed. [60]

    We submit that in none of the cases in which the Court avoided the constitutional issues involved, did it pass upon the constitutionality of that Congress which purported to adopt the Joint Resolution for the Fourteenth Amendment, with eighty Representatives and twenty-three Senators forcibly ejected or denied their seats and their votes on said Resolution, in order to pass the same by a two thirds vote, as pointed out in the New Jersey Legislature Resolution of March 27, 1868.

    Such a fragmentary Congress also violated the constitutional requirements of Article V that no State, without its consent, shall be deprived of its equal suffrage in the Senate. There is no such thing as giving life to an Amendment illegally proposed or never legally ratified by three-fourths of the States. There is no such thing as Amendment by laches, no such thing as Amendment by waiver, no such thing as Amendment by acquiescence, and no such thing as Amendment by any other means whatsoever except the means specified in Article V of the Constitution itself. It does not suffice to say that there have been hundreds of cases decided under the Fourteenth Amendment to offset the constitutional deficiencies in its proposal or ratification as required by Article V. If hundreds of litigants did not question the validity of the Fourteenth Amendment or question the same perfunctorily without submitting documentary proof of the facts of record which made its purported adoption unconstitutional, their failure cannot change the Constitution for the millions in America.

    The same thing is true of laches; the same thing is true of acquiescence; the same thing is true of ill-considered court decisions. To ascribe constitutional life to an alleged Amendment which never came into being according to the specified methods laid down in Article V cannot be done without doing violence to Article V itself. This is true, because the only question open to the courts is whether the alleged Fourteenth Amendment became a part of the Constitution through a method required by Article V. Anything beyond that which a court is called upon to hold in order to validate an Amendment, would be equivalent to writing into Article V another mode of the Amendment process which has never been authorized by the people of the United States of America.

     On this point, therefore, the question is: Was the Fourteenth Amendment proposed and ratified in accordance with Article V? In answering this question, it is of no real moment that decisions have been rendered in which the parties did not contest or submit proper evidence, or the Court assumed that there was a Fourteenth Amendment. If a statute never in fact passed in Congress, through some error of administration and printing got in the published reports of the statutes, and if under such supposed statute courts had levied punishment upon a number of persons charged under it, and if the error in the published volume was discovered and the fact became known that no such statute had ever passed in Congress, it is unthinkable that the courts would continue to administer punishment in similar cases, on a non-existent statute because prior decisions had done so. If that be true as to a statute we need only realize the greater truth when the principle is applied to the solemn question of the contents of the Constitution. While the defects in the method of proposing and the subsequent method of computing “ratification” has been brief above, it should be noted that the failure to comply with Article V began with the first action by Congress. The very Congress which proposed the alleged Fourteenth Amendment under the first part of Article V was itself, at that very time, violating the last part as well as the first part of Article V of the Constitution.

    There is one, and only one, provision of the Constitution of the United States which is forever immutable, which can never be changed or expunged. The courts cannot alter it, the executives cannot question it, the Congress cannot change it, and the States themselves, though they act in perfect concert, cannot amend it in any manner whatsoever, whether they act through conventions called for the purpose or through their Legislatures. Not even the unanimous vote of every voter in the United States of America could amend this provision. It is a perpetual fixture in the Constitution, so perpetual and so fixed that if the people of the United States of America desired to change or exclude it, they would be compelled to abolish the Constitution and start afresh.

    The unalterable provision is this: “No State, without its consent, shall be deprived of its equal suffrage in the Senate.” A State, by its own consent, may waive this right of equal suffrage, but that is the only legal method by which a failure to accord this immutable right of equal suffrage in the Senate can be justified. Certainly not by forcible ejection and denial by a majority in Congress, as was done for the adoption of the Joint Resolution for the Fourteenth Amendment. Statements by the Court in the Coleman v. Miller case that Congress was left in complete control of the mandatory process, and therefore it was a political affair for Congress to decide if an Amendment had been ratified, does not square with Article V of the Constitution which shows no intention to leave Congress in charge of deciding such matters. Even a constitutionally recognized Congress is given but one volition in Article V, and that is to vote whether to propose an Amendment on its own initiative. The remaining steps by Congress are mandatory. Congress shall propose Amendments; if the Legislatures of two thirds of the States make application, Congress shall call a convention. For the Court to give Congress any power beyond that which is found in Article V is to write new material into Article V. It would be inconceivable that the Congress of the United States could propose, compel submission to, and then give life to an invalid Amendment by resolving that its effort had succeeded regardless of compliance with the positive provisions of Article V. It should need no further citation to sustain the proposition that neither the Joint Resolution proposing the Fourteenth Amendment nor its ratification by the required three fourths of the States in the Union were in compliance with the requirements of Article V of the Constitution.

    When the mandatory provisions of the Constitution are violated, the Constitution itself strikes with nullity the Act that did violence to its provisions. Thus, the Constitution strikes with nullity the purported Fourteenth Amendment. The courts, bound by oath to support the Constitution, should review all of the evidence herein submitted and measure the facts proving violations of the mandatory provisions of Article V of the Constitution, and finally render judgment declaring said purported Amendment never to have been adopted as required by the Constitution. The Constitution makes it the sworn duty of the judges to uphold the Constitution which strikes with nullity the Fourteenth Amendment. As Chief Justice Marshall pointed out for a unanimous Supreme Court in Marbury v. Madison:

    The framers of the Constitution contemplated the instrument as a rule for the government of courts, as well as of the legislature….

         Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that Constitution forms no rule for his government?…

         If such be the real state of things, that is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime….

         Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions…. that courts, as well as other departments, are bound by that instrument. [61]

    The Federal courts actually refuse to hear argument on the invalidity of the Fourteenth Amendment, even when the evidence above is presented squarely by the pleadings. Only an aroused public sentiment in favor of preserving the Constitution and our institutions and freedoms under constitutional government, and the future security of our country, will break the political barrier which now prevents judicial consideration of the unconstitutionality of the Fourteenth Amendment.

Endnotes:

1.  U.S. Constitution, Article 1, Section 3.

2.  Ibid., Article V.

3.  New Jersey Acts, 27 March 1868.

4.  Alabama House Journal, 1866, pages 210-213.

5.  Texas House Journal, 1866, page 577.

6.  Arkansas House Journal, 1866, page 287.

7.  Georgia House Journal, 1866, pages 66-67.

8.  Florida House Journal, 1866, page 76.

9.  South Carolina House Journal, 1866, pages 33-34.

10.  North Carolina Senate Journal, 1866-67, pages 92-93.

11.  Statutes at Large, Volume XIV, pages 358ff.

12.  Senate Journal (39th Congress, lst Session), page 563; House Journal, 1866, page 889.

13.  House Journal, 1866, pages 578-584; Senate Journal, 1866, page 471.

14.  House Journal, 1866, page 68; Senate Journal, 1866, page 72.

15.  House Journal, 1866, page 76; Senate Journal, 1866, page 8.

16.  House Journal, 1866, pages 210-213; Senate Journal, 1866, page 183.

17.  House Journal, 1866-67, page 183; Senate Journal, 1866-67, page 138.

18.  House Journal, 1866, pages 288-291; Senate Journal, 1866, page 262.

19.  House Journal, 1866, page 284; Senate Journal, 1866, page 230.

20.  House Journal, 1867, page 60; Senate Journal, 1867, page 62.

21.  House Journal, 1866-67, page 108; Senate Journal, 1866-67, page 101.

22.  Reference: James M. McPherson, The Struggle For Equality: Abolitionists and the Negro in the Civil War and Reconstruction (Princeton, New Jersey: Princeton University Press, 1964), page 194; American Annual Cyclopedia and Register of Important Events of the Year 1867 (New York: D. Appleton and Company, 1870), page 452.

23.  House Journal, 1867, page 223; Senate Journal, 1867, page 176.

24.  House Journal, 1867, page 1141; Senate Journal, 1867, page 808.

25.  Reference: James M. McPherson, Struggle For Equality, page 194.

26.  House Journal, 1868, pages 44-50; Senate Journal, 1868, pages 22-38.

27.  Minutes of the Assembly, 1868, page 743; Senate Journal, 1868, page 356.

28.  House Journal (39th Congress, 2nd Session), page 563.

29.  Statutes at Large, Volume XIII, page 567.

30.  Ibid., page 774.

31.  Presidential Proclamation No. 153 in General Records of the United States (G.S.A. National Archives and Records Service).

32.  Statutes at Large, Volume XIV, page 814.

33. House Journal (37th Congress, lst Session), page 123.

34.  Senate Journal (37th Congress, lst Session), page 91ff.

35.  Statutes at Large, Volume XIII, page 763.

36.  Ibid., Volume XIV, page 811.

37.  Ibid., pages 814.

38.  40th Congress, 1st Session; House Journal, page 232.

39.  Mississippi v. President Andrew Johnson (1867), 4 Wall. 475-502.

40.  6 Wall. 50-78, 154 U.S. 554.

41.  Ex parte William H. McCardle, 7 Wall. 506-515.

42.  Act of Congress, March 27, 1868; Statutes at Large, Volume XV, page 44.

43.  House Journal (39th Congress, 2nd Session), pages 563ff.

44.  Ibid. (40th Congress, 1st Session), pages 232ff.

45.  Reference: James M. McPherson, Struggle For Equality, page 53.

46.  House Journal, 1868, page 15; Senate Journal, 1868, page 15.

47.  House Journal, 1868, page 9; Senate Journal, 1868, page 8.

48.  Senate Journal, 1868, page 21.

49.  House Journal, 1868, page 50; Senate Journal, 1868, page 12.

50.  Reference: Francis Newton Thorpe, The Federal and State Constitutions (Washington, D.C.: Government Printing Office, 1906), Volume 1, pages 288-306; Ibid., Volume XI, pages 1429-1448.

51.  Reference: Thorpe, ibid., Volume V, pages 2799-2800.

52.  Reference: Thorpe, ibid., Volume II, pages 809-822.

53.  Reference: Thorpe, ibid., Volume I, pages 116-132.

54.  Reference: Thorpe, ibid., Volume VI, pages 3269-3281.

55.  Statutes at Large, Volume XIV, pages 428ff; 15 Statutes at Large, pages 14ff.

56.  Ibid., Volume XV, page 706.

57.  House Journal (40th Congress, 2nd Session), page 1126.

58.  Coleman v. Miller, 307 U.S. 448, 59 S.Ct. 972.

59.  White v. Hart (1871), 13 Wall. 646, 654.

60.  Hawke v. Smith (1920), 253 U.S. 221, 40 S.Ct. 227.

61.  Marbury v. Madison, I Cranch, 136, 179.

**** This article was extracted from the Congressional Record – House (June 13, 1967)  

Additional Reference:  Leander H. Perez, “America’s Caesar, “The Decline and Fall of Republican Government in the United States,”  Referenced at:  http://www.americascaesar.com/etext/unconstitutionality_fourteenth_amendment.htm

VII: THE CONSTlTUTION STRIKES THE 14TH AMENDMENT WITH NULLITY

     The defenders of the 14th Amendment contend that the U. S. Supreme Court has finally decided upon its validity. Such is not the case.

     In what is considered the leading case, Coleman v. Miller, 507 U. S. 448, 59 S. Ct. 972 (1939), the U. S. Supreme Court did not uphold the validity of the 14th Amendment. In that case, the Court brushed aside constitutional questions as though they did not exist. For instance, the Court made the statement that:

     “The legislatures of Georgia, North Carolina, and South Carolina had rejected the amendment in November and December, 1866. New governments were erected in those States (and in others) under the direction of Congress. The new legislatures ratified the amendment, that of North Carolina on July 4, 1868, that of South Carolina on July 9, 1868, and that of Georgia on July 21, 1868.”

     And the Court gave no consideration to the fact that Georgia, North Carolina and South Carolina were three of the original states of the Union with valid and existing constitutions on an equal footing with the other original states and those later admitted into the Union.

     What constitutional right did Congress have to remove those state governments and their legislatures under unlawful military power set up by the unconstitutional “Reconstruction Acts,” which had for their purpose, the destruction and removal of these legal state governments and the nullification of their Constitutions?

     The fact that these three states and seven other Southern States had existing Constitutions, were recognized as states of the Union, again and again; had been divided into judicial districts for holding their district and circuit courts of the United States; had been called upon by Congress to act through their legislatures upon two Amendments, the 13th and 14th, and by their ratifications had actually made possible the adoption of the 13th Amendment; as well as their state governments having been re-established under Presidential Proclamations, as shown by President Andrew Johnson’s Veto message and proclamations, were all brushed aside by the Court in Coleman.  The decision simply stated:  “New governments were erected in those States (and in others) under the direction of Congress” and that these new legislatures ratified the Amendment.”

     The U. S. Supreme Court overlooked the official position of the Lincoln administration when it invaded the South.  The government, at that time, held that at no time were these Southern States out of the Union. White v. Hart, 80 U.S. 646; 13 Wall. 646, 654 (1871).

      In Coleman, the Court did not adjudicate upon the invalidity of the Acts of Congress which set aside those state Constitutions and abolished their state legislatures,- the Court simply referred to the fact that their legally constituted legislatures had rejected the 14th Amendment and that the “new legislatures” had ratified the Amendment.

      The Court overlooked the fact, too, that the State of Virginia was also one of the original states with its Constitution and Legislature in full operation under its civil government at the time.

      The Court also ignored the fact that the other six Southern States, which were given the same treatment by Congress under the unconstitutional “Reconstruction Acts,” all had legal constitutions and a republican form of government in each state, as was recognized by Congress by its admission of those states into the Union. The Court certainly must take judicial cognizance of the fact that before a new state is admitted by Congress into the Union, Congress enacts an Enabling Act, to enable the inhabitants of the territory to adopt a Constitution to set up a republican form of government as a condition precedent to the admission of the state into the Union, and upon approval of such Constitution, Congress then passes the Act of Admission of such state.

     All this was ignored and brushed aside by the Court in the Coleman case. However, in that case, the Court inadvertently said this:

       “Whenever official notice is received at the Department of State that any amendment proposed to the Constitution of the United States has been adopted, according to the provisions of the Constitution, the Secretary of State shall forthwith cause the amendment to be published, with his certificate, specifying the States by which the same may have been adopted, and that the same has become valid, to all intents and purposes, as a part of the Constitution of the United States.”

In Hawse v. Smith, 253 U. S. 221 (1920), the U. S. Supreme Court unmistakably held:

      “The fifth article is a grant of authority by the people to Congress. The determination of the method of ratification is the exercise of a national power specifically granted by the Constitution; that power is conferred upon Congress, and is limited to two methods, by action of the Legislatures of three-fourths of the states, or conventions in a like number of states. Dodge v. Woolsey. 18 How. 331, 348, 15 L. Ed. 401. The framers of the Constitution might have adopted a different method. Ratification might have been left to a vote of the people, or to some authority of government other than that selected. The language of the article is plain, and admits of no doubt in its interpretation. It is not the function of courts or legislative bodies, national or state, to alter the method which the Constitution has fixed.”

   We submit that in none of the cases in which the Court avoided the constitutional issues involved in the composition of the Congress which adopted the Joint Resolution for the 14th Amendment, did the Court pass upon the constitutionality of the Congress which purported to adopt the Joint Resolution for the 14th Amendment, with 80 Representatives and 23 Senators, in effect, forcibly ejected or denied their seats and their votes on the Joint Resolution proposing the Amendment, in order to pass the same by a two-thirds vote, as pointed out in the New Jersey Legislature Resolution on March 27, 1868.

     The constitutional requirements set forth in Article V of the Constitution permit the Congress to propose amendments only whenever two-thirds of both houses shall deem it necessary – that is, two-thirds of both houses as then constituted without forcible ejections.

     Such a fragmentary Congress also violated the constitutional requirements of Article V that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

     There is no such thing as giving life to an amendment illegally proposed or never legally ratified by three-fourths of the states. There is no such thing as amendment by laches; no such thing as amendment by waiver; no such thing as amendment by acquiescence; and no such thing as amendment by any other means whatsoever except the means specified in Article V of the Constitution itself.  [Note that laches is a legal doctrine that says that a legal right or claim will not be enforced or allowed if a long delay in asserting the right or claim has prejudiced the adverse party. It is often used in intellectual property, such as with trademarks].

     It does not suffice to say that there have been hundreds of cases decided under the 14th Amendment to supply the constitutional deficiencies in its proposal or ratification as required by Article V.  If hundreds of litigants did not question the validity of the 14th Amendment, or questioned the same perfunctorily without submitting documentary proof of the facts of record which made its purported adoption unconstitutional, their failure cannot change the Constitution for the millions in America. The same thing is true of laches; the same thing is true of acquiescence; the same thing is true of ill considered court decisions.

    To ascribe constitutional life to an alleged amendment which never came into being according to specific methods laid down in Article V cannot be done without doing violence to Article V itself.  This is true, because the only question open to the courts is whether the alleged 14th Amendment became a part of the Constitution through a method required by Article V. Anything beyond that which a court is called upon to hold in order to validate an amendment, would be equivalent to writing into Article V another mode of amendment which has never been authorized by the people of the United States.

     On this point, therefore, the question is, was the 14th Amendment proposed and ratified in accordance with Article V?

     In answering this question, it is of no real moment that decisions have been rendered in which the parties did not contest or submit proper evidence, or the Court assumed that there was a 14th Amendment.  If a statute never in fact passed by Congress, through some error of administration and printing got into the published reports of the statutes, and if under such supposed statute courts had levied punishment upon a number of persons charged under it, and if the error in the published volume was discovered and the fact became known that no such statute had ever passed in Congress, it is unthinkable that the Courts would continue to administer punishment in similar cases, on a non-existent statute because prior decisions had done so. If that be true as to a statute we need only realize the greater truth when the principle is applied to the solemn question of the contents of the Constitution.

    While the defects in the method of proposing and the subsequent method of computing “ratification” is briefed elsewhere, it should be noted that the failure to comply with Article V began with the first action by Congress. The very Congress which proposed the alleged 14th amendment under the first part of Article V was itself, at that very time, violating the last part as well as the first part of Article V of the Constitution. We shall see how this was done.

    There is one, and only one, provision of the Constitution of the United States which is forever immutable – which can never be changed or expunged. The Courts cannot alter it; the executives cannot change it; the Congress cannot change it; the State themselves – even all the States in perfect concert – cannot amend it in any manner whatsoever, whether they act through conventions called for the purpose or through their legislatures. Not even the unanimous vote of every voter in the United States could amend this provision. It is a perpetual fixture in the Constitution, so perpetual and so fixed that if the people of the United States desired to change or exclude it, they would be compelled to abolish the Constitution and start afresh.

    The unalterable provision is this . . . “that no State, without its consent, shall be deprived of its equal suffrage in the Senate.”

     A state, by its own consent, may waive this right of equal suffrage, but that is the only legal method by which a failure to accord this immutable right of equal suffrage in the Senate can be justified. Certainly not by forcible ejection and denial by a majority in Congress, as was done for the adoption of the Joint Resolution for the 14th Amendment.

     Statements by the Court in the Coleman case that Congress was left in complete control of the mandatory process, and therefore it was a political affair for Congress to decide if an amendment had been ratified, does not square with Article V of the Constitution which shows no intention to leave Congress in charge of deciding whether there has been a ratification. Even a constitutionally recognized Congress is given but one volition in article V, that is, to vote whether to propose an Amendment on its own initiative. The remaining steps by Congress are mandatory. If two-thirds of both houses shall deem it necessary, Congress shall propose amendments; if the Legislatures of two-thirds of the States make application, Congress shall call a convention. For the Court to give Congress any power beyond that to be found in Article V is to write the new material into Article V.

     It would be inconceivable that the Congress of the United States could propose, compel submission to, and then give life to an invalid amendment by resolving that its effort had succeeded,- regardless of compliance with the positive provisions of Article V.

     It should need no further citations to sustain the proposition that neither the Joint Resolution proposing the 14th amendment nor its ratification by the required three-fourths of the States in the Union were in compliance with the requirements of Article V of the Constitution.

     When the mandatory provisions of the Constitution are violated, the Constitution itself strikes with nullity the Act that did violence to its provisions. Thus, the Constitution strikes with nullity the purported 14th Amendment.

     The Courts, bound by oath to support the Constitution, should review all of the evidence herein submitted and measure the facts proving violations of the mandatory provisions of the Constitution with Article V, and finally render judgment declaring said purported amendment never to have been adopted as required by the Constitution.

    The Constitution makes it the sworn duty of the judges to uphold the Constitution which strikes with nullity the 14th Amendment. And, as Chief Justice Marshall pointed out for a unanimous Court in Marbury v. Madison (1 Cranch 136 at 179): 

       “The framers of the constitution contemplated the instrument as a rule for the government of courts, as well as of the legislature.”

      “Why does a judge swear to discharge his duties agreeably to the Constitution of the United States, if that Constitution forms no rule for his government?”

      “If such be the real state of things, that is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime.”

      “Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, courts, as well as other departments, are bound by that instrument.”

    The federal courts actually refuse to hear argument on the invalidity of the 14th Amendment, even when the issue is presented squarely by the pleadings and the evidence as above.

     Only an aroused public sentiment in favor of preserving the Constitution and our institutions and freedoms under constitutional government, and the future security of our country, will break the political barrier which now prevents judicial consideration of the unconstitutionality of the 14th Amendment.

Cites and References (Sections I-VI):
1. New Jersey Acts, March 27, 1868.
2. Alabama House Journal 1868, pp. 210-213.
3. Texas House Journal, 1866, p. 577.
4. Arkansas House Journal, 1866, p. 287.
5. Georgia House Journal, November 9, 1866, pp. 66-67.
6. Florida House Journal, 1866, p. 76.
7. South Carolina House Journal, 1868, pp. 33 and 34.
8. North Carolina Senate Journal, 1866-67, pp. 92 and 93.
9. 14 Stat. 358 etc.
10. Senate Journal, 39th Congress, 1st Session. p. 563, House Journal p. 889.
11. House Journal 1868, pp. 578-584 — Senate Journal 1866, p. 471.
12. House Journal 1866, p. 68 — Senate Journal 1886, p. 72
13. House Journal 1866, p. 76 — Senate Journal 1866, p. 8.
14. House Journal l866, pp. 210-213 — Senate Journal 1866, p. 183.
15. House Journal 1866-1867. p. 183 — Senate Journal 1866-1867, p. 138.
16. House Journal 1866, pp. 288-291 — Senate Journal 1866, p. 262.
17. House Journal 1866, p. 284 — Senate Journal 1866, p. 230.
18. House Journal 1867, p. 60 — Senate Journal 1867, p. 62.
19. House Journal 1866-1867, p. 108 — Senate Journal 1866-1867, p. 101.
20. McPherson, Reconstruction, p. 194; Annual Encyclopedia, p. 452.
21. House Journal 1867, p. 223 — Senate Journal 1867, p. 176.
22. House Journal 1867, p. 1141 — Senate Journal 1867, p. 808.
23. McPherson, Reconstruction, p. 194.
24. House Journal 1868, pp. 44-50 — Senate Journal 1868, pp. 33-38.
25. Minutes of the Assembly 1868, p. 743—Senate Journal 1868, p. 356.
26. House Journal, 80th Congress, 2nd Session. p. 563 etc. 
27. 13 Stat. p. 567. 
28. 18 Stat. p. 774. 
29. Presidential Proclamation No. 153, General Record of the United States, G.S.A., National Archives and Records Service. 30 14 Stat. p. 814.
31 House Journal, 37th Congress, 1st Session. p. 123 etc.
32 Senate Journal, 37th Congress, 1st Session. p. 91 etc.
33 13 Stat. p. 763.
34 14 Stat. p. 811.
35 14 Stat. p. 814.
36 House Journal, 39th Congress, 2nd Session. p. 563 etc.
37 40th Congress, 1st Session. House Journal p. 232 etc.
38 McPherson, Reconstruction, p. 53.
39 House Journal 1868, p. 15, Senate Journal 1868, p. 15.
40 House Journal 1868, p. 9, Senate Journal 1868, p. 8.
41 Senate Journal 1868, p. 21.
42 House Journal 1868, p. 50, Senate Journal 1868, p. 12.
43 Senate Journal, 40th Congress. 2nd Session. p. 725. 
44 House Journal, 1868, p. 50.
45 Vol. I, pp. 288-306; Vol. II, pp. l429-]448 – “The Federal and State Constitutions,” etc., compiled under Act of Congress on June 30, 1906, Francis Newton Thorpe, Washington Government Printing Office (1906).
46 Same, Thorpe, Vol. V, pp. 2799-2800.
47 Same, Thorpe, Vol. II, pp. 809-822.
48 Same, Thorpe, Vol. I, pp. 116-132.
49. Same, Thorpe, Vol. VI, pp. 3269-3281. 
50. 14 Stat. p. 42B, etc. 15 Stat. p. l4, etc.
51. 15 Stat. p. 706.
52. House Journal, 40th Congress, 2nd. Session. p. 1126 etc.
53. 16 Stat. p. 708.

Additional References:

“The 14th Amendment: Equality Protection Law or Tool of Usurpation,” from the US Congressional (House) Record of June 13, 1967; H7161  (House Record, pp. 15641-15646) 

“The 14th Amendment: Equal Protection of the Laws or Tool of Usurpation?,” US Congressional Record – House, June 13, 1967; page 15641.  http://www.civil-liberties.com/cases/14con.html

Judge Leander H. Perez, “America’s Caesar, “The Decline and Fall of Republican Government in the United States.”  Referenced at:  http://www.americascaesar.com/etext/unconstitutionality_fourteenth_amendment.htm

Walter J. Suthon Jr, “The Dubious Origins of the Fourteenth Amendment,” Tulane Law Review, Vol. 28, at pg. 22 (1954).  Referenced at:

https://forloveofgodandcountry.com/2023/01/18/the-dubious-origins-of-the-fourteenth-amendment-by-walter-j-suthon-jr/    and    http://www.supremelaw.org/authors/suthon/28TLR22.pdf

Coleman v. Miller, 307 U.S. 448, 59 S.Ct. 972 (1939)

White v. Hart, 13 Wall. 646, 654 (1871)

Hawke v. Smith, 253 U.S. 221, 40 S.Ct. 227 (1920)

Marbury v. Madison, I Cranch, 136, 179 (1803)

Ex Parte McCardle,  74 U.S. 506 (1868)

State of Mississippi v. Johnson, 71 U.S. 475 (1866) – http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=71&invol=475

Georgia v. Stanton, 73 U.S. 50 (1867) – http://supreme.justia.com/cases/federal/us/73/50/case.html

“The 14th Amendment: Equal Protection of the Laws or Tool of Usurpation?,” US Congressional Record – House, June 13, 1967; H7161. (House Record,  pp. 15641 – 15646).   http://www.civil-liberties.com/cases/14con.html

David Lawrence, “There is no Fourteenth Amendment!,” U.S. News & World Report, September 27, 1957.  Referenced at:  http://www.constitution.org/14ll/no14th.htm

Albert Burns, “The Infamous 14th Amendment,” The Federal Observer, December 25, 2012.  Referenced at:  http://www.federalobserver.com/archive.php?aid=8062  [Originally posted by Mr. Burns on June 26, 2004 in NewsWith Views.com]

Amendments to the US Constitution –  http://caselaw.lp.findlaw.com/data/constitution/amendments.html

FURTHER NOTES & APPENDIX:

It must be noted that the Resolution proposing the twelve sections which comprise the Bill of Rights was not issued to the States with a signature, nor were nos. 11, 12, or the original 13th. The proposed “Corwin” 13th of 1861 legalizing Slavery and acknowledging States rights, signed as approved by Buchanan two days before Lincoln’s inauguration, and the Anti-Slavery Amendment, signed by then President Lincoln were the only two signed by presidents. So, President Andrew Johnson’s argument was probably defective.

It may be helpful to know that the 14th amendment proclamations of July 20, 1868, cite 51, and July 28, 1868, cite 53, were issued as Presidential Executive Orders.

Presidential Executive Order No. 6 **, issued July 20, 1868. Ratification of the 14th Amendment certified as valid, provided the consent of Ohio and New Jersey be deemed as remaining in force despite subsequent withdrawal. **Signed by William H. Seward, Secretary of State. Has the form of a proclamation.

Presidential Executive Order No. 7 **, issued July 28, 1868. 14th Amendment certified as in effect and ordered published. **Signed by William H. Seward, Secretary of State.

From Presidential Executive Order Title List — Presidential Executive Orders, 2 vols. (N.Y.: Books, Inc., 1944 Copyright by Mayor of N.Y. 1944), vol. 1, pp. 1-2.

In this light the 14th (amendment), which has perplexed many, is an Executive Order, not an (Article) of Amendment to the Constitution of the united States of America, albeit a statute and so remains an Executive Order.

What really counts are these points:

1).  New Jersey was disenfranchised in the Senate by having its lawfully-elected Senator accepted, and then rejected, and without a 2/3rd’s vote;

2).  Oregon had a faulty ratification vote with unlawful state legislators being allowed to cast votes; and the lawfully-constituted state legislature then rejected the 14th Amendment, but too late.

3).  Non-republican [Reconstruction] governments of the southern States imposed by military force and fiat, cannot ratify anything. Either the 14th Amendment is legal and the anti-slavery amendment (13th Amendment) is not, or the 13th Amendment is legal and the 14th is not.

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THE DUBIOUS ORIGINS OF THE FOURTEENTH AMENDMENT (by Walter J. Suthon Jr)

by Walter J. Suthon Jr, from his Tulane University Law Review article

PREFACE (by Diane Rufino): The Fourteenth Amendment, namely the “Equal Protection Clause,” is the provision of the US Constitution most often cited in federal lawsuits.

The Fourteenth Amendment to the Constitution of the United States has loomed large in recent years in litigation before the United States Supreme Court involving contentions for restriction of State regulatory power and enlargement of Federal regulatory power. Under this Amendment—and its companion, or satellite amendment, the Fifteenth – the United States Supreme Court, in the past approximately fifteen years, has repeatedly rendered decisions [1] aimed at mandating racial integration and breaking down established systems of racial segregation in political, educational, social, economic and other fields in the Southern States – and in some instances outside the South.

It is not the purpose of this article to discuss the merits of segregation—or of its antitype, racial integration. These are questions upon which each of us has his or her own individual view, belief, and conviction, based on what we think and how we think. What is to be discussed relates to the use of the Fourteenth Amendment by the United States Supreme Court as an implement for invading the areas formerly reserved to State regulation, or to individual or group action, and for breaking down established systems of racial segregation and setting up compulsive racial inter-association—in effect compulsive racial integration. In this field, the “Equal Protection” Clause (“equal protection of the laws”) and the “Privileges or Immunities” Clause (“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”) of the Fourteenth Amendment are those most frequently invoked in support of those legal attacks upon our fundamental way of life.

SCHOOL SEGREGATION CASES

There are now pending in the United States Supreme Court a group of cases [2] involving attacks upon the constitutionality of our system of segregated public schools and demanding that its system of segregation be destroyed by judicial fiat. These cases seek the overruling of the established jurisprudence, predicated in a large measure upon a leading decision [3] of the Supreme Court of Massachusetts, that a segregated system of public schools is constitutional, provided the educational facilities for each race are substantially equal.

The United States Supreme Court, after hearing arguments in these school segregation cases, and after several months of study and consideration following these arguments, has entered orders re-fixing these cases for further argument, now scheduled to take place in December (which will be the companion case to Brown v. Board of EducationBrown II.) [4] The orders for re-argument specify certain issues on which the Court desires to hear discussion and to receive briefs. From this course of events, it appears quite possible that this Court is closely divided on these cases, and that the ultimate outcome may be determined on re-argument and in the additional briefs to be filed thereon.

The specification of issues, on which discussion is requested at the re-argument, includes inquiries [5] as to events contemporaneous with the framing, submission and ratification of the Amendment. These specifications were probably prepared without any particular intent to invite exposure or discussion of the dubious origin of this Amendment. Be that as it may, they involve study, consideration and evaluation of the legislative history of the Amendment, and its dubious origin—one may justifiably say its worse than dubious origin—is an inseparable part of its malodorous legislative history.

AMENDMENT PROCEDURE ESTABLISHED BY ARTICLE V

Article V [6] of the Constitution sets forth the procedure for amendment proposals and ratifications. The portion of Article V pertinent to the amendment machinery utilized in this instance reads as follows:

“Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution…which… shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States…”

As will be observed, this amending process is a two-step process. Congress takes the first step-submission. The next step-ratification—must be the act of the States—the act of at least three fourths of the States concurring in ratifications passed by their respective legislatures.

When the amendment procedure set forth in Article V of the Constitution is carefully analyzed, it will appear that the States have the primary of major and final function in the amending process, and the role of Congress therein, although substantial and important, is definitely of a secondary and preliminary nature. Indeed, an amendment proposal defeated in Congress may nevertheless be adopted exclusively by state action. This would occur upon the legislatures of two-thirds of the States applying for the calling of a Convention to propose such an amendment, and upon the ratification of that amendment proposal by three-fourths of the States.

Even when the amendment proposal is the product of a two-thirds vote of Congress, the final decision rests entirely with the States. After the initial step of voting the amendment proposal, the only remaining function in the ratification procedure allocated to Congress by the Constitution is a minor one—the function of determining [7] whether the States, in voting on ratification, shall act through their respective legislatures, or through Conventions.

EVOLVEMENT OF ARTICLE V IN FEDERAL CONVENTION

The record of the evolution of Article V, in the proceedings of the Federal Convention of 1787, fully supports the view that Congress has no function at all to perform in that stage of the amending process which comes after submission of the proposed, i.e., during consideration of ratification by the States, and action thereon by the States. It is significant that, in the Convention, a proposal [8] for excluding the “National Legislature” entirely from the amending process, and leaving the whole of that process to the States, was seriously made and considered. There was never any corresponding proposal that the States be excluded entirely from the amending process or that this process should be entrusted entirely to Congress.

George Mason of Virginia argued [9] in support of excluding the “National Legislature” entirely from the amending process, that “they may abuse their power, and refuse their assent on that very account.” Of course, that view did not ultimately prevail. However, it is significant that Article V, as evolved and adopted, contains a safeguard against what Mason apprehended—a power in Congress to completely block an amendment proposal. This safeguard against possible Congressional obstruction appears in the provision that two-thirds of the States may by-pass a refusal of Congress to submit a particular amendment proposal, by voting through their legislatures for a Convention to propose such an amendment.

As the proposed language of the provision for amendments began to take form, the sole method at first for initiating amendments [10] was to be an application by the legislatures of two-thirds of the States for the calling of a Convention for that purpose, the “legislature of the United States” having merely the ministerial function of calling the Convention upon such an application by the required number of state legislatures.

Hamilton had a leading part in changing the language so as to permit Congress to have a power to propose a constitutional amendment. In arguing in favor of giving this power of initiating an amendment proposal to Congress, he said: “There could be no danger in giving this power, as the people would finally decide in the case.” [11]

How dangerous this concept [12] would become. From 1867 and 1868, a “rump” Congress claimed itself the power to force ratification of a rejected amendment, through coercing ratifications by several of the rejecting States (notably, the Reconstruction era amendments – the Thirteenth, Fourteenth, and Fifteenth]. And then in 1913, Congress initiated the Sixteenth Amendment (which established Congress’s right to impose a Federal income tax), the Seventeenth Amendment (which changed the manner in which US Senators are selected – from selection by the state legislatures to election by the people). Also in 1913, Congress, at the urging of President Woodrow Wilson, passed the Federal Reserve Act, creating the Federal Reserve.

After Hamilton had made his point that Congress could be safely vested with a power of initiating amendment proposals, since that would not give it power of final decision on these proposals, the language of this provision was then and there worked out in substantially the final form of what later became Article V. [13] This was done [14] under the leadership of Madison and Hamilton, who thus collaborated on giving Congress a power (but not even an exclusive power) to initiate amendment proposals, with power of final decision as to ratification or rejection reserved to the States.

A power in the States to initiate amendment proposals, through action to that end by the legislatures of two-thirds of the States, was retained in Article V, also the joint work of Madison and Hamilton. As already noted, this affords a possibility for completely by – passing Congress on a constitutional amendment proposal and prevents a Congressional power to initiate amendment proposals from becoming a veto power.

It should also be noted that, on this same occasion, the rather general language, which would apparently have required unanimity of action by the States for ratification, was amended so as to fix proportion of the whole number of States required for ratification. Rejecting a motion to fix this proportion at two-thirds, the Convention voted to required ratification by three-fourths of the States in order to effectuate an amendment. [16] The significance of this choice of the larger of two proposed proportions as to the state action requisite for ratification is that the right to defeat an amendment proposal was thereby vested in a smaller proportion of rejecting States. It was this constitutional right of a group of rejecting States, sufficient in number to defeat ratification of the Fourteenth Amendment, which was infracted by the unconstitutional action of Congress in coercing ratification by several of the rejecting States through the compulsions of the Reconstruction Act.

Evidently to safeguard, as far as possible, against the risk of an obstructive attitude on the part of Congress, the provision for Congress submitting amendment proposals on the applications of the legislatures of two-thirds of the States was changed [17] to a requirement that Congress should call a Convention for that purpose upon such an application from state legislatures. This proposal was made by Governor Morris and Elbridge Gerry, following a warning by Mason that Congress could be expected to use its power relating to the proposing of amendments to prevent the States from having an opportunity to ratify proper amendments. [18]

It is also interesting t note that the final change, in the provision which was about to become Article V of the Constitution, was the insertion, on the motion of Governor Morris, of the prohibition [19] against depriving any State of its equal suffrage in the Senate, without its consent. As pointed out elsewhere in this article, a gross and wholesale violation of this plain constitutional provision, through the exclusion from the Senate of all persons holding credentials as Senators from the ten Southern States, made it possible for the advocates of the amendment proposal to obtain in the “rump” Senate the two-thirds vote required to submit to the States the proposal for the Fourteenth Amendment.

The Fourteenth Amendment was proposed by Congress to the States for adoption, through the enactment by Congress of Public Resolution No. 48 [20], adopted by the Senate on June 8, 1866 [21] and by the House of Representatives on June 13, 1866. [22]

That Congress deliberately submitted this amendment proposal to the then existing legislatures of the several States is shown by the initial paragraph of the resolution. [23]

This submission was by a two-thirds vote of the quorum present in each House of Congress, and in that sense, it complied with Article V of the Constitution. However, the ultimate approval of the submission was by a “rump” Congress. Using the constitutional provision that “Each House shall be the judge of the Elections, Returns and Qualifications of its own Members. . .” [24], each House had excluded all persons appearing with credentials as Senators or Representatives from the ten Southern States of Virginia, North Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, Arkansas and Texas (ie, the former Confederate States, except Tennessee). This exclusion, through the exercise of an unreviewable constitutional prerogative, constituted a gross violation of the essence of two other constitutional provisions [25], both intended to protect the rights of the States to representation in Congress.

Had these ten Southern States not been summarily denied their constitutional rights of representation in Congress, through ruthless use of the power of each House to pass on the election and qualifications of its members, the proposal of the Fourteenth Amendment would doubtless have died at its inception. It obviously would have been impossible to secure a two-thirds vote for the submission of this Amendment, particularly in the Senate, if the excluded members had been permitted to enter and to vote. Of course, that was one of the motives and reasons for this policy of ruthless exclusion.

Assuming the validity of the submission of this amendment by a two-thirds vote of the “rump” Congress, there is no contradicting the obvious proposition that whatever “contemplation” or “understanding” this “rump” Congress may have had, as to the intent, or the scope, or the effect, or the consequences of the amendment being submitted, was necessarily a “rump” contemplation or understanding. The ten Southern States, whose Senators and Representatives were all excluded from the deliberations of this “rump” Congress, could have had no possible part in the development or formation of any “contemplation” or “understanding” of what the consequences and effects of the proposed amendment were to be. (Yet its consequences would be especially dire and punishing on those States).

If the Supreme Court now finds that the Congress submitting the proposed Amendment understood and contemplated that it would abolish segregation in the public schools, either immediately or ultimately, one naturally wonders whether the Supreme Court will then enforce this necessarily “rump” contemplation or understanding against the ten Southern States who were deliberately and designedly excluded from any possible participation in these “rump” submission proceedings.

When the Fourteenth Amendment was submitted, these ten Southern States, which had been excluded from representation in Congress, had existing governments and legislatures. Congress had sought to avoid extending any recognition to these existing state governments, and the legality of these governments, in what the radical majority in Congress termed the “rebel States,” was disputed in some quarters. However, in practically all of these ten States, these governments were the only governments then in existence and these legislatures, being the only legislatures then existing in these States, were in June 1866, the only legislatures in these States to which the Fourteenth Amendment could be then submitted under the directive in the proposal resolution that the amendment be submitted “to the legislatures of the several states.”

These State governments had received Presidential recognition and, through their legislatures, they had participated actively in the then recent ratification and adoption of the Thirteenth Amendment abolishing slavery. Indeed, ratification of that amendment by these legislatures in these Southern States had aided in making up the ratification of that amendment, abolishing slavery, by the required three-fourths of the States.

REJECTIONS OF THE AMENDMENT

When the proposed Fourteenth Amendment was submitted to the legislatures of the several States, it needed to have ratification by twenty-eight States, being three-fourths of the thirty-seven States. While it was ratified rather promptly by most of the States outside the South, it was never ratified by California and it was rejected by the three border states of Kentucky, Delaware and Maryland. [26] It was also rejected, during the latter part of 1866 and the early part of 1867, by the legislatures of the ten Southern States [27], including Louisiana, whose Senators and Representatives had been excluded from seats in Congress.

This created a situation which made impossible the ratification of the Amendment unless some of these rejections were sufficient to prevent the adoption of the amendment proposal. The thirteen rejections, by the ten Southern States and three border States, were more than sufficient to block ratification even if all other States finally ratified.

The Louisiana legislature, which rejected the Fourteenth Amendment early in 1867, had been elected under the Louisiana Constitution of 1864, and functioned under this Constitution. It should be remembered that this Constitution was not a product of the Confederacy, or of a reorganization of the State government by former Confederates after cessation of hostilities. The Louisiana Constitution of 1864 was adopted [28] by a convention held in New Orleans under the auspices of the Federal authorities, acting largely on suggestions and directions from President Lincoln. It was clearly a re-establishment and continuation of the Louisiana state government as it had existed before secession.

The rejection of the Fourteenth Amendment by this Louisiana Legislature is embodied in Act 4 of 1867, a Joint Resolution adopted by both Houses declaring “That the State of Louisiana refuses to accede to the amendment of the Constitution of the United States proposed as Article (XIV) Fourteen.”

This is the only action ever taken on the Fourteenth Amendment by a Louisiana Legislature exercising free and unfettered and uncoerced judgment and discretion as between ratification or rejection of the amendment proposal. The subsequent purported ratification of this Amendment in Louisiana was to be a legislature of a puppet government, created by the radical majority of Congress to do the bidding of its master, and compelled to ratify this Amendment by the Federal Statute which had brought this puppet government into existence for this specific purpose.

It is most interesting to read the proceedings of the Louisiana House of Representatives on February 6, 1867 [29], whereby that body adopted the Joint Resolution ordaining the refusal of Louisiana to ratify the proposed Fourteenth Amendment – the Joint Resolution which became Act 4 of 1867. This Journal shows, by the roll call, that one hundred members voted out of a total House membership of one hundred and ten – and that the unanimous vote was one hundred against ratification and none in favor of it. This was the last opportunity for a free and uncoerced expression of views on this amendment proposal by the duly elected representatives of the people of Louisiana.

THE RECONSTRUCTION ACT

The scene shifts back to Washington. The Radicals have a majority, by over a two-thirds vote, in the “rump” Congress from which all representation of the ten Southern States is excluded. They accomplish the passage of the Reconstruction Act of March 2, 1867. [30] This Act had, as one of its major objectives, the attainment of ultimate ratification of the Fourteenth Amendment through compelling and coercing ratification by the ten Southern States which had rejected it.

The Act dealt with these ten Southern States, referred to as “rebel States” in its various provisions. It opened with a recital that “no legal State government” existed in these States. It placed these States under military rule. Louisiana and Texas were grouped together as the Fifth Military District, and placed under the domination of an army officer appointed by the President. All civilian authorities were placed under the dominant authority of the military government. [31]

This Act, as supplemented by subsequent amendments, completely deprived these States of all their powers of government and autonomy, until such time as Congress should approve the form of a reorganized state government, conforming to rigid and extreme specifications set out in the Act, and should have recognized the States as again entitled to representation in Congress.

The most extreme and amazing feature of the Act was the requirement that each excluded State must ratify the Fourteenth Amendment, in order to again enjoy the status and rights of a State, including representation in Congress. Section 3 of the Act sets forth this compulsive coercion thus imposed upon the Southern States. [32]

The most apt characterization of this compulsive provision, placing these States under military authority, there to remain until they complied inter alia with this requirement of ratifying the rejected Fourteenth Amendment, is found in a speech by Senator Doolittle of Wisconsin, a Northerner and a Conservative Republican. During the floor debate on the bill, he said:

“My friend has said what has been said all around me, what is said every day: the people of the South have rejected the constitutional amendment, and therefore we will march upon them and force them to adopt it at the point of the bayonet, and establish military power over them until they do adopt it.”  [33]

Surely, the authors of our Constitution never contemplated or understood that ratification of a constitutional amendment proposal by a State could lawfully be compelled “at the point of the bayonet,” and by subjecting all aspects of civil life in the recalcitrant State to continued military rule, until this State recanted its heresy in rejecting the proposed amendment, and yielded the desired ratification [34] to the duress of continued and compelling force.

President Johnson vetoed the Reconstruction Act in an able message [35], stressing its harsh injustices and its many aspects of obvious unconstitutionality. He justifiably denounced it as “a bill of attainder against nine million people at once.”

Notwithstanding this able message, Congress promptly over-rode the President’s veto by the required two-thirds majority in each House. [36] Military rule took over in the ten Southern States to initiate the process of conditioning a subjugated people to an ultimate acceptance of the Fourteenth Amendment. [37]

JUDICIAL REVIEW UNSUCCESSFULLY SOUGHT

Relief from the oppressive and unconstitutional features of the Reconstruction Act was sought in vain in the Courts. Three times the Supreme Court found some reason for not deciding these constitutional issues. Unlike the present Court, which was alert to protect three minor government officials against salary-blocking legislation by Congress, interpreted as constituting a bill of attainder against these individuals [38], the Court of 1867-1868 seemed to feel no urge to review the Constitutional merits of the solemn charge of President Johnson that the Reconstruction Act constitution a bill of attainder against nine million people. This is all the more amazing since the two leading precedents on the enforcement of the constitutional prohibition of bills of attainder, cited and followed in United States v. Lovett, were decisions of the Court of 1867-1868. [39]

The decisions wherein grounds were found for avoiding a ruling on the constitutionally of the Reconstruction Act leave the impression that our highest tribunal failed in these cases to measure up to standard of the judiciary in a constitutional democracy. If the Reconstruction Act was unconstitutional, the people oppressed by it were entitled to protection by the judiciary against such unconstitutional oppression. [40]

In Mississippi v. Johnson [41], the Court expressed [42] definite apprehension that an injunction against the execution of the Reconstruction Act by the President, on the grounds of unconstitutionality, might result in Congressional impeachment of the President for obeying the mandate of the Court. [43]

In Georgia v. Stanton [44], the Court declined to entertain a suit assailing the constitutionality of the Reconstruction Act, on the ground that the issues raised were political and not justiciable. The opinion frankly describes in the language below the issues as to which the Court held that a State is without any protection in a court of law. [45]

In Ex Parte McCardle [46], the Court permitted Congress to evade a judicial determination of the constitutionality of the Reconstruction Act by repealing a statutory provision as to appellate jurisdiction after the appeal had been lodged, and even after the case had been argued and submitted for decision. Again, the opinion leaves the impression that the Court preferred not to be obliged to pass on the merits of the constitutional issue. [47]

As a result of these decisions, enforcement of the Reconstruction Act against the Southern States, helpless to resist military rule without the aid of the judiciary [48], went forward unhampered. Puppet governments were founded in these various States under military auspices. Through these means, the adoption of new state constitutions, conforming to the requirements of Congress, was accomplished. Likewise, one by one, these puppet state governments ratified the Fourteenth Amendment, which their more independent predecessors had rejected. Finally, in July 1868, the ratifications of this amendment by the puppet governments of seven of the ten Southern States, including Louisiana, gave more than the required ratification by three-fourths of the States, and resulted in a Joint Resolution [49] adopted by Congress and a Proclamation [50] by the Secretary of State, both declaring the Amendment ratified and in force.

It is interesting to speculate upon what might have been the course of events if our Supreme Court of 1867-1868 had met these charges of unconstitutional action in the enactment and enforcement of the Reconstruction Act in the direct manner which characterized the judicial performance of the Supreme Court of the Union of South Africa in the recent “Coloured Vote Case.” [51] The Malan Government had enacted certain legislation restricting the rights of colored voters, which clashed with the assertedly “entrenched clauses” of the Constitution for South Africa, and twice that Court upheld the constitution on the merits of the issues and pronounced the unconstitutionality of the offending legislation. For this find judicial work, it has been highly commended. [52]

When Georgia v. Stanton [53] is compared with the recent South African decisions, one cannot escape the impression that the difference between the cases is the difference between meeting and evading (even though the evasion be perhaps unconscious) an issue which ought to be met and decided.

In short, the federal government, controlled by the Northern States, having just won the Civil War and having the former Confederate States unseated in Congress, felt they could force those southern states to ratify the Fourteenth Amendment because if they voted of their own free will, they would certainly not accept it.

ATTEMPTED JUSTIFICATIONS OF COERCION

The supposed constitutional justification of the Reconstruction Act, most frequently asserted by its supporters, was the view that such legislation would come within the power of Congress under the guarantee of “a republic form of government” to each State by the United States. [54]

Whatever justification for other portions of the Reconstruction Act may or may not be found in this constitutional provision, there could clearly be no sort of a relationship between a guarantee to a State of “a republican form of government” and an abrogation of the basic and constitutional right of a State, in its legislative discretion, to make its own choice between ratification or rejection of a constitutional amendment proposal submitted to the state legislatures by the Congress of the United States. To deny to a State the exercise of this free choice between ratification and rejection, and to put the harshest sort of coercive pressure upon a State to compel ratification, was clearly a gross infraction—not an effectuation—of the constitutional guarantee of “a republican form of government.” Furthermore, it is a gross violation of the rights of the individual States.

Beyond this, the whole idea that Article IV, § 4, could confer upon Congress power to alter the governmental structure of a State—particularly a governmental structure of the general type relating in the thirteen original States at the time of the adoption of the Constitution—has been most effectively refuted by Madison. Writing in The Federalist No. 43, Madison poses two questions respecting the provision for a guarantee to each State of “a republican form of government”:

“It may possibly be asked, what need there could be of such a precaution, and whether it may not become a pretext for alterations in the State governments, without the concurrence of the States themselves.”

He then proceeds to give his answers to these questions, and he answers the second question:

“…the authority extends no further than to a guaranty of a republican form of government, which supposes a preexisting government of the form which is to be guaranteed. As long, therefore, as the existing republican forms are continued by the States, they are guaranteed by the federal Constitution. Whenever the States may choose to substitute other republican forms, they have a right to do so, and to claim the federal guaranty for the latter. The only restriction imposed on them is, that they shall not exchange republican for anti-republican Constitutions; a restriction which it is presumed, will hardly be considered as a grievance.” [55]

Elsewhere in the same number of The Federalist, Madison reiterates his basic concept [56] that Article IV, § 4, unquestionably recognizes the then existing state governments as republican in form and protects them against innovations or changes of a non-republican character.

It is interesting to note that the Supreme Court, in Minor v. Happersett [57], enunciated a doctrine [58] completely in accord with Madisonian ideology that the type of government, existing in the original States when the Constitution was adopted, established a standard for the meaning of the term “republican form of government” in this constitutional provision.

COERCED RATIFICATION IN LOUISIANA

The enactment of the legislature of the puppet government of Louisiana which ratified the Fourteenth Amendment is embodied in Act 2 of 1868. The legislative journals of that session reflect the presence of the military, all as provided for and contemplated by the Reconstruction Act.

The House Journal [59] shows that on June 29, 1868, Colonel Batchelder opened the session by calling the roll and reading an extract from the order of General Grant. The Senate Journal [60] for the same date shows the reading of instructions from General Grant to the Commanding Officer of the Fifth Military District emphasizing the supremacy of the power of the military over the provisional civilian government. It was under these auspices that the coerced ratification of the Fourteenth Amendment in Louisiana was accomplished.

Even under the puppet government, created in Louisiana pursuant to the Reconstruction Act, the ratification of the Fourteenth Amendment in Louisiana was not unanimous. In the Senate [61] on July 9, 1868, the vote on ratification was twenty yeas and eleven nays. The record contains a protest by Senator Bacon against voting upon ratification “under duress” imposed by the Reconstruction Act, and an unavailing appeal by that legislator for an opportunity for a “free and unrestrained” vote.

FORCED RATIFICATION REQUIRES REEXAMINATION OF PURPORTED ADOPTION OF THE AMENDMENT

The fact that ratification in the Southern States came finally, as a coerced result, through the legislatures of the puppet governments created by the Reconstruction Act, after rejection of the amendment by the prior State Legislatures, can pose a very serious question in relation to one of the issues upon which the Supreme Court invited discussion on the re-argument. This of course refers to the request by the Court for discussion of what understanding or contemplation of the scope of the amendment was had by the state legislatures which ratified it. [62]

Such an inquiry may be proper as to a legislature which, free to ratify or reject, determined of its own volition to ratify.  But to give effect, as against the Southern States now, to whatever extreme and sweeping notions of the broad scope of the Fourteenth Amendment may have been expressed by the puppet legislators, who used their power under the Reconstruction Act to vote in favor of ratification States really opposed to ratification, would be a perversion of history and a contradiction of plain fact. [63]

But the attack upon the legality of the coerced ratifications of the Fourteenth Amendment by the Southern States, under the compulsions of the Reconstruction Act, goes beyond the question of whether the puppet governments, which went through the form of voting these enforced ratifications, were authorized to authentically express the “contemplation” or “understanding” of the Southern States as to the scope and operative force of the amendment. The question arises – upon an analysis of the provisions of Article V and upon a study of the history of the evolvement of this Article in the Federal Convention of 1787 – whether these coerced ratifications should be decreed null and void, as the product of an usurpative incursion by Congress into an area – the ratification, or rejection process -from which it is clearly excluded by Article V.

To permit Congress to have a decisive and controlling part in the final decision on ratification of a constitutional amendment proposal, after Hamilton had secured the reluctant assent of the Convention to letting Congress have merely a power to initiate amendment proposals, on his solemn representation that “the people would finally decide,” [64] would constitute a clear disregard of the plain intent of the Founding Fathers concerning the meaning and effect of Article V.  Beyond this, Congressional coercion, intruding into and upon the ratification process, amounts to a gross breach of faith with the obvious understanding had between Madison and Hamilton when, following Hamilton’s frank avowal that the power of final decision in an amendment proposal should be vested in “the people,” these two great statesmen cooperated in setting up the amendment procedure whereby, on an amendment proposal submitted by Congress to the legislatures of the several states, the people of each state, speaking through its legislature, have the “final decision” on ratification or rejection. [65]

One who says that such questions are political and not justiciable, must necessarily mean that a political body, actuated by political motives and effectuating political objectives, should have and exercise a final power, not judicially reviewable, to change the plain meaning of a constitutional provision, and to disregard its obvious intent and purpose, as demonstrated by the history of its evolvement. [66]

The adversary or the skeptic might assert that, after a lapse of more than eighty years, it is too late to question the constitutionality or validity of the coerced ratifications of the Fourteenth Amendment even on substantial and serious grounds. The ready answer is that there is no statute of limitations that will cure a gross violation of the amendment procedure laid down by Article V of the Constitution.

Precedents are not wanting for the successful assertion of constitutional rights which have been flouted or ignored over long periods of time. In Erie Railroad Company v. Tompkins [67], the Court, on a constitutional point, reversed its jurisprudence of more than ninety years standing, dating back to Swift v. Tyson. [68] This was done on the expression of the view that a doctrine involving statutory construction would not be re-examined and upset after that lapse of time, but that the true doctrine on the constitutional point, once resolved, must be given effect regardless of lapse of time. [69]

This principle should apply here. If the coerced and enforced ratifications of the Fourteenth Amendment by the Southern States in 1868, compelled by Congressional duress offending against the Constitution itself, constitute an infraction of the amendment procedure ordained by Article V of the Constitution, these enforced ratifications are just as violative of the provisions of Article V in 1953 as they were in 1868.

Also worthy of note in this connection is the holding [70] in 1895 that the levying of an income tax by the Federal Government, without apportioning that tax among the States as a direct tax, violated the taxing-power provisions of the Constitution of the United States—although, thirty years prior to this judicial vindication of what the majority of the Court deemed to be fundamental and true Constitutional provisions, the Federal Government had levied and collected income taxes for several years on a large scale, and had financed a major and successful war of vital consequences to a very considerable extent out of revenues so obtained.

In a recent case [71] terminating the exclusion of Negroes from restaurants in the District of Columbia, the Court found still operative, and ordered enforced, a statutory enactment dating back to the early 1870’s, which had lain dormant during practically the whole period of time since its enactment, and which had been variously regarded by lower courts in the case as having been repealed by codification or implication in 1877 or in 1901. [72] Upon a demonstration now that Article V of the Constitution was violated and flouted by the 1868 coerced ratifications of the Fourteenth Amendment, the true rule for this amendment process, ordained by Article V, is entitled to receive from the judiciary the same respectful consideration and orderly enforcement as was recently accorded the revivified 1873 enactment of the short-lived local legislature of the District of Columbia.

Reference to Mr. Suthon’s Law Review article:  Walter J. Suthon Jr, “The Dubious Origins of the Fourteenth Amendment,” Tulane Law Review, Vol. 28, at pg. 22. (1954)  Referenced at:  http://www.supremelaw.org/authors/suthon/28TLR22.pdf  

Suthon’s References:

1.  Barrows v. Jackson, 346 U.S. 249 (1953); McLaurin v. Oklahoma State Regents, 339 U.S. 1 (1950); Swentt v. Painter, 339 U.S. 629 (1950); Shelly v. Kraemer, 334 U.S. 1 (1948); Sipuel v. Board of Regents, 332 U.S. 631 (1948); Fisher v. Llurat, 333 U.S. 147 (1948); Missouri ex. Rel. Gnines v. Canada, 305 U.S. 337 (1938); see also cases of substantially similar import involving carriers in interstate commerce, Henderson v. United States, 339 U.S. 816 (1950); Morgan v. Virginia, 328 U.S. 373; Mitchell v. United States, 313 U.S. 80 (1941); see also cases predicated upon the Fifteenth Amendment, Terry v. Adams, 345 U.S. 461 (1953); Smith v. Allwright, 321 U.S. 649 (1944).

2.  Brown v. Board of Education of Topeka, Briggs v. Elliot, Davis v. County School Board, Bolling v. Sharpe, Gebhart v. Belton, 345 U.S. 972 (1953). The cases were all heard together as Brown v. Board of Education of Topeka.

3.   Roberts v. City of Boston, 5 Cush. (Mass.) 198 (1849).

4.   345 U.S. 972 (1953).

5. “1. What evidence is there that the Congress which submitted and the State Legislatures and conventions which ratified the Fourteenth Amendment contemplated or did not contemplate, understood or did not understand, that it would abolish segregation in public schools?

“2. If neither the Congress in submitting nor the States in ratifying the Fourteenth Amendment understood that compliance with it would require the immediate abolition of segregation in public schools, was it nevertheless the understanding of the framers of the Amendment

“(a) that future Congresses might, in the exercise of their power under section 5 of the Amendment, abolish such segregation, or

“(b) that it would be within the judicial power, in light of future conditions, to construe the Amendment as abolishing such segregation of its own force?” 345 U.S. 972 (1953).

6.   “The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, or by Conventions of three fourths thereof, as the one of the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State without its Consent, shall be deprived of its equal Suffrage in the Senate.”

7.  It is a far cry from the delegated power of determining whether ratification shall be considered by State Legislatures or by State Conventions, to the unmentioned and undelegated power, arrogated unto itself by Congress in 1867, infra p. 31 ff., of commanding sovereign states to ratify an amendment proposal hitherto rejected by them, under the penalty otherwise of continuing denial of all rights of self-government and continuing subjection to military rule. In thus attempting to coerce state action in favor of ratification after the proposal had been submitted by Congress to the state legislatures, Congress arrogated to itself a primary and paramount role in that part of the amending process wherein the Constitution has allocated to Congress no role at all.

8.  See Thirteenth Resolution of the Virginia Plan, presented by Randolph. 5 Elliot’s Debates 128.

9.  Id. at 182.

10.  5 id. at 381.

11.  5 id. at 531.

12.  There is an impressive and significant ideology consonance between the judicial recognition that ratification or rejection of an amendment proposal, by state legislatures or conventions, is “a decisive expression of the people’s will,” Dillon v. Gloss, 256 U.S. 368, 374 (1921), or a voicing of “the will of the people,” Hawke v. Smith, 253 U.S. 221, 226-227 (1920), and this concept of Hamilton that permitting Congress to initiate an amendment proposal would leave to the people the power of final decision on ratification or rejection.

13.  It is interesting to note that Article V in its final form is quite similar to Article XVI in the Plan of a Federal Constitution submitted by Charles Pinckney early in the sessions of the Convention. 5 Elliot’s Debates 128, 132. However, Pinckney’s plan would have permitted the adoption of an amendment through ratification by the legislatures of two-thirds of the States, whereas the Convention ultimately fixed a more stringent ratification standard.

It is most significant that the Convention had before it Pinckney’s plan for amendment proposals by Congress, and action on ratification thereof by the state legislatures, when Hamilton persuaded the delegates to permit Congress to initiate amendment proposals on this argument that “the people would finally decide in the case.” 5id. At 531.

14.  5 Elliot’s Debates 531, 532.

15.  5 id. at 531.

16.  5 id. at 531, 532.

17.  5 id.at 551.

18.  The events of 1867 and 1868 confirmed the justification for Mason’s distrust of Congress respecting the amendment procedure. Indeed, those events went even further than Mason’s apprehensions. He was fearful that Congress, given a role in the amendment proposal process, would abuse that role by obstructive practices. In 1867 and 1868 Congress went entirely beyond its constitutional role as a proposer of amendments, and usurped the power to control the action of certain States in the ratification process—an area in which Congress has no constitutional function at all.

19.  5 Elliot’s Debates 552.

20.  14 Stat. 358 (1866).

21.  Cong. Globe, 39th Cong., 1st Sess. 3042 (1866).

22.  Id. at 3149.

23.  “Be it resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of both Houses concurring) that the following article be proposed to the legislatures of the several States as an amendment to the Constitution of the United States, which, when ratified by three-fourths of said legislatures, shall be valid as part of the Constitution.”

24.  U.S. Const. Art.. I, § 5.

25.  Article V states that “not State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”

Article I, § 2 provides that “each State shall have at least one Representative…”

26.  Flack, The Adoption of the Fourteenth Amendment 204 (1908).

27.  These legislative rejections of this amendment proposal in these ten States were in some instances by a unanimous vote and all other instances by a vote by little short of unanimity. See Flack, op. cit. supra note 26, at 191-204.

28.  William Kernan Dart, The Louisiana Judicial System, in 1 White and Dart, La. Digest Ann. 50-51 (1917).

29.  1867 Journal of the Louisiana House of Representatives, p. 24.

30.  14 Stat. 428 (1867).

31.  The Reconstruction Act, as supplemented by later legislation, particularly the Act of July 19, 1867, 15 Stat. 14, established a system of registration before Boards set up under military auspices, as a predicate for qualifying as voters under the proposed new governments being imposed upon the Southern States. This legislation gave the Registrars powers at least as absolute and arbitrary as those conferred upon such officials by the Boswell Amendment being Amendment No. 55 to Section 181 of the Constitution of Alabama. In the recent judicial annulment of the Boswell Amendment, as violative of the Fourteenth and Fifteenth Amendments to the constitution of the United States, great stress was laid upon the arbitrary powers which it conferred upon Boards of Registrars in the registration of voters. See Davis v. Schnell, 81 F. Supp. (S.D. Ala.) 872, 877-878, aff’d, 336 U.S. 933 (1949).

32.  “…and when said State, by a vote of its legislature elected under said constitution, shall have adopted the amendment to the Constitution of the United States, proposed by the thirty-ninth Congress, and known as article fourteen, and when said article shall have become a part of the Constitution of the United States, said State shall be declared entitled to representation in Congress…”

33.  Cong. Globe, 39th Cong., 2d Sess., Part 3, at 1644 (1867).

34.  It is elementary that any consideration of an amendment proposal from Congress by a State legislature must involve equal freedom on the part of each State to ratify or reject, as its legislature in its deliberation and discretion may determine. The constitutional right and power of a State legislature to ratify carries with it, by necessary implication, an unquestioned and unfettered right and power to refuse to ratify.

In Dillon v. Gloss, 256 U.S. 368, 374 (1921), the view is expressed that, action by the States, on ratification of a proposed constitutional amendment, through State legislatures as “representative assemblies,” is an “expression of the people’s will.” Accordingly, any effort to coerce or manipulate action by a State legislature, on a constitutional amendment proposal, would be tantamount to tampering with the machinery by which the will of the people is expressed in a matter of grave importance. That is exactly what was done on a vast scale, by the dominant majority in Congress, in bringing about the ostensible ratification of the Fourteenth Amendment.

35.  Cong. Globe, 39th Cong., 2d Sess., Part 3, at 1729-1732, 1969-1972 (1867).

36.  Id. at 1733, 1976.

37.  Some may pretend that the ratifications of the Fourteenth Amendment by the Southern States were not compelled or coerced, since the Reconstruction Act gave those States the option or election either to ratify the amendment and resume their former statehood status, with representation in Congress and power of self-government restored, or else to persist in their rejection of the amendment and to remain under military rule. Any such suggestion can be effectively answered by citing the holding in Frost Trucking Co. v. Railroad Commission, 271 U.S. 583, 593 (1929), that an exercise of one constitutional right may not lawfully be conditioned upon the surrender of another constitutional right. That opinion speaks of such an ostensible choice as being “no choice, except the choice between the rock and the whirlpool” and “requiring a surrender, which, though in form voluntary, in fact lacks none of the elements of compulsion.” These quoted expressions, although from a late case relating to another statute, would describe most aptly the predicament in which the Southern States were placed by the harsh and compulsive provisions of the unconstitutional Reconstruction Act.

This forthright language just quoted contrasts sharply with the unrealistic refusal in White v. Hart, 13 Wall. 646, 649 (1872) to recognize the obvious fact that the new state constitution, adopted by Georgia under the compulsion of the Reconstruction Act, was a product of Congressional “dictation and coercion.” In that opinion, the Court ignored actualities to such an extent as to characterize this new constitution, forced upon that State through reiterated compulsive enactments of Congress, as “a voluntary and valid offering” submitted by the State to Congress. Id. At 648, 649. This decision did not require a direct adjudication upon the constitutionality and validity of the Reconstruction Act, which came into the case only in a collateral manner.

38.  United States v. Lovett, 328 U.S. 303 (1946).

39.  Cummings v. Missouri, 4 Wall. 277 (1866); Ex Parte Garland, 4 Wall. 333 (1866).

40.  This is emphasized by decisions recognizing that conflicts between Federal and State authority bring into operation one of the most important function of the Supreme Court. This high function of the Court was adverted to in the opinion in Luther v. Borden: “The high power has been conferred on this court, of passing judgment upon the acts of the state sovereignties, and the legislative and executive branches of the federal government, and of determining whether they are beyond the limits of power marked out for them respectively by the constitution of the United States.”  7 How. 1, 47 (1848).

Other utterances of the court most pertinent to the judicial duty to entertain and decide issues arising when action by a State or the United States is challenged by the other, as an invasion of the constitutional rights and prerogatives of the challenger, are found in Harkrader v. Wadley: “And while it is the duty of this court, in the exercise of its judicial power, to maintain the supremacy of the Constitution and laws of the United States, it is also its duty to guard the States from any encroachment upon their reserved rights by the General Government or the Courts thereof.” 172 U.S. 148, 162 (1898); and in Matter of Heff: “In this Republic there is a dual system of government, National and state. Each within its own domain is supreme, and one of the chief functions of this court is to preserve the balance between them, protecting each in the powers it possesses and preventing any trespass thereon by the other.” 197 U.S. 488, 505 (1905).

41.  4 Wall. 475 (1866).

42.  Id. at 500, 501.

43.  This refusal of the Court to entertain an action, seeking to enjoin the President from carrying into execution a law alleged to be unconstitutional, clashes sharply in principle with the established doctrine, going back to an early precedent set by Chief Justice Marshall, Osborn v. Bank of the United States, 9 Wheat. 728, 838-850 (1824), that, even when a sovereign government is not itself for want of the consent to be used, a governmental official may be sued and enjoin upon averment and proper showing of the unconstitutionality of the law under which he purports to act. This is the principle upon which the courts entertain and determine cases involving important constitutional questions, such as the Steel Seizure Cases, Youngstown Sheet & Tube Co. v. Sawyer, 103 F. Supp. 569, aff’d, 343 U.S. 579 (1952).

It should also be noted that, in Mississippi v. Johnson, 4 Wall. 475 (1966), the defendants against whom the plaintiff sought to proceed included not only the President, but also his subordinates in the prospective enforcement of the Reconstruction Act in the State of Mississippi, particularly General Ord, Military Commander of the district whereof Mississippi was a part. If the Court could have been justified in maintaining its view of the President as a sort of an unsuitable “sacred cow,” then General Ord, as the chief subordinate could through whom the President would execute in Mississippi the Act of Congress assailed as unconstitutional, would still have been a proper and logical defendant for testing and determining this constitutional issue under the principle of Osborn v. Bank of the United States, supra. Having as the defendant the subordinate, through whom the chief Executive would perform acts assailed as unconstitutional, would present the identical situation under which the Court acted, by enjoining the steel seizure adjudged to be unconstitutional in Youngstown Sheet & Tube Co. v. Sawyer, supra.

44.  6 Wall. 50 (1867).

45.  “…we are called upon to restrain the defendants, who represent the executive authority of the government, from carrying into execution certain acts of Congress, inasmuch as such execution would annul, and totally abolish the existing State government of Georgia, and establish another and different one in its place; in other words, would over throw and destroy the corporate existence of the state by depriving it of all the means and instrumentalities whereby its existence might, and, otherwise would, be maintained.” Id. at 76.

This denial by the Supreme Court of the right of a State to litigate the constitutionality of a Congressional assault upon the validity of its government, and the existence of its sovereignty, exhibits a painful contrast on comparison with later recognitions by the same Court of the right of the same State to sue and litigate, in behalf of its quasi-sovereign rights and interests. Georgia v. Tennessee, 206 U.S. 203, 237 (1907), and, as parens patriac in behalf of the economic and industrial interests of its people, Georgia v. Pennsylvania R.R. Co., 324 U.S. 439, 446-451 (1945). Pertinent here also are judicial recognitions of the right of the State to sue for protecting the health, comfort and welfare of its inhabitants against a threatened infraction. See Missouri v. Illinois, 180 U.S. 208, 241 (1901); Pennsylvania v. West Virginia, 262 U.S. 553, 591 592 (1923).

46.  6 Wall. 318 (1867) (motion to dismiss denied), 7 Wall. 506 (1868).

47.  This decision appears juridically sound. See Brunner v. United States, 343 U.S. 112 (1952). It illustrates, however, the infirmaties in our judicial system whenever a dominant and determined majority in Congress chooses to embark upon a program for sabotaging the power and efficacy of the Federal Judiciary. Our Supreme Court has very little vested constitutional judicial power, and our inferior Federal Courts have none at all.

48.  There can be no basis for any legitimate and dispassionate doubt as to the jurisdiction of the Supreme Court over Mississippi v. Johnson, 4 Wall. 475 (1866), and Georgia v. Stanton, 6 Wall. 50 (1867), as original cases, in view of the applicable provision of Article III of the Constitution of the United States. The judicial power of the United States extended to each of these cases, as a case “arising under this Constitution, the Laws of the United States…” Art. III, § 2.

Each of these cases came within the original jurisdiction of the Supreme Court as a case “in which a State shall be Party…” Art. III, § 2.

The litigious interest of each of these States, in instituting its suit in a proper tribunal, extended to defending and protecting the validity of its government, and the existence of its sovereignty, against an assertedly unconstitutional assault thereon by Congress. Beyond this, since the proposed Fourteenth Amendment unquestionably would greatly enlarge Federal power, with a corresponding diminution of State power, each of these States also had a direct right and interest in litigating the constitutionality of those provisions of the Reconstruction

Act which sought to coerce and compel ratification of this hitherto rejected amendment proposal.

49.  15 Stat. 706, 707, 710, 711 (1868).

50.  15 Stat. 708, 708-710 (1868).

51.  Harris v. Minister of the Interior, [1952] 2 So. Afr. L. Rep. 428 also reported in [1952] I T.L.R. 1245.

52 See Griswold, The “Coloured Vote Case” in South Africa, 65 Harv. L. Rev. 1361 (1952); Griswold, The Demise of the High Court of Parliament in South Africa, 66 Harv. L. Rev. 864 (1953).

53.  6 Wall. 50 (1867).

54.  U.S. Const. Art. IV, § 4.

55.  The Federalist, No. 43 (James Madison) at 283 (Mod. Lib. Ed. 1941).

Notwithstanding this clear and sound demonstration by Madison that this constitutional guarantee should not and could not serve as a pretext for an alteration in the form of a State government of established and recognized republican character, against the protest and objection of the State, there persists in certain decisions of the Supreme Court the concept that this constitutional provision confers upon Congress, acting upon a “political” subject and hence not subject to judicial review, and undefined power of nebulous character to compel changes in an existing state governmental structure. See Luther v. Borden 7 How. 1, 42 (1848); Pacific Telephone Co. v. Oregon, 223 U.S. 118, 133, 147 (1912); Mountain Lumber Co. v. Washington, 243 U.S. 219, 234 (1917); Ohio ex rel. Bryant v. Akron Metropolitan Park District, 281 U.S. 74, 79, 80 (1930); Highlands Farms Dairy v. Agnew, 300 U.S. 608, 612 (1937).

These observations as to the supposed existence of any such “political” power on the part of Congress are necessarily purely obiter, in the sense that none of these cases involved any effort on the part of Congress to exercise any such power upon and against an existing and objecting state governmental structure. Each of these cases involved an unsuccessful plea or contention for judicial action against some exercise of state authority or against some state law, on the argument that the relief sought was required or authorized by the constitutional guarantee of a republican form of government. In each case, the Court declined to so act against the existing state governmental structure or law.

Accordingly, in so far as what was actually at issue and decided is concerned, none of these cases produced a decision which would clash with the view of Madison that the constitutional guarantee of a republican form of government serves as a safeguard protecting, against enforced change by federal action, a state governmental structure established and recognized as republican in character. In so far as these opinions contain discursive observations on a possible unrestrained power in Congress, of a “political” character, to alter an established state governmental structure on the pretext of carrying out the constitutional guarantee of a republican form of government, it should be sufficient to point out that a spurious fallacy does not become sound law merely through being incorporated as obiter in a reported decision of even the highest Court in an important case.

It is appropriate to also mention White v. Texas, 7 Wall. 700 (1869), as a decision which may be asserted to embody a holding that the enactment of the Reconstruction Act was authorized by the constitutional guarantee of a republican form of government. Such an assertion would seem to be very much of an overstatement, since the validity and effect of the Reconstruction Act were not directly at issue but came into the case only in a collateral and indirect manner. Indeed, the opinion rests the right of Texas to prosecute the suit as much upon the authorization of the suit by the state government antedating the Reconstruction Act as upon such authorization by the state government provisionally set up by the military authorities under the Reconstruction Act. Id. at 731, 732. The opinion expressly disclaims “investigating the legal title of either to the executive office.”

Furthermore, the concept of “an indestructible union… of indestructible states” expressed in this opinion, id. at 725, would seem to be at variance with the devastating impact of the Reconstruction Act upon Texas as a State. Highly significant in this connection are the carefully precise statements by the Court that the case required no pronouncement of “judgment upon the constitutionality of any particular provision of these acts” and no inquiry “into the constitutionality of this legislation so far as it relates to military authority, or to the paramount authority of Congress.” Id. at 731.

It would seem appropriate to close this discussion of cases, which might be already made in the test that under no conceivable theory could the coerced and compelled ratification of the Fourteenth Amendment be defended as authorized by the constitutional guarantee of a republican form of government, even if some of the other provisions of the Reconstruction Act might derive some support from that constitutional provision.

56. “In a confederacy founded on republican principles, and composed of republican members, the superintending government ought clearly to possess authority to defend the system against aristocratic or monarchical innovations. The more intimate the nature of such a union may be, the greater interest have the members in the political institutions of each other; and the greater right to insist that the forms of government under which the compact was entered into should be substantially maintained.” Id. at 282.

57.  21 Wall. 162 (1874).

58. “The guaranty is of a republican form of government. No particular government is designated as republican, neither is the exact form to be guaranteed, in any manner especially designated. Here, as in other parts of the instrument, we are compelled to resort elsewhere to ascertain what was intended.

“The guaranty necessarily implies a duty on the part of the States themselves to provide such a government. All the States had governments when the Constitution was adopted. In all the people participated to some extent, through their representatives elected in the manner specially provided. These governments the Constitution did not change. They were accepted precisely as they were, and it is, therefore, to be presumed that they were such as it was the duty of the States to provide. Thus we have unmistakable evidence of what was republican in form, within the meaning of that term as employed in the Constitution.” Id. at 175, 176.

59.  H.J.R. 1 (June 29, 1868).

60.  Sen. J. 1 (June 29, 1868).

61.  Sen. J. 20, 21 (July 9, 1868).

62.  See note 5 supra.

63.  In 1877 the people of Louisiana succeeded in reestablishing their own government, and thus rid themselves of the puppet government excrescence which the Reconstruction Act had for a time imposed upon them by coercion from without. The present state government of Louisiana is the direct lineal successor of the “Nicholls Government,” which the people of Louisiana elected, installed and maintained in office in 1877.

The “Nicholls Government” came into office in Louisiana over the bitter opposition of the predecessor puppet government. The latter sought to install the “Packard Government” in official power in Louisiana, and for several months Louisiana had two governments–the puppet “Packard Government” spawned by the Reconstruction Act, and the “Nicholls Government” elected by the people. Upon the withdrawal of military support from it, “the Packard Government disintegrated.” See Henry P. Dart. The History of the Supreme Court of Louisiana, 133 La. XXX, liv, lv (1913). The “Nicholls Government” thus came into power as in actuality a new government–not as a successor and continuation of the “disintegrated” puppet government.

This type of change was characteristic of what occurred in other Southern States, as the puppet governments which had gone through the form of ratifying the Fourteenth Amendment, under the compulsion and coercion of the Reconstruction Act, fell from power one by one and were succeeded by governments of the people.

64.  5 Elliot’s Debates 531.

65.  Id. at 531-533.’

66.  It may be argued, upon the predicate of language in such decisions as Leser v, Garnett, 258 U.S. 130, 137 (1922), and Coleman v. Miller, 307 U.S. 433, 446-450, 456-460 (1939), that certain questions or issues pertaining to ratification procedure are, by their nature, political and non—justiciable, and that determination thereof by Congress or by some official in the exercise of functions delegated to him by Congress, 1 U.S.C. § 1066, formerly 5 U.S.C. 160, 3 Stat. 439, is conclusive upon the judiciary. The arguments predicated upon this theory have lost some force by the divisions of opinion within the Court on various applications of this theory in Coleman v. Miller.

No such paramount power over any step or event in the ratification phase of a constitutional amendment proposal, after submission of the proposal by Congress to either state legislatures or state conventions has taken place, is conferred upon Congress by either the plain wording of Article V, or the spirit or intent of Article V as shown by the history of its evolvement in the Federal Convention of 1787. There is nowhere in the pertinent sources of Congressional authority deriving from Article V any warrant for a determination by Congress, unreviewable by the judiciary, that Congress has any power at all to coerce and compel rejecting States to change their action to ratification. To set up such a reviewable power in Congress, as to the validity of its own coercive action directed against sovereign States, would be an attempt to create a “High Court of Congress” having judicial functions and powers superior to those of the Supreme Court of the United States itself.

It may be assumed that, when state legislatures are acting on ratification vol non of a submitted constitutional amendment proposal, it is appropriate for Congress or some federal functionary so doing under authority delegated by Congress, to act as “scorekeeper” and to tabulate and announce the result. However, to use an apt illustration borrowed from a favorite outdoor sport, a “scorekeeper” at a baseball game would clearly have no power (inherent or implied) to score a strike out as a base hit. Or to recall to the bat a player who has just struck out and to order the pitcher to continue to pitch to this batter until he does get a base hit.

These simple illustrations of the very limited functions and powers of a “scorekeeper” completely refute any idea that any function or power which Congress might have to statistically record and compile, and to declare the results of action by the States on ratification or rejection of an amendment proposal, could by any stretch of the imagination confer upon Congress any power to influence or compel state action one way or the other on ratification or rejection, or to legalize a coerced and compelled change by a State from rejection to ratification.

Finally, a reference to the several decisions treating as justiciable issues controversies pertaining to various questions arising in the course of the amendment procedure established by Article V, clearly negatives any idea that the question of the validity of the coerced ratifications of the Fourteenth Amendment, compelled by the Reconstruction Act, could be properly classified as a political and non-justiciable issue. See, e.g., Hollingsworth v. Virginia, 3 Dall. 378 (1798); Hawke v. Smith, 253 U.S. 231 (1920); Rhode Island v. Palmer, 253 U.S. 350 (1920); Hawke v. Smith, 253 U.S. 221 (1920); Dillon v. Gloss, 256 U.S. 368 (1921); United States v. Sprague, 282 U.S. 716 (1931).

67.  304 U.S. 64 (1938).

68.  16 Pet. 1 (1842).

69.  “If only a question of statutory construction were involved, we should not be prepared to abandon a doctrine so widely applied throughout nearly a century. But the unconstitutionality of the course pursued has now been made clear and compels us to do so.” Erie Railroad Co. v. Tompkins, 304 U.S. 64, 77, 78 (1938).

70.  Pollock v. Farmer’s Loan and Trust Co., 158 U.S. 601 (1895), reversing 157 U.S. 429 (1895).

71.  District of Columbia v. John R. Thompson Co., 346 U.S. 100 (1953).

72.  See id. at 103, 111, 112; District of Columbia v. John R. Thompson Co., 203 F. 2d 579 (1953), reversing in part 81 A. 2d 249 (1951).

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MY DANCE WITH CANCER

by Diane Rufino, December 2022

My name is Diane Rufino and was 60 years old when my “story” began. This is me, below, just before it all started.

This is my cancer story.

It all started on October 17, 2020 when my family and I attended the wedding of our good friends Shane and Marnie. The reception was held in a banquet room in downtown Greenville. It was a fun affair, mingling with friends, making new ones, enjoying the food, and laughing at the antics of the newly-married couple.

Ah, the start of a new life together. It’s always one of the happiest days of one’s life and a joy for others to share in their bliss. My husband and children noticed a few things that were unusual for me – I didn’t want to drink any alcohol, even when celebrating the blessed union, and I didn’t take a single picture of anyone with my cell phone. But the one thing I did notice about myself was my sudden inability to walk down stairs and to walk stably in a straight line.

There were a series of steep stairs when leaving the venue and I was unable to walk down them without the help of my husband and one of my daughters. I thought it was strange since I hadn’t had a single libation. I simply chocked it up to the heels I was wearing. Yes, that had to be it. Then we got down to the street level and began walking to our car. That’s when I really noticed that something might be wrong. I kept stumbling and weaving back and forth. My husband Doug became nervous and physically had to hold me tight as we walked for about a block in distance. I was repeatedly asked: “Mom, are you OK?”  Doug asked the same question.

Two days later, Doug called our family doctor and told him of my unusual behavior, and the doctor advised that he take me to the Emergency Room at Vidant Medical Center for an examination and for a series of tests. And so, on October 19, Doug brought me to the Emergency Room. There, I was given a bunch of tests, including blood, urine, and various scans.

As I sat in one of the curtained stations, I was relieved that everything was looking fine. But then, a young male doctor opened the curtain and pronounced: “We know exactly what the problem is. You have a large brain tumor behind your left eye.” He then showed us the scan. I remember saying: “Oh no, that’s not good” and then the doctor scurried Doug away to have a consult with him. It was at this time that a nurse gave me something in an IV and after that, I can remember nothing.

I woke up in the hospital, being kept in a groggy state of mind with drugs. There were nurses coming in and out of my room, taking stats and giving me more drugs. Doug and all of my children took turns sitting with me, from sun up until night time. The doctor came in my room to explain what was wrong with me. He said I have a grapefruit-sized tumor called a meningioma, which is a tumor of the meninges, the membrane lining around the brain. It was so large that it was pushing into my brain. It needed to be surgically removed immediately. “Don’t worry, Mrs. Rufino,” he said, comfortingly, “these types of tumors are overwhelmingly benign. Once we remove it, you shouldn’t have to worry about it anymore.”  I felt comforted and dozed off, as usual.

I imagine he told me when the surgery would be scheduled but I have no recollection of that. All I remember is that in the middle of the night, I felt myself on a stretcher and being wheeled around the hospital. But I nodded off again. Then I remember a technician telling me that I was fidgeting with my hands and I would have “to have another scan taken.” I remember that second brain scan.

As I mentioned, I have very little memories of those early days in the hospital. My daughters apparently braided my hair and took a picture of me smiling, which they showed to me. I don’t remember them taking it. I would come to cherish that picture because it was the last one with my long straight hair, the last picture before that hair would fall out.

The surgery was scheduled for Thursday morning, October 22. It was supposed to take 8 hours but only took approximately 5 hours. I woke up in recovery and my family was there to greet me. I had a bandage across the top of my head. There were 68 staples in my skull, but I felt no pain or discomfort.

Within the hour, I was moved to a small room in ICU. There were no windows; just a bed and a sink with cabinets. I remember my hair (beyond the bandages) felt hard and matted and my face a bit swollen. I didn’t dare attempt to look in the mirror. I remember the nurses asking Doug if he wouldn’t mind bathing me, which meant to wipe me down with large body wipes. And I remember the nurses picking me up and putting me on a metal toilet seat to go to the bathroom. But the one memory that really stands out is the one that helped me break up the monotony of sitting in my bed with nothing to do. I would ask the attending nurse if she would walk me just outside the room to the window where there was a chair and I could look out onto the bustling life of Greenville. All I did was sit and look, but for me, it was everything. It was enough to get me through the monotonous days.

My husband spent most of every day sitting at my bedside. He would talk to me and occasionally put on the TV, and sometimes I would see him crying. He would leave around dinner time to go to the cafeteria to get something to eat. Most days, he would bring me something back from the cafeteria, like chicken tenders and fries, or grilled cheese sandwiches and soup. He liked to bring me food, and often, he would eat it himself. That was Doug. He was so protective of me and as God is my witness, I was left alone in my room no more than 1-2 hours each day. He literally spent each night with me, sleeping in the reclining chair in the room. Every once in awhile, one of my children would come to visit and sit with me. I was unable to speak so I thank God with my whole heart for the family I have been blessed with. They were so determined and loyal and committed to me and my healing process. Most of all, they were so strong and supportive.

My sister paid a surprise visit while I was recuperating in the ICU. I was in and out of consciousness and I remember very little of her visit. I couldn’t speak and felt so bad about that. I remember looking at her and seeing her break down and cry. It was heart wrenching. And then my best friend Karen came to visit. She has a heart of gold, a huge heart. She came to support me and to let me know that she cares. She herself suffered a brain tumor a few years earlier, but went to John Hopkins for a few months for treatment. As with my sister, I remember Karen bringing a chair right up next to my bed and talking to me. She asked me lots of questions, and again, I was unable to articulate words. I nodded or shook my head. It was the best I could do.

Within a week, I was moved to the Rehabilitation wing of the hospital. I was able to speak by then, but very minimally. And I don’t believe I was able to articulate sensibly. And I was very unstable on my feet. I would need to be rehabilitated on my speech, my cognition, my ability to move and walk, and my ability to go to the bathroom on my own and to take showers. Apparently, I was not an easy patient during my weeks in Rehab. I was told that I gave the nurses a hard time when it came to taking medication and having the incessant tests taken. I have no recollection of that at all. I’m usually a very calm and compliant patient. In fact, on my chart, there was a notice of my reticence, my rebelliousness. The nurses and doctor had to contact my husband about the issue and he told them to either put the medication in my IV, if possible, or disguise them as a sugar pill or melatonin for sleep. I remember hating the steroids they were giving me. I felt they were giving me hallucinations.

As with the ICU, Doug would spend all day with me, religiously and unceasingly, and then one of my four children would come back at night to keep me company. They would take turns, and from what Doug told me, they eagerly took turns.

I especially remember a night when Sierra, my second daughter, came to visit and was talking to me and I was unable to answer her. I just couldn’t articulate anything. I began to cry and she hugged me and said it wasn’t necessary for me to answer and talk to her. In that moment, I felt such love from her, as with all my children, and from Doug as well. Sierra would bring me Italian food and Italian desserts, and just as Doug often did, she would eat them.

And another night, my son Hunter came to visit, bringing me Chinese food – my favorites. Apparently, I gave the nurses a hard time about taking my medication (I don’t remember doing that) and so, he called his father. Doug called the hospital and told them to do whatever they needed to do but to make sure I took all my meds. I soon realized what Hunter had done and got angry, accusing him of “throwing me under the bus.”  I remember telling him to leave. “Go home!” I told him. And angrily, he left. About 2 minutes later, he came back in my room, packed up the Chinese food, and said to me: “And I’m taking the food too!”  Ouch.

Then came the day when the nurses had to show me how to shower safely. One of the nice nurses helped me undress and then walked me into the shower, making sure that I sat properly on the shower chair. The first thing I noticed was all the bloodied water coming off my head. My mind went to the Alfred Hitchcock movie Psycho and its famous shower scene.  I looked at my pathetic body and saw how withered my legs had become and how skeleton-like I now appeared. I remember trying to count the number of days I had been in the hospital, immobilized, causing such a frail and withered appearance. And then I wondered if, and when, I would regain my musculature and my former body.

After I was done with the shower, another nurse joined us to try to comb out the matted mess that had become my hair – my remaining hair, that is. Yes, it took three of us to come through and remove all the matted areas of my hair. It took quite a long time and there was a lot of long hair in the wastebasket. I couldn’t have realized at the time how much I would come to miss all that hair.

I spent my time in the Rehabilitation wing getting stronger, hopefully putting weight back on (my body had decayed into that of a 90-year-old woman), learning how to go to the bathroom on my own and taking a shower (albeit with a nurse), learning to walk again, lifting some weights, and eventually working with speech and cognition technicians. I remember one afternoon when Doug was visiting with me, I had a session with the cognition technician. Doug went with me. The technician asked me some simple questions, and although I knew how to answer, I was unable to articulate them. I looked at Doug and started to cry. I guess it would take time for my brain to recover.

The following day, Dakota, my third daughter, came to visit and she accompanied me to my session with the cognition technician. Again, the technician asked me some fairly simple questions and again I was unable to articulate appropriate answers. This time it was Dakota who started crying.

As the days went by, however, I realized I was getting better. In fact, each day was becoming exponentially better for my brain. That’s when I realized that I still had a brain and that it would still be functional. It was now the week of November 9.  It was starting to look like I might be released from the hospital soon.

And then it finally happened. A nurse came in to my room on the morning of Thursday, November 6, 2020 and removed my staples (not fun) and very soon after, the doctors examined me and I was released from the hospital. I’m sure they were glad to get rid of me. But rehab wasn’t yet complete. I was scheduled for rehab sessions, physical and cognition, from Monday through Thursday, November 16-19. I did well enough that I would not be required to return for any further rehabilitation.

I arrived home to a house filled with balloons and a home-made banner reading “WELCOME HOME.” Doug rearranged our bedroom so that the bed was flush against the wall. He didn’t want to take the chance of me falling off in the middle of the night. And my daughter Sierra made me a very special cake, which will always stand out in my memory.

On Friday, November 13, I had my first post-op consultation with my lead oncologist, Dr. Stuart Lee, head of the Gamma Knife Center at Vidant. I remember this meeting vividly. Dr. Lee, who is certainly one of the nicest, most down-to-earth physicians I’ve ever met, walked into the examination room and sat opposite from me. I can still recall how he was unable to look me in the eye. I instantly knew there was bad news. And then it came: “I got your path results. It couldn’t be worse. You had a class 3 malignancy. It’s an especially aggressive form of meningeal cancer.” 

The first bit of news that changed my world was the announcement “You have a large brain tumor behind your left eye.” And now, the revelation that it was an aggressive form of cancer. Any optimism I had for a complete recovery was shot down. Any optimism that I would be a cancer survivor was immediately shattered. To make matters worse, Dr. Lee reviewed the scientific literature on malignant meningiomas for us. For the kind of tumor that I had, which is extremely rare and extremely aggressive, there would be a very high probability that it will re-appear within a 3-year period. I would need to go for routine (every 3 months) MRI scans, with a contrast agent. He explained that scrutinous monitoring of my head would be the best way to stay on top of my treatment.

Dr. Lee told Doug and I that he would hold an all-day consult session the following Monday, November 19, with his (my) oncology team – Dr. Jasmine Jo, Dr. Hyder Arastu, and of course, Dr. Lee himself, to come up with a treatment plan. He led us to believe that radiation therapy would be needed. He said he would let us know.

On the afternoon of November 19, we got a call from Dr. Lee letting us know that radiation therapy was advised by Dr. Arastu, the radiation oncologist (a physician with over 35 years of experience in treating brain tumors). As he explained to us, there is no known chemotherapy that has been shown to be effective for treating a malignant meningioma, but radiation would most likely will do the trick. Radiation, he said, is used to kill any cancer cells that may be left behind after surgery. He re-emphasized that he believed he excised the entire tumor during surgery. He went on to explain that radiation can potentially affect wound healing, and so treatment might need to wait for another 2 weeks. Dr. Arastu would make that decision. Finally, he told me I would need to go for an MRI the following Monday, November 23, to set measurements for that therapy. I was scared on one hand but hopeful that Dr. Arastu, with his expert experience, would take good care of me.

Thursday, November 26, was Thanksgiving and I felt so very blessed to have caught my cancer in time, to be alive, and to be with my family. This was the most special of all Thanksgivings. My children were amazing. They made all the holiday foods that I love and at the table, they each said a prayer for me. After weeks of dismal hospital food, the Thanksgiving feast was a delightful treat to my palate.

The following day, November 27, I officially began an exercise regimen to work my deteriorated muscles and to hopefully get my legs and arms back into shape. I was in bad shape, to say the least. I couldn’t walk with stability, I couldn’t walk up and down stairs, I could bend down but not be able to get back up, I would often fall off the toilet, I needed to have one of my daughters walk me into the shower and sit me on a shower chair, and I couldn’t hold a pen in my hand or write. Aside from these limitations and debilitations, I didn’t have any horrible side-effects from the surgery except for a bad mid-afternoon headache and severe anxiety attacks around the same time.

My exercise regimen included a series of leg lifts and leg stretches, a walk around the neighborhood (1.5 miles), and 5-lb weight-lifting. Everything was so tough. Whenever I got an anxiety attack, I would ask one of my children to walk with me around the neighborhood. The walks seemed to help quite well.

On Monday, November 30, I was scheduled to go to the Vidant Cancer Center to have a mask made for my radiation treatment. The treatment would involve having a tight mask (formed precisely to fit the contours of my face) placed on my face, bolted to a table which would hold my head in place and would then be moved mechanically into the radiation (X-ray) machine. The mask procedure was simple. They placed a heated mesh mask over my face, formed it to my face, and let it set for a few minutes to harden. 

Next, I was sent to another wing of the hospital to have a CAT scan.

When I came home from the hospital and for about two weeks after that, I remember having bad days. By “bad,” I mean that I had low energy, had trouble sleeping (only able to get between 3-4 hours of sleep each night, with hallucinations from the steroids), and trouble walking and getting around. In those two weeks, I only had 3 “good” days, meaning that I finally had some energy.

The following week is when I started to make an effort to start walking around the neighborhood. I felt weak walking down the five stairs and often my legs would collapse while doing so, I had little energy and ability to climb up those stairs, and I even felt weak walking up and down curbs. Why did it take so long for my muscles to rebound back to the shape they used to be?

Once I began my exercise regiment, however (even though it was minimal and gradual), I noticed that I had more control walking around and climbing up and down the stairs. I actually felt myself finally getting stronger. Also, I began to notice that there were fewer bad days and more good days.

On Wednesday, December 9, I went for an MRI at the Cancer Center for the purpose of finalizing measurements for the radiation treatments, followed by a consultation with Dr. Lee. He finally gave me some good news. He said my recent CAT and MRI scans looked good and showed remarkable progress; that is, remarkable healing of my brain. With the tumor gone, my brain, which had been compressed, began to move back into place. I asked him: “Will the space fill up with new brain cells?  “Sorry, Mrs. Rufino, it doesn’t work that way,” Dr. Lee replied.

Dr. Lee showed Doug and I comparison scans, ones taken right after my surgery and the ones taken on November 30.  He also told me that my radiation treatment would have to be delayed for about one week because Dr. Arastu was waiting for a nuclear physicist to review his plan. He wanted to be sure that I could handle the amount of radiation he was planning and also, because the tumor backed up behind my left optic nerve, he wanted confirmation that the radiation dosage would be appropriate.

Friday, December 11, I was scheduled for yet another CAT scan – a final CAT scan – to finalize Dr. Arastu’s radiation plan. It was to be done with the mask on. Unfortunately, I had a full-blown anxiety attack when the mask was put on. The mask was very tight, it covered my nose, and when they bolted it to the table, I felt as if I could not breath easily. I immediately panicked. My heart rate became elevated and I signaled to the technician that there was a problem. I started crying like a baby and told them I couldn’t go through with it.

I felt like I let my family down and I felt like I let my oncology team down. All along, everyone kept telling me that I was a fighter. Now I felt like a loser.

But on my way out of the hospital, I got an idea. I stopped off at Dr. Arastu’s department and asked to see him. He was not in, but an associate would be able to see me. I asked if he could look at my mask and alter the area around my nose. Since the mask was intended to keep my head perfectly still, I figured (I hoped) that they could cut a hole out for my nose. The young doctor said that was a good solution. He also suggested that I ask the doctor for Lorazepam, an anti-anxiety drug.

With that, I was scheduled to start radiation therapy on Monday. If the mask was suitable and if the Lorazepam worked, I would first have the CAT scan and if all looked good, I would have my first radiation treatment. In the meantime, I had gone to see my family doctor and brought him up to date on my cancer diagnosis, surgery, and now my impending radiation therapy. He thought my blood pressure was running high, and so he prescribed me the drug Metoprolol which is supposed to address both my blood pressure and anxiety issues.

When I got home that afternoon, I got a call from Dr. Arastu’s office. He had prescribed me Lorazepam, which was ready for me at my local Pharmacy and I was instructed to take one (1 mg) tablet 30 minutes before every radiation treatment.

Monday, December 14 arrived. Doug went with me to the Cancer Center and as it turned out, the CAT scan went just fine. The mask had been altered as I had requested and I had no problem with anxiety. I’m sure the Lorazepam took the edge off, as it was designed to do. The first radiation treatment followed and surprisingly was simple and easy. In fact, I would come to look forward to each treatment because I would be able to rest and relax. Sometimes I would even fall asleep. I had daily radiation treatments, and each one was without incident. I had a day or two off, due to the Christmas holiday. By the end of December, I was more than one-third of the way through my radiation treatment.

From about 3 weeks or so after returning home after the surgery, and even before radiation began, I was back to thinking clearly, rationalizing intelligently, and writing my articles. In fact, if I would be so bold as to toot my own horn, I would say that some of my best and most thoughtful and intelligent articles were written in the months of December through March, 2021.

My treatments resumed on Monday, January 4. The following day, after I returned home, I marked my calendar “HALFWAY DONE.” I was excited to have reached that point. On Wednesday, I had my weekly consult with Dr. Arastu and he was very pleased with my progress. He told me that I am a “model patient.”

It was around mid-January, that I began getting bad headaches at around 7:30-8:00 pm followed by bad anxiety attacks. This would mark the first time since my surgery that my head hurt. I called my family doctor’s office with the news and the doctor quickly called me back advising me to take a single Lorazepam tablet (1 mg) before going to sleep.

The headaches and anxiety attacks continued after that, each one at almost the exact same time. Even though it was very cold outside, I would pack on my coat, a scarf, mittens, and my boots, and walk around the neighborhood. One tour was usually good enough, but several times, I needed to walk it twice.

The side-effects from the radiation were getting worse. Now I was having problems sleeping and my appetite was waning. My body would be exhausted and I wanted badly to get a good night’s sleep, my when I put my head on my pillow, my mind would race and I could not fall asleep. On Monday night, January 18, I needed to take 2 Lorazepam tablets to sleep. And even at that, about 3-4 hours later, I was wide awake again.

On Wednesday, I had my weekly consult with Dr. Arastu. I told him about my recent problems sleeping and my loss of appetite. He told me to make sure I eat at least 2 times each day, with healthy food items and to keep doing what I was doing for sleep. He said that the only problem, if at all, from the X-ray treatment might be a mild impact on my immune system. I may be mildly immune-compromised, he said, but that wouldn’t explain my symptoms. He comforted me by telling me that within a week of the last treatment my immune system would be back to good.

Wednesday, January 27, was the most meaningful of calendar dates – It was my last day of radiation treatment!! The technicians were all so kind and wonderful and they made the session very special for me. After the session had ended, they handed me my mask (and told me I could keep it, like I really wanted that) and walked me to the radiation bell. I got to ring the bell, the tradition in radiation oncology when a person completes his or her course of radiation treatment, and pictures were taken, both for me and for the department. Dr. Arastu sent me on my way, with optimistic remarks and messages of hope. He reinforced that I had been an exceptional patient and explained that the radiation treatment would stunt the hair growth on the front of my head (the exact target of the radiation) but that within 2 months I should start seeing the hair grow back in. He warned though that its texture may not be the same.

Immediately, I went out and got a hair “re-growth” formula to apply to the front of my head. I got Nioxin “Hair Re-growth Treatment.” The instructions were to apply to the front and sides of my head twice each day – in the morning and then again before I went to bed.

On Saturday, Doug took me out for a fun day – to spend it however best would make me happy. I love animals and so I suggested that we go to New Bern, walk the waterfront and feed the ducks and then walk downtown and visit the local shops and perhaps even stop for ice cream. And so that’s what we did. It was a perfect day. We enjoyed the ducks, enjoyed strolling through the antique shops, and enjoyed some ice cream. My favorite exhibit of the day was the large Elvis statue. Visitors to the antique shop were singing his songs and doing their best imitations. My sickness, at least for the day, was behind me. With my hat on, to cover the scar across the front top of my head, I felt normal and was grateful to spend such a perfect day with my husband. I felt blessed.

Healing from the radiation treatments was the toughest part of my cancer ordeal. No one had prepared me for what was to come. Some of the side-effects included bad headaches, very sensitive eyes (I had to wear dark sunglasses), swelling on my face (particularly around my eyes), increased anxiety attacks (where I would need to walk outside around the neighborhood), a complete loss of appetite, and an inability to fall asleep at night. It was so absolutely frustrating to try coming up with schemes to pass the night away while being unable to sleep. I would take 1-2 Lorazepam pills but that would help only temporarily, if at all. I would wander around the house and our property endlessly, looking for a new place to try to sleep – the living room couch, my office couch, the lazy boy reclining chair, the bed out in our pool house, and even the couch in the pool house. It was exasperating and never helped. Next, I got an Alexa device and loaded it with soft music such as movie themes and other classical pieces and would play that to calm my mind, then I often would play hours of solitaire in bed, and then there were nights when I simply put on the TV and watch movies or walk on the treadmill that Doug had bought for me or soak in the tub with eucalyptus stress relief soap. Nothing really helped. By morning time, I was physically exhausted. I would wait until the afternoon when the bad headaches and anxiety hit, when I would take my Lorazepam, to try to nap and catch up on sleep.

I would need to bring this issue up to my family doctor and see if there is a sleep-inducing agent that I might try, although my nature tells me to avoid medication in general whenever possible. And so, I went to talk to my doctor. He advised that I try Melatonin instead of Lorazepam, but I told him that I was given plenty of Melatonin in the hospital and it never worked. He then suggested I try Ambien, which he prescribed, which is the same sleep drug that my father used to take which worked like a charm for him. I tried it for a few nights, but each night, instead of helping me fall asleep, it made me more energized and even more unable to sleep. In fact, I got the jimmy-leg and was really miserable. Next, he prescribed Lunesta (Eszopiclone, 2 mg tablets) which also didn’t work. It did the same thing – gave me added energy rather than help me ease into sleep. It also gave me the ”jimmy leg.” Next, he prescribed Belsomra (Suvorexant, 15 mg tablets). I followed the doctor’s advice and took the drug religiously for 7 nights. Again, it was ineffective. Unlike the other sleep drugs, it caused bad headaches, and unlike the other drugs, it didn’t give me the “jimmy leg.”  Thank God for that, at least.

Finally, he prescribed me a new sleep aid (a fairly new drug), Dayvigo (Lemborexant). As instructed, I took the drug for 7 straight nights. As usual, it was, for the most part, ineffective. Like Belsomra, the side-effects were terrible. It gave me bad headaches.

That ordeal took me through the second week of March, 2021. I decided I would give up on using any sleep aids.

By the second and third weeks of February, I began to notice that my hair was starting to fall out by the handful in the shower. This could not be!  No one told me this would happen! As the days went by and the hair fell away, I knew the inevitable would soon become a reality. I would lose all my hair. And so, on March 3, I took matters into my own hands. I took my husband’s beard shaver and shaved the remaining hair off my head. What a sad day. I loved my long hair. Bye bye long thick hair.

On Tuesday, February 23, I went for my first official post-radiation follow-up MRI, followed by a consultation with my new lead oncologist, Dr. Jasmine Jo, a petite sweet Filipino doctor. Dr. Jo told Doug and I that my MRI scan looks spectacular. She said that it appears that I am healing very well and that there is no evidence of any tumor re-growth. She also gave us some more good news….  I would not need to be on the steroid drug Keppra any longer. Keppra was given to me in the hospital (and then later prescribed) to prevent brain swelling. She advised, from her research, that Keppra was not especially effective and that the side-effects, the hallucinations, outweighed its benefit.

On Wednesday, March 17, I finally began to drive again. It felt so wonderful. I began to start feeling some degree of independence again. Up until this point, I was under the scrutinous eye of Doug and all my kids. I was hardly ever by myself. Someone was always around to watch me, walk with me, take me into the shower, and help me clean. My family didn’t even want me in the kitchen to cook.

I suffered through endless nights of “jimmy leg” and an inability to fall asleep. I thought the torment would never end. I was going through hell, for sure. Again, no one told me to expect this and no one even told me about it.

On Thursday, May 20, I went for my second post-radiation MRI. That afternoon, I had a very bad headache – the worst one I have had in a long while. I took a Lorazepam tablet and thankfully, it went away. That night, I was unable to sleep even a wink because of a bad anxiety attack. I couldn’t remember the last time I had such an anxiety attack at night. I took another Lorazepam tablet but it didn’t help at all. 

I called my family doctor on the 24th and told him about my sleep issues, and he suggested I try Trazodone, the drug that he himself uses to sleep. It is non-narcotic and apparently non-addictive. He prescribed me a 30-day supply of 50 mg tablets. I tried one that evening and it worked like a charm. A sleep aid that finally works! It was a miracle.

I was bald and finally able to sleep, thanks to Trazodone. I was finally happy. The weather was starting to warm up and so Doug took me to one of my favorite places – the beach. It was a glorious day. We even went out to eat at Havana’s at Carolina Beach before returning home.

I had consultations with both Dr. Lee and Dr. Jo the following week and both said the MRI scans of last week looked very good. Dr. Jo went into more detail. She showed me on the scans where there was some slight scarring along the periphery of the surgical excision, indicating some thickening of the myelin sheath, but explained that scarring was to be expected from the type of intense radiation treatment that I went through.

On July 9, I made a personal decision to wean myself off of Lorazepam. For one week, I would take 3/4 of a tablet, the following week, I would take only 1/2 of a tablet, the following week I would take only 1/4 of a tablet, and then the fourth week I would not take any at all.

For the most part, I plan worked out well. Occasionally, I suffered a bad headache, and with the Trazodone at night, I was getting a good night’s sleep. On Sunday, July 18, I traveled with my family to Raleigh to the NC Museum of Natural Science and the adjoining new science museum. We love museums and we especially love the science ones. After our afternoon at the museums, we went to an authentic Italian restaurant in downtown Raleigh for dinner. It was excellent. Such a treat. It was such a perfect day.

By the start of August, I had weaned myself off of Lorazepam. It was such a great personal achievement, and I was proud of myself.

Meanwhile, my hair started growing back in. Unfortunately and unexpectedly, it came back in white and course as hay. A further insult to my poor body! On August 21, my eldest daughter Cheyenne dyed my hair. She went to the beauty store and picked out a professional-grade medium brown color. After she finished doing my hair, however, it turned out to be closer to black. I was not happy.  I eventually went to a beauty parlor, had it re-colored and had blond highlights put in it. What a difference a color makes!

On Tuesday, August 24, 2021 I went for my third MRI scan and then a consult with Dr. Jo. Again, the scan was good, didn’t show any re-emerging tumors, and showed that my brain was continuing to heal well. As Dr. Jo told me: “You continue to be cancer-free.”

December 9 would be my last MRI of the year 2021. As before, the scan showed no remnant of the pesky cancer and showed continued healing of my brain. Dr. Jo was so convinced of my recovery that she moved the frequency of my MRI scans from every 3 months to every 6 months.  I was settling into a comfort zone, believing it just might be possible that I would be among those lucky individuals who could claim themselves to be “cancer survivors.”

But I was a little too optimistic, as it turns out. On Tuesday, May 31, 2022, I went for my scheduled MRI and the results were terribly disappointing. Sitting in the consult room with Dr. Jo, she showed Doug and I the scan and pointed out where there were 2 new small tumor. Each were calculated to be less than 1/2 inch in diameter, she said. My world collapsed. Reality set in. To be honest with myself, the results were not unexpected and I should have expected it. The tumors were at the top of my head, above my left eye.

I immediately began to cry. I was no longer a cancer survivor but was once again, a cancer patient. I told myself and Doug that I could not go through brain surgery again. I felt that I had enjoyed a wonderful life and if my time was up, then it was God’s plan. Doug was devastated. Dr. Jo did her very best to comfort me. She said that surgery would not be needed and that a fairly new procedure known as Gamma Knife Surgery would likely be the preferred course of treatment. As it turns out, Dr. Stuart Lee is the head of the Gamma Knife Center.

The following day, June 1, my oncology team met to discuss my case and concluded that indeed, Gamma Knife would be the best procedure for my recurring little tumors. As explained to me, Gamma Knife is a non-invasive stereotactic radiosurgery instrument that involves no scalpel or incision. It uses precisely focused beams of gamma radiation to treat small malignant and benign brain tumors, without harming surrounding healthy tissue. Gamma Knife treatment is often preferred because it offers several benefits over traditional surgery because it is painless and often an outpatient procedure, and it treats with pinpoint accuracy. 

OK, I felt a lot better.

On Tuesday, June 7, I arrived at the Gamma Knife Center at Vidant Hospital for my Gamma Knife procedure. Doug and I went into the prep room where I was seated on an examination table and set up with an IV. I was given an oral dose of valium (10 mg) and almost immediately, Dr. Lee began to apply a numbing agent to the top quarters of my head. He was preparing me for the head brace that would have to be screwed into my head to hold the “radiation helmet” which has hundreds of pin holes in it to focus the gamma radiation on my tumors. I don’t remember him actually screwing that head brace in. I only remember the nurse giving me an injection of Versed and then another nurse helping to lift me off the table and into a wheelchair. Then I went blotto. I was out like a light. I was eventually wheeled into the adjoining “radiation room” for the actual procedure, which took 65 minutes.

The next thing I remember was waking up as I was being wheeled into the recovery room. The brace was still on my head. As soon as I got into the room, the technicians unscrewed the head brace. When I touched my forehead, I felt 2 swollen knobs. They were hard as a rock. A nurse put an antibiotic cream on the sores (2 on my forehead and 2 on the back of my head) and called in a prescription and sent us on our way. The procedure I had been so nervous about was over. It turned out to be a piece of cake…..  because, of course, I was completely knocked out for it.

About a half hour later, the numbing agent wore off and my head – those areas where the head brace was screwed in – began to hurt badly. I went home and slept for a few hours and then all was well.

On August 2, I had a post-Gamma Knife MRI scan and then a consult with Dr. Jo. The scan, she said, looked just fine, as they expected. On Tuesday, October 25, I had my second post-Gamma Knife MRI scan. Again, the scan looked very good. There were no new growths and the small tumors that were irradiated and killed by the Gamma Knife had disappeared.

That completes my story as of 2022. I will go into the new year with an MRI schedule that will scan my head every 3-months, and I feel good about that. The earlier any new growth is detected, the better and quicker it can be treated. Maybe there is still a chance that I will become a “cancer survivor.”

I dedicate this story to Doug and my children – Cheyenne, Sierra, Dakota, and Hunter. I love them all with all my heart.

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WHAT IS THE STATUS OF VOTER ID in NORTH CAROLINA?

by Diane Rufino, October 27, 2022

THE RIGHT TO VOTE

At the time of the founding of our country, many groups, including white men who didn’t own any land, free blacks, and women, could not vote. Did that mean that women couldn’t vote or were denied the right to vote back then?  No. In many states and localities, they were allowed to vote; there just weren’t any legal guarantees.

Voting in not mandated. A person is not required to vote. It is optional. It is an INDIVIDUAL right, to be exercised by the individual citizen as he or she chooses. Not only is it a right, it’s actually one of the most critical and important duties that American citizens are tasked with. The most important institution that we have in this country is government – at the federal, state, and local levels. “A government of the People, by the People, and for the People” can only be responsibly and morally staffed when good people do their homework, are engaged and informed, ignore partisan politics and false narratives, and who vote conscientiously.

The right to vote does NOT belong to a political party.

Where is the Right to Vote mentioned?  The individual’s right to vote is not explicitly or expressly mentioned in the US Constitution. However, it is implied strongly in the following ways:

(1)  In the Declaration of Independence, adopted in July 1776.  The Declaration, in paragraph 2, reads: 

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…” 

In fact, Thomas Jefferson went on to write “Such has been the patient sufferance of these Colonies” and now is the time to break the political chains that force their allegiance to the government of Great Britain. “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.”

The term “deriving their just powers from the consent of the governed” is another way of saying that the People select the representatives who will represent and serve them in government. Select = Elect. Elect = Vote.

(2)  Our Founding Fathers established our country as a REPUBLIC, which means a form of government in which a state is ruled by representatives of the citizen body, elected by the People themselves. Sometimes people refer to it as a “Constitutional Republic” or a “Democratic Constitutional Republic” A republic, per se, is defined as “a state in which the supreme power rests in the body of citizens entitled to vote.”  Being guided by the principles laid out in the Declaration, we understand that in order to be a “government of the people, by the people, and for the people,” citizens must vote to select representatives that will serve them in government.

(3)  There are several Constitutional amendments that address the right to vote, not expressly and outwardly declaring there is a right to vote, but by implying that since there is such a right, it cannot be denied to the particular community members identified (freed slaves and persons of color, women, and citizens of age 18 and over). These amendments include the Reconstruction era amendments (March 4, 1867 – March 1877) – the 13th, 14th, and 15th amendments (abolished slavery, recognized freed slaves as American citizens with equal rights and privileges, and guaranteed blacks the right to vote, respectively). The 19th Amendment declared that women cannot be denied the right to vote and the 26th Amendment lowered the voting age to 18 years old.  [See Appendix for the text of each of these amendments)

The passage of these amendments reflects a shift in this country towards making voting a fundamental right of all citizens to not to be denied on the basis of gender, race, color, religion, or age. The United States was on its way to becoming a “more perfect union” when it finally abolished the evil and shameful institution of slavery in 1865 and continued to become more perfect when it recognized equal citizenship and equal rights for every individual, again regardless of gender, race, color, religion, or age.

(4)  The US Constitution, in Article I, Section 4 (“The Elections Clause”), recognizes “Elections” for representatives in the House of Representatives and for Senators in the second branch of Congress, and Article IV, Section 4 assures that the federal government will “guarantee to every State a Republican Form of Government and shall protect each of them against Invasion….”  Again, “Elections” imply that the representatives identified are to be ELECTED by the People. (a government by the People), which means that citizens, the American People, have the right to vote. And a “republican form of government” is one in which the people govern themselves through elections.

In summation, the right to vote is so fundamental that it doesn’t need to be mentioned expressly in the Constitution. It is automatically assumed by the form of government established – a “democratic and Constitutional Republic.” It is our birthright, as articulated in the Declaration of Independence, and is a founding government principle.

Harry Truman once said: “A vote is the best way of getting the kind of country and the kind of world you want.”

HISTORY of the ENLARGEMENT OF VOTING RIGHTS

The Civil War ended when Robert E. Lee surrendered the last major Confederate army to Ulysses S. Grant, commanding General of the Union forces, at Appomattox Courthouse on April 9, 1865. Almost immediately, and as the first condition of readmitting the Southern States back into the Union, was to require them to adopt and ratify the 13th Amendment, which would abolish slavery. The 13th Amendment was ratified on December 8, 1865.

As we all can probably guess, it was the Emancipation Proclamation, issued by President Abraham Lincoln as an emergency war measure back in 1863, and which failed to free a single slave, which was the likely inspiration for the 13th Amendment. A war to subjugate the South and force them back into the Union had to have a more moral purpose – and that purpose became a fight to free slaves. I like to liken Lincoln’s war to a “save the Union” to a man who beats his wife in order to save their marriage.

With NO Southern States represented in the federal government at the time, the members of Congress adopted a proposal in January 1865, which would become the 13th Amendment. Texas and Florida would not ratify it initially but would do so when forced by the North. And Mississippi eventually ratified it in 1995, after first rejecting it in 1865.  Coercion is an absolute defense to “intent” so the question is: Did the Southern States legitimately and legally ratify the 14th Amendment?

The next issue was how to reabsorb the former Confederates back into the Union, something they were quite reluctant to do. After all, they were considered rebels and “insurrectionists” and trouble-makers. Of course, their representatives and Senators would have to be seated in Congress, something the Northern States were also reluctant to allow. The next condition would be for the former Confederate States to adopt the 14th Amendment which would recognize all former slaves and freed slaves as legitimate American citizens and recognize that they have equal rights and privileges. Remember, the infamous Dred Scott decision of 1857 declared that black people were never intended to be part of the American citizenry and therefore could not become citizens.

State legislatures in every former Confederate state, with the exception of Tennessee, at first refused to ratify it. (As such, Tennessee was therefore re-admitted to the Union at that point). This refusal by the former Confederate States led to the passage of the first Reconstruction Act in March 1867. The Reconstruction Act of 1867 outlined the terms for readmission to representation of rebel states. The bill divided the former Confederate states, except for Tennessee, into five military districts. Each military district was over-seen by a former Union general and each district denied former Confederates and Confederate sympathizers (ie, a huge percentage of the adult southern white population) the right to vote and the right and opportunity to participate in government. (They were seen as traitors). At the same time, freed slaves, which were almost entirely registered as Republicans, were greatly enfranchised.


This was one way the North tried to control and subjugate the Southern States by re-making the body politic of the South. As you can imagine, this is initially how and why race relations began to deteriorate.

Going back to the Reconstruction Act, additional conditions included: (i) Each state was required to write a new constitution, which needed to be approved by a majority of voters, including African Americans, in that state; (2) Each state was required to ratify the Fourteenth Amendment (and the Thirteen, if they hadn’t already done so) to the Constitution. After meeting these criteria, the former Confederate states could gain full recognition and representation in Congress. President Andrew Johnson vetoed the Act claiming it was unconstitutional (later confirmed by the federal courts), but on March 2, 1867, Congress overrode the veto.

The 14th Amendment was passed by the Senate on June 8, 1866, and finally, it was ratified two years later, on July 9, 1868. Yet, Reconstruction continued until March 31, 1877, punishing the former Confederate States for daring to “rebel” and leave the union and establishing and reforming the body politic in those States to be more “in line” with the agenda of the North.


Reconstruction was an especially terrible and shameful time in our country’s history. It would be responsible for the segregation of blacks and whites and responsible for our unforgiveable Jim Crow era. We fought the stigmas of Reconstruction and then the stigmas of Jim Crow up until the 1960s, with the Civil Rights movement.

With Reconstruction ending, the Southern States enacted Black Codes and Jim Crow laws, passed at different periods in the Southern States and both of which were intended to establish and enforce racial discrimination and segregation, and especially to curtain and limit the power of Black votes (something the victorious North wanted/needed very badly). This was the unfortunate era of intense and shameful racial discrimination. Jim Crow is the name for the era of racial segregation of the South. [NOTE:  “Jim Crow” was a term that originated when a struggling actor, became famous for paining his face (black face) and playing the part of “Jim Crow,” an exaggerated, highly-stereotypical black character. By 1838, the term “Jim Crow” was being used as a general racial epithet for blacks].  

What the Jim Crow laws did in the South was to re-establish segregation, a 2-tier society, and slavery….  But in a different way.    

The so-called “Jim Crow era” lasted from the 1870’s up until the 1960’s with the Civil Rights protests led by Reverend Martin Luther King Jr.  Jim Crow laws, in the American South, re-established segregation and slavery but in a different form. In a way, they established the kind of America that US Supreme Court Justice Roger B. Taney wrote about in his infamous Dred Scott v. Sanford opinion (1857). That case arose when a slave, Dred Scott was taken from Missouri (a slave state) by his “master” to Illinois (a free state, which was in the Louisiana Territory at the time and where slavery was forbidden by the Missouri Compromise of 1820). He then sued claiming that he became a free man once he was relocated to a “free state.” The Supreme Court disagreed. The Court held that “a negro, whose ancestors were imported into the US from Africa and sold as slaves,” whether enslaved or free, could not be an American citizen and therefore did not have standing to sue in federal court. The United States never intended the country to include negroes among its citizenry. Because the Court lacked jurisdiction, Taney ultimately dismissed the case on procedural grounds. Chief Justice Taney further held that the Missouri Compromise of 1820 was unconstitutional and prohibited Congress from freeing slaves within Federal territories. Finally, the Court ruled that slaves were property under the Fifth Amendment, and that any law that would deprive a slave owner of that property was unconstitutional.

Some of the ways and schemes to limit the participation of freed slaves in the electoral process include:

(a)  poll taxes – Poll taxes were required of citizens in order to vote. Alternatively, citizens were required to pay all back taxes before being permitted to vote. Every former Confederate state enacted such laws by 1904. Although these taxes of $1-$2 per year may seem small to us today, it was beyond the reach of many poor black and white sharecroppers, who rarely were able to deal in cash.

(b)  literacy tests – After the Civil War, many states enacted literacy tests as a voting requirement. The purpose was to exclude persons with minimal literacy, in particular, poor African Americans in the South, from voting. They were usually administered at the discretion of government officials in charge of voter registration.

(c)  violence (including property destruction and assassinations) – Violence was a principal means of direct disenfranchisement in the South before Redemption. In 1873, a band of whites murdered over 100 blacks who were assembled to defend Republican officeholders against attack in Colfax, Louisiana. Federal prosecutors indicted 3 of them under the Enforcement Act of 1870, which prohibited individuals from conspiring “to injure, oppress, threaten, or intimidate any citizen with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the constitution or laws of the United States.”

(d)  fraud – Electoral fraud by ballot box stuffing, throwing out non-Democratic votes, or counting them for the Democrats even when cast for the opposition, was the norm in the Southern states before legal means of disenfranchisement were entrenched

(e)  restrictive and arbitrary registration practices – Southern states made registration difficult, by requiring frequent re-registration, long terms of residence in a district, registration at inconvenient times (e.g., planting season), provision of information unavailable to many blacks (e.g. street addresses, when black neighborhoods lacked street names and numbers), and so forth…. employing the same fraudulent schemes used by Democrats today. When blacks managed to qualify for the vote even under these measures, registrars would use their discretion to deny them the vote anyway.  

(f)  KKK intimidation – The Ku Klux Klan was a militant organization with its goal being to scare and intimidate blacks from voting. Their “playbook” included violence and property damage, burning crosses on personal property and lynching black men from trees.

(g)  lynching – White Americans, especially the KKK, used lynching to terrorize and control Black people in the 19th and early 20th centuries.

Jim Crow laws and Black Codes established a segregated society and upheld racial hierarchy in Southern states and southern cities, and that era continues to be a stain on our nation’s history. In fact, the laws and codes were so effective that Hitler’s Nazi Party would use them as a model for their Anti-Semitic Laws (to segregate Jews out of their population),

When did the Jim Crow era end?  Some say it continued, at least on the books, even into the early 21st century in some states. For example, it took Georgia until 2005 to erase the last vestiges of the state’s post-Reconstruction era Jim Crow laws. Although the laws hadn’t been enforced for decades, the state Governor signed a set of bills to officially erase those laws, calling segregation “a tragic era in our past.”  But most agree that it ended with the US Supreme Court’s ruling in Brown v. Board of Education (1954).

Brown represented a consolidation of cases whereby black parents sued the school boards of Topeka, Kansas, and school boards in Virginia, South Carolina, Delaware, and Washington DC over their system of racially segregated public schools, alleging that such segregation violated the Equal Protection Clause of the Fourteenth Amendment. The case was of limited subject matter jurisdiction – it addressed the segregation policy only in the limited case of public education. The plaintiffs were denied relief in the lower courts based on the “Separate but Equal” doctrine established in the 1896 case of Plessy v. Ferguson. The Supreme Court in that case concluded that “separate but equal” was all that the Equal Protection Clause of the 14th Amendment required. It didn’t, in their opinion, require the actual physical intermingling of the races. [In other words, the Supreme Court upheld state-sponsored racial segregation]. The “separate but equal” doctrine held that the black and white races could be separated, as long as they were treated equally. Applying that doctrine, the lower federal courts held that racially segregated public facilities were legal so long as the facilities for blacks and whites were equal, which they claimed they were. In its majority opinion written by Chief Justice Earl Warren, the Supreme Court in Brown held that ‘Separate but Equal’ educational facilities for racial minorities is inherently unequal, violating the Equal Protection Clause of the Fourteenth Amendment. The Court reasoned that the segregation of public education based on race instilled a sense of inferiority that had a hugely detrimental effect on the education and personal growth of African American children. The Court based its opinion not on legal precedent or any actual hard data, but on a “Doll Study.” Finally, the Court ordered that public schools end segregation “with all due speed.”

The federal courts receive a lot of challenges under the 14th Amendment; in fact, it is the #1 provision of the Constitution under which constitutional challenges are based. What are the most significant provisions of the 14th Amendment?  They would be the “Due Process” clause and the “Equal Protection” Clause (noticeably not included in the 5th Amendment), both included in Section 1:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the US, nor shall any State deprive any person of life, liberty, or property without Due Process of law, nor deny to any person within its jurisdiction the Equal Protection of the laws.”

Fast forward to the Civil Rights era of the 1960’s, with the Reverend Martin Luther King Jr. leading marches and protests to end and dismantle the social vestiges and stigmas of our country’s racist past, but most importantly, to dismantle and prohibit the roadblocks put in place by white-dominated Southern societies to prohibit and discourage blacks from voting and thus, eliminating them from the democratic process. King was the driving force behind such critical watershed events such as the Montgomery Bus Boycott (December 5, 1955 – December 20, 1956), the 1963 March on Washington, and the Selma March (of 1965). His approach, through peaceful and non-violent marches and protests, helped to dismantle such systemic racist policies and helped to bring about such landmark federal legislation such as the Civil Rights Act of 1964 and the Voting Rights Act of 1965.

The Montgomery Bus Boycott, which was sparked by the arrest of Rosa Parks

Sparked by the arrest of Rosa Parks on December 1, 1955 for refusing to find a seat at the back of the bus (ie, bus segregation law), the Montgomery bus boycott was a 13-month mass protest that ended with the US Supreme Court ruling, in 1956, that segregation on public buses is unconstitutional.

The famous 1963 March on Washington

 On August 28, Reverend King led the famous March on Washington. From the steps of the Lincoln Memorial, King delivered his famous “I Have a Dream” Speech:  [Excerpts]

“In a sense we’ve come to our nation’s capital to cash a check. When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to be an heir. This note was a promise that all men — yes, Black men as well as white men — would be guaranteed the unalienable rights of life, liberty and the pursuit of happiness.

It is obvious today that America has defaulted on this promissory note insofar as her citizens of color are concerned. Instead of honoring this sacred obligation, America has given the Negro people a bad check, a check which has come back marked insufficient funds. We refuse to believe that there are insufficient funds in the great vaults of opportunity of this nation. We refuse to believe that the bank of justice is bankrupt….

This sweltering summer of the Negro’s legitimate discontent will not pass until there is an invigorating autumn of freedom and equality. 1963 is not an end, but a beginning. Let us not seek to satisfy our thirst for freedom by drinking from the cup of bitterness and hatred. Even though we face the difficulties of today and tomorrow, I still have a dream. It is a dream deeply rooted in the American dream. I have a dream that one day this nation will rise up and live out the true meaning of its creed: ‘We hold these truths to be self-evident, that all men are created equal.’

I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character. I have a dream today.”

Two years later, on March 25, 1965, Martin Luther King led thousands of nonviolent demonstrators, black and white, from Selma, Alabama to the steps of the state’s capitol in Montgomery. It was a 5-day, 54-mile march to protest for voting rights for blacks, for which they have been denied. But when they got to Montgomery, the protest turned violent. When the protesters arrived in Montgomery, they were confronted with days of white-on-black violence. Two black clergymen were shot and killed and there was a full day, a Sunday, of white violence against the black protesters (referred to as “bloody Sunday”).

Luckily, the story has a happy ending. A few months later, on August 6, in the presence of King and other civil rights leaders, President Lyndon B. Johnson signed the Voting Rights Act of 1965. Recalling “the outrage of Selma,” President Johnson called the right to vote “the most powerful instrument ever devised by man for breaking down injustice and destroying the terrible walls which imprison men because they are different from other men.”

With the 13th Amendment (which abolished slavery), and then the 14th and 15th Amendments, we see our country finally stepping up and abolishing and dismantling our evil institution of slavery. Unfortunately, in most of the Southern States and cities, those amendments meant nothing. They would ignore the ruling. The Amendments were only seen as a “fix on paper.” In the American South, a new form of discrimination, social hierarchy, and slavery would emerge. This was our shameful era of Jim Crow and racial segregation. It lasted into the 1950’s, when Brown v. Board of Education addressed the issue of segregation.  

Many Southern jurisdictions refused to obey and comply with the Brown mandate to integrate their public-school systems. For example, in 1963, racist Alabama Governor George Wallace declared: “Segregation now, segregation tomorrow, segregation forever.” He went on to block the entrance of the University of Alabama to prevent black students from enrolling at the school. On June 11, 1963, President John F. Kennedy called for 100 troops from the Alabama National Guard to assist federal officials in allowing black students to enroll.


A day later, white civil rights leader Medgar Evers was assassinated in Jackson, Mississippi for his work in trying to secure voting rights for blacks.

On April 4, 1968, Martin Luther King Jr. was shot dead by James Earl Ray while standing on a balcony outside his second-floor room at the Lorraine Motel in Memphis, Tennessee. On June 6, civil rights activist and presidential candidate, Robert F. Kennedy, died after being shot in the back of the head by Sirhan Sirhan after a campaign speech in Los Angeles.

As we’ve seen throughout history, change brings violence. In the movie JFK, Jim Garrison declares that “Those committed to change often do so at great risk to their lives and their safety.”

There has been a long and steady movement to not only end slavery, but to recognize the equality in blacks. It has not been an easy struggle and it was clearly fraught with lots of violence, but the United States is a far better place for the dedication. It’s sad that certain individuals, groups, racial populations, political activists, and political parties continue to use racism to advance their agenda and to claim victimhood rather than celebrate the advances that have been made and strides we’ve made towards true tolerance and inclusion.

Sadly, it seems that we are going backwards now. Progressive leftists are pushing a racist policy in the public schools all across the country, Critical Race Theory (CRT), which teaches and emphasizes that whites have been the “oppressors” of blacks and in fact, they have designed a social system based on “systemic racism” for their own benefit, allowing them to always be the “entitled” members of society. In short, they are actively trying to keep racism alive. It clearly stirs up a lot of passion and is a useful tool for the left.

Derrick Wilburn, a descendant of slaves, delivered the following comments to the Colorado Springs Board of Education on August 21, 2021 regarding the teaching of CRT at his daughter’s school:

The problem with the education system is that it isn’t teaching our children the truth. The truth is that we ended slavery. We’ve had two consecutive Black secretaries of state, two consecutive Black attorneys general, Black billionaires, Black mayors, and a black US president. Where this oppression is coming from I’m not sure, but personally, I live inside of my skin and I don’t believe that I walk around in an oppressed country. I can think of nothing more damaging to a society than to tell a baby born today, that she has grievances against another baby born today, simply because of what their ancestors may have done two centuries ago……  Racism in America would by and large be dead today if it were not for certain people and institutions keeping it on life support Sadly one of those institutions is the American education system. Putting CRT in our classrooms is taking our country in the wrong direction….

      There’s simply no point in doing that to our children, and putting critical race theory into our classrooms in part does that. Putting critical theory into our classrooms is not combating racism. It’s fanning the flames of what little embers are left. Let racism die the death it deserves.”  [Derrick Wilburn is the founder of the Rocky Mountain Black Conservatives and has 3 children in Colorado Springs School District 49.  His full remarks can be viewed here: https://www.youtube.com/watch?v=L2fGVbMYp54 ]

WHAT IS THE SOLUTION?

Perhaps we, as American citizens, should demand that an explicit right to vote (an individual right to vote) be enshrined in the US Constitution and in state constitutions, along with an ‘equal protection’ clause to demonstrate our commitment to equality. This might give our courts greater ammunition to fight bogus voter discrimination claims.

SUMMARY, SO FAR:  

We talked about the right to vote and where that right comes from. And we talked about the history whereby the right to vote has been enlarged so that every American citizen has that right recognized and protected.

I took you through our history – from slavery, to Reconstruction, to Jim Crow, and finally to the dismantling of segregation laws and into the Civil Rights era. I have been stressing and emphasizing our racist past for one important reason…..  because all of the challenges that have been made to our voter identification laws, to our district maps, and to our voter identification constitutional amendment (voted on and approved in 2018) have been based on North Carolina’s racist history or on Republican legislators’ racial intent in passing voter ID laws.

So now let’s look at the right to vote and how it’s protected. First, let’s start with the Voting Rights Act of 1965 – passed, in large part, because of the efforts and activism of Martin Luther King Jr. who sought to make sure that blacks were not disenfranchised at the polls.

A.  THE VOTING RIGHTS ACT of 1965

The Voting Rights Act of 1965 is a landmark piece of federal legislation in the United States enacted “to enforce the fifteenth amendment to the Constitution.” It prohibits / outlaws the discriminatory voting practices adopted in many southern states after the Civil War, including literacy tests and poll taxes, as a prerequisite to voting. In short, it outlaws racial discrimination in voting. It was signed into law by President Lyndon B. Johnson during the height of the civil rights movement on August 6, 1965, and Congress later amended the Act five times to expand its protections. Designed to enforce the voting rights guaranteed by the Fourteenth and Fifteenth Amendments to the United States Constitution, the Act sought to secure the right to vote for racial minorities throughout the country, especially in the South. According to the U.S. Department of Justice, the Act is considered to be the most effective piece of federal civil rights legislation ever enacted in the country and it is also “one of the most far-reaching pieces of civil rights legislation in U.S. history.”

I will briefly discuss three of its most important sections – Sections 2, 4, and 5.

Section 2 generally prohibits voting practices or procedures that discriminate on the basis of race, color, or membership in one of the language minority groups.

When Congress enacted the Voting Rights Act of 1965, it determined that racial discrimination in voting had been more prevalent in certain areas of the country. Section 4(a) of the Act provides guidance in order to identify those areas and to provide for more stringent remedies where appropriate. The first of these targeted remedies was a five-year suspension of “a test or device,” such as a literacy test or poll tax as a prerequisite to register to vote. The second was the requirement for review, under Section 5, of any change affecting voting and voting laws made by a covered area either by the United States District Court for the District of Columbia or by the Attorney General. The third was the ability of the Attorney General to certify that specified jurisdictions also required the appointment of federal examiners. The final remedy under the special provisions is the authority of the Attorney General to go head and send federal observers to those jurisdictions that have been certified for federal examiners. So, as you can see, there is a lot of federal oversight over jurisdictions that have historically engaged in racial discrimination in voting and thus are jurisdictions specifically “covered” by the Voting Rights Act.

Section 4(b), in particular, laid out the “pre-clearance” formula for determining which jurisdictions were subjected to this Section 5 scrutiny. It applied the requirement to any jurisdiction that had voting tests and other discriminatory voting schemes in place as of November 1, 1964. In 2006, Congress reauthorized the Act for another 25 years, again without changing the “pre-clearance” or “coverage” formula under Section 4, and Congress also amended Section 5 to prohibit more conduct than the Act previously covered.

While North Carolina is not identified as a “whole state” under Section 4(a), forty of its one hundred (40/100) counties are considered “covered” under that section, including Pitt County and most of its neighboring counties. [See Appendix below for a full list of North Carolina’s “covered” jurisdictions]. In “fully covered” states (“whole state”), the state itself and all political subdivisions of the state are subject to the special provisions. In “partially covered” states, the special provisions applied only to the identified counties. Voting changes adopted by or to be implemented in covered political subdivisions, including changes applicable to the state as a whole, are subject to review under Section 5.

In 1975, the Act’s special provisions were extended for another seven years and were broadened to address voting discrimination against members of “language minority groups,” which were defined as persons who are American Indian, Asian American, Alaskan Natives or of Spanish heritage.” As before, Congress expanded the coverage formula. And in 1982, the coverage formula was extended again, this time for 25 years, but no changes were made to it. In 2006, the coverage formula was again extended for 25 years.

The coverage formula in Section 4(b) was struck down in the 2013 Supreme Court case Shelby v. Holder because, as the justices noted, it was based on 40-year-old data which is outdated and therefore unworkable, and no longer relates to current situations. Also, it places an impermissible federal burden on certain states as well as an impermissible burden on federalism and State’s Rights (the equal sovereignty of the States as they relate to the federal government).

THE TAKE-HOME MESSAGE for the Voting Rights Act:

(i) It prohibits and outlaws discriminatory voting practices and it targets, especially, those states or jurisdictions that have historically engaged in such practices.

(ii) Section 2 prohibits voting practices or procedures that discriminate on the basis of race, color, or membership in one of the language minority groups.

(iii)  Section 4(a) provides guidance as to which states and jurisdictions need to be targeted.

(iv)  Section 5 requires that all such states and jurisdictions need to apply to the federal government whenever they intend to change or amend their voting laws and practices and must get its approval to do so.

(v)  Section 4(b) was a companion provision to Section 4(a). It laid out a specific formula which applied outdated data on disenfranchisement of black voting rights for the government to use when assessing changes to the election laws by the targeted (or “covered”) states and jurisdictions. Luckily, the Supreme Court realized the injustice of relying on grossly-outdated data, ignoring all the advances in race relations, and struck down the section.

(vi)  Forty of North Carolina’s one hundred counties are “covered” by the Voting Rights Act, including Pitt County and her surrounding counties.

B.  THE COMMISSION ON FEDERAL ELECTION REFORM (aka, “The Carter-Baker Commission”)

The Commission on Federal Election Reform was a private, bipartisan organization founded in 2004 by former US President Jimmy Carter and James A. Baker, III, a top official under presidents Ronald Reagan and George H.W. Bush. They put together a bipartisan commission, including leaders from the major political parties, academic, as well as non-partisan civil groups and its purpose was to study the electoral process in general, examine the inconsistencies of the 2000 and 2004 presidential elections, and to bring to light the flaws and processes that lead to voter and election fraud. The Commission’s ultimate mandate was to identify the flaws in the election process and to make recommendations to maximize both ballot access and ballot integrity.

A major point was the commission’s call for nonpartisan professional and state oversight over elections. The panel noted that both the 2000 and 2004 elections were marred by gross conflicts of interest.

The panel made a variety of other recommendations, including the most significant one – that states need to establish a photo identification mandate to match the voter to the voting roll, while establishing more offices to make it easier for all non-drivers to more easily register and acquire photo IDs. Importantly, the Supreme Court, in 2008, declared that a photo identification (especially one that is provided for free to those who can’t afford one) poses no substantial burden on one’s fundamental right to vote. That case was Crawford v. Marion County, and it will be important for us in North Carolina. (In that case, the Court upheld an Indiana Voter ID which required a form of photo identification when a person shows up in person to vote).

A total of 35 states (or so) have laws requesting or requiring voters to show some form of identification at the polls. The remaining 15 states and D.C. use other methods to verify the identity of voters. Most frequently, other identifying information provided at the polling place, such as a signature, is checked against information on file.

Before the Crawford v. Marion County Board of Elections ruling (2008), there were 25 states that had passed voter ID laws (meaning that some form of identification must be produced before the individual could vote), In the wake of the decision, proponents of voter ID stepped up legislative efforts in several states – 10 of them. . From 2008, when the Crawford ruling was handed down, until 2021, voter ID laws have become more commonplace.  As of 2021, thirty-five states have passed laws requiring some form of identification before an individual is allowed to vote. Florida, Georgia and Indiana require photo identification. Louisiana, Michigan, and South Dakota request it, but will accept other forms of identity. North Carolina is the only state in the southeast that doesn’t have any form of voter identification in place for elections.

C.  WHY DO WE NEED SOME FORM OF VOTER IDENTIFICATION in NORTH CAROLINA FOR ELECTIONS?

First, the Carter-Baker Commission recommended that all States enact some form of voter identification in order to cast a ballot. It studied the irregularities of previous elections and concluded they were marred by fraud. Furthermore, those states that have implemented voter ID laws also understand that the United States has an unfortunate history of voter fraud and that requiring individuals to authenticate their identity at the polls is a fundamental and necessary component of ensuring the integrity of the election process.

Furthermore, studies have shown that voter identification requirements do NOT burden a person’s fundamental right to vote, nor do they depress voter turn-out, including minority, poor, and elderly voters. On the other hand, those who can vote fraudulently (cast multiple votes, assume the identity of another, etc) will undermine and cancel (nullify) the votes of legitimate voters.

D.  THE HISTORY OF OUR VOTER ID INITIATIVE IN NORTH CAROLINA

North Carolina is the ONLY state in the Southeast without some form of voter ID provision in place. That was supposed to change when the Republicans took over the majority in both houses of the state legislature, which occurred with the 2010 election. From 2011 until present, Republicans have held the majority in both the state House and the state Senate, with a trifecta of Republicans from 2013-2016 when Pat McCrory was the Governor.  Yet our state continues to be the only state in the Southeast without such a law.

NORTH CAROLINA PARTY CONTROL:  1992-2022
Fourteen years of Democratic trifectas  •  Four years of Republican trifectas

Year92939495969798990001020304050607080910111213141516171819202122
GovernorRDDDDDDDDDDDDDDDDDDDDRRRRDDDDDD
SenateDDDDDDDDDDDDDDDDDDDRRRRRRRRRRRR
HouseDDDRRRRDDDDDDDDDDDDRRRRRRRRRRRR

THE HISTORY OF VOTER ID LAWS in NORTH CAROLINA

1. THE 2013 NC VOTER ID LAW – House Bill 589 (HB 589)

Acting in accordance with the wishes of voters in the 2010 and 2012 elections, the Republicans in the NC General Assembly, in 2013, enacted the state’s first Voter ID requirement into law. It was the first state voter identification law to pass since the U.S. Supreme Court struck down part of the Voting Rights Act [the “preclearance Formula” provision in Section 4(b)] in the case Shelby v. Holder (2013). Repealing this provision made it easier for states like North Carolina to pass a Voter ID law, which it quickly did.  

The day after the Shelby County decision was handed down, the Republican legislative leader announced an intention to pass a new “omnibus” election law bill, which resulted in HB 589 – the so-called NC “Voter ID law.” HB 589 required a photo identification for in-person voting and reduced early voting from 17 days to 10 days. (These two provisions would be the ones challenged by Democrats and the NC NAACP). Proponents of the bill claimed the new law was needed to address voter fraud concerns.

Using poor judgement, Republican lawmakers requested data on the use of early voting practices and IDs by race, as they were drafting the Voter ID bill. It showed African Americans disproportionally lack IDs, especially the most common form of identification: a driver’s license. According to opponents of the bill (most notably, the NC NAACP), the forms of allowable ID that made it into the bill were ones African Americans tended to hold in lower percentages. In addition, data shows that African Americans disproportionally used early voting, especially the first 7 of the 17 days of early voting that existed pre-HB 589. The General Assembly proceeded to cut early voting to 10 days. In other words, the NC NAACP alleged that the bill was drafted with racial motivation and was intended to discriminate against African American voters.

In announcing the Voter ID law, Governor Pat McCrory said: “This new law brings our state in line with a healthy majority of other states throughout the country. This common-sense safeguard is commonplace.” Unfortunately, the excitement and satisfaction would not last long. The North Carolina state and local chapters of the NAACP filed suit to have the law declared unconstitutional.

On the day the bill was signed into law, the North Carolina chapter of the NAACP (NC NAACP) sued the state over the ID requirement (NC NAACP v. McCrory). On April 25, 2016, federal District Court Judge Thomas Schroeder of the Middle District of North Carolina upheld the law. Judge Schroeder found the justifications for the law, such as the desire to protect against voter fraud, to be “not unreasonable” and “plausible.” In other words, they were sufficient to justify the bill. However, on November 11, 2016, the 4th Circuit Court of Appeals overturned this ruling. Judge Diana Motz, writing for the court, stated that the law was “the most restrictive voting law North Carolina has seen since the era of Jim Crow.” The Court found that the North Carolina General Assembly acted with discriminatory intent and that HB 589 violated the 14th and 15th Amendments, which prohibit racial discrimination in the regulation of elections. In other words, Judge Motz struck the law down as being unconstitutional.  As a result of the General Assembly’s alleged racial motivation in passing the law, HB 589 was ruled to be in violation of constitutional and statutory prohibitions on intentional discrimination. The 4th Circuit Court of Appeals found that the appropriate remedy was to strike down each of those provisions.

But Republicans, determined to make good on their promised to voters to enact a photographic identification requirement to vote, went back to work – this time, strategizing more intelligently.

2.  THE 2018 VOTER ID CONSTITUTIONAL AMENDMENT —

After losing its battle for the 2013 Voter ID law, Republican lawmakers placed a proposed constitutional amendment for a voter identification requirement to vote on the 2018 ballot. By enshrining a voter ID requirement in the state constitution, they hoped it would make it less likely to be overturned in federal court and would help protect it from challenges in state court. By making voter ID a voter-initiative (rather than a legislative one), it would be more likely to survive legal challenges.

In 2018, there were six (6) statewide ballot measures (ballot initiatives) that were certified for voters on the ballot on November 6, 2018 and voters approved four of them, one being the Voter ID amendment.

On the ballot

TypeTitleSubjectDescriptionResult
LRCARight to Hunt and Fish AmendmentHuntingCreates a constitutional right to hunt and fishApproved
LRCAMarsy’s Law AmendmentLaw EnforcementExpands the constitutional rights of crime victimsApproved
LRCAIncome Tax Cap AmendmentTaxesChanges cap on income tax from 10 percent to 7 percentApprovedOverturned 
LRCAVoter ID AmendmentElectionsRequires a photo ID to vote in personApprovedOverturned 
LRCALegislative Appointments to Elections Board and Commissions AmendmentLegislatureMakes the legislature responsible for appointments to election boardDefeated
LRCAJudicial Selection for Midterm Vacancies AmendmentJudiciaryCreates a process, involving a commission, legislature, and governor to appoint to vacant state judicial seatsDefeated

Voters approved the Voter ID amendment by a 56 to 44 percent margin (ie, by 56%). Approximately two-thirds of white voters supported the voter ID amendment while only one-third of non-whites supported it. NC voters indeed approved a Voter ID amendment to the state constitution but there were no details as to how it would be implemented. And so, as will be discussed below, the General Assembly followed up in December by passing Senate Bill 824 with the necessary details.

The NC chapter of the NAACP, along with Clean Air Carolina, filed a lawsuit in Wake County Superior Court the day after the Voter ID law was enacted because, in their opinion, it violated the state’s constitution and the federal Voting Rights Act. They alleged that voting districts had been unconstitutionally racially gerrymandered and therefore, the state legislature was illegally constituted, which means that their official acts were null and void. The specific issue at the center of their lawsuit was whether legislators elected from unconstitutionally racially gerrymandered districts possess authority to initiate the process of changing the North Carolina Constitution.

Justice Phil Berger Jr. wrote for dissenting Republicans: “At issue today is not what our constitution says. The people of North Carolina settled that question when they amended the constitution to include the Voter ID and Tax Cap Amendments. These amendments were placed on the November 2018 ballot by the constitutionally required three-fifths majority in the legislature.”

In February 2019, Wake Superior Court Judge Bryan Collins rejected both constitutional amendments, citing racial motivation. Senate President Phil Berger (R-30) responded to the court’s decision with disgust: “We predicted Democratic activists would launch absurd legal attacks to keep the voters from deciding on their own Constitution, but this one really takes the cake. This absurd argument – which has already been rejected in federal court – is a sad and desperate attempt to stop North Carolina voters from joining 34 other states in requiring identification when casting a ballot.”


Here’s the kicker —  Judge Collins’ ruling characterizing the law as having been racially motivated came despite the fact that an African-American senator sponsored bill S.824 and two other African-American senators initially supported it. [Sen. Joel Ford (D) co-sponsored the bill with Sen. Joyce Krawiec (R), and Senators Ben Clarke and Don Davis initially voted in favor of it at various phases of the legislative process, that is, up until the vote to over-ride Governor Cooper’s veto]. Senator Ford, a former senator from Mecklenburg County, said that he didn’t see the bill as being racist. As he explained: “My motivation was purely to protect the vote and to help people who did not have an ID to secure one.” Senator Clark admitted: “The way I saw it, we had a constitutional mandate as determined by the election, to establish a voter ID law. I thought I had an obligation to work across the aisle to support my constituents.”  Senator Davis admitted: “For me, the broader case of fraud justified this bill.”

NOTE:  S.824 was the bill passed by the NC General Assembly in 2018 to implement the Voter ID amendment. It was known as the “NC 2018 Voter ID law.”

On September 15, 2020, the 4th Circuit of Appeals disagreed with the district court and reversed the decision. On October 14, 2020, the NC NAACP filed a Notice of Appeal to the NC Supreme Court.

On August 19, 2022, with a straight 4-3 party-line vote, Democrat justices sitting on the state’s Supreme Court agreed that two voter-approved state constitutional amendments could be thrown out. They sent the case back to a trial judge to make that decision. Republican justices dissented. They say Democrat’s willingness to toss out voter-approved amendments means “the court majority nullifies the will of the people and precludes governance by the majority.” In my opinion, the justices committed judicial activism by substituting their version of the legislative body’s intent for the actual intent of the legislators in passing the amendment’s proposal bill. That is a judicial no-no.

In his dissenting opinion, Justice Phil Berger Jr. wrote:

“At issue today is not what our constitution says. The people of North Carolina settled that question when they amended the constitution to include the Voter ID and Tax Cap Amendments…. These amendments were placed on the November 2018 ballot by the constitutionally required three-fifths majority in the legislature. On November 6, 2018, the citizens of North Carolina voted overwhelmingly to approve the North Carolina Voter ID Amendment and the North Carolina Income Tax Cap Amendment. More than 2,000,000 people, or 55.49% of voters, voted in favor of Voter ID, while the Tax Cap Amendment was approved by more than 57% of North Carolina’s voters.”

      Instead, the majority engages in an inquiry that is judicially forbidden — what should our constitution say? This question is designated solely to the people and the legislature… The majority concedes that constitutional procedures were followed, yet they invalidate more than 4.1 million votes and disenfranchise more than 55% of North Carolina’s electorate. Unwilling to accept the results of a procedurally sound election that enshrined the Voter ID and Tax Cap Amendments in our state constitution, the majority nullifies the will of the people and precludes governance by the majority. In so doing, my colleagues extend the reach of their judicial power beyond mere judicial review of actions under our constitution; instead, they have determined that certain provisions of the constitution itself are objectionable.”  (They have violated the time-honored principle of democracy).

Notice how this is the typical mindset of activist judges who see constitutions as “living, breathing documents” which need to evolve with the changing times (the activist judges being the ones to “evolve” them).

It should be noted that the attorney who represented the NC NAACAP in 2018-19, Anita Earls, a notorious progressive idealogue, was on the NC Supreme Court bench for this case. The four justices who discredited the voter-approved amendments – Anita Earls, Sam Ervin, Michael Morgan, and Robin Hudson – are guilty of voter suppression.

Resources:  NC NAACP v. Moore, Judicial Timeline – https://www.southernenvironment.org/wp-content/uploads/2021/11/2021-11-4-Timeline-NCNAACP-v-Moore.pdf

“N.C. Supreme Court rules against ‘gerrymandered’ legislature, punts on fate of voter ID and tax cap amendments,” The Carolina Journal, September 27, 2022.  Referenced at:  https://www.carolinajournal.com/n-c-supreme-court-rules-against-gerrymandered-legislature-punts-on-fate-of-voter-id-and-tax-cap-amendments/

3.  THE 2018 NC VOTER ID LAW –

The constitutional Voter ID amendment was to provide the legal foundation for a state voter ID law, and that was the clear intention of our Republican state legislators. Voters went on to approve that amendment by 56%. While the amendment was finally adopted to the state constitution, there were no details as to how it would be implemented. And so, the General Assembly followed up in December by passing Senate Bill 824 with the necessary details. Democratic Gov. Roy Cooper, of course, vetoed the bill, but Republicans were able to override the veto before their supermajority ended due to the “blue wave” midterm election held the previous month. According to an analysis of every state’s voter ID law by the National Conference of State Legislatures, North Carolina’s law was considered to be “non-strict.” [There are typically 4 categories of voter ID laws – “strict photo ID,” strict non-photo ID,” and “non-strict, photo ID requested,” and “ID requested but photo not required.”]

On the same day that the General Assembly enacted S.824, the NC chapter of the NAACP, along with Clean Air Carolina (“plaintiffs”), filed a lawsuit in Wake County Superior Court (Holmes v. Moore) alleging that because the law disproportionately harms black and Hispanic voters, it violates both the state’s constitution (Article I, Section 19 – “equal protection under the laws”) and Section 2 of the federal Voting Rights Act (which bars racial discrimination in voting). They demanded injunctive relief (meaning, they demanded that the law, S.824, the “NC Voter ID law,” be prevented from being enforced.

They put forth six reasons: (1)  that the General Assembly violated Article I, Section 19 by intentionally enacting a racially discriminatory law (Claim I);  (2) that the Voter ID law significantly burdens a “fundamental right to vote” (Claim II);  (3) that the law unconstitutionally creates different classes of voters (Claim III);  (4) that it infringes on their Article I, Section 10 right to participate in free elections (Claim IV);  (6) that it violates their assembly, petition, and speech rights under Article I, Sections 12 and 14 (Claim VI).  Claim V makes no sense.

The Wake County Superior Court denied the plaintiffs’ request for injunctive relief. The plaintiffs appealed the decision. On September 17, 2021, following a trial earlier that year (in April), a 3-judge panel of the Court of Appeals for North Carolina issued its decision… The panel concluded that the voter photo ID law violated the North Carolina Constitution. Judge Hampson wrote: “We reverse the trial court’s decision to deny Plaintiffs’ Preliminary Injunction Motion and remand to the trial court with instructions to grant Plaintiff’s Motion and preliminarily enjoin Defendants from implementing or enforcing the voter-ID provisions of S.B. 824 – including, specifically, Parts I and IV of 2018 N.C. Sess. Law 144 – until this case is decided on

the merits.”

In the meantime, the US Supreme Court, granted NC Republican Legislative leaders the right to intervene in court to defend the NC Voter ID law. On June 23 (this year), the Supreme Court ruled that our two leading Republican legislators in North Carolina (House Majority Leader Tim Moore and Senate Pro Tempore Phil Berger) can join a lawsuit to defend the constitutionality of the state’s voter-identification law. Two lower courts had rejected the legislators’ request, reasoning that the state’s Democratic attorney general, Josh Stein, and the board of elections were already defending the law, but the justices reversed those rulings. In an 8-1 opinion by Justice Neil Gorsuch, the Supreme Court ruled that the Republican legislators have a right to intervene in the lawsuit. In his majority opinion, he wrote: “The 4th Circuit was wrong to presume that the state’s attorney general, Josh Stein, had adequately represented the state’s interests…. Supreme Court cases have made clear that would-be intervenors generally have to meet only a relatively low bar. But such a presumption is inappropriate when a duly authorized state agent seeks to intervene to defend a state law. Normally, a State’s chosen representatives should be greeted in federal court with respect, not adverse presumptions.”  Furthermore, Gorsuch wrote: “The legislative leaders bring a distinct state interest to the case.”

The bottom line is that the status of both our Voter ID constitutional amendment and our Voter ID law are still up in the air. The future will likely see both issues back in court or back on the ballot, especially now that the Supreme Court has given the green light for both Senate leader Phil Berger and House Majority Leader Tim Moore to intervene in litigation to promote and defend the law.

“IF WE DO NOT CHANGE DIRECTION, WE JUST MIGHT END UP WHERE WE ARE HEADING.”

References:

Patrick Cash, East Carolina University, “The Process of Desegregation in Greenville/Pitt County –  file:///C:/Users/Diane%20Rufino%20Surface/Downloads/The%20Process%20of%20School%20Desegregation%20in%20Greenville_9_17.pdf

Sharon McCloskey, “Fifty Years Later, Segregation Battles Are Still in the Courts,” NC Policy Watch, July 18, 2013.  Referenced at:  https://ncpolicywatch.com/2013/07/18/fifty-years-later-segregation-battles-still-in-the-courts/

Section 4 of the Voting Rights Act of 1965 – https://www.justice.gov/crt/section-4-voting-rights-act#:~:text=Section%204(e)%20provides%20that,a%20language%20other%20than%20English.

Brown v. Board of Education of Topeka I, 37 U.S. 483(1954) –  https://www.oyez.org/cases/1940-1955/347us483

Brown v. Board of Education of Topeka II, 37 U.S. 483 (1955) –  https://www.oyez.org/cases/1940-1955/349us294

Everett v. Pitt County Board of Education (1971) –  https://law.justia.com/cases/federal/district-courts/north-carolina/ncedce/6:1969cv00702/92986/93/

Sharon McCloskey, “In a Split Decision, Fourth Circuit Releases Pitt County Schools from Desegregation Orders,” NC Policy Watch, June 4, 2015.  Referenced at:  https://ncpolicywatch.com/2015/06/04/in-a-split-decision-fourth-circuit-releases-pitt-county-schools-from-desegregation-orders/

Matthew Lynch, “What the End of Desegregation Really Means in Pitt County,” The Advocate, June 10, 2015.  Referenced at:  https://www.theedadvocate.org/fourth-circuit-ends-desegregation-in-pitt-county-nc-signaling-a-more-troubling-trend/

NC NAACP v. Moore, Judicial Timeline – https://www.southernenvironment.org/wp-content/uploads/2021/11/2021-11-4-Timeline-NCNAACP-v-Moore.pdf

Jonathan Drew and Gary R. Robertson, “Court Opens Dorr to Voiding North Carolina Voter ID Amendment,” AP News, August 19, 2022.  Referenced at:  https://apnews.com/article/north-carolina-constitutions-constitutional-amendments-supreme-court-government-and-politics-b7f91cdc8dd7ee1ed80cc50e0fe91382

Lynn Bonner, “One Thing is Certain After the State’s Supreme Court Ruling on Constitutional Amendments – More Court Hearings,” NC Policy Watch, August 25, 2022.  Referenced at:  https://ncpolicywatch.com/2022/08/25/one-thing-is-certain-after-the-state-supreme-court-ruling-on-constitutional-amendments-more-court-hearings/print/

“N.C. Supreme Court Rules Against ‘Gerrymandered’ Legislature, Punts on Fate of Voter ID and Tax Cap amendments,” The Carolina Journal, September 27, 2022.  Referenced at:  https://www.carolinajournal.com/n-c-supreme-court-rules-against-gerrymandered-legislature-punts-on-fate-of-voter-id-and-tax-cap-amendments/

“North Carolina State Court Strikes Down Voter ID Law,” Democracy Docket, September 17, 2021.  Referenced at:  https://www.democracydocket.com/news-alerts/north-carolina-state-court-strikes-down-voter-id-law/

Court Opinion, Holmes v. Moore, Wake County Superior Court (September 17, 2021) – https://www.democracydocket.com/wp-content/uploads/2021/09/2021.09.17-Holmes-v.-Moore-Final-Judgment-18-CVS-15292.pdf

Court Opinion, Holmes v. Moore, Appellate Court of North Carolina (2021) – https://appellate.nccourts.org/opinions/?c=2&pdf=38774

NC Supreme Court Opinion, NC NAACP v. Moore, August 19, 2022 – https://appellate.nccourts.org/opinions/?c=1&pdf=41699

Senate Bill S.824 – https://www.ncleg.net/Sessions/2017/Bills/Senate/HTML/S824v7.html

Legislative history of S.824 – https://www.ncleg.gov/BillLookUp/2017/S824

Amy Cole, “North Carolina Republican Lawmakers Win the Right to Intervene in Court and Defend State’s Voter ID Law,” ScotusBlog, Jun3 23, 2022.  Referenced at:  https://www.scotusblog.com/2022/06/north-carolina-republican-lawmakers-win-right-to-intervene-in-court-and-defend-states-voter-id-law/

Will Doran and Danielle Battaglia, “Fact Check: Here’s What You Need to Know About NC Voter ID and Voter Fraud,” News & Observer, January 18, 2020.  Referenced at:  https://www.newsobserver.com/news/politics-government/article238913033.html

“Party Control of North Carolina State Government,” Ballotpedia https://ballotpedia.org/Party_control_of_North_Carolina_state_government

“Voter ID Laws,” NCSL (National Conference of State Legislatures) –  https://www.ncsl.org/research/elections-and-campaigns/voter-id.aspx

Text of Martin Luther King Jr’s “I Have a Dream Speech (August 28, 1963) – https://www.npr.org/2010/01/18/122701268/i-have-a-dream-speech-in-its-entirety#:~:text=sisters%20and%20brothers.-,I%20have%20a%20dream%20today.,flesh%20shall%20see%20it%20together.

“Techniques of Racial Disenfranchisement,” University of Michigan.  Referenced at: http://websites.umich.edu/~lawrace/disenfranchise1.htm

Martin Luther King Jr. “Letters From a Birmingham Jail,” The Atlantic, February 18, 2018.  Referenced at:  https://www.theatlantic.com/magazine/archive/2018/02/letter-from-a-birmingham-jail/552461/

APPENDIX

ATRANSCRIPT OF MARTIN LUTHER KING’S “I HAVE A DREAM SPEECH” (August 28, 1963)

Five score years ago, a great American, in whose symbolic shadow we stand today, signed the Emancipation Proclamation. This momentous decree came as a great beacon light of hope to millions of Negro slaves who had been seared in the flames of withering injustice. It came as a joyous daybreak to end the long night of their captivity.

But 100 years later, the Negro still is not free. One hundred years later, the life of the Negro is still sadly crippled by the manacles of segregation and the chains of discrimination. One hundred years later, the Negro lives on a lonely island of poverty in the midst of a vast ocean of material prosperity. One hundred years later the Negro is still languished in the corners of American society and finds himself in exile in his own land. And so we’ve come here today to dramatize a shameful condition. In a sense we’ve come to our nation’s capital to cash a check.

When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir. This note was a promise that all men — yes, Black men as well as white men — would be guaranteed the unalienable rights of life, liberty and the pursuit of happiness.

It is obvious today that America has defaulted on this promissory note insofar as her citizens of color are concerned. Instead of honoring this sacred obligation, America has given the Negro people a bad check, a check which has come back marked insufficient funds.

But we refuse to believe that the bank of justice is bankrupt.

We refuse to believe that there are insufficient funds in the great vaults of opportunity of this nation. And so we’ve come to cash this check, a check that will give us upon demand the riches of freedom and the security of justice.

We have also come to his hallowed spot to remind America of the fierce urgency of now. This is no time to engage in the luxury of cooling off or to take the tranquilizing drug of gradualism.

Now is the time to make real the promises of democracy. Now is the time to rise from the dark and desolate valley of segregation to the sunlit path of racial justice. Now is the time to lift our nation from the quick sands of racial injustice to the solid rock of brotherhood. Now is the time to make justice a reality for all of God’s children.

It would be fatal for the nation to overlook the urgency of the moment. This sweltering summer of the Negro’s legitimate discontent will not pass until there is an invigorating autumn of freedom and equality. 1963 is not an end, but a beginning. Those who hope that the Negro needed to blow off steam and will now be content will have a rude awakening if the nation returns to business as usual.

There will be neither rest nor tranquility in America until the Negro is granted his citizenship rights. The whirlwinds of revolt will continue to shake the foundations of our nation until the bright day of justice emerges.

But there is something that I must say to my people who stand on the warm threshold which leads into the palace of justice. In the process of gaining our rightful place, we must not be guilty of wrongful deeds. Let us not seek to satisfy our thirst for freedom by drinking from the cup of bitterness and hatred.

We must forever conduct our struggle on the high plane of dignity and discipline. We must not allow our creative protest to degenerate into physical violence. Again and again, we must rise to the majestic heights of meeting physical force with soul force. The marvelous new militancy which has engulfed the Negro community must not lead us to a distrust of all white people, for many of our white brothers, as evidenced by their presence here today, have come to realize that their destiny is tied up with our destiny.

And they have come to realize that their freedom is inextricably bound to our freedom. We cannot walk alone. And as we walk, we must make the pledge that we shall always march ahead. We cannot turn back.

There are those who are asking the devotees of civil rights, when will you be satisfied? We can never be satisfied as long as the Negro is the victim of the unspeakable horrors of police brutality. We can never be satisfied as long as our bodies, heavy with the fatigue of travel, cannot gain lodging in the motels of the highways and the hotels of the cities.

We cannot be satisfied as long as the Negro’s basic mobility is from a smaller ghetto to a larger one. We can never be satisfied as long as our children are stripped of their selfhood and robbed of their dignity by signs stating: for whites only.

We cannot be satisfied as long as a Negro in Mississippi cannot vote and a Negro in New York believes he has nothing for which to vote.

No, no, we are not satisfied, and we will not be satisfied until justice rolls down like waters, and righteousness like a mighty stream.

I am not unmindful that some of you have come here out of great trials and tribulations. Some of you have come fresh from narrow jail cells. Some of you have come from areas where your quest for freedom left you battered by the storms of persecution and staggered by the winds of police brutality. You have been the veterans of creative suffering. Continue to work with the faith that unearned suffering is redemptive. Go back to Mississippi, go back to Alabama, go back to South Carolina, go back to Georgia, go back to Louisiana, go back to the slums and ghettos of our Northern cities, knowing that somehow this situation can and will be changed.

Let us not wallow in the valley of despair, I say to you today, my friends.

So even though we face the difficulties of today and tomorrow, I still have a dream. It is a dream deeply rooted in the American dream. I have a dream that one day this nation will rise up and live out the true meaning of its creed: We hold these truths to be self-evident, that all men are created equal.

I have a dream that one day on the red hills of Georgia, the sons of former slaves and the sons of former slave owners will be able to sit down together at the table of brotherhood.

I have a dream that one day even the state of Mississippi, a state sweltering with the heat of injustice, sweltering with the heat of oppression will be transformed into an oasis of freedom and justice.

I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character. I have a dream today.

I have a dream that one day down in Alabama with its vicious racists, with its governor having his lips dripping with the words of interposition and nullification, one day right down in Alabama little Black boys and Black girls will be able to join hands with little white boys and white girls as sisters and brothers. I have a dream today.

I have a dream that one day every valley shall be exalted, every hill and mountain shall be made low, the rough places will be made plain, and the crooked places will be made straight, and the glory of the Lord shall be revealed, and all flesh shall see it together.

This is our hope. This is the faith that I go back to the South with. With this faith, we will be able to hew out of the mountain of despair a stone of hope. With this faith we will be able to transform the jangling discords of our nation into a beautiful symphony of brotherhood. With this faith we will be able to work together, to pray together, to struggle together, to go to jail together, to stand up for freedom together, knowing that we will be free one day.

This will be the day when all of God’s children will be able to sing with new meaning: My country, ’tis of thee, sweet land of liberty, of thee I sing. Land where my fathers died, land of the pilgrims’ pride, from every mountainside, let freedom ring.

And if America is to be a great nation, this must become true. And so let freedom ring from the prodigious hilltops of New Hampshire. Let freedom ring from the mighty mountains of New York. Let freedom ring from the heightening Alleghenies of Pennsylvania. Let freedom ring from the snowcapped Rockies of Colorado. Let freedom ring from the curvaceous slopes of California. But not only that, let freedom ring from Stone Mountain of Georgia. Let freedom ring from Lookout Mountain of Tennessee. Let freedom ring from every hill and molehill of Mississippi. From every mountainside, let freedom ring.

And when this happens, and when we allow freedom ring, when we let it ring from every village and every hamlet, from every state and every city, we will be able to speed up that day when all of God’s children, Black men and white men, Jews and Gentiles, Protestants and Catholics, will be able to join hands and sing in the words of the old Negro spiritual: Free at last. Free at last. Thank God almighty, we are free at last.

Reference:  https://www.npr.org/2010/01/18/122701268/i-have-a-dream-speech-in-its-entirety#:~:text=sisters%20and%20brothers.-,I%20have%20a%20dream%20today.,flesh%20shall%20see%20it%20together.

B.  CONSTITUTIONAL PROVISIONS RELATED to ELECTIONS

ARTICLE I (LEGISLATIVE POWER):

Article I, Section 4:  (“Elections Clause”)

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators.

The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.

ARTICLE IV

Article IV, Section 4:  (“Republican Form of Government”):

The United States shall guarantee to every State in this Union a Republican Form of Government and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

C.  RECONSTRUCTION ERA CONSTITUTIONAL AMENDMENTS and OTHERS THAT RELATE TO VOTING RIGHTS

The Reconstruction Era constitutional amendments include the 13th, 14th, and 15th amendments, which, taken together, abolish slavery, recognize freed slaves and other persons of color as American citizens and recognize that they have the same, equal rights as every other American citizen, including the right to vote.

13th Amendment – Section 1: “Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States or any place subject to its jurisdiction

Section 2: Congress shall have power to enforce this article by appropriate legislation.” (December 8, 1965)

14th AmendmentSection 1 (Due Process): “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2 (Apportionment of Representation): “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.”   (July 9, 1868)

15th Amendment –  Section 1: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2: “The Congress shall have power to enforce this article by appropriate legislation.  (February 3, 1870)

19th Amendment –  “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

Congress shall have power to enforce this article by appropriate legislation.”   (June 4, 1919)

26th Amendment –  Section 1: “The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.

Section 2: The Congress shall have power to enforce this article by appropriate legislation.”   (July 1, 1971)

D.  THE SUPREME COURT UPHOLDS AN INDIANA VOTER ID LAW in the Case CRAWFORD v. MARION COUNTY ELECTION BOARD (2008)  

FACTS:  In 2005, the Indiana legislature passed a law that requires that a voter present ID at the precinct on election day, with absentee voters and residents of state-licensed nursing homes exempted. The requirement does not apply to absentee ballots submitted by mail, and the statute contains an exception for persons living and voting in a state-licensed facility such as a nursing home. A voter who is indigent or has a religious objection to being photographed may cast a provisional ballot that will be counted only if she executes an appropriate affidavit before the circuit court clerk within 10 days following the election. A voter who has photo identification but is unable to present that identification on election day may file a provisional ballot that will be counted if she brings her photo identification to the circuit county clerk’s office within 10 days. No photo identification is required in order to register to vote, and the State offers free photo identification to qualified voters able to establish their residence and identity.

State Representative William Crawford, the Democratic Party of Indiana and other plaintiffs argued that the law violated the right to vote as protected by the First Amendment and Fourteenth Amendment’s equal protection clause as well as Article 2 of the Indiana constitution.  They said that the law substantially burdens the “fundamental” right to vote, discriminates between and among different classes of voters, and disproportionately affects disadvantaged and minority voters.

Indiana’s Attorney General defended the law saying it reflected a legitimate legislative concern for in-person voting fraud, it reflected the findings of the Carter-Baker Commission, and was a reasonable exercise of the state’s constitutional authority to regulate the time, place and manner of elections under Article 1, Sec. 4 of the US Constitution.  The state also asserted that plaintiffs lacked standing to challenge the statute because they could produce no eligible voter that the law had kept from actually voting.

ISSUE POSED TO THE COURT:  The issue before the Court was whether Indiana’s law requiring voters to present a government-issued photo identification before casting a ballot, with certain exemptions, violated the U.S. Constitution.

OPINION:  (of the Roberts Court)  The established rule, established by the Supreme Court, is that a state election law that unreasonably discriminates on the basis of a particular class of individuals is unconstitutional, under the 14th Amendment.  However, a state law’s burden on a political party, an individual voter, or a discrete class of voters must be justified by compelling, relevant, and legitimate state interests.

Because Indiana’s cards are free, the inconvenience of going to the Bureau of Motor Vehicles, gathering required documents, and posing for a photograph does not qualify as a substantial burden on most voters’ right to vote, or represent a significant increase over the usual burdens of voting. The severity of the somewhat heavier burden that may be placed on a limited number of persons – ie, elderly persons born out-of-state, who may have difficulty obtaining a birth certificate—is mitigated by the fact that eligible voters without photo identification may cast provisional ballots that will be counted if they execute the required affidavit at the circuit court clerk’s office. Even assuming that the burden may not be justified as to a few voters, that

conclusion is by no means sufficient to establish petitioners’ right to the relief they seek.  Unfortunately, the evidence presented at trial (the district court) does not provide any concrete evidence of the burden imposed on voters who currently lack photo identification. In fact, there was no testimony presented by any voter who was overly burdened by the photo ID requirement.

In summing up, the Court concluded that on the basis of the record in this case, it could not conclude that the statute imposes “excessively burdensome requirements” on any class of voters. At most, it “imposes only a limited burden on voters’ rights.” The opinion, it should be noted, was written by Justice Stephen Breyer, probably the most liberal member of the Court.

As to the remedy that the Democrat organizations were seeking – an invalidation of the law – the Court noted that it would be wrong to do so. When evaluating a neutral, nondiscriminatory regulation of voting procedure, as the Court did in this case, it must “keep in mind that ‘a ruling of unconstitutionality frustrates the intent of the elected representatives of the people.’  Indiana’s state interests identified as justifications for the law are both neutral and sufficiently strong to require us to uphold it and to reject the petitioner’s remedy. The application of the statute to the vast majority of Indiana voters is amply justified by the valid interest in protecting “the integrity and reliability of the electoral process.”

Justice Scalia, joined by Justices Thomas and Alito, joined the majority and defended the delegation of election administration powers to the states under Article 1, Section 4: “It is for state legislatures to weigh the costs and benefits of possible changes to their election codes except when it imposes a severe and unjustified overall burden upon the right to vote or is intended to disadvantage a particular class.”

E.  NORTH CAROLINA COUNTIES “COVERED” UNDER SECTION 4(a) of the VOTING RIGHTS ACT of 1965

40 of North Carolina’s 100 counties are “covered” under Section 4(a) of the federal Voting Rights Act of 1965 for their past history of racial disenfranchisement of black voting rights:

Anson County                                                             Hoke County

Beaufort County                                                         Jackson County

Bertie County                                                             Lee County

Bladen County                                                            Lenoir County

Camden County                                                          Martin County

Caswell County                                                          Nash County

Chowan County                                                          Northampton County

Cleveland County                                                       Onslow County

Craven County                                                            Pasquotank County

Cumberland County                                                   Perquimans County

Edgecombe County                                                    Person County

Franklin County                                                          Pitt County

Gaston County                                                            Robeson County

Gates County                                                              Rockingham County

Granville County                                                        Scotland County

Greene County                                                            Union County

Guilford County                                                         Vance County

Halifax County                                                           Washington County

Harnett County                                                           Wayne County

Hertford County                                                         Wilson County

F.  THE REQUIREMENTS FOR AMENDING THE NC STATE CONSTITUTION

According to Article II of the North Carolina state Constitution: “Amendments to Constitution of North Carolina.  Every bill proposing a new or revised Constitution or an amendment or amendments to this Constitution or calling a convention of the people of this State, and containing no other matter, shall be submitted to the qualified voters of this State after it shall have been read three times in each house and signed by the presiding officers of both houses.” Proposed constitutional amendments need three-fifths votes in both the House and Senate in order to be placed on the ballot for voters. Republican supermajorities in 2018 helped get the most controversial constitutional changes to voters. Republicans that year had a 75-45 advantage in the House and a 35-15 advantage in the Senate. The voter ID amendment passed the House by two votes over the minimum three-fifths and passed the Senate with three votes over the minimum.

G.  HISTORY OF RACIAL DISCRIMINATION & SEGREGATION IN NORTH CAROLINA & SPECIFICALLY, GREENVILLE (PITT COUNTY)

North Carolina had a history of racial desegregation. The Supreme Court decided the landmark education case – Brown v. Board of Education (I) and (II) in 1954 and then in 1955. The first case identified the problem, which was legal, or de facto, racial segregation in violation of the Equal Protection Clause of the 14thAmendment.

This case was the consolidation of cases arising in Kansas, South Carolina, Virginia, Delaware, and Washington D.C. relating to the segregation of public schools on the basis of race. In each of the cases, African-American students had been denied admittance to certain public schools based on laws allowing public education to be segregated by race. They argued that such segregation violated the Equal Protection Clause of the Fourteenth Amendment. The plaintiffs were denied relief in the lower courts based on Plessy v. Ferguson, which held that racially segregated public facilities were legal so long as the facilities for blacks and whites were equal. (This was known as the “separate but equal” doctrine).

Chief Justice Earl Warren delivered the opinion of the unanimous Court. The Supreme Court held that “separate but equal” facilities are inherently unequal and violate the protections of the Equal Protection Clause of the Fourteenth Amendment, but the case specifically addressed the segregation in public education systems. The Court reasoned that the segregation of public education based on race instilled a sense of inferiority that had a hugely detrimental effect on the education and personal growth of African American children. Warren based much of his opinion on information from social science studies rather than court precedent (He based his assessment on a “doll study”).  

After its decision in Brown v. Board of Education of Topeka (Brown I), which declared racial discrimination in public education unconstitutional, the Court convened to issue the directives which would help to implement its newly announced constitutional principle. The cases stemmed from many different regions of the United States with distinctive conditions and problems. The Court ordered that the Brown I decision shall be implemented “with all deliberate speed” and local school authorities were tasked with such implementation.

So, in 1955, with Brown I and Brown II, schools were to be desegregated. From 1957-1958, there was what was called “token integregation.” A total of 11 black students state-wide were enrolled in previously all-white schools – 4 students in Charlotte, 6 in Greensboro, and only 1 in Winston-Salem. That was it.

Pitt County, located in the eastern part of the state, is a microcosm of a multiracial and class-stratified population growing in North Carolina.  In 2013, 59% of its approximately 170,000 residents were white, 34% black, and 5%, Latino. Nearly 24% were living in poverty – higher than the state’s 15% average. That includes the more than one in four children, and some 64% of those enrolled in public schools qualify for free or reduced meals. Unemployment in Pitt County hovers at around 10%. In its 35 public schools, African-American students made up the majority, according to district records. In 2012-13, close to 48% of its students were black, 38% white, and 10% Latino.

A report that came out in November 1960 confirmed that North Carolina was failing when it came to integrating African-American students in previously all white schools. By that time, only 75 African-Americans students were enrolled in these previously all-white schools. Absolutely dismal. Furthermore, the report also noted how the state’s most populated school districts, Raleigh and Charlotte, were lacking significant numbers of integrated students. Raleigh had only 1 case while Charlotte showed only 2.

In 1961, The NAACP filed several lawsuits against several North Carolina school districts that they believed had failed at desegregating their facilities at a reasonable pace. In one particular case, Wheeler v. The Durham City Board of Education, the federal district court stated that students and their families must follow the dictates of Brown and the procedures set forth by state legislation, known as the Pupil Assignment Act. It concluded that the district had practiced blatant racial discrimination due to its low numbers of approved African-American student transfers. And so, the court ordered the Durham School Board to abide by Brown and state procedures. After the Durham City School Board failed to follow through on the court order, the case was appealed to the 4th Circuit Court of Appeals, which overturned the lower court’s decision. Instead, the School Board was ordered to submit a plan that would end racial segregation and discrimination in the district. A proposed time limit was given. As it turned out, such “school district integration plans” would be ordered by the federal courts. Pitt County was one such school district.

By 1963, of North Carolina’s estimated 346,746 African-American students, 1,865 were enrolled in a previously all white school (which amounts to 0.538%). Of the 171 school districts in the state, 40 were integrated (but only 38 were integrated voluntarily; 2 were court-ordered),

By 1964, of North Carolina’s estimated 349,282 African-American students, only 4,949 were enrolled in a previously all-white school (1.42%). Of the 171 school districts in North Carolina, 84 were integrated.

Also in 1964, a petition dated November 16, 1964 called for the reassignment of the 272 African-American students enrolled in Pitt County Schools. The petition claimed that Pitt County knowingly operated a racially-biased (desegregated) system both before and after the 1954 Brown decision. A civil lawsuit was filed in federal court in December 1964 by Moses Teel, calling for the complete racial desegregation of the Pitt County school system. He wanted his children to be transferred to an all-white school. The federal court found that the district was operating racially-segregated, dual and unconstitutional school systems, and required it to submit plans which would achieve balanced enrollment similar to the school age population in the district and “eradicate the vestiges of the dual school system and eliminate the effects of segregation.”  Unfortunately, when Mr. Teel’s application to an all-white school was denied, his children were placed in an all-black school that was further from their home.

In 1965, as a result of the lawsuit, Pitt County adopted a desegregation plan which it called its “Freedom of Choice” Plan. Under that plan, parents of all children would be given the opportunity to choose their choice of school before the board makes assignments. If more requests were submitted than a particular school could hold, preference would be given to those living closest to the school. Those parents who were denied would be allowed to identify a second choice.

Note: the “Freedom of Choice” plan would not be approved for the 1966-67 school year if it did not address the

desegregation of faculty and the ending of segregated athletic and extracurricular activities.

Following the approval of the U.S. Department of Education, Pitt County operated their schools under the “Freedom of Choice” plan as well as a Plan adopted in 1968 that reorganized the school system. This all changed when a Judge (John Larkins) rejected the ongoing approach and ordered the district to deliver a new plan that would “end the dual school system and effectively establish a single, non-racial unitary school

system by the fall of 1970.” Judge Larkins ordered the district to present a timetable for completion as

well as a report that detailed the exact use of each facility in the system, which schools might be paired with others and which might be closed.

As of March 1969, of the 7,145, African American students enrolled in Pitt County schools 2,464 were assigned to a school on a nonracial basis. (34.4%) and 159 of 549 teachers are assigned to a school on a nonracial basis.

The “Freedom of Choice” Plan that was finally and officially adopted by the Pitt County Board of Education Adopted on May 6, 1965 allowed all students in grades 1st, 9th-12th, and all new students the choice of which

school they would attend for the 1965-66 school year.  For the 1966-67 school year, students in all grades except 7thand 8th would be given the choice on which school to attend and by the 1967-68 school year, schools for students of all grades would be assigned by choice.

In March, 1968, the U.S. Department of Health, Education, and Welfare (DHHW) stated that school districts had a duty to eliminate the historic dual system of schools across the south and that districts should adopt a plan of compliance that would completely desegregate their schools for the 1969-70 school year. In 1969-70, in response to the DHHW, Greenville City Schools submitted a plan for approval that shifted away from the “Freedom of Choice” model in favor of a geographic zoning model. The plan was rejected by the DHHW

due to Sadie Saulter Elementary School remaining an “all-black” school. Despite the rejection, however, Greenville continued forward with the plan, believing it was the best plan that would satisfy the needs of their

students with the demands of the federal government.

On October 24, 1969: a physical dispute erupted at Rose High School when African-American students accused the administration of removing two of their fellow students from the school even though they apparently had done nothing wrong. The dispute evolved into a fight during the lunch hour that saw one student injured and taken to the hospital and the school closed for the remainder of the day as well as the following Monday. In the days that followed, several African-American students presented a set of demands to administration which included the teaching of a Black History course, the removal of police from campus, and the re-admittance

of students suspended because of the October 24th fight.

Four days later, on October 28, the Greenville City School Board responded to the demands of those students. Its official response included several clauses, including the following:

1. The school board agreed to address transportation issues that resulted in overcrowding and tardiness;

2. The school board agreed to ensure fair treatment for all students regardless of race;

3. A survey regarding the offering of a Black History course would be used to gauge if there was sufficient interest in the course;

4. Board members agree that there must be an increased effort when it comes to ensuring that problems presented by African-American students receive equal interest and concern;

5. All school activities must be planned in a way in which all students can participate.

6. Any charges of discrimination made against a staff member will be fully investigated and if found true, will be properly dealt with.

On March 3, 1970, a motion was submitted asking that “Greenville City Board of Education be required to immediately adopt and implement a plan of desegregation for its schools and for its faculty.” It was filed in federal court. The motion also requested that any new school construction be halted until the district adopts such a plan and can prove that any new construction would help further desegregate the school system. The motion accused Greenville City Schools of using construction as a means of ensuring a system that would remain fully segregated.

The district court judge, John Larkins, ordered that the Greenville City School Board must present a new plan for the 1970-71 school year. Larkins ordered the board must “submit to the court within 24 days a plan utilizing paring, grouping, rezoning or other facility or planning method for the achievement of racial integration of student and faculty.” Larkins stated that the board’s previous plan was” deficient of teachers and school personnel…”

One week after Judge Larkins’ ruling, the Greenville City School Board debated 4 different plans desegregation before adopting Plan 4 (for the 1970-71 school year) with a 5-2 vote. Plan 4 maintained the geographic zones as they had been with only slight variations, converted Agnes Fullilove Elementary into a kindergarten and school for special programs, and accomplished the required ratios of desegregation by bussing students to each school.

An estimated total of 1044 elementary students would need to be bused to school for the academic year 1970-71.

Larkins’ court order finally forced Pitt County/Greenville to racially integrate its public schools. The school district was the last major district to desegregate in a state that was the nation’s second-to-last to desegregate (a little-known fact). About 58,000 black and white children began attending classes side by side when the order was implemented on Feb. 17, 1970, when 60% of Greenville’s black students were assigned to new schools while 10% of white students were required to switch.

On August 13, 1970, a complaint against the Greenville City School Board was filed by student Barry Christopher Henderson and his parents. The complaint was filed on behalf of a group of students who resided

in the Hillsdale, Greenbrier, and Carolina Heights sub-divisions that would be forced to be bused to Sadie Saulter Elementary School. The group requested an injunction that prevented Plan 4 from being implemented.

In 2006, the Greenville Parents Association filed a complaint with the U.S. Department of Education, contending that the district’s 2006-07 assignment plan discriminated against white students because it used race to balance some of its elementary school population. A settlement followed in November 2009, with the court reiterating the district’s continued desegregation obligations under earlier orders. In late 2010, the district approved a school assignment plan for 2011-12 which the parents Rhonda Everett, Melissa Grimes, and Caroline Sutton claimed left some schools with high minority, low-achieving student bodies, in violation of prior court orders, thereby resulting in a drop in student proficiency rates. The percentage of white students at the district’s C.M. Eppes Middle School dropped to 25%; at Elmhurst Elementary, to 23%; and at South Greenville Elementary, to 17%. The district also opened a new elementary school, Lakeforest, with only 12% white students.  Each of those schools likewise had a corresponding drop in student proficiency rates. Those parents filed suit in federal court, requesting that the school assignment plan for 2011-12 be enjoined (not allowed to go into effect) because it would create a racially-identifiable non-Caucasian student body at Lakeforest Elementary and would increase racial isolation of non-Caucasian students at two other schools – Elmhurst Elementary and South Greenville Elementary. They filed suit against the Pitt County Board of Education, which sought to defend the assignment plan.

In writing the court’s opinion, Judge Malcolm Howard wrote: “In its order approving the settlement, the court questions whether the 1970 desegregation orders should be lifted. Consequently, the court ordered the parties to ‘work toward unity status so that the court could relinquish jurisdiction over this case and restore to the School Board full responsibility to the operation of its schools.’ The court ordered the parties to submit “a report detailing the School Board’s efforts and progress in achieving unity status and eliminating the vestiges of past discrimination to the extent possible,’ on or before December 31, 2012.”

The court denied the parents’ (plaintiffs) motion for injunctive relief, commenting: “The fact that the 2011-12 assignment plan results in schools that do not reflect the racial composition of the school system as a whole does not mean that the plan is unconstitutional.” The parents appealed the ruling.

The Fourth Circuit Court of Appeals affirmed the district court’s ruling. In its 2-1 majority opinion, Judge Albert Diaz wrote: “We need look no further for proof than the fact that the desegregation orders remained administratively closed for over thirty-five years, during which time the Board undertook the task of integrating the schools relatively undisturbed. Until 2008, no party came before the district court accusing the Board of neglecting or disregarding its obligations under the desegregation orders….  From the date the district court entered its desegregation orders, school administrators took immediate steps to effectively integrate their schools and move them toward unitary status. In very short order, both school districts had almost completely eliminated racially identifiable schools. While racial imbalance returned over the succeeding years, the respective boards consistently took measures to bring their schools back into balance.” 

In other words, Pitt County schools had finally fulfilled their obligations under desegregation orders first entered more than 40 years ago and need no longer remain subject to federal oversight.

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RELIGIOUS LIBERTY: Why Such Hostility to This Fundamental Freedom?

by Diane Rufino, October 7, 2022

“I believe in Christianity as I believe that the sun has risen – not only because I see it, but because by it, I see everything else.”   — C.S. Lewis

It is absolutely clear that religion in this country has come under an attack from the ideological progressive left. Religion, religious leaders, religious business owners, and religious organizations have been demonized, vilified, slandered, and bullied all because they dare to stand firm in their religious beliefs. Segments of established churches, such as the Methodist Church and the Catholic Church, are demanding that they ignore and even revise the religious principles they stand for and promote. They want to get rid of the “marriage is between one man and one woman” and “man shall not lie with another man” religious teachings so that the churches can fall in line with today’s social progression.  

The First amendment contains two separate protections when it comes to religion and religious exercise. It reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Religious Liberty is the first of our fundamental rights to be addressed in the Bill of Rights. The first clause in the First Amendment (“Congress shall make no law respecting the establishment of religion”) is known as the “Establishment Clause.” This clause makes perfectly clear that the federal government (Congress) is prohibited the government from “establishing” a state-sponsored church, which is what Great Britain did in establishing the (Anglican) Church of England.

The second clause [“Congress shall make no law prohibiting the free exercise (of one’s religion) thereof”] is known as the “Free Exercise Clause.” The Free Exercise Clause reserves the right of American citizens to accept any religious belief and engage in religious rituals; that is, Americans are protected from government in their free exercise of their religious beliefs. The Free Exercise Clause not only protects religious belief and expression; it also seems to allow for violation of laws, as long as that violation is made for religious reasons. 

Before we even had the Constitution and the First Amendment, religious liberty protections were already a priority in the minds of men such as Thomas Jefferson and James Madison. For example, the Virginia Statute for Religious Freedom, which was drafted by Jefferson in 1776 and accepted by the Virginia General Assembly in 1786, was one of the most important documents in early U.S. religious history. By its enactment, it ensured that all religious groups were placed on an equal footing so far as the State was concerned. The Virginia Statute marked the end of a ten-year struggle for the separation of church and state in Virginia, and it was, in fact, the driving force behind the religious clauses of the First Amendment of the U.S. Constitution, ratified in 1791. As Jefferson explained: The Virginia Statute for Religious Liberty was a first attempt to attempt to provide religious freedom to “the Jew, the Gentile, the Christian, the Mahometan, the Hindoo, and the infidel of every denomination.” To explain it in terms of historical significance, it was the first attempt in the new nation to remove the government’s influence from religious affairs.

Today, we (incorrectly) associate the phrase “Separation of Church and State” as explaining the meaning of the Establishment Clause. The question is: Where did this phrase come from? And what exactly does it mean? The phrase certainly appears in no official founding document. Leading religious experts have challenged politicians and jurists to find it

So, if the phrase “Separation of Church and State” appears in no official founding document, what is the source of that phrase?  And how did it become so closely associated with the First Amendment?  As we now know, the phrase came from a letter written by Thomas Jefferson.

On October 7, 1801, the Danbury Baptist Association of Danbury, Connecticut, sent a letter to President Thomas Jefferson expressing their concern that protection for religion had been written into the laws and constitutions. Believing strongly that freedom of religion was an inalienable right given by God, the fact that it appeared in civil documents suggested that the government viewed it as a government-granted rather than a God-given right. Apprehensive that the government might someday wrongly believe that it did have the power to regulate public religious activities, the Danbury Baptists communicated their anxiety to President Jefferson.   

      
On January 1, 1802, Jefferson responded to their letter. He understood their concerns and agreed with them that man accounted only to God and not to government for his faith and religious practice. Jefferson emphasized to the Danbury Baptists that none of man’s natural (ie, inalienable) rights, including the right to exercise one’s faith publicly, would ever place him in a situation where the government would interfere with his religious expressions. He assured them that because of the ‘wall of separation,’ they need not fear government interference with religious expressions:

Believing with you that religion is a matter which lies solely between man and his God,… I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion or prohibiting the free exercise thereof,” thus building a wall of separation between Church and State.”

In his letter, Jefferson made clear that the “wall of separation” was erected not to limit public religious expressions but rather to provide security against governmental interference with those expressions, whether private or public. (On numerous other occasions, Jefferson repeatedly affirmed that the sole purpose of the First Amendment was to ensure that the federal government could not interfere with public religious expressions).

Later courts occasionally cited Jefferson’s “separation” letter in their rulings. For example, in the 1878 case Reynolds v. United States, the Supreme Court quoted heavily from Jefferson’s letter, noting with approval Jefferson’s view that the federal government was not to interfere with religious expressions of values, except in a very narrow set of circumstances.

The case addressed the issue of religion and polygamy. George Reynolds, a member of the Church of Jesus Christ of Latter-day Saints, was charged with bigamy under the federal Morrill Anti-Bigamy Act after marrying a woman while still married to his previous wife. Reynolds argued that the law was unconstitutional. He reasoned that his religion required him to marry multiple women and the law therefore violated his First Amendment right to free exercise of religion. And so, he took this issue to court.

The specific question posed to the US Supreme Court is whether religious exercise or religious duty is a legitimate defense to a criminal charge. The Court, however, upheld Reynolds’s conviction and Congress’ power to prohibit polygamy. The Court held that while Congress could not outlaw a belief in the correctness of polygamy, it could outlaw the practice thereof. The majority reasoned that while marriage is a “sacred obligation,” it is nevertheless “usually regulated by law” in “most civilized nations.” The Court addressed Jefferson’s letter to the Danbury Baptists and summarized it as follows:  

The rightful purposes of civil government are for its officers to interfere with religion only when its principles break out into overt acts against peace and good order. In this is found the true distinction between what properly belongs to the Church and what belongs to the State….. Congress was deprived of all legislative power over mere religious opinion but was left free to reach religious actions which were in violation of social duties or subversive of good order.”

Ultimately, the Court held that people cannot ignore a law and avoid prosecution due to their religious beliefs.

Since the federal government was only to inhibit religious expressions that were “subversive of good order” or “broke out into overt acts against peace and good order,” that Court (and other courts, including in Commonwealth v. Nesbit and Lindenmuller v. The People) provided examples of the types of “religious” acts into which the government did have legitimate reason to intrude – acts such as human sacrifice, concubinage, incest, polygamy, injury to children, etc. But in traditional religious practices (whether public prayer, the use of the Scriptures, etc), the government was never to interfere. This was the clearly-understood meaning of Jefferson’s “separate” letter and the manner in which it was applied for a century and a half.

However, a reversal occurred in 1947, in the case of Everson v. Board of Education.

In 1947, the US Supreme Court began to reinterpret the First Amendment by re-interpreting the phrase “Wall of Separation Between Church and State,” which is a legal fiction, in the case of Everson v. Board of Education of Ewing Township. At issue was a New Jersey law which authorized reimbursement by local school boards of the costs of transportation to and from schools, including private schools. 96% of the private schools who benefitted from this law were parochial Catholic schools. Arch R. Everson, a taxpayer in Ewing Township, filed a lawsuit alleging that this indirect aid to religion violated both the New Jersey state constitution and the First Amendment. After losing in state courts, Everson appealed to the U.S. Supreme Court on purely federal constitutional grounds.

Justice Hugo Black, a former KKK leader, wrote the majority opinion for the Supreme Court in Everson. The majority concluded that the New Jersey statute which permitted reimbursement to the parents of Catholic children for the cost of bus transportation as was available to children attending public school (and to those who chose, rather, to attend a parochial school) was valid in light of the Establishment Clause. Justice Black wrote: “The establishment of religion clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.” In his conclusion, Black added this phrase: “The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach. New Jersey has not breached it here.”

And since that 1947 opinion, the phrase “separation of church and state” no longer meant that the federal government (ie, the “state”) could not establish a federal denomination (ie, a “church”), but has been re-interpreted to mean that public religious expressions (ie, the new “church”) must be kept separate from the public square (ie, the new “state”). This change in definition has resulted in one absurd ruling after another, each one destroying our national identity bit by bit.

This is why I say that the “Wall of Separation” phrase is a legal fiction.

In 1962, the US Supreme Court began to remove religion from America’s public schools, with the case Engel v. Vitale. In that case, the New York State Board of Regents authorized a short, voluntary prayer for recitation at the start of each school day. A group of organizations joined forces in challenging the prayer, claiming that it violated the Establishment Clause of the First Amendment. The New York Court of Appeals rejected their arguments. The question presented by this case was an extremely narrow one – whether New York overstepped constitutional bounds when it agreed to finance a religious exercise. Does the reading of a nondenominational prayer at the start of the school day violate the Establishment Clause of the First Amendment?  

The Supreme Court held that the state cannot hold prayers in public schools, even if participation is not required and the prayer is not tied to a particular religion.

In an opinion authored by Hugo L. Black, the Court held that respondent’s decision to use its school system to facilitate recitation of the official prayer violated the Establishment Clause. Specifically, the policy breached the constitutional “wall of separation between church and state,” which he so ‘eloquently’ (sarcastic) and deceitfully articulated in his Everson opinion. The Court ruled that the constitutional prohibition of laws establishing religion meant that government had no business drafting formal prayers for any segment of its population to repeat in a government-sponsored religious program. The Court held that respondent’s provision of the contested daily prayer was inconsistent with the Establishment Clause.

Justice William Douglas concurred in the judgment on the ground that the state’s financing a religious exercise violated the First Amendment. In his concurring opinion, Douglas, explained: “We think that by using its public school system to encourage recitation of the Regents’ prayer, the State of New York has adopted a practice wholly inconsistent with the Establishment Clause. There can, of course, be no doubt that New York’s program of daily classroom invocation of God’s blessings as prescribed in the Regents’ prayer is a religious activity. It is a solemn avowal of divine faith and supplication for the blessings of the Almighty. The nature of such a prayer has always been religious….,” and as such violates the “wall of separation” rule.  

He continued:

“In New York, the teacher who leads in prayer is on the public payroll, and the time she takes

seems minuscule . . . Yet, for me, the principle is the same, no matter how briefly the prayer is said, for, in each of the instances given, the person praying is a public official on the public payroll, performing a religious exercise in a governmental institution. It is said that the element of coercion is inherent in the giving of this prayer. If that is true here, it is also true of the prayer with which this Court is convened, and of those that open the Congress. Few adults, let alone children, would leave our courtroom or the Senate or the House while those prayers are being given. Every such audience is in a sense a ‘captive’ audience…..   At the same time, I cannot say that to authorize this prayer is to establish a religion in the strictly historic meaning of those words. A religion is not established in the usual sense merely by letting those who choose to do so say the prayer that the public-school teacher leads. Yet once government finances a religious exercise, it inserts a divisive influence into our communities…..

The First Amendment leaves the Government in a position not of hostility to religion but of neutrality . . . The philosophy is that if government interferes in matters spiritual, it will be a divisive force. The First Amendment teaches that a government neutral in the field of religion.”

Next came the removal of Bible reading at the start of each school day. In the case of Abington School District v. Schempp, a Pennsylvania law requiring public school teachers to read from the Bible at the beginning of each school day was challenged as being violative of the Establishment Clause of the First Amendment (and the Fourteenth Amendment, which incorporated the First Amendment on the States in the case Gitlow v. New York, in 1925). The issue presented to the Court was whether the Pennsylvania law requiring public school students to participate in classroom religious exercises violate the religious freedom of students as protected by the First and Fourteenth Amendments. The Court consolidated this case with one involving Maryland atheists (headed by the infamous atheist and hedonist, Madalyn Murray O’Hair), who challenged a Baltimore city rule that provided for opening exercises in the public schools that consisted primarily of reading a chapter from the bible and the Lord’s Prayer. (Murray v. Curlett). When Maryland’s highest court held that in-school Bible readings did not violate the First Amendment, O’Hair appealed to the US Supreme Court. The case was then consolidated with the Abington v. Schempp case.

The Supreme Court concluded that public schools cannot sponsor Bible readings and/or recitations of the Lord’s Prayer under the First Amendment’s Establishment Clause. In an opinion written by Justice Clark, the majority concluded that, in both cases, the laws required religious exercises and such exercises directly violated the First Amendment.

In this excerpt from the Opinion, he explains: “Petitioners (atheists) contend that the state laws requiring or permitting use of the Regents’ prayer must be struck down as a violation of the Establishment Clause because that prayer was composed by governmental officials as a part of a governmental program to further religious beliefs. For this reason, they argue, the State’s use of the Regents’ prayer in its public school system breaches the constitutional wall of separation between Church and State. We agree. We think that the constitutional prohibition against laws respecting an establishment of religion must at least mean that in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government.”

Furthermore, he wrote:

“The wholesome “neutrality” of government toward religion of which this Court’s cases speak . . . stems from a recognition of the teachings of history that powerful sects or groups might bring about a fusion of governmental and religious functions or a concert or dependency of one upon the other to the end that official support of the State or Federal Government would be placed behind the tenets of one or of all orthodoxies. This the Establishment Clause prohibits. And a further reason for neutrality is found in the Free Exercise Clause, which recognizes the value of religious training, teaching and observance and, more particularly, the right of every person to freely choose his own course with reference thereto, free of any compulsion from the state. This the Free Exercise Clause guarantees. Thus, the two clauses may overlap…. The test may be stated as follows: what are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion, then the enactment exceeds the scope of legislative power as circumscribed by the Constitution…. T]here must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion. The Free Exercise Clause withdraws from legislative power, state and federal, the exertion of any restraint on the free exercise of religion. Its purpose is to secure religious liberty in the individual by prohibiting any invasions thereof by civil authority. Hence it is necessary in a free exercise case for one to show the coercive effect of the enactment as it operates against him in the practice of his religion. The distinction between the two clauses is apparent—a violation of the Free Exercise Clause is predicated on coercion while the Establishment Clause violation need not be so attended.

Applying the Establishment Clause principles to the cases at bar, we find that reciting morning readings from the Bible and recitation of the Lord’s Prayer constitute a religious ceremony that was intended by the State to be so. Given that finding, the exercises and the law requiring them are in violation of the Establishment Clause.

The State contends that the program is an effort to extend its benefits to all public-school children without regard to their religious belief. Included within its secular purposes, it says, are the promotion of moral values, the contradiction to the materialistic trends of our times, the perpetuation of our institutions and the teaching of literature. The short answer is that the religious character of the exercise was admitted by the State. But even if its purpose is not strictly religious, it is sought to be accomplished through readings, without comment, from the Bible. Surely the place of the Bible as an instrument of religion cannot be gainsaid, and the State’s recognition of the pervading religious character of the ceremony is evident from the rule’s specific permission permitting nonattendance at the exercises. None of these factors is consistent with the contention that the Bible is here used either as an instrument for nonreligious moral inspiration or as a reference for the teaching of secular subjects.

The conclusion follows that, in both cases, the laws require religious exercises, and such exercises are being conducted in direct violation of the rights of the appellees and petitioners. Nor are these required exercises mitigated by the fact that individual students may absent themselves upon parental request, for that fact furnishes no defense to a claim of unconstitutionality under the Establishment Clause. Further, it is no defense to urge that the religious practices here may be relatively minor encroachments on the First Amendment. The breach of neutrality that is today a trickling stream may all too soon become a raging torrent and, in the words of James Madison, “it is proper to take alarm at the first experiment on our liberties” (Memorial and Remonstrance Against Religious Assessments).

It is insisted that, unless these religious exercises are permitted, a ‘religion of secularism’ is established in the schools. We agree, of course, that the State may not establish a ‘religion of secularism’ in the sense of affirmatively opposing or showing hostility to religion, thus ‘preferring those who believe in no religion over those who do believe’ (Zorach v. Clauson). We do not agree, however, that this decision in any sense has that effect. In addition, it might well be said that one’s education is not complete without a study of comparative religion or the history of religion and its relationship to the advancement of civilization. It certainly may be said that the Bible is worthy of study for its literary and historic qualities. Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistently with the First Amendment. But the exercises here do not fall into those categories. They are religious exercises, required by the States in violation of the command of the First Amendment that the Government maintain strict neutrality, neither aiding nor opposing religion.

Finally, we cannot accept that the concept of neutrality, which does not permit a State to require a religious exercise even with the consent of the majority of those affected, collides with the majority’s right to free exercise of religion. While the Free Exercise Clause clearly prohibits the use of state action to deny the rights of free exercise to anyone, it has never meant that a majority could use the machinery of the State to practice its beliefs….

The place of religion in our society is an exalted one, achieved through a long tradition of reliance on the home, the church and the inviolable citadel of the individual heart and mind. We have come to recognize through bitter experience that it is not within the power of government to invade that citadel, whether its purpose or effect be to aid or oppose, to advance or retard. In the relationship between man and religion, the State is firmly committed to a position of neutrality. Though the application of that rule requires interpretation of a delicate sort, the rule itself is clearly and concisely stated in the words of the First Amendment. Applying that rule to the facts of these cases, we affirm the judgment….”

Justice Douglas wrote, in his concurring opinion:

“The Establishment Clause is not limited to precluding the State itself from conducting religious exercises. It also forbids the State to employ its facilities or funds in a way that gives any church, or all churches, greater strength in our society than it would have by relying on its members alone. Thus, the present regimes must fall under that clause for the additional reason that public funds, though small in amount, are being used to promote a religious exercise. Through the mechanism of the State, all of the people are being required to finance a religious exercise that only some of the people want and that violates the sensibilities of others.

The most effective way to establish any institution is to finance it, and this truth is reflected in the appeals by church groups for public funds to finance their religious schools. Financing a church either in its strictly religious activities or in its other activities is equally unconstitutional, as I understand the Establishment Clause. Budgets for one activity may be technically separable from budgets for others. But the institution is an inseparable whole, a living organism, which is strengthened in proselytizing when it is strengthened in any department by contributions from other than its own members.

Such contributions may not be made by the State even in a minor degree without violating the Establishment Clause. It is not the amount of public funds expended; as this case illustrates, it is the use to which public funds are put that is controlling. For the First Amendment does not say that some forms of establishment are allowed; it says that “no law respecting an establishment of religion” shall be made. What may not be done directly may not be done indirectly, lest the Establishment Clause become a mockery.”

It should be acknowledged that the cases before the high Court were intentionally brought by atheist and other anti-religion persons and organizations for the sole purpose of taking religion out of our public schools. Next would come the demonization of the Ten Commandments and the Golden Rule.

One of the most notorious atheist activists was Madalyn Murray O’Hair, a proud and avowed atheist and hedonist. Murray was born in Pittsburgh, Pennsylvania in 1919. Pregnant with her first child in 1945, she declared to her family that she was going outside to “challenge God to strike me and this child dead with one of those lightning bolts.” She took pleasure in the fact that she was not struck down, despite violently cursing and bating God.  This event set a precedent for numerous dramatic and attention-seeking decisions she would make later in her life, nearly all of which were facilitated by her abhorrence of religion.

It was the deeply rooted educational practice of reading the Bible in class that Murray set her sights on. She was determined to have the practice prohibited. Murray herself most clearly spelled out her beliefs and aims in a letter to her supporters: “We are Atheists. As such, we are foes of any and all religions. We want the Bible out of school because we do not accept it as being either holy or an accurate historical document. We want the Lord’s prayer out of school because we doubt the historicity of Jesus Christ and also we do not believe in the efficacy of prayer.” In 1963, she brought a case, Murray v. Curlett, challenging the policy of mandatory prayers and Bible reading in Baltimore public schools. The case was consolidated with the Abington case for hearing by the Supreme Court.

Murray publicized her victory as a triumph against the oppressive hegemony of the church in Christian society. Unsurprisingly, she achieved celebrity status, though much of the attention was violently antagonistic. Life Magazine would later describe Murray as “The Most Hated Woman in America,” a title which she relished.


It is perhaps a shame that she is remembered most due to the nature of her death. In August 1977, Murray, her son and her granddaughter all disappeared from their home in Austin, Texas. It would be weeks before the police discovered their brutally deformed remains in a nearby ranch. She worked hard to make sure we ushered in an era of hostility to religion. She was a vile woman who met a grisly end. She will continue to be remembered as the “Most Hated Woman in America.”

The Supreme Court remained on course, validating the hostility to religion in public schools. For example, in the 1990 case of Stone v. Graham, the Supreme Court was asked to address a challenge by Sydell Stone and a number of other parents who claimed that a Kentucky state law that required the posting of a copy of the Ten Commandments in each public-school classroom was unconstitutional. They filed a claim against James Graham, the superintendent of public schools in Kentucky.

The question brought before the Court was whether the Kentucky statute violated the Establishment Clause of the First Amendment? The Supreme Court ruled that because of the new interpretation of “separation of church and state,” it was unconstitutional for a student at school to continue, even voluntarily, to see a copy of the Ten Commandments. The Court explained: “If the posted copies of the Ten Commandments are to have any effect at all, it will be to induce the school children to read, meditate upon.”

With the Reynolds opinion,the Supreme Court reversed more than two centuries of precedent (including its own previous rulings), ordering that the Bible and its teachings are no longer to be permitted in public schools. Why?  The Court explained: “If portions of the New Testament were read without explanation, they could be and…. had been psychologically harmful to the child (student).”

According to the Court, if students, even voluntarily, were to look at a copy of the Ten Commandments, they might adopt and even obey teachings such as “do not steal” and “do not kill.” That would be unconstitutional. Horrors!! This bizarre and unreasonable logic is reflective of far too many of the Court’s rulings on religion and religious liberty since 1962, with the Engel v. Vitale decision, and then 1963, with the Abington v. Schempp decision, as explained above.

What an amazing pronouncement from the Supreme Court – the Scriptures can cause psychological damage. Exposing students to Biblical teachings, such as the Golden Rule, the Beatitudes, and the Good Samaritan, can cause lasting brain damage! Who could imagine that the highest court in the land, tasked with interpreting the US Constitution, as originally written and understood, and as adopted and ratified by the States, would so recklessly and erroneously transform our American public school system.

But the Supreme Court seems poised to make things right again. Take, for example, this year’s case, Kennedy v. Bremerton School District. Joseph Kennedy, a high school football coach, engaged in prayer with a number of students during and after school games. He especially prayed in gratitude at the 50-yard line after each game his team won. His employer, the Bremerton School District, asked that he discontinue the practice in order to protect the school from a lawsuit based on violation of the Establishment Clause, but coach Kennedy refused and instead rallied local and national television, print media, and social media to support him.

Kennedy sued the school district for violating his rights under the First Amendment and Title VII of the Civil Rights Act of 1964. The district court held that because the school district suspended him solely because of the risk of constitutional liability associated with his religious conduct, its actions were justified. Kennedy appealed, but the U.S. Court of Appeals for the Ninth Circuit affirmed the decision of the lower court. Kennedy then appealed his case to the Supreme Court.

The issue presented to the Court was whether a public-school employee’s prayer during school sports activities constitutes protected speech, and if so, can the public-school employer prohibit it to avoid violating the Establishment Clause?

Writing for the majority, Justice Neil Gorsuch explained that the Free Exercise and Free Speech Clauses of the First Amendment protect an individual engaging in a personal religious observance from government reprisal and the Constitution neither mandates nor permits the government to suppress such religious expression.

In fact, the Court “abandoned” the “tests” used to analyze First Amendment religious liberty cases and replaced them instead with an analysis that considers “historical practices and understandings.” Applying the new test, the Court concluded that there is no conflict between the constitutional commands of the First Amendment presented by coach Kennedy’s actions.

Next, let’s look at how the Supreme Court addressed claims of First Amendment violations in the business sector. In 1990, the Court began to dismember and weaken the “Free Exercise Clause.” In other words, it weakened the right of Americans to freely exercise their religious beliefs with the case of Employment Division v. Smith.

In the Smith case, two counselors for a private drug rehabilitation organization ingested peyote — a powerful hallucinogen — as part of their religious ceremonies as members of the Native American Church. Consequently,  the men were fired. The counselors filed a claim for unemployment compensation but the government denied them benefits because the reason given for their dismissal was “work-related misconduct.” The men appealed the denial of benefits, arguing that they were denied because of their culture and their religion; they claimed the denial was a violation of their First Amendment right to the free exercise of religion.

The question presented to the Court was whether a state can deny unemployment benefits to a worker fired for using illegal drugs for religious purposes?  And the Court concluded that it certainly can. Justice Antonin Scalia, writing for the majority, observed that the Court has never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that government is free to regulate. Allowing exceptions to every state law or regulation affecting religion “would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind.” Scalia cited as examples compulsory military service, payment of taxes, vaccination requirements, and child-neglect laws.

While it may seem that the Smith decision is a good one, it actually can be taken very broadly, meaning that the government could burden religious exercise if it did so with a law that was generally applicable (doesn’t target any one group) and did not specifically target religion. In other words, Smith suggests that officials may burden the exercise of one’s faith as long as that wasn’t the point or intent of the law and the law applies equally to everyone.

And just this year, the Supreme Court was asked to correct course in its latest religious liberty case, Fulton v. City of Philadelphia. In Fulton, the Court examined whether the city of Philadelphia could force Catholic Social Services (CSS), which had provided foster care services to city children for more than a century, to violate its religious beliefs about marriage in order to continue its ministry of service. This is a case of unconstitutional government abuse and coercion.

In March 2018, the City of Philadelphia barred Catholic Social Services from placing children in foster homes because of its policy of not licensing same-sex couples to be foster parents. CSS sued the city of Philadelphia, asking the court to order the city to renew their contract. CSS argued that its right to free exercise of religion and free speech entitled it to reject qualified same-sex couples because they were same-sex couples, rather than for any reason related to their qualifications to care for children. The district court denied CSS’s motion for a preliminary injunction, and the Third Circuit affirmed, finding that the City’s non-discrimination policy was a neutral, generally applicable law and that CSS had not demonstrated that the City targeted CSS for its religious beliefs or was motivated by ill will against its religion.

In a majority opinion written by Chief Justice John Roberts, the Court held that the refusal of Philadelphia to contract with CSS for the provision of foster care services unless CSS agrees to certify same-sex couples as foster parents violates the Free Exercise Clause of the First Amendment. All nine justices agreed on that conclusion. Thankfully, the decision of the Court now means that the government cannot prioritize secular interests over religious ones when granting policy exemption. But that’s about as far as the case went. Fulton gave the Supreme Court an excellent opportunity to overturn Smith and restore the longstanding founding principle that the government cannot prohibit or burden the free exercise of religion absent an extremely compelling reason. Unfortunately, a majority of the justices stopped short of making that ultimate decision.

Instead of overturning the Smith opinion (sadly, keeping it in place), the Supreme Court should have followed Justice Samuel Alito’s 77-page concurring opinion in Fulton. As he explained in that concurrence, the Court should abandon Smith because its toleration for any rule that categorically prohibits religious activity, so long as it doesn’t target religion specifically, is fundamentally at odds with the text, intent, and interpretation of the First Amendment. Instead, as Alliance Defending Freedom and NC Family believes, the Court should recognize that the Free Exercise Clause protects the rights of Americans to freely practice their religion and to live according to their faith. If the government imposes a law that burdens free exercise, it needs to have an interest of the highest order and it needs to be as least burdensome on religious liberty as possible.

Hopefully, the Court will take up that question sometime soon.

Luckily, Smith was overturned legislatively when Congress passed the Religious Freedom Restoration Act (RFRA), which was introduced by then-Congressman Chuck Schumer and Senator Ted Kennedy (imagine that!!) and signed into law in 1993 by President Bill Clinton. RFRA restored, by statute, the same protections for religious liberty guaranteed by the Constitution and Bill of Rights prior to Employment Division v. Smith. According to RFRA, the federal government cannot burden a person’s exercise of religion unless it has a compelling interest to do so (meaning, an interest of the highest order) and places as little a burden on the person’s religious rights as possible. Twenty-three states followed suit by adding RFRA to their own state laws so that in those states, there is protection against federal, state, and local government attempts to burden religious exercise. North Carolina was not one of those states.

Over the past thirty years, RFRA has protected Americans in their free exercise of religion from government abuse and overreach. But this once-bipartisan effort to protect religious freedom has become a stumbling block for the application of progressive far-left policies. This, perhaps, explains why Congressional Democrats have been pushing the “Equality Act,” which clearly threatens to cancel much of RFRA’s protections. The Religious Freedom Restoration Act would force acceptance of the new progressive sexual orientation and gender identity ideology while explicitly removing protections for people of faith that the Act provided.

The Equality Act, which passed the US House on February 25, 2021, prohibits discrimination based on sex, sexual orientation, and gender identity in areas including public accommodations and facilities, education, federal funding, employment, housing, credit, and the jury system. Specifically, the bill defines and includes sex, sexual orientation, and gender identity among the prohibited categories of discrimination or segregation.

It also expands the definition of public accommodations to include places or establishments that provide (1) exhibitions, recreation, exercise, amusement, gatherings, or displays; (2) goods, services, or programs; and (3) transportation services. And it prohibits an individual from being denied access to a shared facility, including a restroom, a locker room, and a dressing room, that is in accordance with the individual’s gender identity. Finally, the bill allows the Department of Justice to intervene in equal protection actions in federal court on account of sexual orientation or gender identity.


Proponents of the Equality Act continue in their effort to push it through the US Senate (it was placed on the Senate calendar in early 2021 but has not yet come up for a vote). If it passes, God forbid, religious organizations, including schools, hospitals, soup kitchens, homeless shelters, and even churches, could face lawsuits and potential liability just for adhering to their teachings on marriage and sexuality, teachings that the Supreme Court itself said were based on “decent and honorable religious or philosophical premises.”

Sadly, the federal Equality Act is not the only piece of legislation being proposed by the liberal left in Congress to significantly weaken the Religious Freedom Restoration Act.

Religious liberty today relies primarily on the First Amendment’s Free Exercise (of Religion) Clause and on the Religious Freedom Restoration Act (RFRA). But those who grew up in the 1940’s thru the 1960’s probably can best attest to the fact that these protections have been chiseled away and can attest to the significant changes in society and in morality as a result of these erosions of our basic rights.

Unfortunately, the Free Exercise Clause no longer fully protects religious practices from government-imposed burdens. And liberal politicians have threatened to gut part of RFRA’s vital protections in order that they can usher in further social change.

NC Family explains the challenges that Religious Liberty faces today (and a good majority of them have been defended by the Alliance Defending Freedom (ADF):

  • Creative professionals are forced to celebrate and even participate in events that violate their deepest beliefs about marriage. For example, we all remember Jack Phillips, the Colorado cake artist and owner of the Masterpiece Cakeshop, who politely declined to design a cake celebrating the marriage of a same-sex male couple. He serves everyone in his shop, but as a cake “designer” and artist, he, in good conscience, cannot and design and create a cake expressing any message that goes against his deeply-held religious beliefs.  He is famous for winning his case against the Colorado Civil Rights Commission for its outright hostility and discrimination of him because of his Christian beliefs, is once again being sued for declining to design a special cake for a transgender individual. Leftists are determined to ruin him, his reputation, put him into bankruptcy, and destroy his bakeshop. And then there is Barronelle Stutzman, a floral design artist in Washington state, who has suffered eight years of litigation and could very well lose her florist business and life savings because she politely declined, based on her religion convictions, to participate in and design custom floral arrangements celebrating the same-sex wedding ceremony of a customer  and friend she had served well for nearly ten years.
  • COVID policies treated houses of worship more harshly than secular businesses. For example, Calvary Church Dayton Valley, as well as thousands of other churches were treated more severely than many secular gatherings by many of the states’ COVID-19 executive orders.
  • Students and employees are punished for exercising their religious values and for sharing their religious views.  (1) Former Atlanta Fire Chief Kevin Cochran, a highly-decorated fireman, was suspended and fired after leftist activists who didn’t agree with his views on traditional marriage complained about a men’s devotional book he had written on the topic, on his own personal time.  (2) Jack Denton, the president of the Florida State University Student Senate, was harassed and removed from his position for sharing his personal religious beliefs in private text conversations with other students.
  • Nonprofit groups are excluded from publicly-available benefits because they are religious (offends the “Wall of Separation of Church and State”). For example, a pre-school operated by Trinity Lutheran Church of Columbia was denied a grant by the state of Missouri to provide materials for a safe playground solely because the pre-school was run by a church. (The school filed a lawsuit and won!) And in Montana, private schools were denied funds when a Montana court tried to shut down the State’s tuition tax credit program because parents, God forbid, might choose religious schools
  • Religious organizations are discriminated against by the government for having policies that align with their religious beliefs. For example, adoption and foster care agencies, New Hope Family Services, and Catholic Charities West Michigan face closure for the sole reason that their faith-based policies prioritizing the placement of children in homes with a married mother and father.

[Reference:  “Religious Liberty: First or Fading Freedom?”, by Greg Chafuen, NC Family]

There is some good news, however. The US Supreme Court has vindicated the rights of religious American citizens in a series of landmark decisions over the last five years. The Alliance Defending Freedom, a non-profit legal group that defends religious freedom, free speech, the sanctity of life, parental rights, and God’s design for marriage and family (which won the case for Jack Phillips and Masterpiece Cakeshop), has won 13 significant victories at the Supreme Court in the past ten years and many more victories to protect and preserve religious liberty in lower courts all around the country.

Trinity Lutheran Church v. Comer (2017) and Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018) are just two of the “landmark” Supreme Court opinions.

Trinity Lutheran Church of Columbia, Inc. (Trinity) operates a licensed preschool and daycare called The Learning Center that was initially opened as a non-profit corporation but merged with Trinity in 1985. The Learning Center has an open admissions policy and incorporates daily religious instruction into its programs. The Missouri Department of Natural Resources (DNR) offers Playground Scrap Tire Surface Material Grants that provide funds for qualifying organizations to purchase recycled tires to resurface playgrounds. Trinity applied for such a grant but was denied because Article I, Section 7 of the Missouri Constitution states, “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, section or denomination of religion.” Trinity sued and argued that the denial of its application violated the Equal Protection Clause of the Fourteenth Amendment as well as the First Amendment’s protections of freedom of religion and speech. The district court granted Missouri DNR Director Pauley’s motion to dismiss for failure to state a claim, and Trinity moved for reconsideration and to amend its complaint to include allegations that such grants had previously been given to religious organizations. The district court denied the motions, and the U.S. Court of Appeals for the Eighth Circuit affirmed. Trinity appealed to the US Supreme Court.

The question presented to the Court asked whether the exclusion of churches from an otherwise neutral and secular aid program violate the First Amendment’s guarantee of free exercise of religion and the Fourteenth Amendment’s Equal Protection Clause.  The Supreme Court agreed and found in favor of Trinity. The opinion explained that the exclusion of churches from an otherwise neutral and secular aid program violates the First Amendment’s guarantee of free exercise of religion.

The Masterpiece Cakeshop case is one that highlights extreme and outright hostility to religion. The LGBTQ community has demanded “tolerance and inclusion” for years, urging Christians to accept them and their lifestyle. And for the most part, they have. Yet, the LGBTQ community, at least in this case, showed an outright hostility and an intolerance to Jack Phillips’ religious beliefs.

The Masterpiece Cakeshop, and in particular, its owner and cake artist, Jack Phillips, was targeted with particular enthusiasm and determination by the progressive left. In July 2012, Charlie Craig and David Mullins went to Masterpiece Cakeshop in Lakewood, CO, and requested that Phillips design and create a cake for their wedding. (Note that it was against the law in Colorado for Craig and Mullins to marry and so they went to Massachusetts for the ceremony). Phillips declined, in a very polite way to do so on the grounds that he does not create wedding cakes for same-sex weddings because of his deeply-held religious beliefs. Phillips believes that decorating cakes is a form of art through which he can honor God and that it would displease God to create cakes for same-sex marriages. He offered them one of the other cakes that were made in the shop, but they were not interested.

Craig and Mullins filed charges of discrimination with the Colorado Civil Rights Division (CCRD), alleging discrimination based on sexual orientation under the Colorado Anti-Discrimination Act (CADA), enacted in 2014. After the Division issued a notice of determination finding probable cause, Craig and Mullins filed a formal complaint with the Office of Administrative Courts alleging that Masterpiece discriminated against them in a place of public accommodation in violation of CADA. The Alliance Defending Freedom defense team, agreeing to take the case, argued that the CCRD seemed determined to go after him for his Christian values when the Colorado Anti-Discrimination Act recognized exceptions for several individuals and organizations. These exceptions were free to decline to serve clients whose message offended them.

The Administrative Law Judge found in favor of Craig and Mullins and then the Colorado Court of Appeals affirmed the ruling. Phillips appealed the case to the US Supreme Court.

The issue presented to the Court was this: Does the application of Colorado’s public accommodations law to compel a cake maker to design and make a cake that violates his sincerely-held religious beliefs about same-sex marriage violate the Free Speech or Free Exercise Clauses of the First Amendment? The Supreme Court reversed the ruling, in a 7-2 decision, holding that the Colorado Civil Rights Commission’s conduct in evaluating a cake shop owner’s reasons for declining to make a wedding cake for a same-sex couple violated the Free Exercise Clause. In the opinion for the majority, Justice Anthony Kennedy explained that that while gay persons and same-sex couples are afforded civil rights protections under the laws and the Constitution, religious and philosophical objections to same-sex marriage are protected views and can also be protected forms of expression. The Colorado law at issue in this case, which prohibited discrimination against gay people in purchasing products and services, had to be applied in a neutral manner with regard to religion. The majority acknowledged that from Phillips’ perspective, creating cakes was a form of artistic expression and a component of his sincere religious beliefs. The ultimate decision of the Court failed to answer the fundamental issue – Does a state law that compels a cake maker to design a cake that violates his sincerely-held religious beliefs violate his First Amendment religious right to free exercise? The Court found in Jack Phillips’ favor on the issue of the Colorado Civil Rights Commission’s animus in going after him and Masterpiece on account of his religious beliefs.

There are many more cases involving threats to religious liberty in the courts now and every indication suggests that these cases will proliferate as officials try to keep religious people, churches, and organizations from freely living out their faith.

Evil does not come at us dressed up with a sign that says “I am evil.” Evil comes at us seductively, in an appearance that appears freakish or satanic, dressed in provocative outfits, spouting half-truths. It sounds good and makes sense — until you peel off the veneer and expose it for what it is. The data shows how our society has declined, rapidly, in the wake of the Court’s decisions to remove religion from our schools and from the public arena.

In a famous 1791 educational policy paper, Dr. Benjamin Rush offered numerous reasons by the Bible should never be taken out of American schools. He even warned: “In contemplating the political institutions of the United States, if we remove the Bible from schools, I lament that we waste so much time and money in punishing crimes and take so little pains to prevent them.”

Rush knew that if religious teachings were excluded from education, widespread misbehavior would result, and the increase in crime would become a national problem. Yet today, the First Amendment now prohibits what it once protected – the inclusion of religious principles in public education.

Noah Webster provides additional corroboration of the Founders’ views on this subject. Webster today is primarily known only as an educator (his impact on education was so profound that he has been titled the “Schoolmaster to America”), yet he was also a Founding Father, serving as a soldier during the Revolutionary War and a legislator and judge afterwards. He was one of the first Founders to call for the Constitutional Convention (in Philadelphia, in 1787) and was personally responsible for specific wording in the Constitution. In a textbook he authored for public schools, Webster informed students: “All the miseries and evils which men suffer from vice, crime, ambition, injustice, oppression, slavery, and war, proceed from their despising or neglecting the precepts contained in the Bible.”

Very simply put, the Founders understood the numerous societal benefits produced by Biblical precepts and values and had no intention of expunging those principles from the public square. They even believed that American government would not function properly if separated from religious principles. As John Adams explained: “We have no government armed with power capable of contending with human passions unbridled by morality and religion…. Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”

The Founding Fathers had specifically forewarned of the adverse effects of excluding religious influences from the public arena. Recall that Declaration of Independence signer Benjamin Rush, Bill of Rights’ signer John Adams, and Speaker of the House Robert Winthrop had specifically warned that if the public teaching of the Bible were restricted, crime and violent behavior would escalate. It is therefore not surprising that there have been measurable societal changes in the wake of the Court’s rulings.

For example, following the Court’s 1962-1963 decisions to exclude basic religious teachings from students, violent crime increased 700 percent, with metal detectors and uniformed police officers becoming a normal part of the student educational experience. In fact, crime so exploded among junior high students that the federal government began separate tracking of murders, assaults, and rapes committed by students ages 10-14 (significantly, none of these categories of statistics existed before the Court’s decisions). That is, these crimes occurred so infrequently that separate monitoring of these problems was unnecessary. Yet, despite these alarming trends and burgeoning increases in violent crime among students, they still cannot be permitted to see words such as “do not steal” or “do not kill,” or even teachings such as the Golden Rule or the Good Samaritan because God forbid, they just might obey those teachings. That would be unconstitutional and it also might cause them psychological harm.

The senselessness of this public-school policy became apparent to Colorado’s State Board of Education following the frightful school shootings at Columbine. After serious introspection in the wake of that incomprehensible tragedy, the Board issued a letter openly acknowledging:

       “As we seek the why behind this infamous event, we must find answers beyond the easy and obvious. How weapons become used for outlaw purposes is assuredly a relevant issue, yet our society’s real problem is how human behavior sinks to utter and depraved indifference to the sanctity of life. As our country promotes academic literacy, we must promote moral literacy as well…… Our tragedy is but the latest, albeit the most terrifying and costly, of a steadily escalating series of schoolhouse horrors that have swept across the nation. The senseless brutality of these calamities clearly reveals that a dangerous subculture of amoral violence has taken hold among many of our youth….  We must remember, respect, and unashamedly take pride in the fact that our schools, like our country, found their origin and draw their strength from the faith-based morality that is at the heart of our national character. Today our schools have become so fearful of affirming one religion or one value over another that they have banished them all. In doing so, they have abdicated their historic role in the moral formation of youth and thereby alienated themselves from our people’s deep spiritual sensibilities. To leave this disconnection between society and its schools unaddressed is an open invitation to further divisiveness and decline. For the sake of our children, who are so dependent upon a consistent and unified message from the adult world, we must solve these dilemmas….”

The liberal Left has a real problem…. a religion problem. The lack of religion on the Left, and its feverish push to demonize religion in general means that the Left approaches moral issues differently than conservatives. The liberal Left approaches such issues as abortion, gay marriage, gender fluidity, transgenderism, the sexualization of children, public prayer, the Ten Commandments, Christian symbols, etc without respect, without deference, and with total hostility. The Left cannot achieve their progressive agenda and their social change as long as Americans can still “cling to their religion.”

Luckily, defenders of religious liberty continue to stand and fight for their rights under the First Amendment.

I dare to think what would happen if God were to send down his Ten Commandments today. I believe that there would be a great condescending laughter from the left. And what if Christ were sent to us today. I’m absolutely sure he would be labeled a racist, a supremist, a xenophobe, a bigot, and a misogynist. Would his teachings be accepted? Would he be able to start a church today? 

References:

Greg Chafuen, “Religious Liberty: First or Fading Freedom,” NCFamily.org, Fall 2021.

David Barton, Separation of Church and State: What the Founders Meant, Wallbuilders, Library of Congress (2007).

Bill McCormick, SJ, “Why Does the Left Have a Religion Problem?” The Jesuit Post, April 25, 2017.  Referenced at:  https://thejesuitpost.org/2017/04/why-does-the-left-have-a-religion-problem/

Reynolds v. United States, 98 U.S. 145 (1878)  –  https://www.oyez.org/cases/1850-1900/98us145

Everson v. Board of Education of Ewing Township, 330 S.Ct. 1 (1947) –  https://law.justia.com/cases/rhode-island/supreme-court/1961/176-a-2d-73-0.html

Engel v. Vitale, 370 S.Ct. 421 (1962) –  https://www.law.cornell.edu/supremecourt/text/370/421

Abington School District v. Schempp, 374 S.Ct. 203 (1963) –  https://supreme.justia.com/cases/federal/us/374/203/

James Rogers, “The Most Hated Woman in America,” US History Scene.  Referenced at:  https://ushistoryscene.com/article/madalyn-murray-ohair/

Kennedy v. Bremerton School District, 597 U.S. ___ (2022) –  https://www.supremecourt.gov/opinions/21pdf/21-418_i425.pdf

Amy Howe, “Justices Side With High School Football Coach Who Prayed on the Field With Students,” Scotusblog, June 27, 2022. Referenced at:  https://www.scotusblog.com/2022/06/justices-side-with-high-school-football-coach-who-prayed-on-the-field-with-students/

Employment Division v. Smith, 494 S.Ct. 872 (1990) –  https://supreme.justia.com/cases/federal/us/494/872/

Fulton v. City of Philadelphia, 593 S.Ct ____ (2021) –  https://www.supremecourt.gov/opinions/20pdf/19-123_g3bi.pdf

Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017) – https://www.supremecourt.gov/opinions/16pdf/15-577_khlp.pdf

Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 S.Ct ____ (2018) – https://supreme.justia.com/cases/federal/us/584/16-111/#tab-opinion-3910082

Engel v. Vitale, 370 S.Ct. 421 (1962), oyez –  https://www.oyez.org/cases/1961/468

Abington School District v. Schempp, 374 S.Ct. 203 (1963), oyez –  https://www.oyez.org/cases/1962/142

Kennedy v. Bremerton School District, 597 U.S. ___ (2022), oyez – https://www.oyez.org/cases/2021/21-418

Employment Division v. Smith, 494 S.Ct. 872 (1990), oyez –  https://www.oyez.org/cases/1989/88-1213

Fulton v. City of Philadelphia, 593 S.Ct ____ (2021), oyez  –  https://www.oyez.org/cases/2020/19-123

Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017), oyez – https://www.oyez.org/cases/2016/15-577

Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 S.Ct ____ (2018)  – https://www.oyez.org/cases/2017/16-111

APPENDIX

A.  ENGEL v. VITALE

FACTS:  The New York State Board of Regents authorized a short, voluntary prayer for recitation at the start of each school day. A group of organizations joined forces in challenging the prayer, claiming that it violated the Establishment Clause of the First Amendment. The New York Court of Appeals rejected their arguments.

QUESTION PRESENTED:  “The question presented by this case was an extremely narrow one – whether New

York oversteps its constitutional bounds when it finances a religious exercise. Does the reading of a nondenominational prayer at the start of the school day violate the “Establishment of Religion” clause of the First Amendment?

COURT OPINION:  The state cannot hold prayers in public schools, even if participation is not required and the prayer is not tied to a particular religion.

In an opinion authored by Hugo L. Black, the Court held that respondent’s decision to use its school system to facilitate recitation of the official prayer violated the Establishment Clause. Specifically, the policy breached the constitutional wall of separation between church and state. The Court ruled that the constitutional prohibition of laws establishing religion meant that government had no business drafting formal prayers for any segment of its population to repeat in a government-sponsored religious program. The Court held that respondent’s provision of the contested daily prayer was inconsistent with the Establishment Clause.

Justice Douglas concurred in the judgment on the ground that the state’s financing a religious exercise violated the First Amendment.

Justice Stewart dissented, arguing that no “official religion” was established by permitting those who want to say a prayer to say it.

The following are excerpts of the concurring opinion written by Justice William O.

Douglas:

“Plainly, our Bill of Rights would not permit a State or the Federal Government to adopt an official prayer and penalize anyone who would not utter it. This, however, is not that case, for there is no element of compulsion or coercion in New York’s regulation . . . The [school district] adopted a regulation which provides that ‘Neither teachers nor any school authority shall comment on participation or non-participation . . . nor suggest or request that any posture or language be used or dress be worn or be not used or not work.’ Provision is also made for

excusing children, upon written request of a parent or guardian, from the saying of the prayer or from the room in which the prayer is said . . . As I read this regulation, a child is free to stand or not stand, to recite or not recite, without fear of reprisal or even comment by the teacher or any other school official. In short, the only one who need utter the prayer is the teacher; and no teacher is complaining of it. Students can stand mute or even leave the classroom, if they desire.”

“In New York, the teacher who leads in prayer is on the public payroll, and the time she takes seems minuscule. Yet, for me, the principle is the same, no matter how briefly the prayer is said, for, in each of the instances given, the person praying is a public official on the public payroll, performing a religious exercise in a governmental institution. It is said that the element of coercion is inherent in the giving of this prayer. If that is true here, it is also true of the prayer with which this Court is convened, and of those that open the Congress. Few adults, let alone children, would leave our courtroom or the Senate or the House while those prayers are being given. Every such audience is in a sense a ‘captive’ audience.”

“At the same time, I cannot say that to authorize this prayer is to establish a religion in the strictly historic meaning of those words. A religion is not established in the usual sense merely by letting those who choose to do so say the prayer that the public school teacher leads. Yet once government finances a religious exercise, it inserts a divisive influence into our communities.”

“Under our Bill of Rights free play is given for making religion an active force in our lives. But ‘if a religious leaven is to be worked into the affairs of our people, it is to be done by individuals and groups, not by the Government.’ [citing another First Amendment case, McGowan v. Maryland]”

“The First Amendment leaves the Government in a position not of hostility to religion but of neutrality . . . The philosophy is that if government interferes in matters spiritual, it will be a divisive force. The First Amendment teaches that a government neutral in the field of religion

B.  ABINGTON SCHOOL DISTRICT v. SCHEMPP

FACTS:  Under Pennsylvania law, public schools were required to read from the bible at the opening of each school day. The school district sought to enjoin enforcement of the statute. The district court ruled that the statute violated the First Amendment, even after the statute had been amended to permit a student to excuse himself.

The Court consolidated this case with one involving Maryland atheists who challenged a city rule that provided for opening exercises in the public schools that consisted primarily of reading a chapter from the bible and the Lord’s Prayer. The state’s highest court held the exercise did not violate the First Amendment. The religious character of the exercise was admitted by the state.

QUESTION PRESENTED:  Did the Pennsylvania law requiring public school students to participate in classroom religious exercises violate the religious freedom of students as protected by the First and Fourteenth Amendments?

COURT OPINION:  Public schools cannot sponsor Bible readings and recitations of the Lord’s Prayer under the First Amendment’s Establishment Clause.

In an opinion authored by Justice Clark, the majority concluded that, in both cases, the laws required religious exercises and such exercises directly violated the First Amendment. The Court affirmed the Pennsylvania decision, and reversed and remanded the Maryland decision because the mandatory reading from the bible before school each day was found to be unconstitutional.

Justice Stewart dissented, expressing the view that on the records it could not be said that the Establishment Clause had necessarily been violated. He would remand both cases for further hearings.

The following are excerpts of the concurring opinion written by Justice Clark (joined by Chief Justice Earl Warren and Justices Black, Douglas, White, Harlan, Brennan, and Goldberg):

. . . The wholesome “neutrality” [of government toward religion] of which this Court’s cases speak . . . stems from a recognition of the teachings of history that powerful sects or groups might bring about a fusion of governmental and religious functions or a concert or dependency of one upon the other to the end that official support of the State or Federal Government would be placed behind the tenets of one or of all orthodoxies. This the Establishment Clause prohibits. And a further reason for neutrality is found in the Free Exercise Clause, which recognizes the value of religious training, teaching and observance and, more particularly, the right of every person to freely choose his own course with reference thereto, free of any compulsion from the state. This the Free Exercise Clause guarantees. Thus . . . the two clauses may overlap. . . . The test may be stated as follows: what are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion, then the enactment exceeds the scope of legislative power as circumscribed by the Constitution. . . . [T]here must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion. The Free Exercise Clause . . . withdraws from legislative power, state and federal, the exertion of any restraint on the free exercise of religion. Its purpose is to secure religious liberty in the individual by prohibiting any invasions thereof by civil authority. Hence it is necessary in a free exercise case for one to show the coercive effect of the enactment as it operates against him in the practice of his religion. The distinction between the two clauses is apparent—a violation of the Free Exercise Clause is predicated on coercion while the Establishment Clause violation need not be so attended.

Applying the Establishment Clause principles to the cases at bar, we find that . . . such an opening exercise [readings from the Bible and recitation of the Lord’s Prayer] is a religious ceremony and was intended by the State to be so. . . . Given that finding, the exercises and the law requiring them are in violation of the Establishment Clause.

. . . [T]he State contends . . . that the program is an effort to extend its benefits to all public school children without regard to their religious belief. Included within its secular purposes, it says, are the promotion of moral values, the contradiction to the materialistic trends of our times, the perpetuation of our institutions and the teaching of literature. . . . The short answer . . . is that the religious character of the exercise was admitted by the State. But even if its purpose is not strictly religious, it is sought to be accomplished through readings, without comment, from the Bible. Surely the place of the Bible as an instrument of religion cannot be gainsaid, and the State’s recognition of the pervading religious character of the ceremony is evident from the rule’s specific permission . . . permitting nonattendance at the exercises. None of these factors is consistent with the contention that the Bible is here used either as an instrument for nonreligious moral inspiration or as a reference for the teaching of secular subjects.

The conclusion follows that, in both cases, the laws require religious exercises, and such exercises are being conducted in direct violation of the rights of the appellees and petitioners. Nor are these required exercises mitigated by the fact that individual students may absent themselves upon parental request, for that fact furnishes no defense to a claim of unconstitutionality under the Establishment Clause. Further, it is no defense to urge that the religious practices here may be relatively minor encroachments on the First Amendment. The breach of neutrality that is today a trickling stream may all too soon become a raging torrent and, in the words of [James] Madison, “it is proper to take alarm at the first experiment on our liberties” (Memorial and Remonstrance Against Religious Assessments).

It is insisted that, unless these religious exercises are permitted, a “religion of secularism” is established in the schools. We agree, of course, that the State may not establish a “religion of secularism” in the sense of affirmatively opposing or showing hostility to religion, thus “preferring those who believe in no religion over those who do believe” (Zorach v. Clauson). We do not agree, however, that this decision in any sense has that effect. In addition, it might well be said that one’s education is not complete without a study of comparative religion or the history of religion and its relationship to the advancement of civilization. It certainly may be said that the Bible is worthy of study for its literary and historic qualities. Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistently with the First Amendment. But the exercises here do not fall into those categories. They are religious exercises, required by the States in violation of the command of the First Amendment that the Government maintain strict neutrality, neither aiding nor opposing religion.

Finally, we cannot accept that the concept of neutrality, which does not permit a State to require a religious exercise even with the consent of the majority of those affected, collides with the majority’s right to free exercise of religion. While the Free Exercise Clause clearly prohibits the use of state action to deny the rights of free exercise to anyone, it has never meant that a majority could use the machinery of the State to practice its beliefs. . . .

The place of religion in our society is an exalted one, achieved through a long tradition of reliance on the home, the church and the inviolable citadel of the individual heart and mind. We have come to recognize through bitter experience that it is not within the power of government to invade that citadel, whether its purpose or effect be to aid or oppose, to advance or retard. In the relationship between man and religion, the State is firmly committed to a position of neutrality. Though the application of that rule requires interpretation of a delicate sort, the rule itself is clearly and concisely stated in the words of the First Amendment. Applying that rule to the facts of these cases, we affirm the judgment. . . ..

Justice DOUGLAS, concurring.

. . . [T]he Establishment Clause is not limited to precluding the State itself from conducting religious exercises. It also forbids the State to employ its facilities or funds in a way that gives any church, or all churches, greater strength in our society than it would have by relying on its members alone. Thus, the present regimes must fall under that clause for the additional reason that public funds, though small in amount, are being used to promote a religious exercise. Through the mechanism of the State, all of the people are being required to finance a religious exercise that only some of the people want and that violates the sensibilities of others.

The most effective way to establish any institution is to finance it, and this truth is reflected in the appeals by church groups for public funds to finance their religious schools. Financing a church either in its strictly religious activities or in its other activities is equally unconstitutional, as I understand the Establishment Clause. Budgets for one activity may be technically separable from budgets for others. But the institution is an inseparable whole, a living organism, which is strengthened in proselytizing when it is strengthened in any department by contributions from other than its own members.

Such contributions may not be made by the State even in a minor degree without violating the Establishment Clause. It is not the amount of public funds expended; as this case illustrates, it is the use to which public funds are put that is controlling. For the First Amendment does not say that some forms of establishment are allowed; it says that “no law respecting an establishment of religion” shall be made. What may not be done directly may not be done indirectly, lest the Establishment Clause become a mockery.

History of Religion in Schools (excerpt from the Supreme Court opinion in Abington):

It is a matter of history that this very practice of establishing governmentally composed prayers for religious services was one of the reasons which caused many of our early colonists to leave England and seek religious freedom in America. The Book of Common Prayer, which was created under governmental direction and which was approved by Acts of Parliament in 1548 and 1549,5 set out in minute detail the accepted form and content of prayer and other religious ceremonies to be used in the established, tax-supported Church of England.6 The controversies over the Book and what should be its content repeatedly threatened to disrupt the peace of that country as the accepted forms of prayer in the established church changed with the views of the particular ruler that happened to be in control at the time.7 Powerful groups representing some of the varying religious views of the people struggled among themselves to impress their particular views upon the Government and obtain amendments of the Book more suitable to their respective notions of how religious services should be conducted in order that the official religious establishment would advance their particular religious beliefs.8 Other groups, lacking the necessary political power to influence the Government on the matter, decided to leave England and its established church and seek freedom in America from England’s governmentally ordained and supported religion.

By the time of the adoption of the Constitution, our history shows that there was a widespread awareness among many Americans of the dangers of a union of Church and State. These people knew, some of them from bitter personal experience, that one of the greatest dangers to the freedom of the individual to worship in his own way lay in the Government’s placing its official stamp of approval upon one particular kind of prayer or one particular form of religious services. They knew the anguish, handship and bitter strife that could come when zealous religious groups struggled with one another to obtain the Government’s stamp of approval from each King, Queen, or Protector that came to temporary power. The Constitution was intended to avert a part of this danger by leaving the government of this country in the hands of the people rather than in the hands of any monarch. But this safeguard was not enough. Out Founders were no more willing to let the content of their prayers and their privilege of praying whenever they pleased be influenced by the ballot box than they were to let these vital matters of personal conscience depend upon the succession of monarchs. The First Amendment was added to the Constitution to stand as a guarantee that neither the power nor the prestige of the Federal Government would be used to control, support or influence the kinds of prayer the American people can say— that the people’s religions must not be subjected to the pressures of government for change each time a new political administration is elected to office. Under that Amendment’s prohibition against governmental establishment of religion, as reinforced by the provisions of the Fourteenth Amendment, government in this country, be it state or federal, is without power to prescribe by law any particular form of prayer which is to be used as an official prayer in carrying on any program of governmentally sponsored religious activity.

There can be no doubt that New York’s state prayer program officially establishes the religious beliefs embodied in the Regents’ prayer. The respondents’ argument to the contrary, which is largely based upon the contention that the Regents’ prayer is ‘nondenominational’ and the fact that the program, as modified and approved by state courts, does not require all pupils to recite the prayer but permits those who wish to do so to remain silent or be excused from the room, ignores the essential nature of the program’s constitutional defects. Neither the fact that the prayer may be denominationally neutral nor the fact that its observance on the part of the students is voluntary can serve to free it from the limitations of the Establishment Clause, as it might from the Free Exercise Clause, of the First Amendment, both of which are operative against the States by virtue of the Fourteenth Amendment. Although these two clauses may in certain instances overlap, they forbid two quite different kinds of governmental encroachment upon religious freedom. The Establishment Clause, unlike the Free Exercise Clause, does not depend upon any showing of direct governmental compulsion and is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce non-observing individuals or not. This is not to say, of course, that laws officially prescribing a particular form of religious worship do not involve coercion of such individuals. When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain. But the purposes underlying the Establishment Clause go much further than that. Its first and most immediate purpose rested on the belief that a union of government and religion tends to destroy government and to degrade religion. The history of governmentally established religion, both in England and in this country, showed that whenever government had allied itself with one particular form of religion, the inevitable result had been that it had incurred the hatred, disrespect and even contempt of those who held contrary beliefs. That same history showed that many people had lost their respect for any religion that had relied upon the support for government to spread its faith. The Establishment Clause thus stands as an expression of principle on the part of the Founders of our Constitution that religion is too personal, too sacred, too holy, to permit its ‘unhallowed perversion’ by a civil magistrate. Another purpose of the Establishment Clause rested upon an awareness of the historical fact that governmentally established religions and religious persecutions go hand in hand. The Founders knew that only a few years after the Book of Common Prayer became the only accepted form of religious services in the established Church of England, an Act of Uniformity was passed to compel all Englishmen to attend those services and to make it a criminal offense to conduct or attend religious gatherings of any other kind—a law which was consistently flouted by dissenting religious groups in England and which contributed to widespread persecutions of people like John Bunyan who persisted in holding ‘unlawful (religious) meetings… to the great disturbance and distraction of the good subjects of this kingdom…” And they knew that similar persecutions had received the sanction of law in several of the colonies in this country soon after the establishment of official religions in those colonies. It was in large part to get completely away from this sort of systematic religious persecution that the Founders brought into being our Nation, our Constitution, and our Bill of Rights with its prohibition against any governmental establishment of religion. The New York laws officially prescribing the Regents’ prayer are inconsistent both with the purposes of the Establishment Clause and with the Establishment Clause itself.

It has been argued that to apply the Constitution in such a way as to prohibit state laws respecting an establishment of religious services in public schools is to indicate a hostility toward religion or toward prayer. Nothing, or course, could be more wrong. The history of man is inseparable from the history of religion. And perhaps it is not too much to say that since the beginning of that history many people have devoutly believed that ‘More things are wrought by prayer than this world dreams of.’ It was doubtless largely due to men who believed this that there grew up a sentiment that caused men to leave the cross-currents of officially established state religions and religious persecution in Europe and come to this country filled with the hope that they could find a place in which they could pray when they pleased to the God of their faith in the language they chose. And there were men of this same faith in the power of prayer who led the fight for adoption of our Constitution and also for our Bill of Rights with the very guarantees of religious freedom that forbid the sort of governmental activity which New York has attempted here. These men knew that the First Amendment, which tried to put an end to governmental control of religion and of prayer, was not written to destroy either. They knew rather that it was written to quiet well-justified fears which nearly all of them felt arising out of an awareness that governments of the past had shackled men’s tongues to make them speak only the religious thoughts that government wanted them to speak and to pray only to the God that government wanted them to pray to. It is neither sacrilegious nor antireligious to say that each separate government in this country should stay out of the business of writing or sanctioning official prayers and leave that purely religious function to the people themselves and to those the people choose to look to for religious guidance.

It is true that New York’s establishment of its Regents’ prayer as an officially approved religious doctrine of that State does not amount to a total establishment of one particular religious sect to the exclusion of all others—that, indeed, the governmental endorsement of that prayer seems relatively insignificant when compared to the governmental encroachments upon religion which were commonplace 200 years ago. To those who may subscribe to the view that because the Regents’ official prayer is so brief and general there can be no danger to religious freedom in its governmental establishment, however, it may be appropriate to say in the words of James Madison, the author of the First Amendment: “’It is proper to take alarm at the first experiment on our liberties.”

C.  MASTERPIECE CAKESHOP v. COLORADO CIVIL RIGHTS COMMISSION

FACTS:  In July 2012, Charlie Craig and David Mullins went to Masterpiece Cakeshop in Lakewood, CO, and requested that its owner, Jack C. Phillips, design and create a cake for their wedding. Phillips declined to do so on the grounds that he does not create wedding cakes for same-sex weddings because of his religious beliefs. Phillips believes that decorating cakes is a form of art through which he can honor God and that it would displease God to create cakes for same-sex marriages.

Craig and Mullins filed charges of discrimination with the Colorado Civil Rights Division, alleging discrimination based on sexual orientation under the Colorado Anti-Discrimination Act (CADA), §§ 24-34-301 to -804, C.R.S. 2014. After the Division issued a notice of determination finding probable cause, Craig and Mullins filed a formal complaint with the Office of Administrative Courts alleging that Masterpiece discriminated against them in a place of public accommodation in violation of CADA.

The Administrative Law Judge issued a written order finding in favor of Craig and Mullins, which was affirmed by the Colorado Civil Rights Commission. On appeal, the Colorado Court of Appeals subsequently affirmed the Commission’s ruling.

ISSUE BEFORE THE COURT:  Does the application of Colorado’s public accommodations law to compel a cake maker to design and make a cake that violates his sincerely held religious beliefs about same-sex marriage violate the Free Speech or Free Exercise Clauses of the First Amendment?

COURT OPINION:  The Court reversed in a 7-2 decision, holding that the Colorado Civil Rights Commission’s conduct in evaluating a cake shop owner’s reasons for declining to make a wedding cake for a same-sex couple violated the Free Exercise Clause.

The Court explained that while gay persons and same-sex couples are afforded civil rights protections under the laws and the Constitution, religious and philosophical objections to same-sex marriage are protected views and can also be protected forms of expression. The Colorado law at issue in this case, which prohibited discrimination against gay people in purchasing products and services, had to be applied in a neutral manner with regard to religion. The majority acknowledged that from Phillips’ perspective, creating cakes was a form of artistic expression and a component of his sincere religious beliefs.

The Court also explained that in 2012, the year that Phillips refused his services to Craig and Mullins, the law in Colorado and across the country with regard to same sex marriage was much more unsettled than it became after United States v. Windsor, 570 US 744 (2013) and Obergefell v. Hodges, 576 US ___ (2015). At the time, the State Civil Rights Division had also concluded in at least three other cases that bakers had acted lawfully in declining to make cakes that included messages they disagreed with, specifically messages demeaning gay persons. Thus it was not unreasonable for Phillips to believe that he was acting lawfully at the time, and his claims before the Commission were entitled to neutral treatment.

However, the Court stated that Phillips did not receive this neutral treatment, with members of the Commission showing clear and impermissible hostility toward his religious beliefs. The Court explained that commissioners’ comments disparaging Phillips’ beliefs and characterizing them as rhetorical were inappropriate, though these comments were not mentioned or disavowed in subsequent legal proceedings. The Court concluded that these comments cast doubt on the fairness of the Commission’s consideration of Phillips’ claims. The Court also pointed out that disparities between Phillips’ case and those of other bakers with objections to making cakes with anti-gay messages, and who were victorious before the Commission, further reflected hostility toward the religious basis for Phillips’ position.

The Court concluded that the Commission’s actions violated the State’s duty under the First Amendment not to use hostility toward religion or a religious viewpoint as a basis for laws or regulations. Under the facts of this case, the Court determined that Phillips’ religious justification for his refusal to serve Craig and Mullins was not afforded the neutral treatment mandated by the Free Exercise Clause.

Justice Ginsburg authored a dissenting opinion, in which she was joined by Justice Sotomayor, stating that neither the Commission’s comments regarding Phillips’ religious views nor its alleged disparate treatment of bakers objecting to making cakes with anti-gay messages justified ruling in favor of Phillips.

Justice Kagan filed a concurring opinion, joined by Justice Breyer, in which she agreed with the majority that the Commission had not given neutral treatment to Phillips’ religious views, but declined to assign any significance to the Commission’s treatment of bakers who refused to create cakes with anti-gay messages because she believed that this did not violate the Colorado law at issue in Phillips’ case.

Justice Gorsuch also filed a concurring opinion, joined by Justice Alito, in which he argued that the cases of Phillips and the bakers who objected to using anti-gay messages in their baking were quite similar, and the Commission acted inappropriately in treating them differently.

Justice Thomas filed an opinion concurring in part and concurring in the judgment, and was joined by Justice Gorsuch. Thomas argued that an order requiring Phillips to bake a wedding cake for a same-sex couple would violate his First Amendment rights.

D.  FULTON v. CITY OF PHILADELPHIA (2021)

FACTS:  In March 2018, the City of Philadelphia barred Catholic Social Services (CSS) from placing children in foster homes because of its policy of not licensing same-sex couples to be foster parents. CSS sued the City of Philadelphia, asking the court to order the city to renew their contract. CSS argued that its right to free exercise of religion and free speech entitled it to reject qualified same-sex couples because they were same-sex couples, rather than for any reason related to their qualifications to care for children.

The district court denied CSS’s motion for a preliminary injunction, and the Third Circuit affirmed, finding that the City’s non-discrimination policy was a neutral, generally applicable law and that CSS had not demonstrated that the City targeted CSS for its religious beliefs or was motivated by ill will against its religion.

QUESTIONS PRESENTED:  (1) To succeed on their free exercise claim, must plaintiffs prove that the government would allow the same conduct by someone who held different religious views, or only provide sufficient evidence that a law is not neutral and generally applicable?  (2) Should the Court revisit its decision in Employment Division v. Smith?  (3) Does the government violate the First Amendment by conditioning a religious agency’s ability to participate in the foster care system on taking actions and making statements that directly contradict the agency’s religious beliefs?

COURT OPINION:  The refusal of Philadelphia to contract with CSS for the provision of foster care services unless CSS agrees to certify same-sex couples as foster parents violates the Free Exercise Clause of the First Amendment. Chief Justice John Roberts authored the majority opinion of the Court.

Philadelphia’s actions burdened CSS’s religious exercise by forcing it either to curtail its mission or to certify same-sex couples as foster parents, in violation of its stated religious beliefs. Although the Court held in Employment Division v. Smith that neutral, generally applicable laws may incidentally burden religion, the Philadelphia law was not neutral and generally applicable because it allowed for exceptions to the anti-discrimination requirement at the sole discretion of the Commissioner. Additionally, CSS’s actions do not fall within public accommodations laws because certification as a foster parent is not “made available to the public” in the usual sense of the phrase. Thus, the non-discrimination requirement is subject to strict scrutiny, which requires that the government show the law is necessary to achieve a compelling government interest.

The Court pointed out that the question is not whether the City has a compelling interest in enforcing its non-discrimination policies generally, but whether it has such an interest in denying an exception to CSS. The Court concluded that it did not.

Justice Amy Coney Barrett wrote a separate concurring opinion in which Justice Brett Kavanaugh joined and in which Justice Stephen Breyer joined as to all but the first paragraph. Justice Barrett acknowledged strong arguments for overruling Smith but agreed with the majority that the facts of the case did not trigger Smith.

Justice Samuel Alito authored an opinion concurring in the judgment, in which Justices Clarence Thomas and Neil Gorsuch joined. Justice Alito would overrule Smith, replacing it with a rule that any law that burdens religious exercise must be subject to strict scrutiny.

Justice Gorsuch authored an opinion concurring in the judgment, in which Justices Thomas and Alito joined, criticizing the majority’s circumvention of Smith.

E.  TRINITY LUTHERAN CHURCH OF COLUMBIA v. COMER

FACTS:  Trinity Lutheran Church of Columbia, Inc. (Trinity) operates a licensed preschool and daycare called The Learning Center that was initially opened as a non-profit corporation but merged with Trinity in 1985. The Learning Center has an open admissions policy and incorporates daily religious instruction into its programs. The Missouri Department of Natural Resources (DNR) offers Playground Scrap Tire Surface Material Grants that provide funds for qualifying organizations to purchase recycled tires to resurface playgrounds. Trinity applied for such a grant but was denied because Article I, Section 7 of the Missouri Constitution states, “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, section or denomination of religion.” Trinity sued and argued that the denial of its application violated the Equal Protection Clause of the Fourteenth Amendment as well as the First Amendment’s protections of freedom of religion and speech. The district court granted Missouri DNR Director Pauley’s motion to dismiss for failure to state a claim, and Trinity moved for reconsideration and to amend its complaint to include allegations that such grants had previously been given to religious organizations. The district court denied the motions, and the U.S. Court of Appeals for the Eighth Circuit affirmed the dismissal and the denial of the motions to reconsider and amend the complaint.

ISSUE BEFORE THE COURT:

Does the exclusion of churches from an otherwise neutral and secular aid program violate the First Amendment’s guarantee of free exercise of religion and the Fourteenth Amendment’s Equal Protection Clause?

COURT OPINION:  The exclusion of churches from an otherwise neutral and secular aid program violates the First Amendment’s guarantee of free exercise of religion. Chief Justice John G. Roberts, Jr. delivered the opinion of the 7-2 majority. The Court held that the Free Exercise Clause of the First Amendment protected the freedom to practice religion and subjects laws that burden religious practice to strict scrutiny. First Amendment precedent had established that laws that deny an otherwise generally available benefit because of religious status are unconstitutional, though laws that are neutral and generally applicable may be upheld even if they hamper religion. The distinction was whether the law in question discriminates against some or all religious beliefs. In this case, the Missouri Department of Natural Resources’ policy of denying religious organizations from its Playground Scrap Tire Surface Material Grants violated the First Amendment’s Free Exercise Clause because it discriminated against otherwise eligible organizations based solely on their religious character. The law did not need to prevent the religious organization from practicing its religious; it was sufficient that the law denied a religious organization the same opportunity to compete for a benefit that is otherwise available to all secular organizations. Because the state’s interest in using this policy was simply to draw a wide berth around religious establishment concerns, it was not a sufficiently compelling interest.

In his opinion concurring in part, Justice Clarence Thomas wrote that the Free Exercise Clause of the First Amendment clearly prohibited laws that facially discriminate against religion. To the extent that precedent suggested that a state may “disfavor” religion by placing minor burdens on religion in order to avoid state entanglement with religion, that precedent should be construed narrowly and did not apply in this case. Justice Neil Gorsuch joined in the opinion concurring in part. Justice Gorsuch wrote a separate opinion concurring in part in which he argued that the majority opinion’s suggested distinction between laws that discriminate based on religious status and those that do so based on religious use was untenable and unsupported by the Free Exercise Clause. Additionally, the majority opinion’s footnote that limited the opinion to addressing “express discrimination based on religious identity with respect to playground resurfacing” risked making the opinion too case-specific and not based on general principles. Justice Thomas joined in the opinion concurring in part. In his separate opinion concurring in the judgment, Justice Stephen G. Breyer wrote that the First Amendment was clearly not meant to prevent religious organizations from accessing government-provided benefits such as police and fire services. The benefit here was for the health and safety of children and therefore was in the same class of government-provided services that religious organizations should be able to access.

Justice Sonia Sotomayor wrote a dissent in which she argued that this case raised serious Establishment Clause concerns. The majority opinion required a state to directly fund a religious organization in a manner that assisted the spread of its religious message and views. This was precisely the sort of direct connection between church and state that the Establishment Clause was intended to prevent, as shown by extensive history of state disestablishment. Therefore, a prophylactic rule to prevent state funding of religious organizations was permissible, and many states had one. The majority opinion erroneously called this decision discriminatory when it was actually a legitimate choice for states to make to avoid entanglement with religion. Even under the Free Exercise Clause, the doctrine allowed states to make exceptions to generally applicable laws based on an organization’s status as religious. Justice Ruth Bader Ginsburg joined in the dissent.

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My Suggestions As to How to Fix Our Public School System

by Diane Rufino, September 16, 2022

It has been said that if education doesn’t solve a problem, then it is a problem. And if the educated cannot solve problems, then they are the problem.

The problem right now is that education – public education, particularly – isn’t solving some of the problems that we have right now – to truly educate our next generations, to instill a sense of patriotism and love of country, to prepare our children for college and for life in general, to offer them the option of learning a trade (to fill the great voids that we have), to teach them the importance of hard work and pride in one’s work, and very importantly, the basic skills to work at a job without having gone to college.

Sadly, at least in the South, the large community schools are organized like a factory of the late 19th century – top down, command control management, a system designed to stifle creativity and independent intellectual growth. Schools today seem more focused on setting our next generations of college students, community members, and fellow citizens on a path of social change rather than provide them with a robust, solid, sound and basic education (like the education provided back in the 1950’s – 1970’s).

We, as a collection of state citizens and in general as Americans, need to fix the public school system. We need to transform it back to one of “education” and not indoctrination or one of social counseling.

Here are several suggestions that I believe would help greatly to improve the public school system:

  • State Constitutions and State Laws Need to Be Changed or Amended to Divest Authority for the Control and Administration of Education From a State Board of Education in Favor of Local Boards of Education
  • The Members of All Boards of Education (State and Local) Shall Be Elected By the People. (Aside from the election results, boards of education should not be a partisan government body)
  • Stop Viewing Students as Numbers (they are individuals)
  • Get Rid of Common Core
  • Do Not Accept Federal Funding for Anything Related to the Instruction of Content Material in the Classroom. (the US DOE is unconstitutional; federal spending on education is unconstitutional, per Article I, Section 8. Education is the responsibility of each State, starting with the state legislature)
  • Get Back to the Basic Education System of Math, Science, Reading, Writing, History, Social Studies, etc (“a robust sound, basic education” system)
  • Get Rid of Non-Value-Added school policies and doctrines (such as CRT, SEL, gender identity, gender fluidity, transgenderism, the LBGTQ agenda, panorama surveys, alternative sex education, pornography and inappropriate themes in required reading and in school libraries)
  • Prohibit the Influence of Teacher Unions and National Non-Governmental Organizations (NGOs) in the local public education systems
  • Give Homework (homework gives children the best opportunity to absorb and practice the day’s lessons)
  • Pay More Attention to Parents and Their Concerns
  • Teachers and Administrators Must NEVER Counsel Students About Their Sexual Identity or Bring Up the “Pronoun” Policy (This is a psychological issue that is best and responsibly left to the parents, professional counselors, doctors, and the church)
  • Teachers and Administrators Must Not Address or Discuss the “Transgender” or “Gender Identity” Issue to Students (Such issues naturally conflict with what they learn in Biology regarding biological/ genetic genders and will only serve to confuse them)
  • Adopt a Parents’ Bill of Rights (memorializing their rights as parents as it relates to the education of their children; refer to my suggestion at https://forloveofgodandcountry.com/2022/03/29/a-parents-bill-of-rights-what-every-parent-is-entitled-to/)
  • Evaluate Teachers Often (make sure they are good, are dedicated, understand how to educate, and are effective)
  • Less Meaningless Tests (Stop “teaching to the tests”); teach students how to think and learn for themselves (No memorization)
  • Eliminate Standardized Tests (?)
  • Offer Classes to Prepare Students for Real Life (such as balancing a check book, understanding simple contracts, etc)
  • Offer a “Trade School” Option During High School for those students who have no plans to go to college
  • Teachers Must Never Make Any Student Feel Superior or Inferior (no “White Supremacy” or “Racism/Discrimination based on skin color)
  • Raise Standards for Teachers (Teaching young people how to think is far more important than teaching them what to think. Rote memorization of facts and figures may boost standardized test scores and immediately get the student a good grade, but it does not facilitate the primary goal of education, which is independent thinking which will be expected at a job and in everyday life
  • Hire Only Good Teachers. (It might be a good idea to have every “new hire” go through a probation period to make sure he or she is good enough to inspire children to think)
  • Reward Outstanding Teachers (including with pay raises and bonuses)
  • When Hiring Teachers, Make Sure There is Diversity of Thought (We stress diversity and inclusion so often these days yet when it comes to views and opinions, there is so little of it. We need conservatism back in the public school system)
  • No Politics or Controversial Topics Should Be Addressed and/or Discussed in the Public School System (unless there is a specific course, such as Debate, that would allow such material)
  • Each Day in the Public School System MUST Begin With a Moment of Silence and The Pledge to the American Flag (Schools have an obligation to foster and emphasize love of country and patriotism)
  • Put Decisions Regarding Curriculum in the Hands of the Community (don’t subject children to a curriculum designed in a place far away
  • Find Funding So That the County Can Hire Safety Officers for the Schools, or Ask for Veterans to Volunteer
  • Have the Local Boards of Education Conduct Random Unannounced Visits of County Public School Classrooms
  • There is to be no emphasis or promotion of racism in the school system. If there is to be a policy to guide children on how to view and treat one another, then it should be “The Golden Rule.” (As Derrick Wilburn told his daughter’s school board: “Let racism die the death it deserves.”)
  • Make Lessons More Engaging and Relevant (relate lessons to real life, as much as possible)

We demand that our primary and secondary schools prepare all students, regardless of background, for a lifetime of learning. We require that teachers guide every child toward a deeper understanding of the particular subject matter. And we strongly suggest that meaningful changes need to be made to the public school system in order to achieve such goals.

Businessman Robert Kiyosaki has commented: “I am concerned that too many people are focused too much on money and not on their greatest wealth, which is their education. If people are prepared to be flexible, keep an open mind and learn, they will grow richer and richer through the changes. If they think money will solve the problems, I am afraid those people will have a rough ride. Intelligence solves problems and produces money. Money without intelligence is money soon gone.”

In one of his articles, “The Objective of Education is Learning, Not Teaching,” author Russell Ackoff  wrote: “Traditional education focuses on teaching, not learning. It incorrectly assumes that for every ounce of teaching there is an ounce of learning by those who are taught. However, most of what we learn before, during, and after attending schools is learned without its being taught to us. A child learns such fundamental things as how to walk, talk, eat, dress, and so on without being taught these things. Adults learn most of what they use at work or at leisure while at work or leisure. Most of what is taught in classroom settings is forgotten, and much or what is remembered is irrelevant.” (Ackoff is the author of several books on education ).

References:

Diane Rufino, “A Parents’ Bill of Rights: What Every Parent is Entitled To,” ForLoveofGodandCountry’s blog, March 2022.  Referenced at:  https://forloveofgodandcountry.com/2022/03/29/a-parents-bill-of-rights-what-every-parent-is-entitled-to/   

Derrick Wilburn addresses School Board of Education – https://www.youtube.com/watch?v=L2fGVbMYp54

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Conservatives at a Crossroads in Their Relationship With Government & Big Tech

by Diane Rufino, September 16, 2022

Conservatives are at a crossroads in their relationship with big government and big tech. It is, as Ronald Reagan so eloquently put it in the campaign speech he delivered on October 27, 1964 in support of Republican presidential candidate, Barry Goldwater. That memorable speech has been titled “A Time for Choosing.“ In that speech, Reagan explains that there are only two paths with respect to the role of government. One path not only requires, but champions, expanded government control of tech firms for the “greater good” of society – that is, as determined by politicians and bureaucrats. The other path relies upon competition, markets, and the rule of law to foster individual liberty and economic growth. As Reagan correctly observed, a government cannot control the economy without controlling its people. The choice before us will have immense consequences for the role of government and the rule of law for generations to come. It is important to get it right.

In that speech, he related this message:

“Not too long ago two friends of mine were talking to a Cuban refugee, a businessman who had escaped from Castro. That refugee commented: ‘”How lucky you are to live in America and how lucky that I had someplace to escape to.’ In that sentence he told us the entire story. If we lose freedom here, there is no place to escape to. This is the last stand on Earth. And this idea that government is beholden to the people, that it has no other source of power except to sovereign people, is still the newest and most unique idea in all the long history of man’s relation to man. This is the issue of this election. Whether we believe in our capacity for self-government or whether we abandon the American revolution and confess that a little intellectual elite in a far-distant capital can plan our lives for us better than we can plan them ourselves.”

I think every American should read this speech. It was not only appropriate for the era, but as it turns out, it is prophetic and perhaps even more appropriate for the current era.

What is the role of the federal government?  It is clear that there are two divergent views on the answer to that question – one view believes the federal government exists to take care of its people, from time in the womb to grave, while the other view continues to be the view of our Founding Fathers, which is that the government needs to be limited and constrained. In fact, if one takes the time to read the US Constitution, the Federalist Papers, the debates in the Constitutional Convention in Philadelphia in 1787, and the debates and conclusions of the individual state ratifying conventions, it is abundantly clear, that this latter view is exactly what was intended when the current American union was formed with the official adoption of the Constitution. On June 21, 1788, the Constitution became the official framework of the government of the United States of America when New Hampshire became the ninth of 13 states to ratify it (as per Article VII). Yet the union was not complete as four states had yet to ratify it (North Carolina, New York, Virginia, and Rhode Island). In fact, it wasn’t until nearly two years later, on May 29, 1790 when Rhode Island became the last state to adopt it.

It is obvious which view has prevailed over the years, and with each leftist administration, we feel the consequences of those footprints in DC. To be fair, even conservative administrations have contributed to the mess – the over-regulation and the top-down control over almost every aspect of our lives and livelihoods.

The Declaration of Independence proclaimed to a “candid world” that the “united American 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 (sovereign) power.” To establish legitimacy, Thomas Jefferson (and the other members of the Committee of Five), included the reasons for declaring independence (to prove that the intention of the King was to establish an absolute tyranny over the colonies). The Declaration lists these (27) reasons as follows:

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.

1.  He has refused his Assent to Laws, the most wholesome and necessary for the public good;

2.  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;

3.  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;

4.  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;

5.  He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people;

6.  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;

7.  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;

8.  He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.

9.  He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries;

10.  He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance;

11.  He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures;

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

13.  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;

14.  For Quartering large bodies of armed troops among us;

15.  For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States;

16.  For cutting off our Trade with all parts of the world;

17.  For imposing Taxes on us without our Consent;

18.  For depriving us in many cases, of the benefits of Trial by Jury;

19.  For transporting us beyond Seas to be tried for pretended offences;

20.  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;

21.  For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments;

22.  For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever;

23.  He has abdicated Government here, by declaring us out of his Protection and waging War against us;

24.  He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people;

25.  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;

26.  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;

27.  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.

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.

I dare say that these “Facts” that were submitted rival some of the same facts that could easily be noted and submitted today. Our current bloated and unrestrained government (yes, “tyrannical”) is causing a stir among American patriots – ones who appreciate and take refuge in the system, the notions, and the values and principles of our Founding Fathers. There is talk of nullification, of an Article V Constitutional Convention, of revolution, of separation, and yes, even of secession. Apparently, the revolutionary spirit that guided the American colonies to seek independence from Great Britain in order to establish their own founding values and their own governments is re-kindled once again.

Much of the political class of our country’s founding generation viewed the Constitution as restraining, not unleashing, the government. They, especially and most notably James Madison and Thomas Jefferson, recognized that there are “natural rights,” which are areas of human behavior for which we do not need a permission slip from government to exercise, are truly inalienable. An inalienable right, like speech, worship, travel, self-defense, and privacy for example, is one that cannot be taken away by majority vote or by legislation or by executive command. It can only be taken away after the behavior of the person whose restraint the government seeks has been found by a jury to have violated another’s natural rights. This process and these guarantees (articulated in the Bill of Rights) are known today as the presumption of liberty. Stated differently, because of our recognition of natural rights, and our history, values, and written constitutional guarantees, we in America are self-directed and free to make our own choices. We have free will. In fact, the constitutional guarantee of due process mandates that because our individual liberty is natural to us, it is always presumed and therefore, it is always the government’s obligation, or government’s burden, to demonstrate our unworthiness of freedom to a judge and jury before it can curtail that freedom. It is not the other way around.

Until now.

Let’s face it, government has become hostile to the People. It has become hostile to the US Constitution, to our precious Bill of Rights, to States’ rights, and to the inherent and inalienable rights of the individual. As I wrote at the beginning of this article, a government cannot control the economy and cannot direct social engineering (social change) without controlling its people.

As Ronald Reagan explained in his ‘Time for Choosing’ speech:

“It doesn’t require government expropriation or confiscation of private property or business to impose socialism on a people. What does it mean whether you hold the deed or the title to your business or property if the government holds the power of life and death over that business or property? Such machinery already exists. The government can find some charge to bring against any concern it chooses to prosecute. Every businessman has his own tale of harassment. Somewhere a perversion has taken place. Our natural, inalienable rights are now considered to be a dispensation of government, and freedom has never been so fragile, so close to slipping from our grasp as it is at this moment. Our Democratic opponents seem unwilling to debate these issues. They want to make you and I believe that this is a contest between two political parties…that we are to choose just between those two. I believe that would destroy our country. And in destroying it, they would destroy that which he represents, the ideas that you and I hold dear.”

What are some examples of how our federal government has become out of control and a direct threat to our human rights and liberties?

I’ve broken the examples into two general classifications: (1) Those schemes, actions, and initiatives that have been designed to control the American people, and (2) Those schemes, actions, and initiatives against targeted individuals and businesses (conservatives):

Government schemes, actions, and initiatives that have been designed to control the American people:

  • The election system has been compromised and citizens have no confidence at all in the election results.
  • 87,000 new IRS agents have been hired to harass and intimidate taxpayers.
  • COVID and Monkey Pox pandemics have been concocted in order for the government to claim “national emergency” powers so it can dictate and mandate what citizens can do and when they can do it.
  • With the new government healthcare insurance system, citizens are compelled and forced to follow government guidelines.
  • The federal government has hijacked the public education system to engineer a more progressive social order (“Whoever controls the education of our children controls the future”).
  • The federal government has become hostile to religion, allowing it to usher in progressive social values. (“The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between church and State….. The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach.”  — Everson v. Board of Education (1947) 
  • The federal government has become extremely hostile to gun rights and has been using mass shooting incidents (especially school shootings) to introduce, or threaten, gun control legislation.
  • The federal government is forcing religious institutions to accept and adopt progressive policies, even when such policies are in direct conflict with its foundational teachings.
  • The leftist element of the federal government has been weaponizing agencies to go after, harass, and even defame and imprison political undesirables.
  • The federal government has colluded with social media, the mainstream media, and big tech giants to push “one voice.”  (This is intended to indoctrinate an electorate that for all intents and purposes is ignorant and not likely to be independent thinkers and prefers ‘talking points’)
  • There have been countless individuals and businesses that have been “cancelled” by the left because they dared to express their conservative views. (One has to live in fear if he or she dares to express views that are contrary to the government’s agenda)

And yet, the real government and political criminals have not been investigated nor have they been subject to such unwarranted and intimidating searches and seizes. We all know who they are.

Government schemes, actions, and initiatives that have been designed to target conservative individuals and organizations:

  • The relentless and un-ending harassment of President Donald Trump by an unhinged Democratic majority in government, including the lawsuits and two baseless attempts to impeach him while in office (and then after he left office).  The charges never amounted to the constitutional criteria of “high crimes and misdemeanors.”
  • The DOJ raid on Donald Trump’s Mar-A-Lago. A court filing unsealed on Friday included a detailed inventory of the material that the F.B.I. removed in its Aug. 8 search of former President Donald Trump’s office and storage area at Mar-a-Lago, his residence and private club in Florida. Among the items seized, according to the list, were 18 documents marked as top secret, 54 marked as secret, 31 marked as confidential and 11,179 government documents or photographs without classification markings. Forty-eight empty folders marked as having contained classified information were also taken, though the list did not specify whether that information was recovered. In total, the inventory included 33 groups of items that F.B.I. agents removed from Mar-a-Lago, including individual documents as well as containers full of materials like books, articles from newspapers and magazines or gifts and pieces of clothing. These seemingly more innocuous objects were often mixed together in the same boxes or containers as government documents, both with and without classification markings.
  • The raid on General Flynn and the harassment of he and his family, including his son. (Apparently, he was indicted for his role in schemes to rig bids in violation of the antitrust laws and engage in criminal fraud on insulation contracts in Connecticut and elsewhere)
  • In 2010, the US DOJ undertook surveillance of conservative FOX NEWS reporter (chief Washington correspondent) James Rosen, collecting his telephone records and seizing 2 days worth of private emails, and tracking his movements in and out the state. The government suggested that Rosen was a “co-conspirator” in a conspiracy involving the illegal leaking of confidential and classified government information by the State Department to the press. Additionally, the FBI accused Rosen of breaking anti-espionage laws. (What about the presumption of the right to a free press and the time-honored policy that a reporter never should have to divulge the identity of his or her sources?)
  • “It is downright chilling,” Fox News executive Michael Clemente said in a statement. “We will unequivocally defend [Rosen’s] right to operate as a member of what up until now has always been a free press.”
  • Prior to targeting Rosen, the Obama administration seized 2 months worth of telephone records of reporters and editors of the Associated Press.
  • In May 2013, the DOJ conducted a pre-dawn raid on Rosen’s home, confiscating his computer, his files, his phone, and his private notes. The Dept. of Justice also harassed his parents.
  • And how can we forget:  In 2013, IRS official Lois Lerner revealed that conservative groups seeking tax-exempt status had been getting extra scrutiny, based on words such as “tea party” or “patriots” in their names. In years that birthed the Tea Party movement (2009 – 2010), hundreds of groups affiliated with the party had sought tax-exempt status as 501(c)(4), as “social welfare” organizations. IRS demands for documents left many of them in bureaucratic limbo for a year or more. Many filed suit claiming that the IRS harassed them and discriminated against them.
  • This past summer, in June, federal agents conducted a pre-dawn search at the home of former Justice Department official Jeffrey Clark. Clark played a key role in President Donald Trump’s efforts to get law enforcement officials to challenge Joe Biden’s election victory. Clad in his pajamas, the agents led Clark out of his Virginia suburban home and took his electronic devices. Why did the government see fit to raid Clark’s home?  Simply because he saw fit to investigate Trump’s allegation of voter fraud.
  • This summer, on September 13, Mike Lindell was surrounded by FBI agents at a Hardee’s drive-through, who then confiscated his cell phone. (Apparently, they are targeting him for his high-profile role in educating and confronting election fraud OR they simply want to intimidate and send a message to all those who are alleging election fraud and fighting for measures to ensure election integrity)

It’s getting too much to take. We just want to live our lives, free from government control and intimidation, and able to enjoy our inalienable natural and God-given rights and liberties. But (aside from the Trump years), it is getting harder and harder with each day.

In 1964, Ronald Reagan warned “We are at war with the most dangerous enemy that has ever faced mankind in his long climb from the swamp to the stars, and it has been said if we lose that war, and in doing so lose this way of freedom of ours, history will record with the greatest astonishment that those who had the most to lose did the least to prevent its happening. Well, I think it’s time we ask ourselves if we still know the freedoms that were intended for us by the Founding Fathers.” (“A Time for Choosing” Speech)

We went on to say:

“Admittedly there is a risk in any course we choose to follow, but every lesson in history tells us that the greater risk lies in appeasement, and this is the specter our well-meaning liberal friends refuse to face–that their policy of accommodation is appeasement, and it gives no choice between peace and war, only between fight and surrender. If we continue to accommodate, continue to back and retreat, eventually we have to face the final demand–the ultimatum. And what then? When Nikita Khrushchev has told his people he knows what our answer will be? He has told them that we are retreating under the pressure of the Cold War, and someday when the time comes to deliver the ultimatum, our surrender will be voluntary because by that time we will have weakened from within spiritually, morally, and economically. He believes this because from our side he has heard voices pleading for “peace at any price” or “better Red than dead,” or as one commentator put it, he would rather “live on his knees than die on his feet.” And therein lies the road to war, because those voices don’t speak for the rest of us. You and I know and do not believe that life is so dear and peace so sweet as to be purchased at the price of chains and slavery. If nothing in life is worth dying for, when did this begin–just in the face of this enemy? Or should Moses have told the children of Israel to live in slavery under the pharaohs? Should Christ have refused the cross? Should the patriots at Concord Bridge have thrown down their guns and refused to fire the shot heard ’round the world? The martyrs of history were not fools, and our honored dead who gave their lives to stop the advance of the Nazis didn’t die in vain. Where, then, is the road to peace? Well, it’s a simple answer after all.

       You and I have the courage to say to our enemies, “There is a price we will not pay.” There is a point beyond which they must not advance. This is the meaning in the phrase of Barry Goldwater’s “peace through strength.” Winston Churchill said that “the destiny of man is not measured by material computation. When great forces are on the move in the world, we learn we are spirits–not animals.” And he said, “There is something going on in time and space, and beyond time and space, which, whether we like it or not, spells duty.

       You and I have a rendezvous with destiny. We will preserve for our children this, the last best hope of man on Earth, or we will sentence them to take the last step into a thousand years of darkness.” (“A Time for Choosing” Speech)

Again, I recommend that every American read Reagan’s full speech.

To sum up, let’s not forget the warning Ronald Reagan delivered in 1964: “This is the issue of this election:  Whether we believe in our capacity for self-government or whether we abandon the American revolution and confess that a little intellectual elite in a far-distant capital can plan our lives for us better than we can plan them ourselves.”

References:

Ronald Reagan, “A Time For Choosing” (September 27, 1964) – https://www.reaganlibrary.gov/reagans/ronald-reagan/time-choosing-speech-october-27-1964

Declaration of Independence (text) – https://www.archives.gov/founding-docs/declaration-transcript Everson v. Board of Education of Ewing Township (1947) – https://www.law.cornell.edu/supremecourt/text/330/1

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REMEMBERING 9/11 in 2022

by Diane Rufino, September 11, 2022

21 years ago, on September 10, 246 people went to sleep in preparation for their morning flights. 2,606 people went to sleep in preparation for work in the morning. 343 firefighters went to sleep in preparation for their morning shift. 60 police officers went to sleep in preparation for morning patrol. 8 paramedics went to sleep in preparation for the morning shift. None of them lived to see 10:00 am the next day – Sept 11, 2001. In one single moment, life can change; it may never be the same. As you live and enjoy the breaths you take today and tonight before you go to sleep in preparation for your life tomorrow, kiss the ones you love, tell those you love how you feel about them, snuggle a little tighter, and never take one second of your life for granted.

Let’s Look Back at that Fateful Morning, 21 Years Ago when a series of horrifying events unfolded before the unbelieving eyes of the American people, involving American Airlines flight 11, United Airlines Flight 175, American Airlines flight 77, and United Airlines flight 93.

The attack on America known as 9/11 was comprised of four coordinated suicide terrorist attacks carried out by the militant Islamic extremist network known as al-Qaeda[ against the United States. On the morning of September 11, 2001, nineteen terrorists—directed by al Qaeda leader Osama bin Laden—hijacked four commercial airliners mid-flight while traveling from the northeastern U.S. to California. The attackers were organized into three groups of five members and one group of four, with each group including one designated flight-trained hijacker who took control of the aircraft. Their goal was to crash the planes into prominent American buildings, inflicting mass casualties and major structural damage. The hijackers successfully crashed the first two planes into the North and South Towers of the World Trade Center in New York City, and the third plane into the Pentagon in Arlington, Virginia. The fourth plane was intended to hit a federal government building in Washington, D.C., but instead crashed down in a field outside Shanksville, Pennsylvania, following a passenger revolt that foiled the attack.

This is how the morning of Tuesday, September 11, 2001 unfolded:

It was almost 8:40 am on the morning of Tuesday, September 11, 2001.  It was a beautiful, clear, sunny morning.  Both towers of the World Trade Center, in lower Manhattan, were slightly less than half full.  Flight 11, heading from Boston to LA, had already been hijacked and had broken contact with air controllers.  At about that time, Betty Ong, an attendant on Flight 11, called American Airlines Operations Center, to report that the plane had likely been hijacked.  She reported that the first class attendant, the purser, and a first class passenger had been stabbed but no one really knew what was going on.  Flight attendant Amy Sweeney also called American Airlines. She was scared.  She said the plane was flying erratically and had all of a sudden made a rapid descent. She said: “I can see the water. I can see the buildings. The plane is flying so low.”  The transcript shows that she then took a slow, deep breath and calmly said: “Oh my God!”  The phone went dead for both Amy and Betty at 8:45.  At 8:46 am, Flight 11 crashed into the North Tower. The plane struck the 93rd through 99th floors of the 110-story building. No one above the crash line survived; approximately 1,360 people died.  Below the crash line, approximately 72 died and more than 4,000 survived.  87 people perished onboard Flight 11. In addition to Betty and Amy, Sara Low was also a flight attendant who lost her life.  Her father described her as being prone to silliness and having an infectious personality, one that could calm even the most nervous traveler.  He said: “My life stopped when my daughter died.”

About the time of the crash, air controllers noticed that Flight 175 fell off the radar.  And a few minutes later, they learned that Flight 77 had been hijacked.  It was then that they then suspected that Flight 175 had also been hijacked.  In fact, both pilots on board that plane had already been stabbed to death.

At 8:55 am, Karl Rove took President Bush aside and told him of the crash at the North Tower. They were headed to an elementary school in Sarasota, Florida.  At first, they believed it was likely an accident, perhaps a pilot who had suffered a heart attack.

At 9:03 am, Flight 175 crashed into the South Tower.  Millions watched the crash live on television. The plane struck the 77th through 85th floors of the 110-story building.  Approximately 100 people were killed or injured in the initial impact; and 600 people in the tower would eventually die. A woman on the 83rd floor made a last call to 9/11. She said: “The floor is completely engulfed in smoke.  We’re on the floor and we can’t breathe…. I don’t see any more air. … I’m going to die, aren’t I?”

The death toll from the South Tower was far lower than in the North Tower because when the occupants learned of the attack on its neighbor, about 2/3 immediately evacuated the building. 

The combined death toll from the two towers was estimated at 2,606.  60 people perished on board Flight 175.  343 first responders – firefighters and paramedics – would also perish. And 23 officers of the NYPD as well.  Firefighter Terence Hatton — who earned 19 medals in 21 years — died before his wife even had the chance to tell him that she was pregnant.

At least 200 people fell or jumped to their deaths from the burning towers.  We remember the footage of people gathered in groups at the windows in a last minute attempt to get some oxygen.  We remember many of them jumping in order to avoid a fiery death. The reporters called them “jumpers.”  We can’t imagine being faced with such a hopeless choice.  Our hearts ached as we watched the footage.

NYC Mayor Rudy Guiliani, who arrived at the scene immediately, has been forever touched by what he witnessed that morning. He said: “As I looked up, my eyes caught on a man on the 100th floor of the North Tower near the top. I realized I was watching the man throwing himself out. I watched him go all the way down and hit…  I just stood there and watched, frozen, because it was so incomprehensible.  Over the course of time I saw several other people jumping, I can’t remember how many.  Two of them were holding hands. Of the many memories that stick in your mind from that day, that’s the one I remember every single day.”

At the time the second plane struck the South Tower, President Bush was in a second grade classroom promoting his education policy and listening to the children read a story about a pet goat.  At 9:06 am, Chief of Staff, Andrew Card, seized a pause in the reading exercise to whisper to him that a second plane had crashed into the Towers.  President Bush continued briefly to listen to the children read their story so as not to relay any sense of alarm to them and in front of the cameras.

At 9:16 am, the FAA learned that Flight 93 might also have been hijacked but it could not get confirmation.  At 9:20 CNN and Fox News commentator, Barbara Olson, a passenger on board Flight 77, called her husband, Ted Olson, Solicitor General at the Justice Department to tell him that the plane had been hijacked and that passengers were ordered to the back of the plane. The FAA then learned that Flight 77, originally en route from Dulles Airport to Los Angeles, had circled around and was heading towards Washington DC.

At 9:28 am, the hijackers on board Flight 93, which was flying across rural Pennsylvania, took out knives and stabbed pilots, flight attendants, and passengers. Then they relocated the remaining passengers to the back of the plane and threatened to detonate a bomb.  Air control was able to hear Arab voices on the radio.

At 9:29, President Bush delivered his first address to the nation that day –  from the elementary school, in front of about 200 children:  He said: “Today we’ve had a national tragedy. Two airplanes have crashed into the World Trade Center in an apparent terrorist attack on our country.”

At 9:34 am, the FAA noticed that Flight 77 was missing. It had dropped from radar.  At 9:36, it crashed into the first floor of the Pentagon, along the west wall.  All 64 people on the plane perished and 124 people working in the building were killed.  A further victim would die in a hospital several days later.  Donald Rumsfeld ran from his office on the other side of the Pentagon and went immediately to the crash site.  He helped carry victims on stretchers and helped medics set up IVs.

At 9:42 am, Mark Bingham, on board Flight 93, called his mother and said, “I’m on a flight from Newark to San Francisco and there are three guys who have taken over the plane and they say they have a bomb.”  He didn’t stay on the phone long, but he repeated several times: “I love you Mom.  I love you very much.”   Fellow passenger, Todd Beamer, was able to make a call for 13 minutes, to a GTE customer service supervisor, who then immediately notified the FBI.  He said that the plane was hijacked by 3 people and they killed the pilot and co-pilot.  He said the hijackers had locked themselves in the cockpit and appeared not to know how to fly the plane.  Whether they realized it or not at the time, Mark and Todd both attended the same high school – Los Gatos High. They were both athletes. Flight 93 was en route at that point for Washington DC.  F-16 fighter jets were in the air, tracking it and poised to shoot it down. 

At 9:57 am, it is believed that Flight 93 passengers, led by Todd Beamer, Mark Bingham, Tom Burnett, and Jeremy Glick, took a food cart and used it as a battering ram and shield to storm the cockpit.  As they rallied to take control of the plane, Todd recited the 23rd Psalm and ended with these words: “Are you ready guys.  LET’S ROLL.”

At 9:59 am, eyewitnesses at Ground Zero heard a series of loud explosions and then the unimaginable happened… the South Tower collapsed. 

At 10:06 am, Flight 93 began to break up in mid-air before it finally crashed into an empty field in a place called Shanksville, about 80 miles southeast of Pittsburgh, and about 124 miles or 15 minutes from Washington, D.C.   Debris was found very far away from the crash site and in fact, very little wreckage was found there.  All 40 passengers were killed.

At 10:28 am, eyewitnesses at Ground Zero heard another huge explosion and then the North Tower collapsed. They said they could hear the sound of twisting and crushing metal.  (If you close your eyes, I’m sure you can recall all these events as clearly as when they happened 10 years ago. I know I can)

Mayor Guiliani was asked how many had died and he answered: “The number of casualties will be more than any of us can bear.”

2,606 people died in the towers or on the ground.  The death toll could have been much worse.  An estimated 15,000 people made it out of the World Trade Towers to safety after the first plane crash.   246 people on the four planes died. There were no survivors.  The hijackers turned our beloved Twin Towers into slaughterhouses.

Shortly after the towers fell, Kevin Shea, an off-duty firefighter, was found on West Street, with a broken neck, severed thumb, internal injuries, and very little memory of what he had done as the buildings burned. He suffered slight amnesia but was keenly aware that 12 other firefighters from his fire company who raced to the World Trade Center never made it out alive. Firefighter Anthony Sanseviro was in tears, mourning the death of his longtime friend and fellow firefigher Danny Suhr, who was struck by a falling body and killed as they were running to the burning towers.  

At 3:15 pm, President Bush had arrived back in DC.  Condoleeza Rice greeted him with these words: “We’re at war, sir.” Bush asked CIA Director George Tenet who he thought was responsible for the day’s attacks and Tenet replied: “al-Qaeda. The whole operation looked, smelled, and tasted like bin Laden.” Tenet then told him that passenger manifests showed that three known al-Qaeda operatives were on board Flight 77.

At 8:30 pm, President Bush prepared to address the nation –  to address 320 million Americans who had witnessed an unspeakable tragedy.  He gave these words: “Today, our fellow citizens, our way of life, our very freedom came under attack in a series of deliberate and deadly terrorist acts. The victims were in airplanes or in their offices: secretaries, business men and women, military and federal workers, moms and dads, friends and neighbors. Thousands of lives were suddenly ended by evil, despicable acts of terror. The pictures of airplanes flying into buildings, fires burning, huge — huge structures collapsing have filled us with disbelief, terrible sadness, and a quiet, unyielding anger. These acts of mass murder were intended to frighten our nation into chaos and retreat. But they have failed. Our country is strong.

A great people has been moved to defend a great nation. Terrorist attacks can shake the foundations of our biggest buildings, but they cannot touch the foundation of America. These acts shatter steel, but they cannot dent the steel of American resolve. America was targeted for attack because we’re the brightest beacon for freedom and opportunity in the world. And no one will keep that light from shining. Today, our nation saw evil — the very worst of human nature — and we responded with the best of America… with the daring of our rescue workers, with the caring for strangers and neighbors who came to give blood and help in any way they could….

I have directed the full resources of our intelligence and law enforcement communities to find those responsible for these evil acts and to bring them to justice. We will make no distinction between the terrorists who committed these acts and those who harbor them.” 

Before going to bed that night, President Bush would write this in his diary: “The Pearl Harbor of the 21st century took place today.… We think it’s Osama bin Laden.”

It may have been the worst day we have ever seen, but it brought out the best in us, as Americans.   

Those working at the scene hoping to find any survivors were horrified. There were places they walked where they saw body parts — parts of human bodies…  hands, legs.  Mayor Guiliani would later report: “We recovered about 19,000 body parts – a very small percentage of intact bodies.  About half of the families got something they were able to bury and the other half got nothing.”

Today – 21 years later – we come together not as Men or Women, Young or Old, Rich or Poor, or members of any ethnic group.  We do not stand here as laborers or professionals or housewives or public servants.  Or as Christians or non-Christians.  We are Americans.  On the morning of 9/11, our enemies didn’t target any one group over another. They targeted Americans… American civilians. Not men and women in uniforms trained for military action.

 Firefighters and other first responders risked their lives to save those dying and in danger.  They didn’t see the scared and suffering in terms of race, religion, gender, or profession.  They simply saw them as fellow Americans. 

We especially recognize the unique value of first responders (firefighters, police, clergy) in such a tragedy as 9/11, just as we recognize their unselfish commitment to helping other human beings whenever and wherever they are in need and in danger. 343 firemen and paramedics lost their lives on that fateful morning.  They crawled up fiery blackened, smoke-filled staircases to save complete strangers… And they willingly did so.  We have such fondness and respect for our firefighters.  They are a special breed.  You see, the death card is one that every firefighter carries in his hand.  He hopes he never has to play it, but it’s always there.  Every time we hear a siren or a fire truck wail, we instantly know that a life will be saved. Sadly, we never know if the fireman’s life will be sacrificed.

Likewise, people look to clergy for comfort and empathy, and in fact, it was in this very capacity that Father Mychal Judge, chaplain of the NY Fire Department, lost his life at the site of the flaming Towers.  He was in the lobby of the South Tower administering last rites when it collapsed.  Debris flew everywhere, striking Father Mychal in the head. It was reported that at the time he was struck, he was praying out loud: “Jesus, please end this right now! God, please end this!”  When I was in high school,Father Mychal served at St. Joseph’s parish in my hometown of East Rutherford, in north Jersey.  I was in his youth group at the time.  

We recognize the same valor in those civilians who selflessly went back into the burning buildings to help save lives. Heroes were born that day.

Simply put, the attacks on NYC and the Pentagon were the most savage and audacious acts of terror ever perpetrated. They were also supposed to include government buildings in Washington DC. We wonder why our country was the target of such a brutal attack.  It’s because terrorism works. For us as Americans, we lost a lot of the freedom we had taken for granted on that day. We no longer feel safe within our borders, we spent years under “terrorist warnings,” we are harassed when we go on planes, we spent years not trusting anyone of middle-eastern decent. It was the most costly attack on American soil, even more costly than the attack on Pearl Harbor. The attack on Pearl Harbor by the forces of Imperial Japan killed 2,403 U.S. personnel, including 68 civilians, and destroyed or damaged 19 U.S. Navy ships, including 8 battleships. During the September 11 attacks, 2,977 people were killed and more than 25,000 others were injured. Of the 2,977 fatal victims, 2,753 were killed in the World Trade Center and the surrounding area, 184 at the Pentagon, and 40 in Pennsylvania. And then, of course, there were the 19 hijackers who committed suicide. Japan’s Admiral Yamamoto rightfully noted that they had “woken up a sleeping giant.” And 9/11 committed the United States to fight terrorism, wherever it originates and whenever it is used.

The spirit that the terrorists tried so hard to kill on September 11 has never been stronger. The attacks only solidified our commitment that America will survive and freedom will ring.  The attacked forged a new generation of patriots.  Men and women have been inspired in force to join the armed services.  Over 3 million have volunteered. It was an unfortunate event that created national unity. We continue to need that national unity today.

Remembering 9/11 and honoring its innocent victims isn’t about government or politics or political correctness. It’s about love of country and a bond with our fellow Americans. It’s about respect and an unspoken duty to keep 9/11 from fading in significance. It’s about a solemn promise to fellow Americans to keep their spirit and sacrifice alive.  As Scottish poet Thomas Campbell wrote: “To live in hearts we leave behind is not to die.”  3000 unarmed, innocent Americans were targeted for death in NYC and Washington DC for no other reason except they were Americans.  It could have easily been my husband or my child who was on one of those planes, or your husband, wife, or child.  

It is said that the test of any religion, government, political system, or educational system is the type of man or person that it forms.  Let us think about that as we reflect on the events of 9/11. 

May all those who died on 9/11 rest in peace and may we continue to remember what happened on that horrible day…  If on no other day than this day, the anniversary of that horrible and savage attack on our country, let us continue to come together not as Republicans or Democrats, conservatives or liberals, Christians or agnostics, but simply as Americans…  as neighbors and members of our collective American society.

Even the smallest act of service, the simplest act of kindness, helping a stranger, a humble donation to law enforcement or the fire station, displaying our flag, or volunteering at church, is a way to honor those we lost, a way to reclaim that spirit of unity that followed 9/11. 

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MY EXCHANGE WITH NC SENATOR THOM TILLIS

Sen. Thom Tillis, R-N.C., attends a Senate Judiciary Committee hearing on police use of force and community relations on on Capitol Hill, Tuesday, June 16, 2020 in Washington. (Tom Williams/CQ Roll Call/Pool via AP)

The following is an exchange I had with my US Senator, Thom Tillis regarding a piece of federal legislation – H.R. 8404 (“Respect for Marriage Act”)

Hello Senator Tillis,
I am writing to ask you to please, please, please VOTE AGAINST H.R. 8404. It is very important and not only that, it is the right and the constitutional thing to do.

The First Amendment reads: “Congress make no law respecting an establishment of religion or prohibiting its free exercise.” This is a cornerstone of the freedom and liberty we enjoy and cherish in this country. It is an absolute bar on the intervention of Congress into matters of religion. There is no such thing as “Wall of Separation of Church and State”; it is a legal fiction. It was only introduced, against the standard practice of the Supreme Court of referring to primary documents and references in reaching its opinion on a particular case, in the case of Everson v. Board of Education of Ewing Township (1947). It was introduced in the majority opinion by Justice Hugo Black, a leadership member in the KKK. “Wall of Separation” was a provision included in the KKK oath. 

H.R. 8404 reads: “(a) In General.—No person acting under color of State law may deny—
“(1) full faith and credit to any public act, record, or judicial proceeding of any other State pertaining to a marriage between 2 individuals, on the basis of the sex, race, ethnicity, or national origin of those individuals; or
“(2) a right or claim arising from such a marriage on the basis that such marriage would not be recognized under the law of that State on the basis of the sex, race, ethnicity, or national origin of those individuals.
“(b) Enforcement By Attorney General.—The Attorney General may bring a civil action in the appropriate United States district court against any person who violates subsection (a) for declaratory and injunctive relief.
“(c) Private Right Of Action.—Any person who is harmed by a violation of subsection (a) may bring a civil action in the appropriate United States district court against the person who violated such subsection for declaratory and injunctive relief.

H.R. 8404 is a liberal attempt to not only codify “same-sex marriage” into federal law, but it is egregious attempt to violate the first amendment’s guarantee that US citizens and US churches have the FREEDOM to worship and believe as they choose (the “Free Exercise” Clause).

If passed, churches and other religious organizations, will be forced to accept the LGBTQ agenda and will be forced to recognize and accept gay marriage. It is a blatant attempt to destroy our traditional family structure.
I am not saying that I am against tolerance or in favor of discrimination. In fact, I am not. I believe people love who they love. It’s a matter of the heart. But just because we want to live in an ideal world and an ideal country, we cannot violate our US Constitution, our Bill of Rights, to do so. That is where the Article V amendment process comes into play. That is the constitutional provision that allows the Constitution to update to the changing societal values (that is the only way the Constitution can be “a living, breathing document.” Justices, on their own, cannot take it upon themselves to do an end-run around the Constitution and change it at will).

You have taken an oath to support and defend the Constitution. “I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion.”

Please honor your oath, support and defend our US Constitution, and bring honor to the federal government. The States, which are the true depositories to define and regulate marriage, will do what they think best. We have to believe and have faith in that.

Most Sincerely,
Diane Rufino, attorney, molecular biologist, high school teacher, writer, blogger, and activist
My Blogsite: www.forloveofgodandcountry.com 

RESPONSE FROM SENATOR TILLIS:

Dear Ms. Rufino: Thank you for taking the time to contact me about same-sex marriage. I appreciate hearing from you.

The House recently passed legislation that would codify the U.S. Supreme Court rulings in Loving v. Virginia and Obergefell v. Hodges, which established the right to marriage for interracial and same-sex couples. I support codifying the right to marriage in federal law. I am working closely with my Senate colleagues to ensure that legislation to codify the right to marriage does not in any way limit or inhibit religious freedom. 

As Senator, I believe that all individuals should receive equal treatment under the law. This is as true for the LGBTQ+ community as it is for any other American. 

I also strongly oppose any effort to infringe on any American’s First Amendment rights to religious freedom. I will only support legislation that maintains the existing law in North Carolina and across the country regarding marriages between two people and does not include any restrictions on the religious liberty rights of individuals and religious institutions.

As a member of the Senate Judiciary Committee, I serve on the committee with jurisdiction over this issue. Please know that if this legislation comes before the Judiciary Committee or the full Senate, I will keep your views in mind.

Again, thank you for taking the time to contact me. Please do not hesitate to contact me again about other important issues.   

Sincerely,  
Thom Tillis
US Senator

MY REPONSE TO SENATOR TILLIS RESPONSE:

Hello Senator Tillis, 

I tried to send you this message online, but I kept getting the message, “Your message cannot be delivered.”  And so I figured I would send you a physical letter, with the same message.

This response is in response to the response that you sent me (refer to that response, attached below). Before reading what I would like to share, please refer to your response below.

I understand that is YOUR belief and personally, I believe as you do. But I am concerned about what the federal law at issue will do to the tenets of certain churches. As you know, respecting the equal treatment of individuals and their choice of life partners doesn’t exactly line up with the fundamental tenets of certain religions. Can you assure me that federal law will not infringe upon those tenets and the church’s first amendment guarantee to follow those tenets?

I ask this because in this country, we enjoy a free-market approach to almost everything. If a person does not like or would rather not be associated with a church because of its stance on alternative marriage, they can leave that church and find another. Or, a new church can be founded on principles and lessons that best suit their social values. In the end, I believe it will all work out and there will be a fitting religion for everyone in this country, and that is the way it should be. 

I would like to ask you two questions and then I will leave you alone:

  •  Do you believe Jesus Christ was a racist homophobe? Do you believe Christianity is built on racist homophobic tenets?  I shutter to think what the liberal/progressive element of our country would do to Him if he would come to us again, in this current time.
  •  What do you think is meant by “Congress shall make no law……..”?

Thank you for agreeing to keep my concerns in mind when the bill comes up for a vote.

Sincerely,

Diane Rufino, attorney, molecular biologist, high school teacher, writer, blogger, and activist
My Blogsite: www.forloveofgodandcountry.com

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AN URGENT REQUEST TO PATRIOTS –

The following is a letter I just wrote and sent to my US Senators (North Carolina), emphasizing that they need to vote AGAINST H.R. 8404 – the “Respect for Marriage Act,” sponsored by Rep. Jerry Nadler (D-NY).

I sent the identical message to Senator Thom Tillis.

Hello Senator Burr,

I am writing to ask you to please, please, please VOTE AGAINST H.R. 8404. It is very important and not only that, it is the right and the constitutional thing to do.

The First Amendment reads: “Congress make no law respecting an establishment of religion or prohibiting its free exercise.” This is a cornerstone of the freedom and liberty we enjoy and cherish in this country. It is an absolute bar on the intervention of Congress into matters of religion. There is no such thing as “Wall of Separation of Church and State”; it is a legal fiction. It was only introduced, against the standard practice of the Supreme Court of referring to primary documents and references in reaching its opinion on a particular case, in the case of Everson v. Board of Education of Ewing Township (1947). It was introduced in the majority opinion by Justice Hugo Black, a leadership member in the KKK. “Wall of Separation” was a provision included in the KKK oath. 

H.R. 8404 reads: “(a) In General.—No person acting under color of State law may deny—
“(1) full faith and credit to any public act, record, or judicial proceeding of any other State pertaining to a marriage between 2 individuals, on the basis of the sex, race, ethnicity, or national origin of those individuals; or
“(2) a right or claim arising from such a marriage on the basis that such marriage would not be recognized under the law of that State on the basis of the sex, race, ethnicity, or national origin of those individuals.
“(b) Enforcement By Attorney General.—The Attorney General may bring a civil action in the appropriate United States district court against any person who violates subsection (a) for declaratory and injunctive relief.
“(c) Private Right Of Action.—Any person who is harmed by a violation of subsection (a) may bring a civil action in the appropriate United States district court against the person who violated such subsection for declaratory and injunctive relief.

H.R. 8404 is a liberal attempt to not only codify “same-sex marriage” into federal law, but it is egregious attempt to violate the first amendment’s guarantee that US citizens and US churches have the FREEDOM to worship and believe as they choose (the “Free Exercise” Clause).

If passed, churches and other religious organizations, will be forced to accept the LGBTQ agenda and will be forced to recognize and accept gay marriage. It is a blatant attempt to destroy our traditional family structure.
I am not saying that I am against tolerance or in favor of discrimination. In fact, I am not. I believe people love who they love. It’s a matter of the heart. But just because we want to live in an ideal world and an ideal country, we cannot violate our US Constitution, our Bill of Rights, to do so. That is where the Article V amendment process comes into play. That is the constitutional provision that allows the Constitution to update to the changing societal values (that is the only way the Constitution can be “a living, breathing document.” Justices, on their own, cannot take it upon themselves to do an end-run around the Constitution and change it at will).

You have taken an oath to support and defend the Constitution. “I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion.”

Please honor your oath, support and defend our US Constitution, and bring honor to the federal government. The States, which are the true depositories to define and regulate marriage, will do what they think best. We have to believe and have faith in that.

Most Sincerely,
Diane Rufino, attorney, molecular biologist, high school teacher, writer, blogger, and activist
My Blogsite: www.forloveofgodandcountry.com 

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