John Jay and The Bill of Rights vs Barack Obama and Harry Reid

December 11, 2013

On December 12, 1745, John Jay was born in the British colony of New York.  42years later he, Alexander Hamilton and James Madison would pen the Federalist Papers, the defining arguments favoring adoption of our current Constitution.

On December 15, 1791 the commonwealth of Virginia ratified the Bill of Rights, solidifying in that Constitution what they thought would be permanent protection of individual rights.

Two dates, two centuries past yet directly tied to two dates here in the 21st.

On November 21st, 2013, Senate Majority Leader Harry Reid (D, NV) used a straight party line vote to undo a check on executive power purposefully imposed by the men who founded his position.

On December 3, 2013, the House Judiciary Committee held a hearing entitled “The President’s Constitutional Duty to Faithfully Execute the Laws”.

Supporters of President Obama and Senator Reid, cheer the former and sneer the latter.

Students of history and Constitutional scholars fear them both.

At the December 3rd hearing Jonathan Turley, professor of law at George Washington University testified that:

“The problem with what the president is doing is that he’s not simply posing a danger to the constitutional system. He’s becoming the very danger the Constitution was designed to avoid. That is the concentration of power in every single branch. “……“The center of gravity is shifting, and that makes it unstable. And within that system you have the rise of an uber-presidency.”…..“There could be no greater danger for individual liberty, and I really think that the framers would be horrified by that shift because everything they’ve dedicated themselves to was creating this orbital balance, and we’ve lost it.”

Georgetown University Law Professor Nicholas Rosenkranz noted:

“The President cannot suspend laws altogether. He cannot favor un-enacted bills over duly enacted laws. And he cannot discriminate on the basis of politics in his execution of the laws. The President has crossed all three of these lines.”

Regarding the Senate that Harry Reid just blew up, Alexander Hamilton writes in Federalist #69 “The Real Character of the Executive”:

“The President is to nominate, and, with the advice and consent of the Senate, to appoint ambassadors and other public ministers…”

Comparing the power of the New York Governor of the day having the deciding vote for his own appointments to that of the proposed new President, Hamilton emphasized that “In the national government, if the Senate should be divided, no appointment could be made;”

“No appointment could be made”, clear and concise.

Hamilton then contrasts between the President and the King of Great Britain.

Whereas the King had absolute authority to “appoint offices”, “confer privileges”, make “denizens of aliens”, and was the “arbiter of commerce”, the proposed new President would only have “concurrent authority” with the advice and consent of the Senate.

To Hamilton and the Founders, “concurrence” was two-thirds, not a “simple majority”.

Having lived under government tyranny, Jay writing in Federalist #64, addressed the fear of its return:

“Every consideration that can influence the human mind, such as honor, oaths, reputations, conscience, the love of country, and family affections and attachments, afford security for their fidelity. In short, as the Constitution has taken the utmost care that they shall be men of talents and integrity,..”

John Jay and his contemporaries took the danger of arbitrary, concentrated government power so seriously that they gave us the Constitution and the Bill of Rights to combat against it.  Unfortunately even they could not foresee the corrupting influence of “fundamental transformation”.

They chose then and the choice remains ours today:  honor, country and check on power – or – party, agenda and unfettered government?

(Publisher’s note:  A version of this column first appeared in the December 11, 2013 print edition of the Joplin Globe.)

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