My Declaration of Concern by John Stoeffler

Our Declaration of Independence cites numerous offenses as justification for the colonies’ intent to seek independence from England. Were Thomas Jefferson alive today I am convinced he would be questioning the legitimacy of many Federal government actions, actions which many have come to believe have more in common with the oppressive hand of King George III and his Parliament than the vision of a free and democratic Republic?

With that in mind, I have taken the liberty of listing what might well be grievances he would include in what I call “My Declaration of Concern.”  What follows is but a partial list of grievances that belong to our generation. There are four parts – beginning with the Supreme Court.

Part I – The Supreme Court

“If in fact the (U.S. Supreme) Court is acting without the consent of the governed, the people, then the rights it purports to secure in their name are counterfeit, their benevolence a fraud.” Missouri Chief Justice Robert T. Donnelly addressing the Missouri General Assembly 1982

The Court amended the Constitution by decree when it declared that part of the Constitution’s Fifth Amendment which guarantees that property may be taken only for “public use” null and void. In its decision in the case of Kelo v. City of New London, 545 U.S. 469 (2005) the Court stated that under Eminent Domain privately held that property may now be taken and turned over to another private party for what the Court deemed a “public purpose.” In its ruling, the Court fraudulently excised by judicial fiat this part of the Constitution’s Fifth Amendment without the consent of the people.

In Brown v. Board of Education, 347 U.S. 483 (1954), the Court rightly held that Linda Brown, a Negro, was the victim of de jure segregation in that she was not permitted, by law, to attend the school closest to her home. However, the Court’s decision ultimately resulted in lower federal courts uprooting hundreds of thousands of our Nation’s children and transporting them beyond their neighborhood schools under the guise of racial discrimination when in fact it was a racial balancing of the classroom the inferior courts of the United States sought to achieve. Our Nation’s children thus became pawns in achieving a social objective for which there is no constitutional basis, nor grant for the exercise of such authority.

In the 1990 case of Missouri v. Jenkins, the Court declared the federal judiciary has a constitutionally based authority to order taxes levied or increased without the consent of the People. This assertion clearly contravenes Article I, Sec. 8   of the Constitution which grants this authority to the Legislative Branch of government alone.

The First Amendment to the Constitution as it pertains to religion states: Congress shall make no law respecting an establishment of religion, nor prohibiting the free exercise thereof.” (Emphasis mine) On numerous occasions, the Court has shown its hostility toward religion. In Engel v. Vitale, 370 U.S. 421 (1962) The Supreme Court found that a New York school district was violating the Establishment Clause in the First Amendment that prohibits Congress from establishing a religion. But it was not Congress that authorized a prayer in school but the school district. So how is the so-called “Establishment Clause” based on the words “Separation of Church and State”, words found nowhere in the Constitution, constitutional? It is not.  

Consider, a government paid chaplain can offer a prayer before each session of Congress which is published in the Daily Journal of the Congressional Record at taxpayer expense, yet the Court has ruled it is unconstitutional for students to read those same words in school. Displays of the Ten Commandments have likewise been subjected to the same hostile treatment. In ruling against displays of the Ten Commandments the Court ignores the fact that the Supreme Court Building itself contains depictions of the Commandments. Furthermore, similar depictions of the Commandments appear on numerous government buildings and monuments throughout our Nation’s Capital.

The Court declared in Reynolds v. Sims, 377 U.S. 533 (1964) the republican form of government the states enjoyed for nearly 200 years “unconstitutional.” The Framers provided for two branches of government, one, the House of Representatives, reflecting one-man-one-vote and the other, the Senate, guaranteeing an equality among all the states.”

The rationale for this was to prevent large states from unduly amassing power at the expense of smaller states. But when the states incorporated this principle in their constitution to protect the more sparsely populated rural areas from heavily populated urban areas the U.S. Supreme Court in 1964 declared this to be unconstitutional and ordered states to draw senate districts based on population. The result, that which is constitutional for the federal government is “unconstitutional” for state governments.

The Justices of the Supreme Court have declared their decisions to be the “Law of the Land.” However, in 1982 Missouri Supreme Court Chief Justice Robert T. Donnelly asked: “Where, then, do we find a delegation of power by the people to the United States Supreme Court to declare ‘the supreme Law of the Land’ under Article VI of the United States Constitution?” The answer is nowhere.

The foregoing is but a small sample of numerous rulings by the Court, rulings so sweeping as to clearly resemble an ongoing constitutional convention.

In view of the foregoing one might ask, “What then is the limited role our Founders envisioned the Court was to play in the new republic?” The answer may be found in the Federalist Papers Number 78 written by Alexander Hamilton where he stated in part, “It may be truly said to have neither FORCE nor WILL but merely judgment.” As used here the word FORCE is a noun for the Executive Branch. As the Court has neither a police force not an army it must depend on the Executive Branch to “enforce” its decisions. The Court could not exercise its WILL, again used as a noun for the Legislative, law making Branch of government. Parsing these words, “It may be truly said (without question) that it (the Court) may exercise “merely judgment”. In other words, the limited role the Court was to play was to lay a law next to the Constitution and pronounce it constitutional “yes”, or constitutional “no” – that is all.

As I see it, too many Supreme Court opinions are not tethered to the Constitution’s text. Today the Justices have gone far beyond the role envisioned by the Founders and thus present a direct challenge to our republican form of government.

Part II, Congress

Our Declaration of Independence cites numerous offenses as justification for the colonies’ intent to seek independence from England. Were Thomas Jefferson alive today, I am convinced he would be questioning the legitimacy of many acts by Congress acts which many have come to believe have more in common with the oppressive hand of King George III and his Parliament than the vision the Founders had for a free and democratic republic?

Consider, Social Security taxes not immediately paid out are alleged to be placed into a “trust fund” the purpose of which is to hold surplus Social Security contributions. But the record shows any surplus is “borrowed” by Congress to pay for other programs our senators and representatives deem worthy. And who is paying the interest on this borrowed money? The American taxpayer.

You will recall that Congress asked the American people to put their trust in them as they sought to completely overhaul this Nation’s health care system. But what they proposed for us they will not accept for themselves and their family. And when responding to a crescendo of voices that arise in protest, the politically powerful in Washington sought to intimidate and silence these loyal Americans by charging they are “trying to sabotage the democratic process,” and comparing them to “Nazis,” “Evil-mongers,” and “mobs.”

The Constitution’s Twenty-Seventh Amendment clearly states: “No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.” In spite of this, Congress receives an automatic increase in its compensation virtually every year – unless it votes NOT to accept it. Congress’ failure to follow the clear letter and intent of the Twenty-Seventh Amendment shows an unbelievably callous disregard for the will of the People by circumventing the amendment’s unambiguous language. And when challenged their response is that the increase they receive is not a pay raise but rather a “Cost of Living Allowance,” a COLA. (A distinction without a difference as I see it) In this, Congress is making a fraudulent claim that is patently self-serving.Our Founders created an honorable institution to protect and defend the people. However, by their own words and deeds too many of our senators and representatives have shown that congress has become a den of thieves.

In his Commentaries on the Constitution Joseph Story wrote: “War, in its best estate, never fails to impose upon the people the most burdensome taxes and personal sufferings.” Knowing this, the Founders left the sole power to commit the armed forces to the people’s branch – Congress. (U.S. Constitution – Article I, section 8, clause 11)

Since the end of World War II Congress has authorized the United States armed forces to become engaged in no-win armed struggles with both irregular forces and the armed forces of other nations. These include Korea, the Dominican Republic, Vietnam, Grenada, Panama, Bosnia, Somalia, Afghanistan, and Iraq.

Clearly, Congress appears bound and determined to defend virtually everyone, but in doing so ignores the sound admonition of Frederick the Great who declared: “He who wants to defend everything defends nothing, and he who wants to be everyone’s friend has no friends in the end.”

And while Congress is busy spending billions to defend foreign nations whose friendship is most often temporary at best our country is under assault from illegal aliens whose presence here has placed an ever-growing financial burden on taxpaying citizens and state governments. To add insult to injury, in 2010 Congress counted every illegal alien in the census and included those numbers to reapportion the U.S. House of Representatives. This could only result in states with an abundance of illegal aliens being awarded with additional seats in numerous government bodies, local, state and national, and by fiat an increased political clout at the expense of every American.

While often attributed to Thomas Jefferson, it was David Thoreau in his essay Civil Disobedience who wrote: “That government is best that governs least.”  Our Constitution and the Bill of Rights were crafted by the Framers to protect the States and the personal liberties of citizens from a strong central government. That said, there is irrefutable evidence that legislation being passed and unfunded mandates forced on the states by Congress are considerably at odds with and present a direct challenge to the republican form of limited government envisioned by the Framers.

Part III, the Presidency

As our nation’s Chief Executive, the President is charged with executing the laws passed by the peoples’ representatives and senators in Congress. He is also charged with enforcing the laws of the Nation which are predicated upon a clear and unambiguous understanding of the Constitution’s words and the intent of those who wrote those words. However, when the President enforces constitutionally baseless Court opinions/decisions he aids and promotes rulings by what is euphemistically referred to as an “activist Court.

It should be disconcerting to every citizen to see a president place his hand upon a Bible and swear to Almighty God that he will protect and defend the Constitution of the United States, and then turn around and enforce a decision by the Court that forbids the mention of God or the Bible in public schools, such decisions being based on an assertion that the U.S. Constitution demands a “separation of church and state.” But these words are found nowhere in the Constitution. That history of chief executives of both political parties have enforced these and other constitutionally baseless rulings is beyond the pale.

It is appalling to watch as Presidents have ordered the Nation’s armed forces into harm’s way when no threat to the Nation or its citizens exists. In some cases, the armed forces of the United States were employed, not in the name of the United States but on behalf of the United Nations or treaties that are of a questionable nature given the blood and sacrifice made by thousands who are no longer among us and the loved ones they leave behind.

Since 1945, there have been numerous deployments of our nation’s armed forces by presidents acting in the capacity of Commander-in-Chief. Many of these deployments have ended up as either a stalemate (Korea), defeat (Vietnam), humiliation (Somalia), an unrealized stated objective, to wit: stemming the flow of drugs into the U.S.(Panama); unfinished business; and leaving a tyrant characterized as “Worse than Hitler” in place for years. (Iraq – 1991). In the case of the latter, the result for not seeking total victory finds the United States military currently tied down in Middle East conflicts that have lasted longer than World War II.

It is irresponsible and constitutionally questionable to continue to give or loan hard-earned monies of our citizens to foreign governments under the guise of aid, especially so when those corrupt leaders continually squander these proceeds while their people live in squalor and the constant fear of being murdered, raped, having what meager possessions they may possess stolen, or being sold into slavery.

It is unacceptable that presidents whose constitutional responsibility to spend the monies Congress appropriates permits the ongoing raid on the Social Security “Trust Fund.” It is equally unacceptable to watch as the president fails to use the power of his office to rein in spending of taxpayer dollars, millions of which are squandered annually by congress on politically motivated and highly questionable “pork barrel” projects.

It is a travesty of yet-to-be-seen proportions when a president seeks to expand the scope of government programs and in doing so incurs monumental debt which will mortgage the future of our children and our children’s children for decades to come.

It is unconscionable that our borders remain un-secured. And it is an outrage when ordinary citizens who take it upon themselves to do what the Federal Government cannot or refuses to do to adequately protect and secure this Nation’s borders are denigrated as “vigilantes.”

In these and numerous other ways presidents of both political parties, past and present have failed to execute the authority of and uphold the duties of president which the Constitution clearly commands.

The conduct evidenced by those who have ascended to the nation’s highest office clearly shows a record replete with abuses and neglect of the Constitution’s grant of authority and restrictions therein to which they have sworn a sacred oath to “protect and defend.” This is especially telling seeing as how that oath ends with the words: “so help me God.”

Part IV, to preserve our Republic

I have listed what I see are serious breaches and blatant challenges to restrictions the Constitution places on those who hold positions of power in the Federal Government.

Recognizing the threat to liberty these actions pose, tens of thousands of voices have been raised in protest, but to no avail. In entreaties, written and oral, the President, Congress and the Supreme Court have been reminded on numerous occasions of the dangerous precedents they are setting, precedents which can only lead to further abuses of the Constitution and the Bill of Rights and a continued erosion of economic and personal liberties. As repeated calls to end unconstitutional activities and actions have been answered by repeated injuries it remains clear that change must be made.

There are those who understand that the Constitution and the Amendments made thereto are a contractbetween the People of the United States and their government. It is an agreement that has been entered into voluntarily, and which requires both parties to fully comply if liberty and the freedoms we have enjoyed for over 200 years are to survive for the benefit of future generations. It is axiomatic that when any contractual agreement is continually violated by one of the parties, and the other party continues to suffer injuries and injustices, that the injured party has, as Jefferson wrote in our Declaration of Independence, a “Right” and a “Duty” to alter or abolish that relationship in order “to provide new Guards for their future security.”

There are those who, seeing the abuses being heaped upon the citizens and states of this Union, are beginning to question how much longer this relationship shall continue. That said, the relationship the People of the United States have enjoyed with their government has existed for two-hundred twenty-two years and should never be ended or changed without every effort being made to repair that relationship. Therefore, let it be known that this Declaration of Concern is a clarion call to the President, members of Congress and the Supreme Court to review the vision and aspirations the Founders had for our Republic and reexamine the restricted role the Federal Government was to play then and must return to now. Let them again embrace those principles the Founders instituted which when adhered to will most assuredly guarantee the safety and freedoms to which so many have pledged their lives, their fortunes and their sacred honor.

The Constitution is the cornerstone of our Republic. It has changed little throughout this nation’s history since its adoption on September 17, 1787. What has changed, however, is a misguided view that it is a “living Constitution” that must be kept in tune with the times. Yes, it is a living document but must only change with the consent of the governed – We the People, and ONLY the people.

If we are to truly be a government of, by, and for the people it must be the people who make changes and not the few and the politically powerful. It is for this very reason the Founders provided for an amendment process to safeguard the people from the hand of tyranny.

Since its adoption as this nation’s governing document the Constitution has been amended twenty-seven times. But, as has been previously noted, it has been members of the Supreme Court, Congress, and the Executive Branch who have chosen on numerous occasions to ignore the Constitution’s clear proscriptions and overstepped the authority the Constitution grants to each. In doing so it was they, and not the people, who have determined the future of America, and not always for and in the interest of the people. Unchallenged, these self-proclaimed platonic guardians of our liberties have become emboldened in their pursuit of a vision that is not in the interest of the people.

Unquestionably, the freedoms our Constitution was written to protect are ever so slowly being eroded. Nevertheless, the mischief done by our Federal Government is not beyond repair; but only – only – if the President, the justices of the Supreme Court, and our senators and representatives in Washington set aside personal feelings and ambitions and submit themselves to the authority which our Constitution embodies and for which so many have given their all to protect and sustain. Only then will the flame of liberty and freedom the Founders lit to continue to cast its light over a government of the People, by the People, and for the People.

Reform of ECPA Balances Privacy With Law Enforcement Needs

Sen. Orrin Hatch, chief sponsor of bill to reform ECPA
Sen. Orrin Hatch, chief sponsor of bill to reform ECPA

As a result of change in technology, the Electronic Communications Privacy Act (ECPA) has come in need of being modernized. Three federal legislators, Sens. Orrin Hatch (R-UT), Chris Coons (D-DE) and Dean Heller (R-NV), also working with House Speaker Paul Ryan (R-WI), Senate Majority Leader Mitch McConnell (R-KY) as well as Sens. Chuck Grassley (R-IA) and Patrick Leahy (D-VT), the Chairman and Ranking Member of the Senate Judiciary Committee respectively, have introduced the International Communications Privacy Act (ICPA). This legislation will update ECPA to address privacy and law enforcement issues in a world where technology has marched forward beyond current law.

The key to the reform is balancing the need for strengthened consumer privacy in electronic communications while also recognizing and facilitating the need for law enforcement to access data, via the requirements of a warrant process, when needed. ICPA accomplishes both of these concerns, neither of which are addressed by the current law.

It is past time for Congress to modernize the outdated Electronic Communications Privacy Act. As we do so, lawmakers must not ignore the pressing issue of international data privacy and the need for Congress to establish a legal framework for accessing extraterritorial communications,” Sen. Hatch stated, “The global reach of government warrant authority has significant implications for multinational businesses and their customers. The International Communications Privacy Act aids law enforcement while safeguarding consumer privacy, striking a much-needed balance in today’s data-driven economy.”

The Mutual Legal Assistance Treaty (MLAT) process will be reformed by providing great accessibility, transparency, and accountability. ICPA will also require the Attorney General to create an online docketing system for MLAT requests while also publishing new statistics on the number of those requests. The legislation also establishes a sense of Congress that data providers should not be subject to data localization requirements, which are entirely incompatible with the every growing borderless nature of the Internet. Such requirements are also an impediment to online innovation, and are also unnecessary to meet the needs of law enforcement.

The world is becoming more dependent on broadband internet by the minute. As this technological necessity continues to expand its role in our society, it is imperative the guaranteed rights of law-abiding citizens are balanced against the ability for law enforcement to do its job,” Sen. Heller stated, “I’m proud to join Senators Hatch and Coons to achieve this goal.”

The ICPA legislation creates a clear legal framework for authorizing law enforcement to obtain electronic communications of U.S. persons regardless of the location of those communications. This will also allow law enforcement to access electronic communications of foreign nationals when needed.

“In an increasingly globalized world, protecting data stored abroad is critical to our country’s ability to compete in the global economy. Just like law enforcement agencies should be required to get a warrant before accessing the content of Americans’ communications within our borders, processes for accessing content located abroad should also comply with the law. This common-sense bill will protect our data across borders, and encourage fair treatment by our international partners,” Sen. Coons stated about ICPA.

Overall, the legislation changes current law in four areas for the benefit of law enforcement. It allows law enforcement access to electronic communications on behalf of U.S. persons regardless of where the data is stored. ECPA did not intend for warrants to be served on data providers who stored data across national borders. It also strengthens law enforcement ability to obtain data on behalf of non-U.S. Persons who are physically present in the U.S. regardless of the location of the data.

ICPA also modernizes the MLAT process, making it more efficient. Additionally, legislation requires a warrant process for obtaining any electronic communications stored by service providers, regardless of the age of the data, eliminating the 180 day limit. This has no practical effect on law enforcement because most major providers today follow the Sixth Circuit’s Warshak decision and require law enforcement to provide a warrant.

Clearly ECPA is past due needing to be modernized and reformed to meet the needs of both consumer privacy and law enforcement needs in a changing technological world. ICPA is a great improvement over current law in both areas.