The Shining City Fundamentally Transformed

It is with considerable sadness for our present state and considerable hope for the future that I am writing this blog entry.

I cried when I heard Barack Obama say, five days before the 2008 election, “We are five days away from fundamentally transforming the United States of America.” (October 30, 2008) I cried because I knew that he was right and that the bright American future that I knew, loved, and took for granted was in serious jeopardy.

Over the next few years, I watched as the left began to fundamentally transform our country.  I “hoped” for change in the 2012 election, but I was disappointed.  My head was spinning with ideas for several days. I was wondering what I could do as an individual citizen to influence or effect what would happen over the next 4 or more years in our country.

I thought that maybe there were a lot of people in our country who did not know much about the US Constitution and the original intent of the Founders. Maybe this lack of knowledge led them to vote the way that they did. They did not see what was good about the current government system and were looking for change.  So, I decided to write, “Reclaiming the Shining City” and provide information about the Constitution – what it meant to the individual citizen and what rights and protection it gives us.

As the years have gone by, it has become more and more difficult to write about the Constitution. The current Administration sees the document as outdated and/or living and the Rule of Law as inconvenient. It has found ways to bypass the Document and original intent by using the courts to legislate from the bench and extra-constitutional appointments of department heads and czars, who have proceeded to re-write law under the guise of administrative law.

The Judges in the courts were never meant to legislate from the bench, and administrative law was never meant to replace the original document (the US Constitution). It was meant, instead, to support and supplement it.

In trying to explain the individual clauses of the Constitution, I found myself more and more having to say, “This is what was meant by the Founders, however, this is how it is interpreted today”. With each court decision and each czar appointment, this became more and more difficult.

The country is currently divided just about down the middle between liberal and conservative. The changes created by this Administration have truly “fundamentally transformed” this country as this President predicted.

Someone said at the beginning of this onslaught that within 5-6 years, we would not recognize our own country. This has become a fact. The “reforms” have been overwhelming: banking, finance, health care, civil rights, abortion rights, the definition of marriage, etc.

Most recently, “executive agreements” with foreign powers are an example of bypassing the Constitution. The agreement with Iran is an example of this. Instead of calling it a treaty, they call it an executive agreement. This will tie the hands of the Senate and make it virtually impossible for the Senators to take a stand in support of what “we the people” want. Article II, Section 2, Clause 2 “The President… shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur….”

For more information about treaties, please see http://www.heritage.org/constitution/#!/articles/2/essays/90/treaty-clause.

So, my conclusion, at this point, is to discontinue writing about the Constitution because it is so painful to do so and impossible to correlate with current government. Instead, I will write about occurrences within government and hopefully, from time to time point out a positive change that may occur within the Administration or the Congress.  I will also continue to perform my responsibilities as a citizen including voting, serving on the Republican Committee, and contacting my Representative or Senators as warranted.

A word of warning to conservative Christian Americans: We tend to think that we will remain safe and sound because we are a nation chosen and in covenant with God. God has been very gracious and merciful to us as a nation. However, it is not true that the US has a covenant with God, as does Israel. God chose Israel as the chosen nation. He initiated the covenant with Abraham. At best, men in America initiated a covenant with God.

In reality:
“In one respect, there was a covenant, but it wasn’t one between America and God—it was between the church in America and God. The real covenant is with all born-again believers in Jesus Christ throughout the world as they partake of the covenant with God that started with Abraham and eventually included the church, which has been grafted into the tree that is Israel. The covenant with God now is not with governments but rather with individuals who have become partakers of this covenant through faith in Jesus Christ.”
Source:
http://www.lighthousetrailsresearch.com/blog/?p=9653

This truly makes me aware of the importance of my individual walk with the Father and my prayer and believing for my nation. I urge that we each take a stand, praying and believing God for the best for our Country.

For further writing on the meaning of the US Constitution, please visit: http://www.heritage.org/constitution/#!/

Preventing Instruments of Tyranny

 

“No Bill of Attainder or ex post facto Law shall be passed.“ Article 1, Section 9, Clause 3 US Constitution.

 

A Bill of Attainder is an act passed by a legislature to punish a person without a trial in court. Bills of Attainder could condemn persons or groups of people to death without a trial. Bills of Attainder also required the “corruption of blood”, which means that heirs of the person condemned to death could not inherit the estate of the condemned person. This practice would be used by a tyrannical or dictator-type of government to punish the citizens that oppose them.

The Supreme Court set guidelines to determine if a law (legislation) violates the Bill of Attainder Clause:
1. Legislation specifies the affected persons
2. Law includes the punishment
3. There is lack of a judicial trial

Ex post facto literally means “after the fact”. It means that someone is criminally punished for conduct that was lawful when it was done. If a law is passed today, it cannot be used to convict a person for an act he committed yesterday.

Per Daniel Troy, Senior Vice-President and General Counsel, GlaxoSmithKline, writing for Heritage Foundation:

“In The Federalist No. 78, Alexander Hamilton noted that “the subjecting of men to punishment for things which, when they were done, were breaches of no law” is among “the favorite and most formidable instruments of tyranny.” Thomas Jefferson noted in an 1813 letter to Isaac McPherson “the sentiment that ex post facto laws are against natural right.”

Justice Samuel Chase defined ex post facto laws as:

“1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action.

2nd. Every law that aggravates a crime, or makes it greater than it was, when committed.

3rd. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.

4th. Every law that alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offence, in order to convict the offender. All these, and similar laws, are manifestly unjust and oppressive.”

In addition to Article 1, Section 9, Clause 3, the Founders also prohibited the states from passing Bills of Attainder and ex post facto laws. This is found in Article 1, Section 10, Clause 1.  This shows how strongly the Founders felt about the danger of these practices – that they specifically addressed these points at the federal and state levels.

With Article 1, Section 9, Clause 3, we the people deny Congress the right to punish a person without a fair trial and to declare any act a crime that was not a crime at the time the act was committed.

We the people get assurance that no one will receive punishment by a legislative act and no one can be punished for an act committed before a law was written to prevent his or her behavior.

References:

http://www.heritage.org/constitution/#!/articles/1/essays/62/bill-of-attainder

http://www.heritage.org/constitution/#!/articles/1/essays/63/ex-post-facto

Findlay, Bruce Allyn and Findlay, Esther Blair. Your Rugged Constitution. Stanford: Stanford University Press, 1950

US Constitution

Writ of Habeas Corpus

“The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” Article 1, Section 9, Clause 2, US Constitution.

Preventing suspension of the Writ of Habeas Corpus is a limitation of the power granted to Congress; it is power denied to Congress except under extreme circumstances.

According to Jonathan Turley, J.B. and Maurice C. Shapiro Professor of Public Interest Law Director, Environmental Law Advocacy Center Executive Director, Project for Older Prisoners, The George Washington University Law School, writing for Heritage Foundation, the definition of habeas corpus is an “order by a common law court to require a person holding a prisoner to demonstrate the legal and jurisdictional basis for holding the prisoner. If there is no basis for holding the prisoner, the court will order the release of the prisoner”.

The words “habeas corpus” are translated “you have the body”. The “body” would be the person being held prisoner. In other words, if the court issued a writ of habeas corpus to you when you were holding a prisoner, you would have to bring that prisoner before the court and state why you were holding him captive. If the court did not see legal reasons, they would order you to release the person.

This was inherited from English law. It is procedural in character and defines no rights. The point of the “Great Writ” was to offer a person charged with a crime protection against illegal arrest and confinement. It is an important check on illegal use of power by the executive. In other words, it prevents the Executive Branch (President and company) from putting you in jail because you speak out or disagree with what is being done in government.

In Federalist No. 48, Alexander Hamilton says that the Writ of Habeas Corpus is necessary to protect against “The favorite and most formidable instruments of tyranny”.

This clause was originally in Article III of the Constitution. It was moved to Article I by the Committee of Style during the Constitutional Convention, suggesting that the suspension of the Writ of Habeas Corpus was viewed as legislative power. If Habeas Corpus were suspended, that would mean that you could be thrown in jail without cause, just for something like disagreeing with the governmental power or decisions.

President Lincoln suspended the Writ of Habeas Corpus because of the Civil War. This was because of rebellion, as in secession of the Southern States. There was fear that pro-Confederate mobs would not allow assembly of militias in places like Baltimore.

The famous law case associated with this period of history and illustrating the concept of suspension of the Writ of Habeas Corpus is called Ex Parte Merryman (1861). In this case, Merryman was imprisoned by military order at Fort McHenry (Baltimore) because he was believed to be involved in pro-Confederate activities. Supreme Court Justice, Roger B. Taney (acting as a federal circuit court judge) issued a Writ of Habeas Corpus because Merryman was illegally imprisoned. The General Cadwalader refused to obey the Writ because the President had suspended it.

Justice Taney cited Cadwalader for contempt of court and wrote an opinion of Article I, Section 9, stating that only Congress, not the President, had power to suspend the writ of Habeas Corpus.

President Lincoln ignored the ruling by Justice Taney. The case became moot in February 1862 when President Lincoln ordered the release of most of the people being held as political prisoners.

Since then, Congress has suspended the Writ of Habeas Corpus three times:
• South Carolina in 1871 to deal with Ku Klux Klan issues
• Philippines in 1905 because of a local revolt
• Hawaii during World War II

With national security issues after Sept. 11, 2001, the legal protections of the Writ of Habeas Corpus still exist. Congress has not suspended it. So, the ability to use the Writ is still available to “civilian and military prisoners claiming jurisdictional barriers to their continued detention or incarceration”, writes Jonathan Turley.

Article I, Section 9, Clause 2 allows we the people to deny the government the right to put people in jail and to hold them there without bringing charges, except in times of rebellion or invasion that could challenge the public safety.

We the people get protection from being jailed and held without explanation or reason.

References:
http://en.wikipedia.org/wiki/Ex_parte_Merryman

http://www.heritage.org/constitution/#!/articles/1/essays/61/habeas-corpus

Findlay, Bruce Allyn and Findlay, Esther Blair. Your Rugged Constitution. Stanford: Stanford University Press, 1950

McClellan, James. Liberty, Order, and Justice. Indianapolis, Liberty Fund, Inc., 2000

Slave Trade

“The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.” Article 1, Section 9, clause 1, US Constitution.

This clause deals with a compromise made by the Founders concerning the slave trade. In this post, I will attempt to give you some of the background and thinking of the times on this “nefarious institution” and “curse of heaven”. Gouverneur Morris of Pennsylvania on the floor of the Constitutional Convention spoke these words in 1787. You can read about his speech at this web site: http://www.mrsoshouse.com/puzpro/gouvmorrislavery.html

The first debate during the Convention concerning slavery was concerning representation. Please see my post on Article 1, Section 2, Clause 3 – https://barbbaran.wordpress.com/2013/02/27/the-great-compromise/

This second debate had to do with the Congress’ power to regulate commerce. The Southern states felt that if Congress had unrestricted power to regulate commerce that they could use that power to restrict or outlaw the slave trade. They saw this as a threat to their economic interests.

The Slave Trade Clause is the first restraint on the power of Congress in the document. It is ahead of habeas corpus.

There was much debate. The issue went from the Committee of Details to the Committee of Eleven. There, the compromise was hammered out. The final clause stated that the slave trade would continue unfettered by Congress for 20 years. There was a $10 tax imposed on the slave-owners for each person who was a brought here as a slave.

It should be noted that many of the delegates thought slavery to be immoral. According to Matthew Spalding, Vice President of American Studies, Director, B. Kenneth Simon Center for Principles and Politics, writing for Heritage Foundation: “It is significant that the words slave and slavery are not used in the Constitution of 1787, and that the Framers used the word person rather than property. This would assure, as Madison explained in The Federalist No. 54, that a slave would be regarded “as a moral person, not as a mere article of property.” It was in the context of the slave trade debate at the Constitutional Convention that Madison argued that it was “wrong to admit in the Constitution the idea that there could be property in men.”

On January 1, 1808, Congress passed the legislation for federal prohibition of slave trade. This was the first day following the provision in the Constitution. President Thomas Jefferson signed this into law.

“For God shows no partiality [Undue favor or unfairness; with Him one man is not different from another].” Romans 2:11 Amplified Bible

I cannot say that there is any benefit to “we the people” for this part of the document.

References:

http://www.heritage.org/constitution/#!/articles/1/essays/60/slave-trade

Findlay, Bruce Allyn and Findlay, Esther Blair. Your Rugged Constitution. Stanford: Stanford University Press, 1950

McClellan, James. Liberty, Order, and Justice. Indianapolis, Liberty Fund, Inc., 2000

Skousen, W. Cleon. The 5000 Year Leap. National Center for Constitutional Studies, 2006

Amplified Bible

Necessary and Proper Clause

“To make all laws which shall be necessary and proper for carrying into execution the foregoing power, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof.” Article 1, Section 8, Clause 18, US Constitution

carrentals.co.uk

 

The Necessary and Proper Clause is sometimes known as the Elastic Clause because it expands the enumerated powers of Congress. The Framers included the Necessary and Proper Clause for two reasons:
1. To facilitate the organization of government. An example would be the power Congress has to organize the judicial branch (See Article 1, Section 8, Clause 9). Without this clause, the laws organizing other branches would have gone against the principles of enumerated powers and separation of powers.
2. To help make the enumerated powers of Congress effective. (To give the enumerated powers some “teeth”). It supports the laws needed to carry out the powers listed in Section 8.

However, this clause does not give Congress the implied power to make laws for any purpose whatsoever; only for the purpose of executing its enumerated powers and “all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof.” {Meaning the President and the Federal courts} Because of the “all other powers” phrase, the Congress has the power to share the responsibilities of the other departments. Examples would be when Congress passes laws to initiate treaty obligations and to organize the Federal court system.

The Necessary and Proper clause gives flexibility to allow the powers of Congress to be adjusted to changing needs of the nation. Congress can use various means to carry out its delegated powers. As an example, the Congress has the power to regulate foreign and interstate commerce. This means that Congress can improve rivers, harbors, rail systems, and airports to help with commerce. The clause allows for any means to be used unless the Supreme Court rules that the law created is not “necessary and proper” to the delegated power.

The powers of Congress can be classified as:
1. Enumerated or delegated, as in Article 1, Section 8
2. Implied as seen in Article 1, Section 8
3. Prohibited, as in Article 1, Section 9
4. Inherited (from British Parliament and early State constitutions), as seen in Article 1, Section 5

The powers can be further divided into:
a. Exclusive – as in the power of Congress to declare war
b. Concurrent – a power that Congress shares with the President

Other powers are called reserved or residual powers. There are the powers that the people or the states did not delegate to Congress or government. These reserved powers are protected by the 10th Amendment, which states,” The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the states, respectively, or the people.”

charlestonteaparty.org

 

Over the years, the concept of States’ Rights has weakened and power formerly controlled by the States has been shifted to the central government. (Per Liberty, Order, and Justice, page 306)

We the people give Congress the power to make laws necessary and proper for the government to function as written in the Constitution.

With the Necessary and Proper Clause, we the people get assurance that the government can operate day-to-day, as we have designated.

References:

http://www.heritage.org/constitution/#!/articles/1/essays/59/necessary-and-proper-clause

Findlay, Bruce Allyn and Findlay, Esther Blair. Your Rugged Constitution. Stanford: Stanford University Press, 1950

McClellan, James. Liberty, Order, and Justice. Indianapolis, Liberty Fund, Inc., 2000

US Constitution

Military Installations

US Custom House

“and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings;” Article 1, Section 8, Clause 17b, US Constitution.

This clause is known as the “Military Installations” Clause. The purpose of this clause is to guarantee the sovereignty of both the federal and state governments.

Justice Joseph Story, in his Commentaries on the Constitution of the United States wrote:
“The public money expended on such places, and the public property deposited in them, and the nature of the military duties, which may be required there, all demand, that they should be exempted from state authority. In truth, it would be wholly improper, that places, on which the security of the entire Union may depend, should be subjected to the control of any member of it. The power, indeed, is wholly unexceptionable; since it can only be exercised at the will of the state; and it is therefore placed beyond all reasonable scruple.”

As you will remember from the previous post, an enclave is “a distinct territorial, cultural, or social unit enclosed within or as if within foreign territory”.

Lee A. Casey, Partner, Baker and Hostetler, LLP, writing for the Heritage Foundation cites the following examples:
“Federal enclave jurisdiction may apply to individual buildings, or parts of buildings (such as the U.S. Customs House, and the northern portion of the U.S. mint, located in Denver, Colorado), or to vast territories (such as the 200-square-mile Camp Pendleton in California). Federal enclaves include such varying installations as the National Institutes of Health in Bethesda, Maryland, and Cape Canaveral, Florida, as well as certain national parks, national cemeteries, lighthouses, and locks and dams.”

US Mint, Denver

The federal government controls these properties instead of the state in which they are located.

Camp Pendleton, Photo by Jesse A. Lora

We the people gave Congress the power to buy and control whatever property the federal government needs to carry out its responsibilities.

We the people get the use of parks, post offices and other services that are available because the property is owned and operated by the federal government.

References:
http://www.heritage.org/constitution/#!/articles/1/essays/58/military-installations

Findlay, Bruce Allyn and Findlay, Esther Blair. Your Rugged Constitution. Stanford: Stanford University Press, 1950

US Constitution

Enclave Clause

I should warn you that things in this city aren’t often the way they seem. Where but in Washington would they call the department that’s in charge of everything outdoors… the Department of the Interior?
Ronald Reagan, Remarks at the dinner of the Republican National Hispanic Assembly, September 14, 1983

“To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States,” Article 1, Section 8, Clause 17 A, US Constitution.

This clause is known as the Enclave Clause. The definition of enclave is “a distinct territorial, cultural, or social unit enclosed within or as if within foreign territory”.

Here are some facts about Washington, D.C.:
• Washington, D.C. is located along the Potomac River
• The site of the city was selected by George Washington
• Washington, D.C. is not a state – it is governed under exclusive legislation of Congress
• A resident of D.C. cannot vote for a US congressperson. They have a non-voting delegate in the House of Representatives and a shadow Senator
• The 23rd Amendment gave the residents of D.C. representation in the Electoral College. The residents can now vote for President of the US
• It is a federal district created specifically to be the seat of government
• It is the territory in which general government exercised full sovereignty, not beholden to any state, per Lee A. Carney, Partner, Baker and Hostetler, LLP, writing for Heritage Foundation
• Voting rights advocates would prefer to have D.C. become a state. This would require a constitutional amendment.

We the people give Congress the power to establish and govern our nation’s capital.

We the people have a national capital city that is not beholden to any one state. This concept gives the states equal power, not one state having more power than the others because it governs the national capital.

Here is a web page with good information about Washington, D.C.
http://www.smithsonianmag.com/travel/destination-hunter/north-america/united-states/east/washington-dc/washingtondc-history-heritage.html?c=y&page=1

Here is a video from History.com about the Nation’s Capital:
http://www.history.com/topics/washington-dc/videos#washington-dc

References:

Findlay, Bruce Allyn and Findlay, Esther Blair. Your Rugged Constitution. Stanford: Stanford University Press, 1950

Hannaford, Peter. The Quotable Ronald Reagan. Washington, DC: Regnery Press, 1998

http://www.heritage.org/constitution/#!/articles/1/essays/57/enclave-clause

http://en.wikipedia.org/wiki/History_of_Washington,_D.C.

http://www.smithsonianmag.com/travel/destination-hunter/north-america/united-states/east/washington-dc/washingtondc-history-heritage.html?c=y&page=1

Online dictionary

US Constitution

Organizing the Militia

“To provide for organizing, arming, and disciplining, the Militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively, the appointment of the officers, and the authority of training the Militia according to the discipline prescribed by Congress.” Article 1, Section 8, Clause 16, US Constitution

This clause is known as “organizing the militia”. The original purpose of the militia was to protect the people of the state from the federal government. The Anti-Federalists thought that the Congress would gradually let the funds for the Militia disappear. The Anti-Federalists advocated the Second Amendment to protect the citizens’ right to bear arms.

Second Amendment: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.”

The Second Amendment did protect the right to bear arms, but the Congress still controlled the Militia. The Militias could still function as originally intended within the State, but Congress has the power to organize, discipline, and arm the Militia for federal purposes.

With the Organizing the Militia clause, the Federalists tried to make the Militia into a national reserve of uniform, interchangeable units.

In 1792, Congress passed the Uniform Militia Act. This established an “obligated” militia. This means that all able-bodied white men between the ages of 18 and 45 had to enroll. This Militia had a very poor performance during the War of 1812. The obligated militia was disbanded. After that, the “uniformed” militia replaced it. Uniformed militia means that it was made up of people who chose to serve. The National Guard replaced the uniformed militia. The National Guardsmen remain volunteers, a Citizen-Soldier.

The National Security Act of 1916 made state militias available for overseas duty as well as being used for domestic disturbances. This functionally stripped the states of militia powers. States may call up the National Guard, but federal government needs take precedence.

“We the people” originally gave Congress the power to organize, arm, and discipline the Militia. Today, that power still rests with Congress, but the intent of having the Militia protect the people of the states from the federal government no longer exists.

The “organizing the militia” clause was originally intended to allow a means for the people of a state to protect themselves from the federal government. Today, this clause allows for “we the people” to have the National Guard for protection during domestic disturbances as well as protection here or abroad as the federal government sees fit.

References:

http://www.heritage.org/constitution/#!/articles/1/essays/56/organizing-the-militia

Click to access lesson-6.pdf

US Constitution

Always Ready, Always There

“To provide for calling forth the Militia to execute the laws of the Union, suppress insurrections, and repel invasions;” Article 1, Section 8, Clause 15, US Constitution

“The top priority of the federal government is the safety of this country.”
Ronald Reagan, Address to a joint session of the Oklahoma State Legislature, March 16, 1982

During the founding, the idea of a militia came from the concept of posse comitatus. This existed under British Common Law. It is the authority of a law officer to conscript any able-bodied to assist him. When order was threatened, the “shire-reeve” (sheriff) would send out a message to the citizens. Any who heard the message were obligated to assist in catching a criminal or maintaining order.

The Framers transferred the power to call out the militia from the local authority to Congress. The group known as the Anti-Federalists was against a strong central government. They felt that this gave too much power to the Congress (Federal government). They wanted the militia to stay under state control.

The debate continued and in 1795:
“Congress refined the language authorizing the President to federalize the militia:
[W]henever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe, it shall be lawful for the president to call forth such number of the militia of the state, or states most convenient to the place of danger, or scene of action, as he may judge necessary to repel such invasion, and to issue his orders for that purpose to such officer or officers of the militia, as he shall think proper.” Per Mackubin Owens, writing for Heritage Foundation.

Still the argument about this continued until 1827, when the Supreme Court heard the case of Martin v. Mott. Justice Joseph Story made it clear that the President has the exclusive right to decide that a situation is serious enough to call out the militia. The state governors have concurrent authority to call out their state militia to handle civil and military emergencies.

We know that state militia as the National Guard.

There is also law in place to prevent the Army and Air Force from being used as a posse comitatus.

We the people give Congress the power to keep the National Guard trained and equipped for emergencies.

We the people get a group of (all-volunteer) citizens in training to add to the regular army when needed and to handle civil and military emergencies.

Here is a link to the National Guard web page:
http://www.nationalguard.mil/default.aspx

Here are the lyrics to the National Guard Song:
http://www.nationalguard.mil/about/song.aspx

Here is a great song about the National Guard:

References:

Findlay, Bruce Allyn and Findlay, Esther Blair. Your Rugged Constitution. Stanford: Stanford University Press, 1950

Hannaford, Peter. The Quotable Ronald Reagan. Washington, DC: Regnery Press, 1998

http://en.wikipedia.org/wiki/Insurrection_Act

http://www.heritage.org/constitution/#!/articles/1/essays/55/militia-clause

US Constitution

Military Regulations

“To make rules for the government regulation of the land and naval forces;” Article 1, Section 8, Clause 14, US Constitution.

This clause is known as the Military Regulation Clause. The purpose of this clause is to establish a system of military law and justice outside the jurisdiction of the civil courts. The power to establish this was given to Congress.

Joseph Story, in Commentaries on the Constitution of the United States (1833) stated, “The whole power is far more safe in the hands of congress, than of the executive; since otherwise the most summary and severe punishments might be inflicted at the mere will of the executive.”

In 1775, the Continental Congress adopted codes of military law for the Army and Navy. John Adams wrote the law: Rules for Regulation of the Navy of the United Colonies (1775) and American Articles of War (1775).

After the adoption of the Constitution (1787), the First Congress decided both codes would continue. The two laws have been revised several times over the years.

In 1950, Congress passed the Uniform Code of Military Justice (UCMJ). The reason for creating this law was to eliminate differences between the Army and Navy codes and to reduce “command influence”.

Military courts fall into two categories:
1. Martial and military courts of inquiry – to deal with military personnel
2. Military commissions or tribunals – to deal with civilians who have fallen under military jurisdiction

Since 9/11, a controversial aspect of military justice is the establishment of military tribunals. Military tribunals in occupied territories are governed by International Law. In Dow v. Johnson (1880), the Court ruled that the law governing an army invading an enemy’s country is not the civil law of the invaded country or of the conquering country “but military law—the law of war.” Per Forte and Owens, writing for Heritage Foundation.

“The Court has upheld the authority of the President to try enemy aliens (and United States citizens working with them) by military tribunal in Ex parte Quirin (1942). The Court held that enemy aliens (in this case saboteurs, who had entered the United States in secret for the purpose of committing hostile acts) are not entitled to prisoner-of-war status, but are unlawful combatants who can be tried by military tribunal.” Per Forte and Owens, writing for Heritage Foundation.

With the Military Regulation clause, we the people give Congress the authority to establish and maintain the Uniform Code of Military Justice.
We the people get a separate court system for those in military service and civilians who fall under military jurisdiction. This system is specialized for the types of situations that arise during military service and in times of war or conflict.

References:

Findlay, Bruce Allyn and Findlay, Esther Blair. Your Rugged Constitution. Stanford: Stanford University Press, 1950

http://www.heritage.org/constitution/#!/articles/1/essays/54/military-regulations