Article II § 1 clauses 1-8:
Article II § 1 cl 1-8 define the legal machinery by which some offices of the general government’s executive branch are filled and maintained. There is nothing inherently in conflict with the global covenant about these clauses, so long as they are strictly construed.
Article II § 2 clause 1:
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.
Article II § 2 cl 1 delineates some of the most important powers of the president. There is nothing inherently in conflict with the global covenant about this clause, assuming that it is strictly construed. From the perspective of the global covenant, there is nothing inherently wrong with the original intent of the framers in their construction of this clause. — But the way that the executive powers have been implemented over the years is an altogether different issue. So much of American history revolves around the executive’s abuse of power that it would turn this brief, cursory examination of the Constitution into screeds of historical data to even attempt to account for all this misfeasance. So we’ll only attempt to account for a few of the most prominent presidential escapades.
The idea that American government is not built on compacts and consent, but is rather a supposedly "democratic" approach to building a monolithic, centralized, business-oriented nation – an idea that has more in common with the English constitutional monarchy than with Montesquieu’s confederate republic – is an idea that was definitely not popular with the framers. — At the Constitutional Convention on June 18, 1787, Alexander Hamilton "proposed a consolidated national government for the United States . . . so as to reduce the States to administrative provinces". 2 Apparently, Hamilton had not at that time studied Montesquieu, because his plan makes it clear that he believed that any kind of confederacy disallowed a viable union of the States. 3 "His plan was heard with shock, and received no consideration other than polite, if distressed listening of his colleagues." 4 Although the problems inherent in a consolidated national government were not recited to Hamilton at the Convention of 1787 – and his plan was treated as something so odious that it didn’t deserve serious consideration – a few of the problems inherent in a consolidated national government were recited at the Virginia ratifying convention of 1788. George Mason – a delegate to the 1787 Convention who refused to sign the Constitution because he found its protection of slavery morally repugnant – made the following observations:
Is it to be supposed that one national government will suit so extensive a country, embracing so many climates, and containing inhabitants so very different in manners, habits, and customs? It is ascertained, by history, that there never was a government over a very extensive country without destroying the liberties of the people: history also, supported by the best writers, shows us that a monarchy may suit a large territory, and despotic governments ever so extensive a country, but that popular governments can only exist in small territories. Is there a single example, on the face of the earth, to support a contrary opinion? Where is there an exception to this rule? Was there ever an instance of a general national government extending over so extensive a country, abounding in such a variety of climates, etc., where the people retained their liberty? 5
The answer was obviously "No! No! No! There is no such gargantuan government that doesn’t destroy liberty, and there never has been.". Freedom is fragile, and easily ignored. When it’s ignored in a democracy, the form of government is aptly called a "dictatorship of the proletariat". 6
Hamilton’s national consolidation has survived, while the people of the united States treat Mason’s confederate republic as dead. Certain Presidents have done more to promote national consolidation, and to destroy the popular understanding of the compact theory of government, than any other branch or agency of government. 7 These are usually the Presidents that ordinary Americans consider to be "strong Presidents". But the fact is that the supposedly "strong Presidents" are usually the people who have done the most damage to this country’s legal framework. For example, in the "nullification controversy" of 1832-1833, President Andrew Jackson took a position that would have been considered unconstitutional by all the framers except perhaps those in Hamilton’s monarchist camp. — In 1828 the general government imposed a "protective tariff". Political leaders in South Carolina claimed the tariff was unconstitutional on the grounds that tariffs could only be imposed for purposes enumerated in Article I, not for the sake of protecting private domestic businesses. 8 In 1832 a special convention in South Carolina adopted an "Ordinance of Nullification", whose purpose was to nullify the general tariff in South Carolina, and to interpose the State government as defender of the citizens of South Carolina against the unconstitutional powers of the general government. A few weeks later, Andrew Jackson issued a proclamation: "I consider the power to annul a law of the United States, assumed by one State, incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed.". 9 Jackson asked Congress for authority to use military force to coerce South Carolina into compliance. Congress responded by doing two things simultaneously: (1)It modified the tariff to remove South Carolina’s objection to it. (2)It passed a Force Bill to allow Jackson to invade South Carolina. South Carolina revoked the Ordinance of Nullification before Jackson could martial his forces. So this constitutional crisis was postponed for 30 years. 10
When Abraham Lincoln became president, he was faced with two overriding problems: (1)slavery, which had existed since before the War for Independence, and which violated the global covenant; (2)a "domino effect" of seceding States. Being an exponent of the Hamiltonian / Jacksonian 11 school of national consolidation, Lincoln viewed his duties almost identically to the way Jackson had viewed the nullification crisis. His perceived duty was to force the States to remain in the Union under the pretense that he had the constitutional authority to use such force. 12 — Did he? — No! 13
If Lincoln’s priorities had been consistent with the global covenant, this is what he would have done, assuming that he had the resources necessary to carry the plan into action:
For the sake of honoring the property rights
of every human being, he would have pushed hard to get the 13th
, and 15th
Amendments passed. Once slavery was illegal, the remaining united States
would have had the moral high ground for pursuing a war of liberation against the "Confederacy".
If he had the resources and the wisdom to abide by the global covenant
, Lincoln would have persuaded Congress to declare war against the seceded
slave States. He would have made it clear in the declaration of war that his military forces would treat every slave owner as a criminal. He would have made sure that the property of every slave owner was confiscated and redistributed to the ex-slaves. He would have turned these foreign States into territories of the united States
, and made clear declarations to these States that they would not be allowed to reenter the Union until all the former slaves and their progeny were educated as well as the former slave owners and their progeny. The South may have become a foreign, conquered people, but that was preferable to trashing the Constitution
Even though these three points mark the legally and morally correct way to eliminate slavery at the time of secession, the North, in fact, was generally more interested in economic expansion than in doing what was legally and morally correct.
Knowing what we know now, it’s easy for us to criticize Lincoln and the way the War Between the States and Reconstruction were carried out. But we don’t live in an ideal world. Those of us who are convinced that the God of the Scriptures rules the universe – including the affairs of mankind – are convinced also that He is leading us from darkness into light. We know that this is not a perfect world. But we also know that He is providing us with everything we need to keep moving forward on this sometimes difficult road. If we demanded the ideal, then we would in effect demand ideal justice. If we received ideal justice before we were properly prepared for it, we would be utterly destroyed. This is because humanity is inherently depraved on an incomprehensibly primordial level, far beyond our cognizance. Because of this deep-seated depravity, ideal justice would eliminate every human, excepting the one and only perfect one. So we study history for the sake of learning, not for the sake of pretending that things could have been different. When our comprehension of the law (divine, constitutional, whatever) is erroneous, our destiny departs from our own hands, minds, etc., and goes purely into the sphere of divine providence. This applies on an individual level as much as it does on a national level. — Of course we will not comprehend the law (any kind) in perfection until we enter the "New Jerusalem". Even so, by studying law (any kind) and history (facts), we can keep a Godly destiny much more visible to our mind’s eye. In his second inaugural address, Lincoln expressed these thoughts with much more eloquence than we can:
The Almighty has His own purposes. ‘Woe unto the world because of offenses; for it must needs be that offenses come, but woe to that man by whom the offense cometh.’ If we shall suppose that American slavery is one of those offenses which, in the providence of God, must needs come, but which, having continued through His appointed time, He now wills to remove, and that He gives to both North and South this terrible war as the woe due to those by whom the offense came, shall we discern therein any departure from those divine attributes which the believers in a living God always ascribe to Him? Fondly do we hope, fervently do we pray, that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue until all the wealth piled by the bondsman’s two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said ‘the judgments of the Lord are true and righteous altogether.’ 15
The Republican Party that got Lincoln elected was essentially a coalition of two disparate factions. The factions were (i)the abolitionists and (ii)businessmen committed to Hamiltonian national consolidation for the sake of making more money. After the War Between the States, the latter faction took control of both the party and the general government. After the War eliminated all the major obstacles to national consolidation, and did a thoroughly defective job at correcting the evils of slavery, the Radical Republican northern politicians "ran roughshod over the Constitution for several years". 16 These politicians tried to have it both ways. They claimed, with Lincoln, that "the Union was indissoluble". But they simultaneously insisted on treating the former Confederate States as though they were not really part of the Union. In Texas v. White (1869) the supreme Court fueled this confusion by adopting the claim to an indissoluble Union as part of its jurisprudence. 17 "[M]artial law was imposed at various times without following the forms for doing so." 18 In short, the general government acted under color of law from the beginning of the War Between the States until the end of Reconstruction, and concealed their colorable actions by passing laws after the fact (ex post facto). This government by fiat was excused under the pretense of preserving the Union, as though the Union were more valuable than people’s rights. Although the three amendments that were ostensibly ratified during this period are all essential to correcting the framers’ mistaken adoption of slavery, the way that these amendments were ratified is still dubious. 19 The necessary and proper pretense of Lincoln and his Republican helpers laid a foundation for subsequent presidents to break the law, rationalizing doing so as an "emergency". 20
There are two categories within which we should view "presidential emergency powers". (1)emergency actions that accord with the law; and (2)emergency actions that are colorable, and that are done purely on the President’s own prerogative. The Constitution contains nothing that authorizes the President to act outside the law, even under the pretext that it’s an emergency. 21 Abraham Lincoln, Woodrow Wilson, and Franklin Roosevelt are the presidents widely believed by constitutional scholars to have acted outside the supreme Court’s interpretation of the Constitution. 22 But practically every president since Lincoln has violated the clear and obvious face-value meaning of the Constitution. This is because the majority of the framers believed in the compact theory of government. Lincoln threw it out the window – the proverbial baby with the bath water – and no serious attempt has been made since to revive it. — When the southern States seceded, even while Congress was not in session, Lincoln (i)suspended habeas corpus, (ii)imposed a naval blockade, and (iii)provided money to purchase military equipment where such money had not been legally appropriated by Congress. 23 In Ex parte Merryman (1861) the supreme Court rejected Lincoln’s suspension of habeas corpus on the grounds that only Congress had the authority to do that. No law enforcement officer in the executive branch could, or would, enforce the supreme Court’s decision. In 1863 (Prize Cases) the supreme Court whitewashed Lincoln’s illegal naval blockade on the grounds that it was a necessary response to the emergency. 24
After the War Between the States was over, during Reconstruction, the supreme Court attempted to whitewash the new nationalistic conception of the Constitution. It did so with decisions like Ex parte Milligan (1866), in which it nullified the conviction of a civilian by a military court. In that decision, Justice Davis wrote, "The Constitution of the United States is a law for rulers and people, equally in war and in peace. . . . [T]he government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence" (p. 295). 25 It’s too bad he couldn’t convince Lincoln of that before he invaded the Confederacy under the pretext of preserving the Union. 26
The national consolidation has continued ever since, and the only thing that keeps the united States from turning into a full-blown police state is the supreme Court’s glossy application of the Bill of Rights, whose gloss in recent decades is wearing extremely thin.
The day after Franklin Roosevelt became president, he declared a national emergency. His "bank holiday" thwarted ordinary people from doing business. 27 He "forbade the export of gold and silver, and prohibited transactions in foreign exchange". 28 He attempted to justify these extraordinary actions by citing the Trading with the Enemy Act of 1917, a World War I statute that should have been repealed after the war was over. That statute gave the president power to "investigate, regulate, or prohibit, under such rules and regulations as he may prescribe, . . . any transactions in foreign exchange, and the export, hoarding, melting, or earmarking of gold or silver coin or bullion or currency.". The "president’s actions went beyond any precedent save Lincoln’s and took the government, for the first time in peacetime, into the realm where constitutional legitimacy is maintained, if at all, by statutes that delegate discretion to the executive.". 29 The initial response by the supreme Court was that "The Constitution was adopted in a period of grave emergency. Its grants of power to the federal government . . . were determined in the light of emergency and they are not altered by emergency". 30
In 1973 the Senate Special Committee on National Emergencies and Delegated Emergency Powers published a report that indicated, among other things, that (i)"there were at that time 470 provisions of federal law that delegated powers to the president in the event of a declared emergency"; 31 (ii)"the nation had legally been in a continuous state of emergency since Roosevelt’s declaration of 1933". 32 Congress put a Band-Aid on this constitutional hemorrhage by passing the National Emergencies Act of 1976, which specified that all the existing emergencies would be terminated two years later, and that "future presidential declarations would be subject to congressional review every six months". 33
Article II § 2 clause 2:
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
The presidential power to appoint diplomats, supreme Court judges, and "inferior Officers" by way of a "two thirds" concurrence of the Senate is not inherently unreasonable. BUT: (i)These days, the entire State Department, including "Ambassadors", "Ministers and Consuls", appears to be following a globalization agenda that is inherently at odds with the global covenant. (ii)The supreme Court appears to promote the national consolidation process at every possible opportunity. (iii)The population of "inferior Officers" appears to increase like maggots on a carcass. — If either the president or the Senate had the inclination, they could stop or at least curtail these phenomena. But they don’t. Instead they argue vehemently over the nature of supreme Court appointments. They in essence put on a show of caring about whether the new justice will crack the national consolidation egg at the narrow end or at the broad end. These Lilliputians thereby prove that they have no intention of suppressing the globalization and national consolidation processes. But all this is mere political fireworks displayed by the two political branches. In contrast to such political frenetics about supreme Court appointments, and such complacency about appointing diplomats and "inferior Officers", treaties are often passed almost totally unnoticed, even while they have huge legal implications by way of Article VI cl 2 and Article I § 8 cl 10. 34 Treaties therefore go far beyond politics in their impact on the everyday lives of the citizens of the fifty States.
There is nothing inherently wrong with the way that treaties are ratified. But the fact that treaties are ratified that inherently violate the global covenant is a huge problem, especially given the fact that virtually all of them do. Such problems were inherent in the law of nations at the time of the founding, evidenced by these sample points from Blackstone’s Commentaries. It should be understood that many of the assumptions about the power and sovereignty of the English monarch were inherited by America’s executive branch, even though there was certainly an effort by the framers to curtail that power by spreading it to the other branches:
- What is done by the royal authority, with regard to foreign powers, is the act of the whole nation: what is done without the king’s concurrence is the act only of private men. . . . [B]y . . . statute . . . any subject committing acts of hostility upon any nation in league with the king . . . remains a very great offense against the law of nations, and punishable by our laws, either capitally or otherwise, according to the circumstances of the case. 35
- [F]or the future all process whereby the person of any ambassador . . . may be arrested . . . shall be utterly null and void; and the persons prosecuting, soliciting, or executing such process shall be deemed violators of the law of nations . . . and shall suffer . . . penalties and corporal punishment . . . [T]hese privileges are now held to be part of the law of the land, and are usually allowed in the court of common law. 36
- IT is . . . the king’s prerogative to make treaties, leagues, and alliances with foreign states and princes. For it is by the law of nations essential to the goodness of a league, that it be made by the sovereign power; and then it is binding upon the whole community: and in England the sovereign power . . . is vested in the person of the king. Whatever contracts therefore he engages in, no other power in the kingdom can legally delay, resist, or annul. 37
- [T]he king has . . . the sole prerogative of making war and peace. For it is held by all the writers on the law of nature and nations, that the right of making war, which by nature subsisted in every individual, is given up by all private persons that enter into society, and is vested in the sovereign power: and this right is given up not only by individuals, but even by the entire body of people, that are under the dominion of a sovereign. 38
This should give the reader a taste of the powers in international law that the President has by default. They are huge, and if citizens within the fifty States are not protected against them, the rights of such citizens will almost inevitably be trampled. Since the Constitution was ratified, such protections have been systematically eroded by judicial decisions like this one: "Congress is constitutionally empowered to enact whatever legislation is necessary and proper for carrying into execution the treaty making power of the United States" (Stutz v. Bureau of Narcotics, 56 F.Supp. 810, 813 – N.D.Cal. 1944). By way of Article II § 2 cl 2, the President has extraordinary powers to make practically any kind of treaty he wants, especially if Congress doesn’t care enough to stop him. After the treaty is ratified, the Congress can create statutes to promulgate the treaty into the geographical jurisdictions of the States. Because the Constitution limits crimes that Congress can make penal, these incursions into State sovereignty must fall within one or more of these limited penalty areas. The Constitution’s penal offenses are "treason, via Art. 1, §6, cl. 1; counterfeiting, via Art. 1, §8, cl. 6; and piracy, felonies on the high seas and offenses against the laws of nations, via Art. 1, §8, cl. 10". 39 Obviously, all violations of treaties fall into the purview of "Offenses against the Law of Nations". It’s reasonable that the general government might be able to exercise municipal police powers at points of entry into the country by way of treaties. But to exercise such police powers within the interior of any given State violates the territorial restrictions that the Constitution placed on the general government. 40 This is an exercise of international law within the States, and such international law "utilizes admiralty procedures in federal court". 41 Such international law gives the general government not only unlawful power over the States, but also provides rationales to invade other countries in the names of such treaties. — In the process of national consolidation, Congress has often passed laws that were found unconstitutional by the federal courts. Then a treaty is ratified, and an almost identical law is passed to enforce the treaty, and the judicial branch treats the new law as having passed its inspection. 42 Often, the Congress appears to act as a rubberstamp for bureaucrats at the State Department who are always trying to enhance their status by creating new treaties. The President generally appears equally as oblivious to what the bureaucrats are doing, and equally as willing to rubber stamp anything they want.
For more about big trouble with treaties, see the Supremacy Clause. 43 Also see Becraft’s Brief on Treaties. 44 — Whenever unalienable Rights of people living within the States are violated by such international law, these people have a valid argument that the treaty is null and void as it applies to them, because the president and Senate ratified the treaty under false pretenses, namely, that such officials had authority that they did not have. So such treaties were ratified under color of law. There are certainly exceptions (i)if the given human being has explicitly consented to be contractually bound by the terms of the treaty, or (ii)if the treaty explicitly and undeniably operates within the scope of the global mandate against bloodshed.
Article II § 2 clause 3:
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
Article II § 2 cl 3 is generally known as the "Recess Appointments Clause". It is essentially a supplement to the "Advice and Consent" clause of Article II § 2 cl 2 that pertains to "Ambassadors, other public Ministers and Consuls, . . . and all other Officers of the United States, whose Appointments are not herein otherwise provided for". It gives the president power to make appointments to fill offices of the general government on a temporary basis, when the Senate is in recess. There is nothing inherently in conflict with the global covenant about this clause, so long as it is strictly construed.
Article II § 3:
He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
We don’t see anything about this section that’s obviously in conflict with the global covenant. But given the many problems indicated above, the phrase, "he shall take Care that the Laws be faithfully executed", begs an explanation for why no President has done anything to correct these many problems. For those of us who love law that is ordained by God, there are obvious and serious doubts about whether the President is doing his job, and taking "Care that the Laws be faithfully executed". We inevitably wonder if the general government and all the State governments have abandoned law, in favor of arbitrary, fiat, and inherently despotic government.
Article II § 4:
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
Given that nonfeasance is not listed here, there appears to be no way to rid ourselves of executive branch officers who refuse to do their job, except through the electoral process. Given that this is the case, and given that the electoral process is the captured entity that it is, we have little choice but to conduct our lives in accordance with the global covenant regardless of whether the general government does likewise or not.