The more things change…

… the more they remain the same — is an old French saying. Joe Wolverton at the Tenth Amendment Center looked at the Constitutional Convention debates and found that the issues they discussed August 20, 1787, could be front-page news today.

They discussed:

  • The “Necessary and Proper Clause,” which they intended simply to give Congress the authority to pass whatever laws were needed to carry out the objectives stated in the Constitution. Most of the Convention could not foresee that this was a phrase that created room for abuse.
  • A bill of rights, which the Convention then rejected. It later incorporated some provisions, such as allowing Congress (not the President) to restrict the right of habeas corpus in time of invasion — a provision that Abraham Lincoln ignored, and which Congress unconstitutionally delegated to the President in the National Defense Appropriation Act. A more comprehensive Bill of Rights was added as the first ten (and 27th) amendments to the Constitution.
  • The Convention defined treason. It was heavily debated, but a motion to table was defeated. The final wording, which appears in Article III, Section 3, reads:

Treason against the United States, shall consist only in levying War against them, or in adhering to the Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

In other words, only on the battlefield or in direct assistance to the enemy on the battlefield. Luther Martin, a delegate from Maryland, anticipated an event that took place following the War between the States when he suggested adding the following language, which was rejected:

Provided that no act or acts done by one or more of the States against the United States, under the authority of one or more of the said States shall be deemed treason or punished as such.

The event referred to was the proposed trial of Confederate President Jefferson Davis for treason. The trial was never held, in part because the prosecutors realized that it would raise the issue of whether secession was Constitutional. They were not confident that they could win that argument. However, the day may be coming when the omission of Mr. Martin’s clause will come back to haunt us.

We need to watch what the feds are doing — regardless of who wins the Presidential election this fall. “Eternal vigilance by the people is the price of liberty.” Fortunately, we have lots of help from the Tenth Amendment Center.

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