Category Archives: Art 1 Sect 9

In Huawei Is That a Bill of Attainder?




“No Bill of Attainder… shall be passed…” – Article 1 Section 9


In 1974, Richard Nixon resigned from the Presidency, the only person to ever do so. The primary evidence against him was a set of tapes that he had made in the Oval Office, which purported to contain direct evidence of the Watergate Conspiracy, or at least a lot of buzzing that replaced sections that might have proved the Watergate Conspiracy if they hadn’t been so obviously erased.

After he resigned President Ford pardoned Mr. Nixon on September 8, 1974.

Prior to that day, Presidential papers were not considered “public documents.” They were private papers which belonged to the President. In fact, until Franklin Roosevelt donated his papers to the National Archives through his Presidential Library and Museum in 1939, they had never been available to the public except in the form of books and articles written by researchers who had been granted access.

Until December 19, 1974. On that day, President Ford signed a bill passed by Congress, The Presidential Recordings and Materials Act.” This law, which by definition applied ONLY to the records and Materials of Richard Nixon, made it clear that these were now the property of the United States, to be overseen by the National Archivist, who was charged with determining which records and documents the United States would keep – for potential use in judicial proceedings – and which would be returned as the property of Richard Nixon.

Naturally, the former President sued, claiming that this law was clearly unconstitutional as it violated the ban on Bills of Attainder. 

It would take until 1998 to fully resolves Nixon’s role in this. Today, the Federal Courts are preparing to take up two cases that both Defenses are arguing are Bills of Attainder. Will history repeat or will the Courts find that no bills of attainder shall be passed?


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Judicial Review



Say the words, “Judicial Review” to most Talk Radio Show Hosts and you get to watch them go ballistic as they explain why judicial activists are ruining the country. In recent days we have seen a whole lot of this argument, as the 9th Circuit Court upheld a stay against the Immigration Executive Orders of President Obama.

court10n-3-webThe Governments argument before the Court was that the Orders were not/are not “reviewable.” That is to say that the Court has no power or jurisdiction to overturn the orders.

Whether or not you support the Orders or oppose them, there is a basic misunderstanding as to exactly what the argument was last week – and it wasn’t whether or not Immigrants from seven Islamic ruled nations should be admitted or not to the country. In fact, it was the same basic argument that the Supreme Court first heard in 1796, when Alexander Hamilton himself argued that a tax on Carriages was Constitutional.

The Court agreed that it was in fact, not a direct tax and therefore Constitutional. More than that however, they made it clear that because they agreed, there was no need for “Judicial review.”

But it wouldn’t be long before they would see the need for it…

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Alterations & Provisions

After “impartial discussion & full consideration,” the Massachusetts delegates to their State ratifying Convention agreed to what became us0070_enlarge_725known as the “Massachusetts Compromise.” This allowed a number of anti-Federalists, including Samuel Adams, to vote in favor of ratifying the Constitution. But it wasn’t a cut and dried, full-throated endorsement of the document. As the compromise agreed, many of the Anti-Federalist ideas worked their way into the ratification document as proposed amendments to the Constitution.

Many of their recommended amendments are easily recognized by us today, and some made their way into the proposed Bill of Rights when the 1st Congress finally convened. Some of the ideas were ultimately rejected, but there is one overriding idea that we must keep in mind when considering these ideas: all of them came from people who did not like the Constitution as proposed.

As intriguing as what the Massachusetts Convention recommended is what the did not include in their list of proposed amendments. Did they leave out some of the most treasured Rights because they assumed the States would and could protect them or did they presume that the proposed Federal Government would never try to stifle free speech or religion?

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