We the People

on March 25, 2011 in Uncategorized | Comments Off

The Preamble to the United States Constitution is a brief introductory statement of the Constitution’s fundamental purposes and guiding principles. It states in general terms, and courts have referred to it as reliable evidence of, the Founding Fathers’ intentions regarding the Constitution’s meaning and what they hoped the Constitution would achieve. Text – “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence,promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

Meaning and Application

The Preamble serves solely as an introduction, and does not assign powers to the federal government, nor does it provide specific limitations on government action. Due to the Preamble’s limited nature, no court has ever utilized it as a decisive factor in case adjudication, except as regards frivolous litigation. Judicial relevance – The courts have shown interest in any clues they can find in the Preamble regarding the Constitution’s meaning. Courts have developed several techniques for interpreting the meaning of statutes and these are also used to interpret the Constitution. As a result, the courts have said that interpretive techniques that focus on the exact text of a document should be used in interpreting the meaning of the Constitution, so the Preamble provides additional language against which to compare other parts of the Constitution. Balanced against these techniques are those that focus more attention on broader efforts to discern the meaning of the document from more than just the wording; the Preamble is also useful for these efforts to identify the “spirit” of the Constitution. Additionally, when interpreting a legal document, courts are usually interested in understanding the document as its authors did and their motivations for creating it; as a result, the courts have cited the Preamble for evidence of the history, intent and meaning of the Constitution as it was understood by the Founders. Although revolutionary in some ways, the Constitution maintained many common law concepts (such as habeas corpus, trial by jury, and sovereign immunity), and courts deem that the Founders’ perceptions of the legal system that the Constitution created (i.e., the interaction between what it changed and what it kept from the British legal system) are uniquely important because of the authority “the People” invested them with to create it. Along with evidence of the understandings of the men who debated and drafted the Constitution at the Constitutional Convention, the courts are also interested in the way that government officials have put into practice the Constitution’s provisions, particularly early government officials, although the courts reserve to themselves the final authority to determine the Constitution’s meaning. However, this focus on historical understandings of the Constitution is sometimes in tension with the changed circumstances of modern society from the late 18th century society that drafted the Constitution; courts have ruled that the Constitution must be interpreted in light of these changed circumstances. All of these considerations of the political theory behind the Constitution have prompted the Supreme Court to articulate a variety of special rules of construction and principles for interpreting it. For example, the Court’s rendering of the purposes behind the Constitution have led it to express a preference for broad interpretations of individual freedoms. Examples – An example of the way courts utilize the Preamble is Ellis v. City of Grand Rapids. Substantively, the case was about eminent domain. The City of Grand Rapids wanted to use eminent domain to force landowners to sell property in the city identified as “blighted”, and convey the property to owners that would develop it in ostensibly beneficial ways: in this case, to St. Mary’s Hospital, a Catholic organization. This area of substantive constitutional law is governed by the Fifth Amendment, which is understood to require that property acquired via eminent domain must be put to a “public use”. In interpreting whether the proposed project constituted a “public use”, the court pointed to the Preamble’s reference to “promot[ing] the general Welfare” as evidence that “[t]he health of the people was in the minds of our forefathers”. “[T]he concerted effort for renewal and expansion of hospital and medical care centers, as a part of our nation’s system of hospitals, is as a public service and use within the highest meaning of such terms. Surely this is in accord with an objective of the United States Constitution: ‘* * * promote the general Welfare.’” On the other hand, courts will not interpret the Preamble to give the government powers that are not articulated elsewhere in the Constitution. United States v. Kinnebrew Motor Co. is an example of this. In that case, the defendants were a car manufacturer and dealership indicted for a criminal violation of the National Industrial Recovery Act (NIRA). The Congress passed the statute in order to cope with the Great Depression, and one of its provisions purported to give to the President authority to fix “the prices at which new cars may be sold”. The dealership, located in Oklahoma City, had sold an automobile to a customer (also from Oklahoma City) for less than the price for new cars fixed pursuant to NIRA. Substantively, the case was about whether the transaction in question constituted interstate commerce” that Congress could regulate pursuant to the Commerce Clause. Although the government argued that the scope of the Commerce Clause included this transaction, it also argued that the Preamble’s statement that the Constitution was created to “promote the general Welfare” should be understood to permit Congress to regulate transactions such as the one in this case, particularly in the face of an obvious national emergency like the Great Depression. The court, however, dismissed this argument as erroneous and insisted that the only relevant issue was whether the transaction that prompted the indictment actually constituted “interstate commerce” under the Supreme Court’s precedents that interpreted the scope of the Commerce Clause.


Aspects of national sovereignty – The Preamble’s reference to the “United States of America” has been interpreted over the years to make revised claims as to the nature of the governmental entity that the Constitution creates (i.e., the federal government). In contemporary international law, the world consists of sovereign states (or “sovereign nations” in modern equivalent). A state is said to be “sovereign,” if any of its ruling inhabitants are the supreme authority over it; the concept is distinct from mere land-title or “ownership.” While each state was originally recognized as sovereign unto itself, the post-Civil War Supreme Court held that the “United States of America” consists of only one sovereign nation with respect to foreign affairs and international relations; the individual states may not conduct foreign relations. Although the Constitution expressly delegates to the federal government only some of the usual powers of sovereign governments (such as the powers to declare war and make treaties), all such powers inherently belong to the federal government as the country’s representative in the international community. Domestically, the federal government’s sovereignty means that it may perform acts such as entering into contracts or accepting bonds, which are typical of governmental entities but not expressly provided for in the Constitution or laws. Similarly, the federal government, as an attribute of sovereignty, has the power to enforce those powers that are granted to it (e.g., the power to “establish Post Offices and Post Roads” includes the power to punish those who interfere with the postal system so established). The Court has recognized the federal government’s supreme power over those limited matters entrusted to it. Thus, no state may interfere with the federal government’s operations as though its sovereignty is superior to the federal government’s (discussed more below); for example, states may not interfere with the federal government’s near absolute discretion to sell its own real property, even when that real property is located in one or another state. The federal government exercises its supreme power not as a unitary entity, but instead via the three coordinate branches of the government (legislative, executive, and judicial), each of which has its own prescribed powers and limitations under the Constitution. In addition, the doctrine of separation of powers functions as a limitation on each branch of the federal government’s exercise of sovereign power. A unique aspect of the American system of government is that, while the rest of the world views the United States as one country, domestically American constitutional law recognizes a federation of state governments separate from (and not subdivisions of) the federal government, each of which is sovereign over its own affairs.Sometimes, the Supreme Court has even analogized the States to being foreign countries to each other to explain the American system of State sovereignty. However, each state’s sovereignty is limited by the U.S. Constitution, which is the supreme law of both the United States as a nation and each state; in the event of a conflict, a valid federal law controls. As a result, although the federal government is (as discussed above) recognized as sovereign and has supreme power over those matters within its control, the American constitutional system also recognizes the concept of “State sovereignty,” where certain matters are susceptible to government regulation, but only at the State and not the federal level. For example, although the federal government prosecutes crimes against the United States (such as treason,or interference with the postal system), the general administration of criminal justice is reserved to the States. Notwithstanding sometimes broad statements by the Supreme Court regarding the “supreme” and “exclusive” powers the State and Federal governments exercise, the Supreme Court and State courts have also recognized that much of their power is held and exercised concurrently. People of the United States – The phrase “People of the United States” has sometimes been understood to mean “citizens.” This approach reasons that, if the political community speaking for itself in the Preamble (“We the People”) includes only citizens, by negative implication it specifically excludes non-citizens in some fashion. It has also been construed to mean something like “all under the sovereign jurisdiction and authority of the United States.” The phrase has been construed as affirming that the national government created by the Constitution derives its sovereignty from the people, as well as confirming that the government under the Constitution was intended to govern and protect “the people” directly, as one society, instead of governing only the states as political units. The Court has also understood this language to mean that the sovereignty of the government under the U.S. Constitution is superior to that of the States. Stated in negative terms, the Preamble has been interpreted as meaning that the Constitution was not the act of sovereign and independent states. In short, although in some ways the meaning and implications of the Preamble may be contested, at the least it can be said that the Preamble demonstrates that the federal government of the United States was not created as an agreement between or coalition of the states. Instead, it was the product of “the People” with the power to govern the People directly, unlike the government under the Articles of Confederation, which only governed the People indirectly through rules imposed on the states. The popular nature of the Constitution – The Constitution claims to be an act of “We the People.” However, because it represents a general social compact, there are limits on the ability of individual citizens to pursue legal claims allegedly arising out of the Constitution. For example, if a law was enacted which violated the Constitution, not just anybody could challenge the statute’s constitutionality in court; instead, only an individual who was negatively affected by the unconstitutional statute could bring such a challenge. For example, a person claiming certain benefits that are created by a statute cannot then challenge, on constitutional grounds, the administrative mechanism that awards them. These same principles apply to corporate entities, and can implicate the doctrine of exhaustion of remedies. In this same vein, courts will not answer hypothetical questions about the constitutionality of a statute. The judiciary does not have the authority to invalidate unconstitutional laws solely because they are unconstitutional, but may declare a law unconstitutional if its operation would injure a person’s interests.

For example, creditors who lose some measure of what they are owed when a bankrupt’s debts are discharged cannot claim injury, because Congress’ power to enact bankruptcy laws is also in the Constitution and inherent in it is the ability to declare certain debts valueless. Similarly, while a person may not generally challenge as unconstitutional a law that they are not accused of violating, once charged, a person may challenge the law’s validity, even if the challenge is unrelated to the circumstances of the crime. Where the Constitution is legally effective – The Preamble has been used to confirm that the Constitution was made for, and is binding only in, the United States of America. For example, in Casement v. Squier, a  serviceman in China during World War II was convicted of murder in the United States Court for China. After being sent to prison in the State of Washington, he filed a writ of habeas corpus with the local federal court, claiming he had been unconstitutionally put on trial without a jury. The court held that, since his trial was conducted by an American court and was, by American standards, basically fair, he was not entitled to the specific constitutional right of trial by jury while overseas. Since the Preamble declares the Constitution to have been created by the “People of the United States”, “there may be places within the jurisdiction of the United States that are no part of the Union.” The following examples help demonstrate the meaning of this distinction:     Geofroy v. Riggs, 133 U.S. 258 (1890): the Supreme Court held that a certain treaty between the United States and France which was applicable in “the States of the Union” was also applicable in the District of Columbia, even though it is not part of or a member of the Union (i.e., it is not a State and therefore not one of the “United States”). De Lima v. Bidwell, 182 U.S. 1 (1901): the Supreme Court ruled that a customs collector could not, under a statute providing for taxes on imported goods, collect taxes on goods coming from Puerto Rico after it had been ceded to the United States from Spain, reasoning that although it was not a State, it was under the jurisdiction of U.S. sovereignty, and thus the goods were not being imported from a foreign country. However, in Downes v. Bidwell, 182 U.S. 244 (1901), the Court held that the Congress could constitutionally enact a statute taxing goods sent from Puerto Rico to ports in the United States differently from other commerce, in spite of the constitutional requirement that “all Duties, Imposts and Excises shall be uniform throughout the United States,” on the theory that although Puerto Rico could not be treated as a foreign country, it did not count as part of the “United States” and thus was not guaranteed “uniform” tax treatment by that clause of the Constitution. This was not the only constitutional clause held not to apply in Puerto Rico: later, a lower court went on to hold that goods brought from Puerto Rico into New York before the enactment of the tax statute held constitutional in Downes, could retroactively have the taxes applied to them notwithstanding the Constitution’s ban on ex post facto laws, even if at the time they were brought into the United States no tax could be applied to the goods because Puerto Rico was not a foreign country. Ochoa v. Hernandez y Morales, 230 U.S. 139 (1913): the Fifth Amendment’s requirement that “no person shall . . . be deprived of . . . property, without due process of law” was held, by the Supreme Court, to apply in Puerto Rico, even though it was not a State and thus not “part” of the United States. To form a more perfect Union – The phrase “to form a more perfect Union” has been construed as referring to the shift to the Constitution from the Articles of Confederation. In this transition, the “Union” was made “more perfect” by the creation of a federal government with enough power to act directly upon citizens, rather than a government with narrowly limited power that could act on citizens (e.g., by imposing taxes) only indirectly through the states. Although the Preamble speaks of perfecting the “Union,” and the country is called the “United States of America,” the Supreme Court has interpreted the institution created as a government over the people, not an agreement between the States. The phrase has also been interpreted to confirm that state nullification of any federal law, dissolution of the Union, or secession from it, are not contemplated by the Constitution. We the People Foundation for Constitutional Education, Inc. also known as We the People Foundation is a non-profit education and research organization in Queensbury, New York with the declared mission “to protect and defend individual Rights as guaranteed by the Constitutions of the United States.” It was founded by Robert L. Schulz, a “high-profile tax protester”, and is a leading organization in the tax protester movement. The organization formally served a petition for redress of grievances regarding income tax upon the United States government in November 2002. In July 2004, it filed a lawsuit in an unsuccessful attempt to force the government to address the petition (see below). The organization has also served petitions relating to other issues since then. Revocation of tax-exempt status – As of March 8, 2010, the Foundation reported on its web site that the Internal Revenue Service revoked the Foundation’s tax exempt status for federal income tax urposes, and that the Foundation intended to contest the revocation in court. The Foundation stated that it was officially notified of the revocation on January 27, 2010, and that the revocation was effective retroactively to the year 2003. The report also stated that the IRS was preparing to execute levies against the Foundation for alleged tax deficiencies stemming from the revocation of tax exempt status. In a statement on January 29, 2011, the Foundation indicated on its web site that it was contesting the revocation in the U.S. Tax Court. The records of the U.S. Tax Court show that the Foundation filed its petition on September 21, 2010, and that the related entity, We The People Congress, Inc., also filed a petition on that same date. Trial in both cases is to be held in New York, New York, but no trial date has yet been set. National Clean Elections Lawsuit – In November 2007, the We the People Foundation filed a federal lawsuit, with plaintiffs in all 50 states, claiming that electronic voting machines are inefficient means of counting citizens’ votes and calling for hand counts of paper ballots nationwide. The “National Clean Elections Lawsuit” was filed in federal court in New York and served in all 50 states in early November 2007. The Constitution Party noted that several of its state chairs are plaintiffs in the lawsuit. Tax cases – We the People Foundation and Robert L. Schulz have been the subject of federal investigations, and the have been directly and indirectly involved in various court cases regarding federal income taxation. Tax protester arguments promoted by the Foundation – In a case involving Richard Michael Simkanin, a tax protester who supported the Foundation and who died while serving a prison sentence for Federal tax offenses, the United States Court of Appeals for the Fifth Circuit has stated that the We the People Foundation (“WTP”): promotes the view that, despite common misconceptions, there is actually no law that requires most Americans to pay income taxes or most companies to withhold taxes from employees’ paychecks. WTP also espouses the view that the Sixteenth Amendment was fraudulently declared to have been ratified. IRS investigation – In one case, Robert L. Schulz filed motions in a federal court to quash administrative summonses issued by the Internal Revenue Service (IRS) seeking testimony and documents in connection with an IRS investigation. The United States Court of Appeals for the Second Circuit affirmed the dismissal of the taxpayer’s motions for a lack of subject matter jurisdiction because there was no actual case or controversy as required by Article III of the Constitution. The court reasoned that the summonses posed no threat of injury to the taxpayer, as the IRS had not yet initiated enforcement proceedings against him. The taxpayer was not entitled to a court order to quash the summonses until the IRS went to court to demand that he comply with the summons or otherwise face sanctions—something the IRS had not yet done. A subsequent attempt by Schulz to obtain a court order quashing an IRS “third party” summons issued to the internet payment service known as PayPal was rejected by a Federal court in Nebraska in June of 2006. The summons was issued to PayPal to obtain information about donations to (or purchases made at) an internet web site maintained by Schulz or We the People Foundation. The court record indicates that the IRS issued the summons to PayPal as part of an investigation of an alleged failure by Schulz to file Federal income tax returns for the years 2001 through 2004, after Schulz refused to cooperate with the IRS inquiry. Schulz lost this case on appeal on September 13, 2007. In this case, the United States Court of Appeals for the Eighth Circuit ruled: “Schulz’s constitutional arguments challenging the IRS’s authority to enforce the tax laws are without merit.” On April 27, 2007, an appeal by Schulz in a similar case (from a Federal district court in California) to try to block an IRS summons was rejected by the United States Court of Appeals for the Ninth Circuit. Lawsuit over right to petition in connection with federal taxes – In a separate case, Schulz and his We the People Foundation organization argued unsuccessfully that, based on the First Amendment right of the people to petition the government for a redress of grievances, the government should have a duty to respond to a taxpayer’s demand for an explanation as to why taxpayers are subject to income tax. On May 8, 2007, the argument was rejected by the United States Court of Appeals for the District of Columbia Circuit in We the People Foundation, Inc. v. United States. The Foundation took this case to the United States Supreme Court and, on January 7, 2008, the Supreme Court rejected the Foundation’s case. Permanent injunction halting certain Foundation activities – On April 3, 2007, the U.S. Department of Justice announced that it had sued Schulz and two organizations, We the People Foundation for Constitutional Education Inc., and We the People Congress Inc., in connection with an attempt to stop the sale of an alleged tax fraud scheme reported to have cost the U.S. Treasury more than 21 million dollars. The suit alleged that Schulz had “used the two We the People entities to market a nationwide tax fraud scheme, called the Tax Termination Package, to employers and employees.” The government charged that “the Tax Termination Package includes We the People forms, which the defendants falsely tell customers can be used to replace forms the IRS requires employers and employees must use in connection with federal tax withholding from wages.” On August 9, 2007, the United States District Court for the Northern District of New York ruled that some the Foundation’s activities constituted the promotion of an illegal tax shelter by means of a statement or statements that the promoter “knows or has reason to known is false or fraudulent as to any material matter” under Internal Revenue Code section 6700 (26 U.S.C. § 6700), and that a court order prohibiting those activities under 26 U.S.C. § 7408 was appropriate.

The court issued an order including an injunction permanently barring Schulz and his We the People Foundation from (1) advising or instructing persons or entities that they are not required to file federal tax returns or pay federal taxes (see Tax protester arguments); (2) selling or furnishing any materials purporting to enable individuals to discontinue or stop withholding or paying federal taxes; (3) instructing, advising or assisting anyone to stop withholding or stop paying federal employment or income taxes; and (4) obstructing or advising anyone to obstruct IRS examinations, collections, or other IRS proceedings. On or about August 29, 2007, much of the material on the We the People web sites was removed pursuant to the court order, a copy of which was posted on the web sites. The court “also ordered that the names, addresses, telephone numbers, e-mail addresses and Social Security numbers of every person who received materials on how to stop paying taxes be turned over to the government.” According to the New York Times, “[t]his information would make it easy for the Internal Revenue Service to identify people who followed the illegal advice and for the Justice Department to prosecute them for tax crimes.” On February 22, 2008, the United States Court of Appeals for the Second Circuit affirmed the judgment of the District Court. The Court of Appeals stated: Defendants principally argue that the tax materials at issue constitute protected political and/or educational speech under the First Amendment of the Constitution. Defendants further argue that their actions in promoting the materials are otherwise protected under the First Amendment’s Petition Clause, on the theory that the government has yet to respond to defendants’ repeated inquiries as to whether, and on what basis, any information in the tax materials is false. [ . . . ] We have considered all of defendants’ arguments and find them to be without merit. The Court of Appeals also reinstated the District Court’s requirement that the Foundation must provide the government “the names and contact information of the individuals who have received the tax materials.” The Court of Appeals stated: The district court found that defendants’ illegal activities were harming individuals, who were exposing themselves to criminal liability by following the defendants’ ill-conceived instructions. [ . . . ] Requiring defendants to provide the identity and contact information of the recipients of the tax materials enables the government to monitor the defendants’ obligation under the injunction to provide a copy of the district court’s order to recipients of the tax materials. Moreover, the district court found that the defendants’ illegal actions were harming the government [ . . . ] Requiring defendants to provide the identity and contact information [ . . . ] enables the government to monitor whether the recipients of defendants’ materials are violating the tax laws. Thus, we find no abuse of discretion with respect to the district court’s imposition of the reporting requirements in Paragraph C of the injunction. Contempt proceeding – On April 7, 2008, the government filed a motion in the United States District Court for the Northern District of New York, asking the court to hold Robert L. Schulz and the We the People Foundation in civil contempt of court for failure to comply with the court order requiring Schulz to turn over, to the government, the names and contact information of the individuals who have received tax materials from the Foundation. On April 28, 2008, the District Court issued an order holding We the People Foundation and the other defendants in contempt of court, imposing fines of $2,000 per day on Robert Schulz, the We the People Foundation, and We the People Congress, effective retroactively to April 28, 2008, if the defendants did not comply with the court order by 4:00 p.m. on Monday, May 5, 2008. At 3:55 pm on May 5, 2008, Schulz filed a document with the court asserting that he had turned the material over to the United States attorney’s office earlier that day. Disputing President Obama’s citizenship – We The People Foundation placed a full-page advertisement in the December 1 and 3, 2008 Chicago Tribune newspaper in the form of an open letter addressed to Barack Obama’s presidential transition office in Chicago, in which the Foundation disputes Obama’s status as a “natural born citizen” of the United States. The letter asserts that Obama cannot assume the office of President, and that the state electors cannot vote for his candidacy, unless Obama provides “documentary evidence before December 15, that conclusively establishes his eligibility”. The letter lists specific documents that, in the opinion of the letter’s author, Robert L. Schulz, are missing or have not been made available. The letter states that the attempts to obtain the demanded evidence were unsuccessful “in a number of recent lawsuits”. The group had previously said: “We make no claim regarding Mr. Obama, other than he has refused to provide proof of his eligibility to hold the office of the President of the United States, as he is required to do by the Constitution.” On December 3, the same day as the second ad ran, the Tribune also ran a response examining the allegations the Foundation made.