The Home School Court Report
VOLUME XV, NUMBER 4
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JULY / AUGUST 1999
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Cover Story
What Did the Founders Say? A Strategy to Bring Original Intent Back to U.S. Courts

Special Features
House Protects Liberty—When Money Is at Stake

Debate: The Clash of Skill, Wit, and Ideas

PHC Breaks New Ground

Touched By An Angel Responds to Home Schooler’s Concerns

National Center Reports
Straight A’s Bill Introduced

Marriage Penalty Tax Relief

New Plan Allows SSN Alternative for IRS Deductions

The Beginning of the End:National Teaching Certificates and Goals 2000

Military Recuitment of Home Schoolers Increasing

Across the States
State by State

Regular Features
Press Clippings

A Contrario Sensu

Prayer and Praise

Litigation Report

President’s Page

C O V E R   S T O R Y

What Did the Founders Say?
A Strategy to Bring Original Intent Back to U.S. Courts

“On every question of construction, carry ourselves back to the time when the Constitution was adopted...”
—Thomas Jefferson

“...it is to be regretted that the court is so much in the practice of mingling with their judgements pronounced, comments and reasonings of a scope beyond them...”

—James Madison

“...Towards the preservation of your Government and the permanency of your present happy state, it is requiste, not only that you steadily discountenance irregular oppositions to its acknowledged authority, but also that you resist with care the spirit of innovation upon its principles, however specious the pretext.”

—George Washington

Founder’s quotes excerpted from Our Ageless Constitution, W. David Stedman Associates, © 1987.

    Abortion, homosexual rights, free exercise of religion . . . How did these become the tension-fraught social issues dividing America today?
    Try the United States Supreme Court: By handing down decisions that failed to honor the original intent of the Constitution, the Court has sent America reeling off her moral foundations.
    The authors and signers of the U.S. Constitution believed that the people were better suited to guide their own destiny than unelected kings. So they created a republic in which citizens elect the leaders who make the law. Federal judges, as unelected officials, would simply decide cases and apply the law.
    When today’s judges fail to stick with the original meaning of the Constitution and begin to hand down laws instead of decisions, they become acting monarchs—unelected rulers with virtually unchecked power.
    Today, we see an expanding federal power grab—Congress, the president, and the Supreme Court are all to blame. The Supreme Court has sanctioned the liberal theory of the Commerce Clause that has been used to create the “era of big government.” And, for at least 50 years, Congress and the presidents have employed this theory to their advantage and the nation’s detriment.
    For example, the Constitution is absolutely silent regarding the right to an abortion, but the right to life is explicit in the 5th and 14th Amendments. The Supreme Court created a “woman’s right to choose” out of thin air. In Roe v. Wade, the Court declined to even name a provision in the Constitution which was the supposed basis for this “right.”
    America’s Founders would have never believed that the voters in Colorado would need to pass a state constitutional provision to prohibit state or local laws from granting special rights to homosexuals. But the Supreme Court made up a new meaning for the 14th Amendment and overruled Colorado voters.
    When the Court is allowed to pull law out of thin air, four principles are undermined: self-government, limited government, freedom, and traditional morality. These four principles are the bedrock of our nation. So it is no exaggeration to say that preserving the original intent of the Constitution is essential to preserving America.

A Strategy for Defense
    No single solution will curb judges who insert their personal political opinions into the law under the guise of constitutional interpretation. But, we have to begin—and we need a solution with immediate effects.
    Enter the Center for Original Intent of the Constitution, a program which will be an integral portion of Patrick Henry College. First envisioned by Home School Legal Defense Association and Patrick Henry College President Michael Farris, this PHC program will have two main activities: (1) filing briefs in Supreme Court and other important cases arguing for the original intent of the Constitution; and (2) creating the nation’s most comprehensive library on original intent.
    As president of PHC, Michael Farris will oversee the center’s work. The college plans to open its doors in 2000, but COIC is beginning its original intent work now.
    The central mission of Patrick Henry College is to train future government leaders. We want these leaders to be immersed in the knowledge and practice of original intent. We want leaders who believe in the principles that made America great. The Center for Original Intent will give these PHC students the opportunity to rub shoulders with the Founding Fathers as they wade through the actual writings of these great men and absorb their ideas.

The Plan in Action
    Alden v. Maine was argued before the Court on March 31, 1999. At issue is the extent of the Commerce Clause and the federal minimum wage laws. The plaintiffs, employed by the State of Maine, claimed that the Commerce Clause gave them the power to sue Maine in its own courts for overtime pay. Congress demanded that states waive their traditional sovereign immunity and open their state courts to suits under the minimum wage law.
    Two arguments needed to be made in Alden: (1) Congress had no authority to set the rules for suits in state courts. (This argument was made by Maine’s Attorney General.) And, (2) Congress has no authority to control the wages and hours of state government workers. (Maine did not argue this at all.)
    In fact, no one argued for the original intent of the Constitution in Alden. No one had the boldness to stand up and say what needed to be said, “Congress cannot pass such a law at all. Congress has limited authority and may not invade the power of the states.”

No One Except Us
    It is this kind of case—lacking a hot button like abortion, homosexuality or prayer in school—which has led to so many of the decisions expanding federal authority and undermining original intent.
    The Center for Original Intent of the Constitution filed an amicus curiae (friend of the court) brief arguing, “We believe that our Founding Fathers had no intention of subjecting the employment practices of state governments to the centralized control of Congress.” We quoted James Madison, John Marshall, Alexander Hamilton, James Iredell, and Samuel Adams. We were the only voice in this case setting forth what the Founders said and arguing that it mattered.

The Effect of COIC’s Amicus Brief In Alden
    Our brief in Alden v. Maine was the very first for the Center for the Original Intent of the Constitution. Two things indicate that our brief made some difference in this case: (1) the majority opinion parallels our brief all the way through section I(B)—20 pages devoted to original intent; and (2) the majority opinion cites one obscure reference to Justice Iredell’s writings that almost certainly came from our brief.
    However, our reason for founding the Center for the Original Intent of the Constitution was not simply to make it easier for the Supreme Court to write opinions. Our goal was to make it more likely that they would write the correct opinions. We have no way of knowing whether our brief changed Justice Kennedy’s thinking about this case, but his thinking couldn’t be more in line with our own.
    We knew that five Supreme Court Justices were willing to consider limiting Congress’ power over state governments. We knew that Justice Thomas was eager to consider a well-researched original intent argument. We dared to hope that the rest of the Court might listen to an original intent argument with an open mind. The majority opinion exceeded our highest hopes.
    The majority opinion roundly rejected the notion of expansive Commerce Clause power over sovereign state governments. “Congress,” the Court concluded, “has vast power but not all power.” (Slip op. at 90.) This phrase expresses the Center’s vision of a strong but limited federal government. The Court did not just give Maine a win on a technicality, but rebuked Congress’ attempt to abrogate the sovereign immunity of states. The Court called that an “act of usurpation” which “deserves to be treated as such.” (Slip op. at 47.) This is the kind of bold assertion that we would expect from Patrick Henry!

The Need for a Present Defense
    Unfortunately, in most cases, original intent is ignored. The research that could help the conservative justices is simply missing.
    Whenever and wherever liberals argue that the Court should adopt a new liberal theory of the Constitution, we need to file a brief—whether the case is a hot topic or seemingly mundane. Someone needs to be there in case after case systematically arguing for the original intent of the Constitution. We cannot expect the government lawyers who are typically defending against liberal litigators to do our work for us. They are not philosophically committed to original intent and they only look for lawyers’ defenses with precedents, procedures, and loopholes.
    Our nation needs to return to the Founders’ vision of limited government. The Supreme Court, Congress, and the president need to be reminded that we live in a republic based on self-government. Only elected officials—Congress and the president—can make laws because they are directly accountable to the people. The Court must go back to applying the law instead of making it.
    The Center for the Original Intent of the Constitution is here to raise a defense for liberty. Together, we must promote the principles and truths for which our Founding Fathers fought. In the war for the preservation of our Constitution, our freedom, and our nation, our bullets are arguments before the Supreme Court.
    We must aim and shoot wisely. Our task is to stand for liberty, lest “my people are destroyed for lack of knowledge.” Hosea 4:6a (NAS)