The War on Constitutional Rights

The war on the Tea Party, much more than a rhetorical offensive, continues unabated months after the putatively non-partisan Internal Revenue Service (IRS) – the guys and gals that audit you to make sure you are paying your “fair share” to support your president, your U.S. Congress and your federal courts – had targeted tea party political groups for punitive audits.

The same “death to the Bill of Rights” progressives at the U.S. Treasury Department have now promulgated rules that will, they hope, insure the extinction of the political sons and daughters of Sam Adams, John Adams, Patrick Henry, Thomas Jefferson, George Washington, and – coming closer to Connecticut  -- Roger Sherman, William Samuel Johnson, William Williams, Oliver Wolcott, Lyman Hall and the authors of Connecticut’s 1818 “Declaration of Rights,” Governor Oliver Wolcott Jr. among them, which declares in section 4:

“Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty.”

And in section 5:

“No law shall ever be passed to curtail or restrain the liberty of speech or of the press.”

And in section 9

“No person shall be arrested, detained or punished, except in cases clearly warranted by law.”

And in section 14:

“The citizens have a right, in a peaceable manner, to assemble for their common good, and to apply to those invested with the powers of government, for redress of grievances, or other proper purposes, by petition, address or remonstrance.”

No one in Connecticut surrendered such rights and immunities, many of which are also mentioned in the U.S. Bill of Rights, when the state moved into the 21st century, which has turned out to be far less liberating than the 18^th, the crucible of the Declaration of Independence, the U.S Constitution and the Bill of Rights. For some reason, a muscular federal agency, this time the U.S. Treasury Department, now feels comfortable in abolishing such rights through administrative edict.

Kimberly Strassel of the Wall Street Journal tells us how the MS functioning IRS assault on the liberties of Americans is to be accomplished:

“In the media blackout of Thanksgiving week, the Treasury Department dumped a new proposal to govern the political activity of 501(c)(4) groups.”

U.S.  House Ways and Means Committee investigators are concerned that the new regulation “was reverse-engineered—designed to isolate and shut down the same tea party groups victimized in the first targeting round. Treasury appears to have combed through those tea party applications, compiled all the groups' main activities, and then restricted those activities in the new rule.”

Here’s how the constitutionally dubious attempt by Barack Obama’s White House and Tea Party averse Democratic Congressmen to overthrow commonly accepted constitutional immunities will work:

“To get or keep tax-exempt status, 501(c)(4) organizations must devote a majority of their work to their "primary" social-welfare purpose. Most tea party groups were set up with a primary purpose of educating Americans on pressing problems—the size of government, the erosion of the Constitution—and did so mainly via nonpartisan voter guides, speakers forums, pamphlets or voter-registration drives.

“What the proposed Treasury/IRS regulation would do is to re-categorize all these efforts as "political activity"—thereby making it all but impossible for tea party groups to qualify for 501(c)(4) status. Say an outfit's primary purpose is educating voters on our unsustainable debt, which it does mainly with a guide explaining the problem and politicians' voting records. Under the new rule, that guide is now "political activity" (rather than "social welfare"), which likely loses the group tax-exempt status.”

Here is a question that ought to be put to every citizen of the “Constitution State,” not excluding the state’s governor, members of the General Assembly, jurists, members of the state’s media and little children studying, one hopes, the once proud history of Connecticut: Are were really prepared in this brand spanking new century to allow a poorly administered federal bureaucracy to deprive, through an ill-conceived administrative regulation, the people of this state of rights and immunities in defense of which all the political heroes mentioned in this column were willing to give their last drop of blood?

Well… are we?

New Research Shows Connecticut Signed Bill Of Rights In 1790

It is commonly thought that Connecticut did not ratify the Bill of Rights Amendments until 1939, a pro forma ratification. But in fact, misfiled documents newly discovered in Connecticut’s archives show that Connecticut ratified the first 12 – significantly, not 10 – Amendments to the Constitution, commonly called “the Bill Of Rights,” in 1790.

The ratification document, discovered by researcher Eugene Martin LaVergne and misfiled under “Revolutionary Documents,” has been reported to Connecticut’s archivist. The newly discovered document -- misfiled in the year 1780, rather than in its proper year, 1790 -- is itself revolutionary because the earlier ratification dates of Connecticut and Delaware mean that at least one important long forgotten amendment – a reapportionment amendment, the real “First Amendment” to the Bill of Rights reported out for ratification by Congress – must now be considered an amendment lawfully ratified in 1790. In order to make the amendment operational, it must be reported to the U .S. Congress either by David Ferrierno, the Archivist of the United States, an office delegated with the task of accepting this amendment and presenting it to Congress. Alternatively, the ratification notice may also be presented to congress by a Connecticut U.S. Senator.

Mr. Ferrierno was apprised of the ratification, according to Mr. LaVergne, when in 2011he was presented with a lawsuit, Eugene M. LaVergne v. Rebecca Blank, Acting Secretary of Commerce, el al, No. 12-778, that detailed all the votes of the states, “including a copy of Connecticut’s voting record from 1790 on this amendment certified by the Archivist of Connecticut.”

In the original Bill of Rights, the so called freedom of speech amendment, presently the First Amendment was, in fact, the Third Amendment. The common understanding that the amendments were arranged in order of importance is simply not true; the ordering follows references in the Constitution. Every amendment in the Bill of Rights is equally important.

The history of the ratification in Connecticut is a bit of a winding road. Mr. Lavergne’s discovery puts a period, he believes, on a historical point – there is no doubt that Connecticut did, in fact, ratify the Bill of Rights shortly after the Constitution was offered for ratification. And the discovery leads to an inescapable conclusion: The first 12 amendments to the Constitution were ratified by both houses of Connecticut’s General Assembly in 1790.

If one adds Connecticut’s ratification vote to that of Vermont, it would appear that all 12 amendments to the Constitution were properly ratified: The votes for ratification of Connecticut and Vermont were the trip wires that affirmed ratification of the 12 amendments to the Bill of Rights. Once appropriately ratified, no amendment may be ungratified. The Civil War teaches us that the ratification votes that bind the disparate states into what Abraham Lincoln thought of as an indissoluble nation cannot be undone.  The un-ratification of one amendment would open the door to the un-ratification of any or every amendment to the Bill Of Rights.

For more than two centuries, we have been laboring under the misapprehension that passage of the 12 amendments to the Bill Of Rights, significantly including the apportionment amendment, had fallen short of ratification by one vote; we were told that four states, Connecticut among them, had never voted to ratify the original Bill Of Rights. Mr. Lavergne’s discovery upsets this historical apple cart. Given the earlier ratification date, Connecticut and Vermont become the two states that, having ratifying all 12 amendments, carry the vote across a threshold that established the First 12 Amendments to the U.S. Constitution in 1790.

From a historical point of view, Mr. Lavergne’s discovery is astounding. A Connecticut ratification of the original Bill of Right lay sleeping in the wrong bed in Connecticut archives for more than 200 years. During the modern period, the commonly accepted wisdom was that Connecticut had spurned amendments to the Constitution, a charter of liberties guaranteeing freedom of speech, freedom of assembly, freedom of religion, and other rights and immunities familiar to many Americans.

The commonly accepted wisdom was wrong.

In addition, Connecticut’s fingerprints are all over the original First Amendment. The ratified original First Amendment as proposed and affirmed in the House and Senate reads as follows. The bracketed portions are Mr. Lavergne’s interpretive remarks:

“After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor more than one Representative for every forty thousand persons [sets a minimum of 100 Representatives thereafter, and creates a ‘floor’ of 40,000 persons per District], until the number of Representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor less than one Representative for every fifty thousand persons [sets a minimum of 200 Representatives thereafter, and creates a “ceiling” of 50,000 persons per District].”

The account above of the original First Amendment presented to and affirmed by Congress is the only accurate record we have of the committee proceedings. It was written by then “acting majority leader” in the Senate Oliver Ellsworth, who sat on the drafting committee. Ellsworth was a Connecticut senator who played a major role, along with Roger Sherman, also of Connecticut, in proposing to the Constitutional Convention the so called “Connecticut Compromise,” a bicameral arrangement in which members of the U.S. Senate were to be elected by state legislatures. Ellsworth’s version of the “Connecticut Compromise,” adopted by the convention and written into the Constitution, was later revised by Amendment XVII, which provided for the popular election of U.S. Senators.

It would be difficult to overestimate the importance of a documentary find that so radically alters our understanding of the part played by the “Constitution State” in U.S. Constitutional history.