The Constitution’s Week in Review – 21 May 2016

May 23, 2016

Article 1: Voting
Virginia’s Voter ID Law, which requires citizens present one of several forms of official ID to verify their identity, passed judicial muster[1] this week in Norfolk.  U.S. District Judge Henry E. Hudson ruled that “Virginia has provided all of its citizens with an equal opportunity to participate in the electoral process.”

Article IV, Section 3:  Federal Property Clause,
“I Have a Pen:”

The Federal Property Clause reads:

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.”

To much fanfare from the left side of the aisle, the President long-ago announced his intention to use his pen when Congress won’t act.  That should be better translated to read: “When Congress refuses to enact my progressive agenda, I will try to do so myself.”  But what about when Congress instead gives the President the authority to use that pen to create federal monuments whenever and wherever he chooses?

In 1906, Congress enacted the Antquities Act [2] (Pub.L. 59–209, 34 Stat. 225, 16 U.S.C. § 431–433) and President Teddy Roosevelt signed it into law. According to Wikipedia: “The Act has been used over a hundred times since its passage.  Its use occasionally creates significant controversy.”

As commonly happens, legislation brings with it unintended consequences.  What began as an act to protect perishable American Indian relics is now being used to sequester federal land for commercial exploitation.  The Act states that areas created as national monuments are to be confined to “the smallest area compatible with the proper care and management of the objects to be protected.”  Due to amendments to the Act, designations in only two states: Wyoming and Alaska, require Congressional approval.  All other designations are the President’s alone.
To understand the present controversy over President Obama’s use of the Act, please view this video.[3]


For those wanting more information, including learning how Bill Clinton the used the Act to gain support for an upcoming election, read “The Highs and Lows of the Antiquities Act”  published by NPR. [4]

First Amendment:  Freedom of Speech

Whoever said “There’s nothing new under the sun,” didn’t think it through very well, or grossly underestimated the ingenuity of the human species.  The County Commissioners of Dekalb County, Georgia, apparently didn’t like hearing their own names mentioned during the citizen comments period of their meetings, so they decreed that such behavior must stop[5] – no longer can citizens mention the commissioners by name.

As you might expect, this decree did not sit well with said citizens.  One citizen remarked: “If you don’t want your name mentioned during public comment time, then stop doing outrageous, offensive, illegal and, quite frankly, stupid things.” Amen. 

The best way to deal with such an absurdity as the Commissioners tried to enact is to just ignore it and render the rule a nullity.

First Amendment: Freedom of Assembly

Unfortunately, We the People have allowed the Supreme Court to carve a unique and unwarranted niche for itself in our legal and constitutional framework.  We place inappropriate emphasis on the Court’s opinions and give them the unwarranted status of “settled law.”

Given the Court’s lofty status, it has become common for groups to assemble on the steps of the Court to lobby for or against particular issues that the court is considering.  Apparently the Justices like their quietude and decorum.  Last Monday, they turned down the opportunity[6] to hear a case challenging a law constraining such demonstrations.  This left in place a 2015 ruling by the U.S. Court of Appeals for the District of Columbia Circuit, which ruled that a 1949 federal law prohibiting the protests does not violate the guarantee of freedom of speech under the U.S. Constitution's First Amendment.

The law makes it unlawful "to parade, stand or move in processions or assemblages in the Supreme Court building or grounds" or to "display in the building and grounds a flag, banner or device designed or adapted to bring into public notice a party, organization or movement."

So, you have a right to peacefully assemble, petition your government, and communicate with your fellow citizens EXCEPT in front of the Court.

Second Amendment: Is there a right to sell firearms?

Although this article was framed in 2nd Amendment terms, to me it is instead a Commerce Clause issue.  The right to keep and bear arms doesn’t imply where those arms must be available for sale; as long as they are conveniently available, somewhere, I would think the 2nd Amendment’s requirements have been met.
That aside, the city government of Alameda, California, apparently doesn’t like guns or gun shops (no surprise, it is California after all).  They set up zoning laws[7] that made it practically impossible to establish a gun store anywhere in the city 

“the proposed location of the business [must not be] within five hundred feet of a ‘residentially zoned district; elementary, middle or high school; pre-school or day care center; other firearms sales business; or liquor stores or establishments in which liquor is served."

Entrepreneur John Teixeira sought to open “Valley Guns and Ammo” but his desired location was denied because residents living within 500 feet of the spot objected. The only locations that met the zoning criteria were impractical.

Mr. Teixeira sued, lost at the District Court, and has now surprisingly convinced the otherwise ultra-liberal 9th Circuit Court of Appeals that there is indeed a right to purchase firearms secured by the 2nd Amendment.  Other jurisdictions with overly restrictive zoning laws take note.

Upcoming Events:

Article 2:  Abuse of Executive Power

I’ll be discussing this topic in a free webinar sponsored by Christian Financial Concepts on Monday, 23 May, 8-9pm EDT.  If you’d like to join the discussion, please RSVP to and mention my name or the topic.  You’ll be sent the link to connect to the event.



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Copyright ©2016

Gary Porter is Executive Director of the Constitution Leadership Initiative, Inc., a project to inform Americans about the Founder’s view of their Constitution. In addition to writing "The Constitution's Week in Review" at, he writes regularly for the Fairfax Free Citizen of Fairfax Virginia. Mr. Porter also teaches at various locations, as well as hosting a weekly radio broadcast ("The Constitution Matters"). The program can also be heard live on the Internet every Friday morning at 
Visit Gary Porter's website at