What Are Our Constitutions?

By Brian K. Lutes

It is THE HARD TRUTH that most of the people I have met in my life, and especially most of our elected representatives at the local, state, and federal levels, do not truly understand what our constitutions are, why our founding fathers wrote them, or even what they say.

I was present for a conversation between a citizen and a County Commissioner in Pennsylvania several years ago in which the citizen was attempting to convince the Commissioner to propose a resolution in support of the 2nd Amendment. The Commissioner responded: “Oh, that’s that gun thing, that’s none of our business, call the NRA”. The Commissioner then walked away.

“That’s that gun thing, that’s none of our business…”? Are you kidding me? Unfortunately, it is not a joke and most people would be surprised to know just how often this is the case. Every elected official, and law enforcement officer, no matter the office, location, or political affiliation, prior to taking office, must put his hand on the bible and take an oath to “support, obey, and defend the Constitution of the USA and of the State of _____ from all enemies, foreign, and domestic”. Yet, most of them have never read or truly tried to understand what our most sacred documents represent.

In my opinion prior to taking the oath, elected officials and prospective law enforcement officers should be asked if they have ever read the constitutions and then be required to pass a test on the Bill of Rights. If they haven’t read the documents or can’t pass the test on the rights protected by them, they should not be sworn into office until they can do so.

In short, our Constitutions are the supreme laws with which all other laws must comply (140 F. Supp. 925)  Our courts have defined our constitutions in these terms:”A constitution represents a mandate to the various branches of government directly from the people acting in their sovereign capacity; the organic law framing a governmental system (229 A.2d 388, 394). And, the US Supreme Court, in one of the earliest cases to deal with the question of what power was the Constitution, Marbury v. Madison, 5 U.S. 137 (1803), said “If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply”. This cemented our Constitution as the Supreme law of the land.

And, In American law, the word Constitution specifically refers to a written instrument which is the basic source from which government derives its power, but under which governmental powers are constrained. It is the emphasis on restrictions of governmental powers that distinguishes the American concept. (Schwartz, Constitutional Law, Ch. 1, p. 1 (1979))  It is the supreme law of the land and it cannot be abrogated even in part by statute. Like the federal constitution, a state constitution is the supreme law within the state. (140 F. Supp. 925, 928)

The Federal government that was created with the adoption of the Constitution was delegated (delegation of power is not to be confused with surrender of power, which implies abandonment or a yielding of power to another (2 So. 2d 11, 16) and is from a superior to an inferior) very few and well defined powers laid out in Article 1, Section 8 of the Constitution of the United States.

Those that were in favor of adopting the Constitution and creating a more powerful Federal government thereby were called Federalists. They wrote a series of newspaper articles that have come to be known as The Federalist Papers stating the reasons they were in favor of adopting the proposed Constitution and the powers that the new government would have. The Federalists included, among many others, James Madison who is known as the Father of the Constitution, and Alexander Hamilton.

The people that were opposed to adopting the proposed Constitution were known as Anti-Federalists. They also wrote a series of newspaper articles that have come to be known as The Anti-Federalist Papers. They feared, rightly so, that the new government that would be created would eventually become tyrannical just like the King of England they had just escaped. They demanded that protections be written into the Constitution in an effort to guarantee that certain rights of the people could not be violated by the new government. The guarantees they demanded became known as The Bill of Rights, the first 10 amendments of the Constitution. One of the leading Anti-Federalists was Patrick Henry.

When the Anti-Federalists insisted upon the Bill of Rights, the Federalists said it was not necessary to protect rights such as freedom of the press, the right to bear arms, etc. since the new government would not be delegated any power to interfere with those rights as the new government would only be able to exercise the few powers specifically delegated to it and none that were not specifically delegated to it. Thankfully, the Anti-Federalists still insisted on the protections and were successful in having them adopted.

Let us be clear, James Madison, the father of the Constitution, wrote in the Federalist Papers that the new Federal government would only be able to exercise powers that were specifically delegated to it. And, as an added protection the 10th Amendment states: “ The powers not delegated to the United States (Federal government) by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people.” 

The US Supreme Court has held that the Amendment expresses the original framers’ intent that the “central” government be a government of limited powers and was included in the Bill of Rights to prevent the federal government from attempting to exercise powers that were not specifically delegated to it. (426 U.S. 833, 851) (Schwartz, Constitutional Law 2.2 (2d ed. 1979))

In short, this Amendment clearly shows that it was the intent of our Founding Fathers that the Federal government would not be able to do whatever it wanted. If the Congress wanted to carry out a particular task it would have to point to a specific clause in the Constitution that allowed it to carry out that task. If there were no authorizing clause in the Constitution, the task could not be undertaken by the Federal government.

It can’t be stressed too strongly that our Founding Fathers had just escaped a tyrannical King that, as a supreme ruler, was virtually unlimited in his power over their lives. They knew they had to have some form of government, but they were extremely fearful that the government they were creating might someday become just as tyrannical as the King was, so in an effort to prevent this new creation, the Federal government, from ever becoming a threat to the liberty of the American people they delegated very few and well defined powers to it, and then added very specific denials of power (The Bill of Rights) to it.

After our Founding Fathers came to agreement on the wording of the Constitution and the powers the new government would exercise, they submitted it to the individual States for their ratification (approval). The Constitution would apply to and bind together only those States that approved it. Any state that did not approve the Constitution would be bound to other non approving States by the old Articles of Confederation. If only one State refused to ratify the new Constitution that State would stand as an independent “nation state”.

In fact, North Carolina did not ratify the Constitution for well over a year after the other States had ratified the document and joined the “union”. During the time that North Carolina had not ratified the Constitution it stood independently until it decided for itself whether or not it would join her sister States in the union. If North Carolina had never approved the Constitution it would still stand as an independent nation state.

Basically, The Constitution of the United States is a voluntary compact, a contract if you will, between sovereign (self determining) States with each deciding for itself, to create a common agent, the Federal government, in which each State would have representation, to carry out very few powers that were laid out in writing for their mutual benefit. The best analogy I can think of to explain the way the relationship between the States and Federal government is supposed to be is this: Think of the States as individual families that share a common problem. Mostly they need a solution to security issues. Each family picks representatives that get together (the Continental Congress) to discuss possible solutions to the problem. The family representatives hammer out an agreement and take it back home to discuss it with the whole family. Each family raises questions about & objections to the proposed solutions and orders their representatives to meet again and the process continues. Finally, the representatives decide that the solution is to get a very tough dog (Federal government) for all the families to share. However, some of the families have members that are afraid of dogs so the representatives craft a very strong collar & chain (the Constitution) to restrain the dog so it cannot harass or injure any innocent family members, but is loose enough so that the dog can patrol the perimeter and chew up trespassers. Each representative then takes the collar & chain home for every family member to inspect and after the families agree that the collar & chain are strong, yet loose, enough, they attach it to the dog and set him about his assigned duties

The Role and Purpose of Law Enforcement in a Free Society

By Brian K. Lutes

It is very easy for law enforcement officers to lose sight of their purpose; with 6 years of experience as a police officer and Deputy PA State Constable I know this to be true. We often get caught in the vicious trap of trying to do all we can to get the bad guys off of the streets while at the same time trying to protect the good guys in a politically correct manner.

It is nearly impossible, but somehow we must get the job done, and we do.

It is not easy enforcing laws in a free society; it is not supposed to be. It would be much easier enforcing laws in a society where the citizens have, what some would call a healthy, fearful respect, of men with badges on their chests. A society where the citizens know that you don’t dare step out of line or the police will show up and make an example of you for all to see. And, if you want to work in that type of society you only need to move to China, Cuba, or any one of several Eastern European countries where law enforcement officers are feared and the citizens step aside when they approach.

In those societies police officers are looked upon as overseers making sure no one steps outside of the boxes their government masters have drawn for them. Making sure that citizens who express displeasure with those same government masters are taken away for ‘re-education’ before they corrupt their neighbors with crazy notions of freedom of speech and assembly.

However, we can thank God, and our Founding Fathers, that we do not live in such a country; at least not yet, and a key determining factor in whether or not we ever will, falls on the shoulders of us, the law enforcers.

We are the individuals that are on the street, among the people, our neighbors and families, applying the rules of civil society as laid down by our fellow employees of the people, legislators. And it is us that decides whether or not to write the ticket or make the arrest for whatever violation of law we observe or discover; It is our discretion (The reasonable exercise of a power or right to act in an official capacity; involves the idea of choice, of an exercise of the will, 94 N.W. 2d 810, 811).

Our #1 job while serving our fellow citizens is to live up to our Oath of Office to “Support, Obey and Defend the Constitution of the state in which we serve and the Constitution of the United States of America against all enemies, foreign AND DOMESTIC; and that I will bear true faith and allegiance to the same… and I do further solemnly swear that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of law enforcement officer with fidelity”. We have all taken this oath, or something very similar to it, before we ever pinned that precious badge on our chests. But, how many of us ever really thought about and realized the significance of that oath we so willingly took? I fear not enough of us have.

When we take the oath of office we swear before God that we will, above all else, support, obey, and defend our Constitutions, state and federal. We do not swear to get the bad guy at all costs. We do not swear to be creative, without technically lying, in our report writing to get the warrant (This amounts to “False Swearing which our courts have defined as a “willful and corrupt sworn statement made without sincere belief in its truthfulness” See Perkins & Boyce, Criminal Law 511 (3d ed. 1982)). We swear an oath to uphold our Constitutions and the protections of American freedom therein.

The Constitutions we have all sworn to uphold are the very foundation of our uniquely American lives. Our Constitutions are the only thing standing between our way of life and the subservient lives of Cubans or the Chinese. Every time our Constitutions are violated, be it by Legislators, Judges, or Executive Branch Agents, our American way of life suffers. It especially suffers when it is violated by those of us that have sworn to uphold it.

Our purpose as law enforcement officers, every time we put that badge on, is to go out and preserve our uniquely American way of life by enforcing, or not enforcing, our laws in accord with our oaths to our Constitutions.

We, I say we because those of us who are charged with enforcing the laws are subject to those same laws, as Americans, have a right to “Life, Liberty, and the Pursuit of Happiness” and when those rights are violated by someone who murders, steals, assaults, or kidnaps one of our fellow citizens we show up and take action living up to our oaths by arresting the offending individual, depriving them of their liberty, pursuit of happiness, and possibly their life, for violating the rights of the victim(s); we do not technically arrest the offending individual for killing the victim, but for violating the victim’s right to life.

We also, as a result of our oaths to support, obey, and defend the Constitutions, have a responsibility to not enforce, by exercising our prosecutorial discretion (which our courts have defined as “The wide range of alternatives available to a prosecutor in criminal cases, including the decision to prosecute, the particular charges to be brought, etc… or not to prosecute (see Lafave, Arrest 72 (1965)), laws passed by the legislatures that violate our Constitutions (consider this: “The general rule is that an unconstitutional statute, whether federal or state, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose, since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it. No one is bound to obey an unconstitutional law and no courts are bound to enforce it” (16th American Jurisprudence, 256, 2nd edition).

For example, say the town council adopts an ordinance, which our courts have defined as “A local law that applies to persons and things subject to the local jurisdiction” (see 90 F. 2d 175, 177) that says no one in the town is allowed to possess a gun for any reason and that law is put on the books in the town. We as law enforcement officers have an obligation to refuse to enforce that law because it is in violation of the 2nd Amendment of the U.S. Constitution, “…The right of the people to keep & bear arms shall not be infringed” and Article 1 Section 21 of the Constitution of the Commonwealth of PA “The right of the citizens to bear arms in defense of themselves and the state shall not be questioned” that we took an oath to support, obey, and defend.

North Carolina Governor’s Constitutionally Questionable Executive Order (# 180 of November 23, 2020) on Face Coverings (masks) Provides for Exceptions

By Brian K. Lutes, November 26, 2020

This is a hot button topic and I have absolutely no desire to stir up an argument on the efficacy of face coverings or whether or not they should be worn as everyone can make those decisions for themselves after reading the opinions of medical experts on both sides of the issues.

While it is clear that the North Carolina Emergency Management Act (NCGS 166A et seq.) allows the Governor to Declare Emergencies, which he did on March 10, 2020 for the Corona Virus via Executive Order 116, and take certain measures to address them, his authority to force ostensibly healthy people who show no signs of being ill or proof that they’ve tested positive for a contagious virus, to wear face coverings under the threat of being arrested for not doing so is akin to “Prior Restraint” which is a situation where the government, be it state or federal, or an agency thereof, asks a court for an order preventing someone from doing something that the government believes will cause public harm they have have made known they intend to do before they actually do it. Our courts have held that such requests from the government are subject to strict scrutiny and bear a heavy presumption against constitutional validity (372 U.S. 58, 70 (1963)) and are rarely upheld (New York Times Co. v. United States, 403 U.S. 713 (1971)); (Nebraska Press Assn. v. Stuart, 427 U.S. 539, 558 (1976)); Tribe, American Constitutional Law 12-34 (3d ed. 2000).

Under the Separation of Powers Doctrine enshrined in our Constitutional system, which our Supreme Court has held to be a “bulwark against tyranny and looks to prevent any person or group from imposing its unchecked will” (U.S. v. Brown, 381 U.S. 437, 443 (1965)), a Governor cannot “make a law”.  Only the legislature can make a law and our Supreme Court has held that even they do not have the power to pass laws that override the Constitution (Marbury v. Madison, 5 U.S. 137 (1803)).

The Governor points to the North Carolina Emergency Management Act (NCGS 166a et seq.) as his authority  to force individuals to wear face coverings, but we must consider that it has been held by our courts that the Legislative branch “cannot delegate or sign over its authority to any individual, corporation, or foreign nation” (16^th Corpus Juris Secundum, 141).

However, for the purposes of this writing I’ll proceed as if there are no questions about the Constitutionality of the Governor’s Order. Many people who wear and believe in the efficacy of face coverings get absolutely incensed when they encounter others who do not wear face coverings and believe that they are uncaring or indifferent to the health & safety of others. However, this is usually not true as many people who do not wear face coverings simply cannot wear them due to medical or behavioral issues and the Governor’s Order provides exceptions for these situations.

The enforcement part of the Governor’s most recent Executive Order pertaining to the Corona Virus (#180 of November 23, 2020) is found in Sub-section I (D) “Creating an Enforceable Legal Duty for Individuals, as Well as Businesses, to Follow Face Covering Requirements”.

Section 2.7 of the above referenced Sub-Section (which actually amends section 2.7 of Executive Order 169) “Enforcement of Face Covering Requirements” states:

“If a person does not wear a Face Covering in a situation where a Face Covering is required under this Executive Order, AND IF AN EXCEPTION TO THE FACE COVERING REQUIREMENTS DOES NOT APPLY:

a.) Law enforcement officers may (a choice to act, not a requirement (The Peoples’s Law Dictionary, retrieved November 26, 2020)) cite the people who failed to wear Face Coverings as required by Executive Order; and/or

b.) Law enforcement officers may cite a business or organization that failed to enforce the requirement to wear Face Coverings.

Further, if a business or organization does not allow entry to a worker or guest because the person refuses to wear a Face Covering, and if that worker or guest enters the premises and refuses to leave the premises, law enforcement personnel may enforce the trespassing laws and any other laws that the worker or guest may violate”

To me, the issue is that the Governor, in Section 2.7 of Executive Order 180, states that individuals can be cited for not wearing a face covering only if an exception to the requirement does not apply to the individual, but the Executive Order does not list what the exceptions to the requirement are.

To find the exceptions to the requirement that individuals wear face coverings you have to read the Frequently Asked Questions (FAQ) brief issued for Executive Order 180 which states in paragraph 5 of page 4:

“Are there any exceptions to the face covering requirement?”

“Yes, there are certain exceptions to the face covering requirements as spelled out in Executive Order 169, Section 2.4”

 So we go to Executive Order 169 (issued on September 30, 2020) titled: “Restrictions to Protect Lives During the Covid-19 Pandemic: Phase 3”

And find in Section 2.4, titled “EXCEPTIONS”,14 exceptions (listed a-k) to the requirement that individuals wear face coverings.

Section 2.4 “Exceptions” states:

“This Executive Order does not require Face Coverings for-and a Face Covering does not need to be worn by-a worker or Guest who:

a. Should not wear a Face Covering due to any medical or behavioral condition or disability (including, but not limited to, any person who has trouble breathing, or is unconscious or incapacitated, or is otherwise unable to put on or remove the Face Covering without assistance);

b. Is under five (5) years of age;

c. Is actively eating or drinking;

d. Is strenuously exercising;

e. Is seeking to communicate with someone who is hearing-impaired in a way that requires the mouth to be visible;

f. Is giving a speech for a broadcast or to an audience·

g. Is working at home or is in a personal vehicle;

h. Is temporarily removing his or her Face Covering to secure government or medical services or for identification purposes;

I. Would be at risk from wearing a Face Covering at work, as determined by local, state, or federal regulations or workplace safety guidelines;

J. Has found that his or her Face Covering is impeding visibility to operate equipment or a vehicle; or

k. Is a child whose parent, guardian, or responsible person has been unable to place the Face Covering safely on the child’s face.

Anyone who declines to wear a Face Covering for these reasons should not be required to produce documentation or any other proof of a condition.

Children under two (2) years of age should not wear a Face Covering.”

Section 2.5 of Executive Order 169 titled “Application of Exceptions” , states:

“Under this Executive Order, all North Carolinians will be on the honor system about whether or not there is a reason why they cannot wear a Face Covering. Everyone in this state is asked to tell the truth and – if they are healthy and able to wear a mask – to wear a Face Covering so that they do not put other people at risk of serious illness and death.”

Section 2.6 of Executive Order 169 titled “How Businesses May Accommodate Exceptions”, states:

“If a Guest states that an exception applies, a business may choose to offer curbside service, provide home delivery, or use some other reasonable measure to deliver its goods or services.“

The question of whether or not a business can legally deny entry to someone who is not wearing a face covering due to one or more of the exceptions to the requirement they be worn is complicated, but my research leads me to believe they probably legally can (but they are not required to do so) even considering the Americans with Disabilities Act, as long as they offer some other reasonable means such as delivery or curbside pickup to obtain the goods or services they offer. But under no circumstances can a business say to someone not wearing a face covering due to a medical exception: “You’re not wearing a face covering so we’re not going to serve you in any way” as that is not permissible under the Americans with Disabilities Act.

The main point I’m trying to make is that, despite the repeated droning of the media and Governor Cooper himself, again, assuming the Executive Orders are in accord with both the North Carolina and US Constitutions (which I don’t believe they are) no one can be cited or arrested under the Governor’s Order(s) for not wearing a face covering in any situation if just one of the 14 exceptions to the requirement that face coverings be worn listed in Section 2.4 of Executive Order 169 applies to them.

And, if anyone claims they are unable to wear a face covering for a medical or behavioral reason they cannot be asked or forced to produce documentation or proof of that reason by anyone.

We must always remember that our Constitution is the supreme law of the land with which all statutes must comply and that “The general rule is that an unconstitutional statute, whether federal or state, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose, since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it. No one is bound to to obey an unconstitutional law and no courts are bound to enforce it. (16th American Jurisprudence, 256, 2nd ed.)

“If an acquaintance with the Constitution and laws of our country be requisite to preserve the blessings of freedom to the people, it necessarily follows that those who are to frame the laws or administer the government should possess a thorough knowledge of these subjects. For what can be more absurd than that a person wholly ignorant of the Constitution should presume to make laws thereto?

Or that one who neither understands the Constitution nor the law, should boldly adventure to administer the government.” (Blackstone’s Commentaries, Preface by St. George Tucker (1803))