Oath of Office Project

What follows is a letter describing the project and then a article explaining the problems with the California Oath of Office.

 

To: All Members of Free Enterprise Society

Subject: Oath of Office for California

Previously in our newsletter we wrote two articles regarding the Oath of Office required to be taken by elected officials in the State of California, by both the California Constitution, and the California Government Code. This oath required by Article XX, Section 3 is not a thing to be taken lightly as if the oath is not orally taken, and subscribed to in the proper and perfect form as dictated by the California Constitution, an official is prohibited from taking office.

Currently not one official in the State of California has taken the Constitutionally prescribed oath of office. This means, that there is no person occupying offices in our legislature, judiciary, or executive departments. Hence, we have people pretending to occupy our government offices who are not government officials. These people are passing laws, enforcing laws, and allegedly meting out justice.

Article IV, Section Four of the United States Constitution requires that the United States Government is to ensure that each State is guaranteed a republican form of government and protect each state from invasion. However, in order to have such a government a State must first have a Constitution in place which conforms to the United States Constitution, by which its elected State officials are governed. Therein lies the problem. The Constitutional Republic outlined in the United Stateís and California Stateís Constitutions is not in place because our elected representatives, have, for one reason or another, refused to take the oath of office set forth in the California Constitution. The question which begs an answer is "Who is in Office?" The answer is simple. No one! Not one elected representative in California legally occupies his office. So do we have the Constitutional Republic as designated by Article IV, Section Four of the United States Constitution? The answer is obvious, of course not! What we have is a bunch of dictators, who while being elected, have refused to take their Constitutional Oath of Office. Folks, that is not a Constitutional Republican form of government contemplated under Article IV, Section Four of the United States Constitution, or contemplated under the California Constitution. What we have is a government by unadulterated power and in contempt of the people and our State and Federal Constitutions. This condition is intolerable.

We are currently attempting to gather the research and documents needed to petition the United States Government for Redress of Grievance and have them act under Article IV, Section Four of the United States Constitution and restore our Constitutional Republic. Of course, we must decide do we petition the Courts or the Congress. We have decided that petitioning the United States Congress should be our first attempt at correcting this situation. But we need help!! We must accumulate thousands or documents going back to 1953 to prove out our case. This is no small task.

We NEED volunteers who will help gather the certified documentation in their respective counties to show that the California Constitutional Oath of Office has not been executed as contemplated by law by our elected officials. We need to research California Archives back to 1953 so we can find who has taken the correct Oath of Office and who has not from that time forward. In addition, we need money to fund this research project if we are to succeed in our endeavor. We need State and County records to substantiate our claim that we have not had a Constitutional Republic for a long, long time. Evidence that the United States Congress cannot ignore. We need to force the government to uphold its mandate and insure that the State of California is provided with a republican form of government. To do otherwise is to sanction any unlawful government those in power choose to install. Should we tolerate this? Will tolerate the loss of our country? No! No! No! We need your help.

You can help in one or two ways. We need people to help gather the documents from each district and county. If you have some time to help gather these documents please contact Richard Ramos below for more information.

Next these documents will cost 6.00 for each certified document. We may need 1000's of documents to complete this research. You can send a donation of 5.00 or more toward this project on the attached form.

Your donation or help will be the only way this amount of research can be completed. I hope that many of you can participate in one way or another to do this exciting and important project.

 

 Sincerely,

Steve Hempfling

Director

The contact person in charge of coordinating this effort is Richard Ramos.

Richard S. Ramos, Monterey Judicial District

3106 Lake Drive, Apt. 21, Marina, California 93933, 831-384-3939

Yes, I would like to donate money to the Oath of Office project.

__________ 10.00 __________ 20.00

__________ 50.00 __________ 100.00

_____________ Other. Write in the amount of your donation.

*****************

Use or copy this form. Send donations to:

Free Enterprise Society, 2037 West Bullard Avenue #353, Fresno, California 93711

 


Invasion - California Style

Oath of Office

They didnít come in the middle of the night under cover of darkness, while the majority of us slept peacefully and unsuspectingly in the comfort of our homes. The invaders didnít come brandishing weapons of mighty destruction suddenly grasping society in their paralyzing grip. They didnít come dressed in black boots and kevlar with NAZI type helmets. They didnít come swooping down from the sky in a bat like manner, wearing night-vision goggles, landing on rooftops, surreptitiously rendering our police forces, armies, and militia ineffective. No, that type of invasion just never would have succeeded - not today. Not yet, anyway; or so the theory goes.

The invaders came clothed in suits. They came with briefcases clutched in their hands; with visions of depotism, collusion, and sophistry dancing in their heads. They came knowing full well that the order of the day was to be perversion of the law and propaganda to feed the people; with the intent to stealthily encroach upon and strike asunder the Constitutional Republic known as California. And they succeeded. What? Have we gone crazy? Have we discovered an esoteric plot to undermine our constitutional republic? Sit back and read. And after reading you decide if there is something amiss in the State of California. (The following is based on research, facts, and educated conjecture. Some literary license has been taken, as is the right of all authors, which should be easily identified by the reader.) And so we begin . . . . . .

Once upon a time, in an age a long long time in the past there was a story told. It has been said that all stories have a beginning and an end. I am not too sure that this rings true, for is it not so that every story begins where another has left off? And, if that not be true where does one story end and another begin? With that thought in mind, this story has no beginning, but merely picks up where one story has been expounded upon by another, and another, and another, until we have before us the present tale ---- A tale without a beginning, at least not a beginning to which any of us can either successfully or accurately trace back. In fact, isnít it this which makes a story, a good story; one which we can all entertain with our very elastic and elaborate imaginations? And so we will now proceed with our tale in full swing, following that which we have already been told.

Article IV, Section 4 of the United States Constitution reads as follows: "The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence."

The language is unmistakable. Every State within the Union of the United States is guaranteed a republican form of government. And, this guarantee is extended to each State by the government of the United States. In fact, every territory which applied for statehood was obligated to form a republican form of government and operate thereas to the satisfaction of the United States Government, for a period of time, prior to being admitted as a State of the Union.

(We will address later in this work how the courts have viewed the political/justiciable doctrines which arose as a result of Article IV Section 4.) In fact, if one is inclined to read the Act of Admission for California one would find that when admitting California to the Union, Congress "found [California] to be republican in its form of government". This could easily be identified by Congress upon examination of the California Constitution which established a republican form of government, in addition to the actual governmental practices in which the State of California engaged.

Article IV, Section 4 is further bolstered by the "Supremacy Clause" contained in Article VI Clause 2 which states "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; . . . . shall be the supreme Law of the Land."

With these two Articles in place it cannot be doubted that every State of the Union is guaranteed a republican form of government, as opposed to any other type of government; that such a guarantee is the Supreme Law of the Land and cannot be contravened by any other law any State may decide to make; and, it is the duty of the United States government to ensure that this guarantee is not displaced by some more expedient form of government. And, California adopted and ratified a Constitution consistent with the United Stateís Constitution, wherein it was required to provide for a republican form of government.

Letís take a brief look at exactly what constitutes a republican form of government, at least from our perspective. First, Blackís Law Dictionary, 5th Ed. defines a Republican government as "a government of the people; a government by representatives chosen by the people." Taking this a step further our respective state and federal constitutions provide that our particular form of government would consist of three branches, that is to say, the Legislative Branch, the Executive Branch, and the Judicial Branch. The Legislative Branch would function as our law-making faction, the Executive Branch would execute those laws, and the Judiciary Branch would ensure justice was done by the two other branches. Add to that the Constitution by which the respective branches are bound to, and we have completed our Constitutional Republican form of government.

Working on Jeffersonís theory that we need not to concern ourselves that good men could become bad men once obtaining the power their respective office conveyed upon them because they would be bound by the Constitution, it was decided that to bind the elected officials to the constitution, each elected official would swear an oath of allegiance to the Constitution. In the 1850 version of the California State Constitution the following oath was inserted at Article XI Section 3 Ė

"I do solemnly swear (or affirm, as the case may be) that I will support the Constitution of the United States, and the Constitution of the State of California; and that I will faithfully discharge the duties of the office of (name of office), according to the best of my ability."

All members of the legislature and all executive and judicial officers, except such inferior officers as exempted by law, were required to take and subscribe to this oath. The California Constitution, as have all Constitutions, has been amended several times over the years. However, the oath required to be taken by our elected officials remained in tact to ensure our elected representatives would be bound by the Constitutions.

As you may, or may not, remember there was period after World War II which was known as the Cold War. Communism tightened its grip on the world and a huge concern began to grow that the possibility of Communism could become entrenched in America. This concern soon escalated into a craze, and as a result the "House Un-American Activities Committee" was formed and at its head was Senator Joseph McCarthy from Wisconsin. HUAC, a permanent subcommittee on investigations, held public hearings in which McCarthy accused army officials, members of the media, and public figures of being Communists. His charges were never proved, and he was censured by the Senate in 1954. The reason this history is being related to the reader is to explain what happened to the oath the elected officials are currently bound to take and subscribe to in California. In 1952, during the McCarthy Era, the oath was changed to the following:

Members of the Legislature, and all public officers and employees, executive, legislative, and judicial, except such inferior officers and employees as may be by law exempted, shall, before they enter upon the duties of their respective offices, take and subscribe the following oath or affirmation:

"I, ______, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic; that I will bear true faith and allegiance to the Constitution of the United States and the Constitution of the State of California; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties upon which I am about to enter.

"And I do further swear (or affirm) that I do not advocate, nor am I a member of any party or organization, political or otherwise, that now advocates the overthrow of the Government of the United States or of the State of California by force or violence or other unlawful means; that within the five years immediately preceding the taking of this oath (or affirmation) I have not been a member of any party or organization, political or otherwise, that advocated the overthrow of the Government of the United States or of the State of California by force or violence or other unlawful means except as follows:

(If no affiliations, write in the words "No Exceptions") and that during such time as I hold the office of (name of office) I will not advocate nor become a member of any party or organization, political or otherwise, that advocates the overthrow of the Government of the United States or of the State of California by force or violence or other unlawful means."

Notice that the first part of the oath the officials must not only support and defend the constitutions, they must also swear allegiance to them. Additionally, they take the oath without mental reservation. [As an aside it should be noted that the Jesuits believed that anything they did which was intended to advance their religious ideologies was righteous regardless of how wrong or immoral it may seem to the rest of the world. With this thought in mind, they would freely take oaths, swearing to allegiance, or whatever was the fare of the day, swearing to tell the truth, or swearing to whatever it was they were swearing to. However, it was their considered opinion that while taking an oath, if they mentally reserved the right to reject all or any part of their oath, that the oath was not binding upon them. This idea of "mental reservation" was not lost on others who fell upon and understood this doctrine.]

Notice also that there was added a totally new paragraph to the oath. Paraphrased, it explains that the affiant was not a member of any organization that advocates the overthrow of the government of the United States or State of California, within the 5 years preceding the taking of the oath of office. It further allows that if one did belong to such an organization, one was to list the name of the organization when the oath was subscribed to; and further, one had to declare the position occupied in that organization. Finally, the oath provides that the affiant will not become a member of any such organization. (Pssst, this is where it gets good)

Now, one wonders why there was an inclination to change the oath. I think the answer will be found upon examination of the times. The year is 1952; in historic time frames we have just concluded World War II and are now engaged in the Korean Police Action. [Some would have you believe this was a war, but it wasnít. To be sure, many good Americans died in this conflict, nonetheless, it was not a declared war as contemplated by the Constitution and its framers.] Communism had reared its ugly head on a level heretofore unknown. Speaking purely from conjecture, and calling upon history, it can be presumed that with the demise of Hitler and the Third Reich the United States was coming up short in the "We need an enemy" department which generally doesnít sit well with a crisis motivated government, which was what the United States government was at the time. [Actually, much hasnít change since then.] We look at the Korean Conflict; coupled with our Russian Allies, and find our enemy Ė COMMUNISM. Propaganda, not unlike that which was employed by Hitler, was properly administered in doses designed to warn of us of the "red menace" lurking behind the "Iron Curtain". Consequently, the fear of god was struck into the heart of every red-blooded American and the war waged against communism was consecrated as good, just, and a necessary evil.

Enter, HUAC and McCarthy making wild accusations against prominent government officials and citizens and suddenly there arises a need to ensure that no government official has been a communist, or has been involved in any communistic activity; and, if one has, to be able to document it for further consideration. Ohhhh, the oath in Article 22, Section 3 of the California Constitution doesnít mention communism, but given the fare of the day it doesnít take a rocket scientist to figure out what was happening, especially given that many targets of HUAC and McCarthy hailed from California. Everything being even, a very strong argument can be made in favor of changing the oath of office, and in fact it was. Of course, First Amendment objections were taken to these types of oaths, but to no avail Ė the red menace must be contained at all costs.

Additionally, it must also be kept in mind that prior to World War II every political community on the face of the Earth sat back and watched as Hitlerís Third Reich moved into place forcibly removing the constitutionally established Weimar Republic in 1933. What followed was the greatest world war the planet ever saw along with the Holocaust which was inspired by massive Nazi propaganda. Hitler replaced the Weimar Republic by force of arms as opposed to a lawfully accepted method. The United States was not blind to the methods employed by Hitler, (and still arenít today). Thus, it could be concluded that many state governments in the United States changed their oath of office to ensure that elected officials and certain government employees, who were placed in office, were not of the mind-set to overthrow the government in the manner in which Hitler had engaged, i.e., conspiracy, subterfuge, and propaganda which led to the establishment of a de facto government which, in turn was forced upon the people.

Nevertheless, for whatever reasons, the Oath of Office was changed in 1952 in California and it remains with us today. It must be unconditionally taken and subscribed to in the State of California before an official can legally take office. If the Oath of Office is not taken and subscribed to as provided for in the California Constitution, no elected official or employee can take office, or perform the duties of that office. However, if it were to happen that an elected officer or employee took office, without taking the appropriate oath of office as prescribed by the California Constitution, just exactly who, or what, would we have occupying a governmental office? Letís find out!

In providing for the Oath of Office the California Legislature enacted the following laws.

Article 4. Oath of Office

GOV ß1360. Unless otherwise provided, before any officer enters on the duties of his office, he shall take and subscribe the oath or affirmation set forth in Section 3 of Article XX of the Constitution of California.

GOV ß1362. Unless otherwise provided, the oath may be taken before any officer authorized to administer oaths.

GOV ß1363. (a) Unless otherwise provided, every oath of office certified by the officer before whom it was taken shall be filed within the time required as follows:

(1) The oath of all officers whose authority is not limited to any particular county, in the office of the Secretary of State.

(2) The oath of all officers elected or appointed for any county, and, except as provided in paragraph (4), of all officers whose duties are local, or whose residence in any particular county is prescribed by law, in the office of the county clerk of their respective counties.

(3) Each judge of a superior court, the county clerk, the executive officer or court administrator of the superior court, and the recorder shall file a copy of his or her official oath, signed with his or her own proper signature, in the office of the Secretary of State as soon as he or she has taken and subscribed his or her oath.

(4) The oath of all officers for any independent special district, as defined in Section 56044, in the office of the clerk or secretary of that district.

(b) Every oath of office filed pursuant to this section with the Secretary of State shall include the expiration date of the officerís term of office, if any. In the case of an oath of office for an appointed officer, if there is no expiration date set forth in the oath, or the officer leaves office before the expiration date, the appointing authority shall report in writing to the Secretary of State the officerís date of departure from office.

GOV ß1364. It is unlawful to remove a person from an office or position of public trust because such person has not complied with any law, charter, or regulation prescribing an additional test or qualification for such office or position of public trust, other than tests and qualifications provided for under civil service and retirement laws, whenever such person:

(a) Holds the office or position of public trust, and

(b) Upon entering upon the office or position of public trust, has taken, or after his election or appointment, has offered to take the oath of office prescribed by this article.

GOV ß1365. It is unlawful for any person having the power of removal from office of any officer to remove or threaten to remove the officer from his office because the officer, in the appointment of any person to a position of public trust under himself, refuses to require any additional test or qualification, other than the oath prescribed by this article and tests and qualifications provided for under civil service and retirement laws, as a condition of permitting the appointee to enter upon or remain in the position of public trust.

GOV ß1366. Any officer or person who is removed or threatened with removal from any office or position of public trust may bring an action to restrain such unlawful removal or to enforce restoration by process of injunction, both prohibitory and mandatory, if the real reason for the removal or threat thereof is noncompliance with provisions requiring such additional test or qualification or the refusal to require any additional test or qualification in the appointment to a position of public trust.

GOV ß1367. No compensation nor reimbursement for expenses incurred shall be paid to any officer by any public agency unless he has taken and subscribed to the oath or affirmation required by this chapter.

GOV ß1368. Every person who, while taking and subscribing to the oath or affirmation required by this chapter, states as true any material matter which he knows to be false, is guilty of perjury, and is punishable by imprisonment in the state prison not less than one nor more than fourteen years.

GOV ß1369. Every person having taken and subscribed to the oath or affirmation required by this chapter, who while holding office, advocates or becomes a member of any party or organization, political or otherwise, that advocates the overthrow of the government of the United States by force or violence or other unlawful means, is guilty of a felony, and is punishable by imprisonment in the state prison.

As can be seen, particularly from Section 1369, the Oath of Office required by the State of California is not a laughing matter. The Oath is to be taken verbatim, and should an official violate that oath he is guilty of a felony. In fact, Section 1360 prohibits an official from taking office and performing the duties thereunder until he has taken and subscribed to the Oath set forth in Section 3, Article XX of the Constitution of California. (Notably, it does not say an official takes the oath after he enters upon his duties of his office.) Presumably then, an official who hasnít taken the prescribed Oath of Office before taking office cannot constitutionally enter into the duties of his office, and if he does, he does not constitute a part of the de jure government; but rather, he must be that which is proscribed by both the California Constitution and Government Code, that is to say -- "a member of any party or organization, political or otherwise, that now advocates the overthrow of the Government of the United States or of the State of California by force or violence or other unlawful means."

The question which begs itself is, "How can one make such a jump, merely because the Oath of Office is not Taken or Subscribed to by the official?" The answer is not as difficult as it would first appear. Please bear with us as we explain.

In order for a person to lawfully hold office in the California Constitutional Republic that person must be elected and placed in office under the mandates of a republican form of government. Californiaís republican form of government expressly prohibits anyone who has not taken the Oath of Office, as prescribed by the State Constitution from taking office. The Oath, as you have read, expressly provides that the affiant must swear that he does not belong to an organization or party which would overthrow the United States Government or the Government of the State of California. Further, the Oath provides that if he has belonged to such an organization or party he must provide the name of the organization or party to which he had allegiance to, and his position therein. Finally, it provides that during his term of office the affiant will not join such an organization or party.

With this scenario firmly in mind letís examine what is occurring in California. When an elected candidate takes an oath in California one would think the task would be simple enough, as it is amply provided for by law. The elected candidate would simply pull out the Constitution, have the oath administered by the proper person as provided for by law, and subscribe his name to the exact oath which was taken. As previously pointed out, the Oath of Office can be found at Article XX, Section 3. But, that is not what happens. No indeed, thatís not what happens at all. The elected candidates swear an Oath, but not the one provided for by law. The Oath which everyone appears to be taking is in the following truncated form, To Wit:

 

"I, ______, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic; that I will bear true faith and allegiance to the Constitution of the United States and the Constitution of the State of California; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties upon which I am about to enter.

Now granted, it does track the language of the first half of the Oath of Office found in the California Constitution, which, all things being even, is pretty good. But not good enough; where is the rest of it? You know, the part about not belonging to any organization which would overthrow the government? Why is that part missing? Since that part is missing, can it be presumed that the affiant intends to belong to such an organization, or actually already belongs to such an organization? For what other reason would the second part of the Oath be omitted? I guess we could hypothesize all day, but I sure wouldnít take an Oath I wasnít going to keep, and I sure wouldnít perjure myself upon the taking of an Oath. Hence, if I believed that I couldnít live up to the oath, I would either change it, not take it, or take mental reservation to the Oath. After some checking around, it has been discovered that the Oath hasnít been changed, the elected candidates did take a truncated form of the oath; and, it doesnít appear they would have to take mental reservation to the Oath, rather, they just simply omitted the offending part of it.

What exactly, again, does a person have to do to take office? Well, he has to "take and subscribe the oath or affirmation set forth in Section 3 of Article XX of the Constitution of California." Not just part of it, he has to take and subscribe to the entire oath. And, "no compensation nor reimbursement for expenses incurred shall be paid to any officer by any public agency unless he has taken and subscribed to the oath or affirmation required by this chapter." I would ask you, dear reader, just exactly WHO is occupying the governmental offices in the state of California, and just exactly who are we paying to do so?

They are not elected officials, because in order to be an elected official, they are required to take the Oath of Office under Article XX, Section 3 of the California Constitution. And, if there are no elected officials in office WHO is running our constitutional republic? The answer seems pretty obvious, no one is running our constitutional republic because we have no one in office who is qualified to run it; hence we no longer have a constitutional republican form of government. You know, the type of government the United States government is supposed to guarantee every state of the union under Article VI, Section 4 of the United States Constitution.

So what do we have? Some would argue that we have a de facto government which means a government accepted for all practical purposes, but one that is illegal or illegitimate. But what authority does a de facto government have? Just like Hitlerís Third Reich, it only has the authority which it can muster by use of force, which in fact, can be quite a bit, as we are finding out. But, that is not what we are guaranteed. We are not guaranteed a socialist, communistic, fascist, or cannibalistic form of government. But apparently that is what we have in some form or another. Or perhaps we have anarchy, i.e., no government at all, a complete state of lawlessness. How can it be otherwise? If we do not have a constitutional republican form of government we must not have any at all, since that is the only type permissible in the United States.

Think about it. The people who have been elected to carry out the functions of our state government have failed to perform the most fundamental duty of office, i.e., take and subscribe to the Oath of Office as found in the California Constitution. Hence, they may be elected, but they are not officials since they never officially took office as mandated by the law. So what are they? Quite simply, they could be described as Nazis because they took our government away from us in much the same manner as Hitler took the German Republic, i.e., in complete disregard for the existing accepted law, making their own laws as they went along -- by force of arms. Is this characterization too strong? I think not. After all, why is virtually every so-called official in the state of California failing to take the Constitutional Oath of Office?

The question is now, "How can the state of affairs be repaired?" One answer quickly comes to mind Ė just have all of them take the correct oath. Simple, huh? Oh, I bet someone out there would have thought of it. But, we have a problem to overcome if we use that line of reasoning. The law precludes anyone from taking office if they havenít taken the Oath before first taking office. Hence, the problem simply cannot be mended by having these people take the Oath now as that is kind of like shutting the barn door after the horse has gotten out. These people are still occupying office illegally, and they have been holding office illegally, and that, folks, as they say, is that; and they cannot simply fix it by taking the oath at this late date. The law simply does not provide for that avenue of relief. And, even if that were a plausible cure, what about all of the acts which have been performed by these so called officials, what about all the laws that have been passed by men who never took office? They are all null and void as no official was in office to pass these laws and to perform these deeds. And, if we have no officials or government employees in office, who would administer the Oath of Office? They have also taken government paychecks in violation of the law, which is theft, (if you or I did that, we would be in jail).

Letís face it! We have a problem here, and it isnít small, and it isnít easily remedied, unless of course, we subscribe to Hitlerís methods of operation, i.e., just do it!! Having now been presented with this problem, how do we get our constitutional republican form of government up and running again? Obviously, there is no state official currently holding office whom can act to cure this situation. On the other hand, the law does not allow for impossibilities and absurdities, therefore, there must be a solution to this problem --------- at least, thatís the theory.

Letís examine this a little more closely. We have a constitutional republican form of government. The United States Constitution guarantees us one; that means we have one, right? (Well, thatís the theory anyway.) And, who would be carrying out the mandates of the United States Constitution? That would be the national government, right? (At least thatís the theory.) It follows then, that the United States government ought to be over here in California doing something about this problem because, since they guarantee us a constitutional republican form of government, wouldnít it be their job to ensure we have people in place to carry it into effect, if Section IV, Clause 4 is going to be given life? Seems reasonable to me. But, here is what the government has to say about that.

In Luther v. Borden, 48 U.S. (7 How.) 1 (1849) the Supreme Court established the doctrine that questions arising under Article IV, Section 4 are political, not judicial, in character and that Ďíit rests with Congress to decide what government is the established one in a State . . . as well as its republican character.íí In Texas v. White, 74 U.S. (7 Wall.) 700, 729 (1869) it was held that the action of the President in setting up provisional governments at the conclusion of the Civil War was justified, if at all, only as an exercise of his powers as Commander-in-Chief and that such governments were to be regarded merely as provisional regimes to perform the functions of government pending action by Congress. On the ground that the issues were not justiciable, the Court in the early part of this century refused to pass on a number of challenges to state governmental reforms and thus made the clause in effect noncognizable by the courts in any matter, a status from which the Courtís opinion in Baker v. Carr, 369 U.S. 186, 218 -232 (1962), despite its substantial curbing of the political question doctrine, did not release it. In the Courtís view, the guarantee clause questions which arose under Article IV, Section 4, were nonjusticiable because resolution of them had been committed to Congress and not because they involved matters of state governmental structure. In short, the Supreme Court took a hands-off attitude when it came to the establishment of a republican form of government in any of the several states. (Perhaps "political expediency" dictated this result, as the Supreme Court has allowed that "doctrine" to govern its decisions far too often.)

Similarly, in Luther v. Borden, 48 U.S. (7 How.) 1 (1849) the Court indicated that it rested with Congress to determine upon the means proper to fulfill the guarantee of protection to the States against domestic violence. Chief Justice Taney declared that Congress might have placed it in the power of a court to decide when the contingency had happened which required the Federal Government to interfere, but that instead Congress had by the act of February 28, 1795, authorized the President to call out the militia in case of insurrection against the government of any State. It followed, said Taney, that the President Ďímust, of necessity, decide which is the government, and which party is unlawfully arrayed against it, before he can perform the duty imposed upon him by the act of Congressíí, which determination was not subject to review by the courts.

More recently, however, the Court speaking through Justice OíConnor has raised, without deciding, the possibility that the guarantee clause is justiciable and is a constraint upon Congressí power to regulate the activities of the States. New York v. United States, 112 S.Ct. 2408, 2432-2433 (1992); Gregory v. Ashcroft, 501 U.S. 452, 463 (1991). The opinions draw support from a powerful argument for utilizing the guarantee clause as a judicially enforceable limit on federal power. Merritt, The Guarantee Clause and State Autonomy: Federalism for a Third Century, 88 Colum. L. Rev. 1 (1988).

On the occasions that the Supreme Court has had an opportunity to address Article IV, Section 4, it would appear the issues have been narrowly crafted, as is normal with the Supreme Court. In any event, the possibility that every branch of the federal government is in someway and somehow responsible for enforcing this guarantee appears evident. So who is going to step up to the plate and deliver the hit?

The Necessary and Proper clause found in Article I, Section 8, Clause 18 of the United States Constitution informs Congress that they shall make all laws necessary and proper to carry out the powers given to it. It would appear that, it would be Congressí duty to enact legislation to provide for any situation arising under Article IV, Section 4. Then, it would be the executive departmentís duty to enforce that law, with the Supreme Court following close behind to insure constitutional mandates and safeguards have been followed. Anyway, thatís the theory . . . . . .

CLOSING REMARKS AND THE GRAY CHAMPION TALE BY HAWTHORNE

This story having been told, without a beginning, must therefore have earned no end and so it has not and there is none. Ergo, now we must ask ourselves, a question. "If there was not a beginning, and there can be no end to this story which has been unfurled, what must we do to start anew? Perhaps we must revive the Gray Champion?" Think about it. Think about it real hard.

 

The Gray Champion

By, Nathaniel Hawthorne

THERE WAS ONCE a time, when New-England groaned under the actual pressure of heavier wrongs, than those threatened ones which brought on the Revolution. James II, the bigoted successor of Charles the Voluptuous, had annulled title charters of all the colonies, and sent a harsh and unprincipled soldier to take away our liberties and endanger our religion. The administration of Sir Edmund Andros lacked scarcely a single characteristic of tyranny: a governor and Council, holding office from the King, and wholly independent of the country; laws made and taxes levied without concurrence of the people, immediate or by their representatives; the rights of private citizens violated, and the titles of all landed property declared void; the voice of complaint stifled by restrictions on the press; and, finally, disaffection overawed by the first band of mercenary troops that ever marched on our free soil. For two years, our ancestors were kept in sullen submission, by that filial love which had invariably secured their allegiance to the mother country, whether its head chanced to be a Parliament, Protector, or popish Monarch. Till these evil times, however, such allegiance had been merely nominal, and the colonists had ruled themselves, enjoying far more freedom, than is even yet the privilege of the native subjects of Great Britain.

At length, a rumor reached our shores, that the Prince of Orange had ventured on an enterprise, the success of which would be the triumph of civil and religious rights and the salvation of New-England. It was but a doubtful whisper; it might be false, or the attempt might fail; and, in either case, the man, that stirred against King James, would lose his head. Still the intelligence produced a marked effect. The people smiled mysteriously in the streets, and threw bold glances at their oppressors; while, far and wide, there was a subdued and silent agitation, as if the slightest signal would rouse the whole land from its sluggish despondency. Aware of their danger, the rulers resolved to avert it by an imposing display of strength, and perhaps to confirm their despotism by yet harsher measures. One afternoon in April, 1689, Sir Edmund Andros and his favorite councillors, being warm with wine, assembled the red-coats of the Governorís Guard, and made their appearance in the streets of Boston. The sun was near setting when the march commenced.

The roll of the drum, at that unquiet crisis, seemed to go through the streets, less as the martial music of the soldiers, than as a muster-call to the inhabitants themselves. A multitude, by various avenues, assembled in King-street, which was destined to be the scene, nearly a century afterwards, of another encounter between the troops of Britain, and a people struggling against her tyranny. Though more than sixty years had elapsed, since the Pilgrims came, this crowd of their descendants still showed the strong and sombre features of their character, perhaps more strikingly in such a stern emergency than on happier occasions. There was the sober garb, the general severity of mien, the gloomy but undismayed expression, the scriptural forms of speech, and the confidence in Heavenís blessing on a righteous cause, which would have marked a band of the original Puritans, when threatened by some peril of the wilderness. Indeed, it was not yet time for the old spirit to be extinct; since there were men in the street, that day, who had worshipped there beneath the trees, before a house was reared to the God, for whom they had become exiles. Old soldiers of the Parliament were here too, smiling grimly at the thought, that their aged arms might strike another blow against the house of Stuart. Here also, were the veterans of King Philipís war, who had burnt villages and slaughtered young and old, with pious fierceness, while the godly souls throughout the land were helping them with prayer. Several ministers were scattered among the crowd, which, unlike all other mobs, regarded them with such reverence, as if there were sanctity in their very garments. These holy men exerted their influence to quiet the people, but not to disperse them. Meantime, the purpose of the Governor, in disturbing the peace of the town, at a period when the slightest commotion might throw the country into a ferment, was almost the universal subject of inquiry, and variously explained.

"Satan will strike his master-stroke presently," cried some, "because he knoweth that his time is short. All our godly pastors are to be dragged to prison! We shall see them at a Smithfield fire in King-street!"

Hereupon, the people of each parish gathered closer round their minister, who looked calmly upwards and assumed a more apostolic dignity, as well befitted a candidate for the highest honor of his profession, the crown of martyrdom. It was actually fancied, at that period, that New-England might have a John Rogers of her own, to take the place of that worthy in the Primer.

"The Pope of Rome has given orders for a new St. Bartholomew!" cried others. "We are to be massacred, man and male child!"

Neither was this rumor wholly discredited, although the wiser class believed the Governorís object somewhat less atrocious. His predecessor under the old charter, Bradstreet, a venerable companion of the first settlers, was known to be in town. There were grounds for conjecturing, that Sir Edmund Andros intended, at once, to strike terror, by a parade of military force, and to confound the opposite faction, by possessing himself of their chief.

"Stand firm for the old charter Governor!" shouted the crowd, seizing upon the idea. "The good old Governor Bradstreet!"

While this cry was at the loudest, the people were surprised by the well known figure of Governor Bradstreet himself, a patriarch of nearly ninety, who appeared on the elevated steps of a door, and, with characteristic mildness, besought them to submit to the constituted authorities.

"My children," concluded this venerable person, "do nothing rashly. Cry not aloud, but pray for the welfare of New-England, and expect patiently what the Lord will do in this matter!"

The event was soon to be decided. All this time, the roll of the drum had been approaching through Cornhill, louder and deeper, till, with reverberations from house to house, and the regular tramp of martial footsteps, it burst into the street. A double rank of soldiers made their appearance, occupying the whole breadth of the passage, with shouldered matchlocks, and matches burning, so as to present a row of fires in the dusk. Their steady march was like the progress of a machine, that would roll irresistibly over every thing in its way. Next, moving slowly, with a confused clatter of hoofs on the pavement, rode a party of mounted gentlemen, the central figure being Sir Edmund Andros, elderly, but erect and soldier-like. Those around him were his favorite councillors, and the bitterest foes of New-England. At his right hand rode Edward Randolph, our arch enemy, that "blasted wretch," as Cotton Mather calls him, who achieved the downfall of our ancient government, and was followed with a sensible curse, through life and to his grave. On the other side was Bullivant, scattering jests and mockery as he rode along. Dudley came behind, with a downcast look, dreading, as well he might, to meet the indignant gaze of the people, who beheld him, their only countryman by birth, among the oppressors of his native land. The captain of a frigate in the harbor, and two or three civil officers under the Crown, were also there. But the figure which most attracted the public eye, and stirred up the deepest feeling, was the Episcopal clergyman of Kingís Chapel, riding haughtily among the magistrates in his priestly vestments, the fitting representative of prelacy and persecution, the union of church and state, and all those abominations which had driven the Puritans to the wilderness. Another guard of soldiers, in double rank, brought up the rear.

The whole scene was a picture of the condition of New-England, and its moral, the deformity of any government that does not grow out of the nature of things and the character of the people. On one side the religious multitude, with their sad visages and dark attire, and on the other, the group of despotic rulers, with the high churchman in the midst, and here and there a crucifix at their bosoms, all magnificently clad, flushed with wine, proud of unjust authority, and scoffing at the universal groan. And the mercenary soldiers, waiting but the word to deluge the street with blood, shewed the only means by which obedience could be secured.

"Oh! Lord of Hosts," cried a voice among the crowd, "provide a Champion for thy people!"

This ejaculation was loudly uttered, and served as a heraldís cry, to introduce a remarkable personage. The crowd had rolled back, and were now huddled together nearly at the extremity of the street, while the soldiers had advanced no more than a third of its length. The intervening space was emptyóa paved solitude, between lofty edifices, which threw almost a twilight shadow over it. Suddenly, there was seen the figure of an ancient man, who seemed to have emerged from among the people, and was walking by himself along the centre of the street, to confront the armed band. He wore the old Puritan dress, a dark cloak and a steeple-crowned hat, in the fashion of at least fifty years before, with a heavy sword upon his thigh, but a staff in his hand, to assist the tremulous gait of age.

When at some distance from the multitude, the old man turned slowly round, displaying a face of antique majesty, rendered doubly venerable by the hoary beard that descended on his breast. He made a gesture at once of encouragement and warning, then turned again, and resumed his way.

"Who is this gray patriarch?" asked the young men of their sires.

"Who is this venerable brother?" asked the old men among themselves.

But none could make reply. The fathers of the people, those of four-score years and upwards, were disturbed, deeming it strange that they should forget one of such evident authority, whom they must have known in their early days, the associate of Winthrop and all the old Councillors, giving laws, and making prayers, and leading them against the savage. The elderly men ought to have remembered him, too, with locks as gray in their youth, as their own were now. And the young! How could he have passed so utterly from their memoriesóthat hoary sire, the relic of long departed times, whose awful benediction had surely been bestowed on their uncovered heads, in childhood?

"Whence did he come? What is his purpose? Who can this old man be?" whispered the wondering crowd.

Meanwhile, the venerable stranger, staff in hand, was pursuing his solitary walk along the centre of the street. As he drew near the advancing soldiers, and as the roll of their drum came full upon his ear, the old man raised himself to a loftier mien, while the decrepitude of age seemed to fall from his shoulders, leaving him in gray, but unbroken dignity. Now, he marched onward with a warriorís step, keeping time to the military music. Thus the aged form advanced on one side, and the whole parade of soldiers and magistrates on the other, till, when scarcely twenty yards remained between, the old man grasped his staff by the middle, and held it before him like a leaderís truncheon.

"Stand!" cried he.

The eye, the face, and attitude of command; the solemn, yet warlike peal of that voice, fit either to rule a host in the battle-field or be raised to God in prayer, were irresistible. At the old manís word and outstretched arm, the roll of the drum was hushed at once, and the advancing line stood still. A tremulous enthusiasm seized upon the multitude. That stately form, combining the leader and the saint, so gray, so dimly seen, in such an ancient garb, could only belong to some old champion of the righteous cause, whom the oppressorís drum had summoned from his grave. They raised a shout of awe and exultation, and looked for the deliverance of New-England.

The Governor, and the gentlemen of his party, perceiving themselves brought to an unexpected stand, rode hastily forward, as if they would have pressed their snorting and affrighted horses right against the hoary apparition. He, however, blenched not a step, but glancing his severe eye round the group, which half encompassed him, at last bent it sternly on Sir Edmund Andros. One would have thought that the dark old man was chief ruler there, and that the Governor and Council, with soldiers at their back, representing the whole power and authority of the Crown, had no alternative but obedience.

"What does this old fellow here?" cried Edward Randolph, fiercely. "On, Sir Edmund! Bid the soldiers forward, and give the dotard the same choice that you give all his countrymenóto stand aside or be trampled on!"

"Nay, nay, let us show respect to the good grandsire," said Bullivant, laughing. "See you not, he is some old roundheaded dignitary, who hath lain asleep these thirty years, and knows nothing of the change of times? Doubtless, he thinks to put us down with a proclamation in Old Nollís name!"

"Are you mad, old man?" demanded Sir Edmund Andros, in loud and harsh tones. "How dare you stay the march of King Jamesís Governor?" I have staid the march of a King himself, ere now," replied the gray figure, with stern composure. "I am here, Sir Governor, because the cry of an oppressed people hath disturbed me in my secret place; and beseeching this favor earnestly of the Lord, it was vouchsafed me to appear once again on earth, in the good old cause of his Saints. And what speak ye of James? There is no longer a popish tyrant on the throne of England, and by tomorrow noon, his name shall be a by-word in this very street, where ye would make it a word of terror. Back, thou that wast a Governor, back! With this night, thy power is endedótomorrow, the prison ó back, lest I foretell the scaffold!"

The people had been drawing nearer and nearer, and drinking in the words of their champion, who spoke in accents long disused, like one unaccustomed to converse, except with the dead of many years ago. But his voice stirred their souls. They confronted the soldiers, not wholly without arms, and ready to convert the very stones of the street into deadly weapons. Sir Edmund Andros looked at the old man; then he cast his hard and cruel eye over the multitude, and beheld them burning with that lurid wrath, so difficult to kindle or to quench; and again he fixed his gaze on the aged form, which stood obscurely in an open space, where neither friend nor foe had thrust himself. What were his thoughts, he uttered no word which might discover. But whether the oppressor were overawed by the Gray Championís look, or perceived his peril in the threatening attitude of the people, it is certain that he gave back, and ordered his soldiers to commence a slow and guarded retreat. Before another sunset, the Governor, and all that rode so proudly with him, were prisoners, and long ere it was known that James had abdicated, King William was proclaimed throughout New-England.

But where was the Gray Champion? Some reported, that when the troops had gone from King-street, and the people were thronging tumultuously in their rear, Bradstreet, the aged Governor, was seen to embrace a form more aged than his own. Others soberly affirmed, that while they marvelled at the venerable grandeur of his aspect, the old man had faded from their eyes, melting slowly into the hues of twilight, till, where he stood, there was an empty space. But all agreed, that the hoary shape was gone. The men of that generation watched for his re-appearance, in sunshine and in twilight, but never saw him more, nor knew when his funeral passed, nor where his grave-stone was.

And who was the Gray Champion? Perhaps his name might be found in the records of that stern Court of Justice, which passed a sentence, too mighty for the age, but glorious in all after times, for its humbling lesson to the monarch and its high example to the subject. I have heard, that, whenever the descendants of the Puritans are to show the spirit of their sires, the old man appears again. When eighty years had passed, he walked once more in King-street. Five years later, in the twilight of an April morning, he stood on the green, beside the meeting-house, at Lexington, where now the obelisk of granite, with a slab of slate inlaid, commemorates the first fallen of the Revolution. And when our fathers were toiling at the breast-work on Bunkerís Hill, all through that night, the old warrior walked his rounds. Long, long may it be, ere he comes again! His hour is one of darkness, and adversity, and peril. But should domestic tyranny oppress us, or the invaderís step pollute our soil, still may the Gray Champion come; for he is the type of New-Englandís hereditary spirit; and his shadowy march, on the eve of danger, must ever be the pledge, that New-Englandís sons will vindicate their ancestry.