Constitution Society
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Testimony
of
Jon Roland
President of the Constitution Society
before the
Texas State Board of Education
on textbook evaluation
July 17, 2002

Introduction

Thank you for hearing my testimony today. I represent an organization that may be new to most of you, the Constitution Society. We are focused on constitutional education, and therefore on how civics textbooks being considered for approval handle that subject. This is a report on one textbook, Magruder’s American Government, published by Prentice-Hall. There are many good things about  the new proposed edition, but my analysis finds numerous serious errors and omissions that justify rejection until they can be corrected. This report is not exhaustive of all the errors, and especially not of the omissions, but focuses on some of the more serious ones, many of which resemble errors and omissions of other textbooks being considered..

This report, with supporting documentation, will be available online on our site at http://www.constitution.org/reform/us/tx/textbook/02717_sboe.htm

Summary of the main errors and omissions

Chapter 3, The Constitution, Section 3, Informal Amendment. There is no such thing as an “informal amendment” to the written Constitution, which provides in Article V for only four procedures for amendment, and acquiescence to practices and precedents is not one of them. There is historical evidence of what the Founders meant by the provisions of the Constitution, that some have called the “unwritten Constitution”, and there are practices and precedents that may or may not be authorized by or compatible with the written Constitution, but the latter, however useful they might be, are not the Constitution, and it is incorrect to call them “amendments”.

Student Edition (SE), p. 80. “Commerce” had a definition at the time the Constitution was adopted not supportive of most congressional legislation. “The Original Meaning of the Commerce Clause”, Randy E. Barnett, 68 U. Chicago Law Review 101, http://www.bu.edu/rbarnett/Original.htm .

SE, p. 81. Status of Cabinet. Established by statute, not by custom. Members may succeed to the presidency, after the Vice-President, Speaker of the House, and Senate President pro tempore.

SE p. 81 and elsewhere. “Living Constitution”, as used by author, includes departures from constitutional compliance.

Teacher’s Edition (TE), p. 80. Executive agreements are not as binding as treaties.

TE, p. 81. Marshall quote does not exemplify the concept of a “living Constitution” as the author is using the term.

TE, p. 78. Answer 4. Contrary to this answer, courts would have duty to overturn acts of the other two branches even without the Bill of rights, as argued by Madison in the letter, because there are no delegated powers to violate them.

SE, Chap. 4 Sec. 1, p. 90. There is no general delegated power to prohibit race‑based discrimination. The power delegated is only to prohibit violations of rights by a state agent, or by parties engaged in interstate commerce.

SE, Chap. 4 Sec. 1, p. 90. The 16th Amendment, if it was ratified, did not give Congress the power to levy an income tax. It delegated no new taxing power. It made an exception of the income tax from the provision that direct taxes had to be apportioned by population. Independent research of state legislative records, never refuted, shows clearly that the income tax amendment was not ratified, and that the declaration that it had been by then Secretary of State Philander Knox was probably fraudulent. Courts have refused to rule on the issue, preferring to declare it to be a “political question”.

SE, Chap. 4 Sec. 1, p. 90. The statement

Through congressional and court interpretation, the words necessary and proper have come to mean, in effect, "convenient and useful." 

suggests the meaning of the words in the written Constitution can change, or have changed, or should change, but what has changed is only what people have taken them to mean, not their original meaning, which is what must be considered authoritative if the rule of law is to prevail.

SE, Chap. 4 Sec. 1, p. 91. The statement

The inherent powers belong to the National Government because it is the government of a sovereign state...

is misleading, because for a federal republic like the United States the powers of sovereignty are divided between the central and state governments, so one cannot conclude “inherent” powers  must be exercised by the central government. The doctrine of inherent powers is presented as though it were part of the Constitution, but it is only part of practice, not of the Constitution.

SE, Chap. 4 Sec. 1, p. 91. The power to “prohibit freedom of religion” is not expressly prohibited. What is expressly prohibited, by the First Amendment, is to make laws respecting an establishment of religion, a subtle but important difference in meaning. The broader prohibition arises from nondelegation of any power to prohibit freedom of religion, and is implied by the Ninth and Tenth Amendments.

SE, Chap. 4 Sec. 1, p. 91. Thompson quote and discussion of it is misleading. It suggests the only question is what should government be doing and at what level, not whether it has the constitutional authority to do what is proposed.

SE, Chap. 4 Sec. 1, p. 91. It is not quite accurate to say that the central government does not have the listed powers, such as “to set up units of local government”. It does have some such powers in federal enclaves, such as the District of Columbia, and some arsenals, dockyards, etc., ceded to the exclusive legislative jurisdiction of Congress by an act of a state legislature under Art. I Sec, 8 Cl. 17. It just does not have such powers on unceded state territory.

SE, Chap. 11, Powers of Congress, Sec. 1, Scope of Congressional Powers, p. 291. The phrase

The strict constructionists, led by Thomas Jefferson, continued to argue the Anti-Federalist position...

is not quite accurate. It would be more accurate to say something like

Ratification of the Constitution had been achieved by reaching agreement with enough of the anti-federalists concerning how the words of the Constitution would be interpreted, which established strict construction as the standard of interpretation. This settlement determined the original understanding of the provisions of the Constitution, which thereby became binding on future generations. Most of the leading strict constructionists, like Jefferson and Madison, had been federalists, supporters of ratification.

At this point, there were no longer any “anti-federalists”. The strict constructionists may be more accurately referred to as Jeffersonians or “old republicans”.

SE, p. 291. The statement

The liberal constructionists won that conflict in the early years of the Republic

is misleading. They gained support on some issues, but on other issues strict construction continued to prevail. It was not until the New Deal that they gained the support they have had until recently, and that support is starting to unravel. In law, nothing is ever finally settled.

SE, p. 291. The statement

the American people have generally agreed with a liberal interpretation of the Constitution.

is misleading. The issue has never been put to them in those terms. Their choices have usually been limited to choices among liberal interpretations or the policies such interpretations would support. This is inferring constitutional support from policy preferences, which is invalid and prejudicial.

SE, p. 292. Key term 4. The command

Explain the meaning of this sentence: A consensus on liberal construction exists in the United States today.
presumes as a fact a proposition that should be the topic of debate.

SE, p. 292. Critical Thinking 8. The student is encouraged to go to www.phschool.com for more material on “originalism” but no such material could be found on that site, and given the bias of the site one has to be skeptical that the student will find unbiased material on this topic there when and if it is put up. The student should be encouraged to search on combinations of terms such as “constitution” and “original understanding”.

SE, p. 297. Much on current events, such as “The war on terrorism very likely means that red ink may once again be the order of the day”, but is subject to being rendered untrue, since the current red ink arises from a downturn in the stock market and corporate scandals, not from the “war on terrorism”. Better to avoid statements that may be incorrect by the time the book is published, and leave such statements for supplements or online web pages.

SE, Ch.11 Sec 2, p. 300. It is okay to refer to the “Legal Tender Cases” when addressing lawyers, but it is more accurate to refer to them as Knox v. Lee and Parker v. Davis, both in 1871. It should be mentioned that President Ulysses S Grant packed the Supreme Court to get those decisions.

SE,  p. 300. The statement “Most bankruptcy cases are heard now in federal district courts.” is not quite accurate. There are special bankruptcy courts.

SE,  p. 300. Key term 1. The text does not provide an adequate explanation of the difference between a direct and an indirect tax. An indirect tax is a tax that can be passed on to the ultimate consumer as a higher aggregate price, and which the consumer can avoid paying by avoiding the purchase of the product or service that includes the tax. A direct tax is one the ultimate individual payer cannot avoid by refraining from engaging in a transaction, such as a head or poll tax, an ad valorem tax on real property, or a tax on labor. However, the Constitution delegated no express power to Congress to levy such taxes, and the Founders seem to have considered labor a natural right which could not be taxed.

SE,  p. 300. Key term 7. The directive to read “McCulloch v. Maryland and write a paragraph explaining how the decision defined Article 1, Section 8, Clause 18" should substitute the word “interpreted” for “defined”. Clauses of the Constitution were defined by the Founders, even if it may be difficult to discern what the definitions were.

SE, Ch.11 Sec 4, p. 307. The statement

1956 Interstate Highway Act provides federal funds to build a national highway system. (Expressed power: to regulate interstate commerce)

is incorrect. The Act was justified as a national defense expenditure, to facilitate the movement of military forces.

SE, Ch.11 Sec 4, p. 308. The statement

Choose three of the implied powers listed above and explain specifically why we can assume that these powers belong to Congress.

is one-sided. It should say

... why these powers may or may not belong to Congress.

SE, Ch.11 Sec 4, p. 308. The statement

Indeed, it is impossible to see how the United States could have developed as it has under the Constitution without the principle established by McCulloch.

is one-sided. It suggests the McCulloch decision was critical to the positive ways the United States has developed, but it might have developed better if it had not been made. Moreover, the principle in McCulloch was in the dictum, or commentary, of the opinion, not in the edict, or finding, on which the order was based. Dicta do not have the force of law.

SE, Ch.14 Sec 2, p. 393. The statement

The Constitution requires the President to execute all federal laws no matter what the chief executive's own views of any of them may be. 

is valid but misleading, because it could be interpreted as meaning that all statutes are laws, but unconstitutional statutes are not laws. They are null and void ab initio, from inception, and the President is not bound to enforce them, nor is anyone bound to obey them. The President, like everyone else, is responsible for making an independent determination of whether any statute or other official act is constitutional. That duty may not be delegated to courts, superiors, or legal advisers. The duty is called constitutional review, and when exercised by a judge, judicial review, but it is the duty of everyone, not just judges. See the complete opinion in Marbury v. Madison.

SE, Ch.14 Sec 2, p. 394. Ordinance Power. This subsection is unclear unless it is explained that the power applies only to parties to a contract that subjects them to it, such as employees, contractors, users of government assets, or visitors to government-owned facilities. It may not constitutionally be applied to citizens not subject to supervision in that way, because to do so would be a delegation of legislative power to an executive department, which the Constitution forbids, under the Legislative Powers clause (Art. I Sec. 1). However, in practice the ordinance power has been extended beyond its constitutional limits. An example of this is the Internal Revenue Code (Title 26 of the Code of Federal Regulations). Demands for statutory authority for most of its key provisions are ignored, and so far no one has found statutes authorizing such things as requirements to file returns, pay taxes, or withhold payroll taxes.

SE, Ch.14 Sec 3, p. 403. It is not correct that an executive agreement has the same force of law that a treaty does. An executive agreement only binds the President’s subordinates, that is, employees of the Executive Branch. A treaty may be pled in court by any citizen as though it were a law.

SE, Ch.15 Sec 4, p. 434. The text omits one of the most important federally-chartered corporations that is privately owned, is governed by presidential appointees, and plays a large role in the economy — the Federal Reserve System. It deserves a section of its own, with a discussion of its constitutionality.

SE, Ch.16 Sec 1, p. 449. Income tax. See comments for SE, Chap. 4 Sec. 1, p. 90, SE, Ch.14 Sec 2, p. 394.

SE, Ch. 19 & 20. Discuss First, Fourth, Fifth, Sixth, Seventh, and Eight Amendment protections, but neglect to adequately discuss Second, Ninth, and Tenth Amendment protections.

SE, Ch.20 Sec 3, p. 577. Bill of Attainder. It is more correct to define it as the legislative disablement of a right, since the act does not actually execute the penalty, but only authorizes it, the way the sentencing order of the court in a criminal case authorizes a penalty, itself having been authorized by the finding, or verdict. A legal disablement, or disability, is a restriction on the exercise of a right. For example, before a death warrant can be issued for someone found guilty of murder, the court must first disable his right to life in the sentencing order. For more see http://www.constitution.org/col/psrboa.htm

SE, Ch.20 Sec 3, p. 578. The definition of presentment is not correct. It can be any report of findings on any subject, not necessarily an accusation. A grand jury may also bring an indictment on its own initiative. Grand juries do not make motions the way a party to a judicial proceeding does. A grand jury may also select which of several contenders, including private persons, may prosecute an accused by bring a bill of indictment for one and not for the others. A complete indictment should contain a finding that the charge is constitutional and applicable to the facts, and that the court has jurisdiction in the case, although in practice grand juries have become negligent about this. George J. Edwards, The Grand Jury (1906), http://www.constitution.org/gje/gj_00.htm

SE, Ch.20 Sec 3, p. 579. The statement

In a trial in which a jury cannot agree on a verdict, there is no jeopardy. ... and the accused can be tried again.

is incorrect. The jury must only unanimously agree on a verdict of guilty. If it cannot agree, it must report a verdict of not guilty, or guilt not proved [beyond a reasonable doubt]. An instruction from a judge that the jury must agree unanimously to acquit is unconstitutional.

SE, Ch.24 Sec 1, p. 687. Textbook is unclear about what it means by “revision”. It should mean adoption of a new constitution. The last proposed revised Texas Constitution was presented to the voters in 1975, but was rejected. Presently, a Constitutional Revision Commission is working on drafting a new constitution to be submitted to the voters.

For alternative Texas Constitution see http://www.constitution.org/reform/const/rev_con.htm

SE, Ch.24 Sec 4, p. 703. It is not correct that court decisions in general create precedents. With few exceptions, only appeals court decisions that are published. Not all decisions are published.

SE, Ch.24 Sec 4, p. 703. The explanation of the difference between common law and equity is a start, but is simplistic. They differ in the kinds of relief sought. Common law involves petitions for damages, costs, possession, or custody. Equity involves petitions for specific performance, for injunctive or declaratory relief, or for abatement of a nuisance.

SE, Ch.24 Sec 4, p. 704. It is not quite correct that the grand jury meets in secret. It is supposed to deliberate in secret, but it may choose not to do so, and it may conduct public hearings. It may also exclude all persons, including judges and prosecutors, from its meetings. It should be pointed out that in Texas the prosecutor does not have to be a District Attorney. Private parties may also serve as pro tempore prosecutors, and may even be paid for their services if funds are available.

SE, Ch.24 Sec 4, p. 704. The statement “In a criminal case in Texas, the jury's verdict must be unanimous.” is not quite correct. It must be unanimous to convict, not to acquit, although judges sometimes give instructions that mislead jurors into thinking they must be unanimous to acquit as well as to convict. In a criminal trial, a “hung jury” is supposed to be nearly impossible, unless the jurors refuse to deliberate.

SE, Ch.24 Sec 4, p. 706. Potential jurors are selected not just from voter registration lists, but may also be selected from other lists, such as licensed drivers.

SE, Ch.24 Sec 4, p. 706. The statement “Follow the law as it is explained to you.” is misleading. The jury system was adopted because judges and prosecutors cannot always be trusted to be honest, competent, or impartial. In a criminal trial, the jury is asked to render a general verdict, guilty or not guilty, and that necessarily means judging the law as well as the evidence, because in a constitutional republic, all questions of law are questions of fact. Jurors should not bring a verdict of not guilty just because they disagree with the wisdom of the law, but they do need to do so if the charge is not authorized by a statute, the statute is not authorized by the constitution, the statute is not applicable to the facts in the case, the court does not have jurisdiction, or the rights of the accused have been abused by the officials involved. Some constitutional scholars also argue that juries should acquit if all issues of law, except admission of prosecution evidence, are not argued in their presence, they do not get copies of all pleadings, and they do not have the use of a good law library. See William E. Nelson, “The Jury and Consensus Government in Mid-Eighteenth-Century America”, at http://www.constitution.org/jury/pj/nelson.htm

Appendix on the Constitution
It should be pointed out that the original Constitution did not have a title, nor were the sections or clauses numbered. Those were later editorial changes.

The strikethrough of the words “or other direct, Tax” from Art. I Sec. 9 Cl. 4 is incorrect. The author seems to indicate this was nullified by the Income Tax Amendment, but it was not. See above comment for SE, Chap. 4 Sec. 1, p. 90.

Art. IV Sec. 2 Cl. 3 was not nullified by the 13th Amendment. It could still be applied to persons held to service for a crime.

The words struck from Art. V have become inoperative by the passing of the date, 1808, but not by amendment. This should be made clear.

Problematic content
Web links

www.phschool.com — Supports the errors in the textbook, and advertises Prentice-Hall products.

Ch. 4. Link to Virginia and Kentucky Resolutions has the Virginia Resolution of 1798 and the Kentucky Resolution of 1799 but omits the much more important Kentucky Resolution of 1798, which contained a clear statement on the limits of federal criminal powers that is in conflict with much “living constitution” doctrine.

www.closeup.org — Promotes agenda of the teacher unions.

SE, p. 291. Rod Paige quote is too much of a ad for buying hard cover [text]books for schools, instead of using digital or online sources. This is not appropriate.