The Original Meaning of the 14th Amendment

 

Randy E. Barnett, Evan D. Bernick, The Original Meaning of the 14^th Amendment: Its Letter and Spirit, (Cambridge, MA: The Belknap Press, 2021), 382 pages, ISBN 9780674257764

The book’s introduction begins “Nothing in the Constitution of the United States is more important to contemporary American law and politics than the Fourteenth Amendment. The book that follows gives a “comprehensive account of the original meaning and purposes” of its key components, which are Section 1 and Section 5. The authors organized the history around the three key clauses of the second sentence to Section 1. Part I has The Privileges or Immunities of Citizenship Clause, Part II has The Due Process of Law Clause and Part III has The Equal Protection of Laws Clause. A conclusion of 14 pages ends the book. Be sure to read the March 12, 1871 letter of Supreme Court Justice Joseph Bradley reproduced in the preface. It foreshadows what to expect from American courts.

The Introduction explains the origins of originalism and begins developing the original public meaning of the 14^th Amendment from 1868.  To do this the authors review historical writing of legal scholars that develops a distinction between the public meaning of the original text in contrast to how the text is applied later in constitutional disagreements. While the Constitution has some indeterminant words and phrases Barnett and Bernick argue it conveys an original spirit: “Where the letter of the Constitution is unclear, fidelity to the Constitution’s design requires that judges, legislators, and other constitutional decision makers turn to the law’s original spirit.”

The Privileges or Immunities of Citizenship Clause discussion in Part I makes up the longest section of the book with 217 pages. The clause as written in the Fourteenth Amendment rephrases the original Article IV, Section 2 from the 1787 Constitution. As originally written it was “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens of the several States.” The Fourteenth Amendment adds the phrase “No State shall make or enforce any law which shall abridge the Privileges or Immunities of Citizens of the United States.

The original phrase suggests states are free to define rights for their citizens and apply them to residents and all others traveling into, or through, their state; citizenship varies by state. The Fourteenth Amendment applies to Citizens of the United States, hoping to establish some uniform rights to U.S. citizens. Neither phrase defines Privileges and Immunities, which remains open to interpretation.

Barnett and Bernick narrate and document the history of the chaotic contest to define the Privileges and Immunities of Citizens. From 1787 to 1868 the demands of southern slave holders to exclude black people - free blacks, slaves - from any rights of citizenship dominant the narrative. The federal courts took the southern side – Barren v. Baltimore, Dred Scott v. Sandford to wit – which helped generate the rise of the Republican Party.

Southern secession in 1860-61 left the federal government with northerners determined to redefine and guarantee a national citizenship for all.  Chapter 4 and 5 provide a thorough discussion of the Congressional debate to define privileges and immunities of citizens and to embody them into the 13^th Amendment in 1865 and 14^th Amendment in 1868.

Ratifying the two amendments did not end the citizenship debate. Chapter 6, entitled Enforcing Citizenship, is the longest chapter in the book at 49 pages. It narrates the continuing debate that brought passage of the 15^th Amendment to guarantee the right to vote and for the need to enforce the 14^th Amendment. The 14^th Amendment includes Section 5 that gives Congress the power to enforce, by appropriate legislation, the provisions of Article 1. Barnett and Bernick give a thorough account of the Congressional debate of enforcement efforts leading to the passage of the Civil Rights Act of 1866 and the Enforcement Acts in 1870-71, legislation intended to quell the violence of southern groups such as the KKK.  

The second half of Chapter 6 reviews the depressing and disruptive role that the federal courts took to redefine the privileges and immunities of citizenship to suit the racist South. In their preface the authors remind readers of the Supreme Court case of Barren v. Baltimore, which claimed the first eight amendments constrained only the federal government, but not state power. This ruling allowed the southern states to pursue their racist agenda with impunity. After winning the Civil War, northern politicians were determined to define and apply the Privileges and Immunities of Citizenship to everyone, everywhere. Again though, the Supreme Court went to work to neutralize these efforts. The most notorious of these came after the legislature of Louisiana granted a monopoly to a New Orleans slaughterhouse, denying the right of citizens to choose their occupation as a fundamental part of citizenship.  

In the Slaughterhouse cases that ended in 1873 the District Court ruled against the monopoly, but a 5 to 4 majority of the Supreme Court reversed that ruling as a radical interference with states rights.  Justice Samuel Miller writing for the majority, decided overruling a state grant of monopoly would “fetter and degrade the State governments by subjecting them to the control of Congress in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character.” … “We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them.” The opinion by Justice Miller intends to repeal the Fourteenth Amendment by judicial decree and return to what Justice Bradley wrote in dissent as “that spirit of insubordination and disloyalty to the National government …”

After the judicial review Barnett and Bernick return to the evidence they argue defines citizenship and the original meaning of the 14^th amendment.  Chapter 7 reviews the debate and views of contemporary academics, which includes five separate theories of U.S. citizenship before moving onto Implementing the Privileges and Immunities Clause in Chapter 8. Barnett and Bernick argue historical evidence establish an operational definition of Privileges and Immunities of citizenship, which are “a set of rights that preexists the interpretation and application of the clause by a judge. We maintain that, in 1868, a preexisting set of privileges and immunities was locked into the Constitution by the original meaning of the 14^th Amendment.”

The authors list and summarize these rights as those enumerated in the Constitution of 1868, the enumerated rights in the Civil Rights Act of 1866 and those enumerated rights added to the constitution after 1868. In addition, they list other unenumerated rights. Here they suggest that if individual citizens have for at least a generation of thirty years been entitled to enjoy a right as a consequence of accepted practice it can become a privilege and immunity of citizenship. The authors give examples as part of a thorough discussion of how this should work in practice, arguing in sum that judges should “discover the law” rather than “make the law.” Part I ends with “We can state with confidence that the original public meaning of the Privileges and Immunities Clause does “lock in” certain identifiable rights; that it does not lock in others; and that it does not delegate to Congress or the federal courts unbounded discretion to specify the rights that states cannot abridge.”

From here the book moves to a 53 page historical discussion of Due Process of Law and 52 page Part III on the Equal Protection of the Law. Both phrases apply to persons in contrast to the Privileges and Immunities of Citizenship. The narrative here traces the long history of the Due Process of Law back to its British origins. Discussion defines and distinguishes procedural due process and substantive due process. The spirit of substantive due process “impose a duty on both state and federal judges to make good-faith determinations of whether legislation is calculated to achieve constitutionally proper ends.” Historical discussion includes a review of legislative debate, legal cases and academic interpretations to bar arbitrary power and the proper ends of legislative power.

The Equal Protection of the Laws narrative also traces the meaning of equal protection through history. Again, Barnett and Bernick review the legislative debate, legal cases and academic writing. At a minimum equal protection guarantees a duty to protect against physical violence, but also entitles people to equal access to courts and nondiscriminatory enforcement of state and federal laws intended to protect life, liberty and property.

The Original Meaning of the 14^th Amendment combines many elements of a textbook with a well-organized historical discussion used as evidence to support tightly focused argument.  Barnett and Bernick appear to recognize the complexity of their effort and so use standard textbook devices to help readers.  The introductory chapter includes a seventeen-page “Preview of Our Findings.” Chapters begin with summaries of what will come and chapters end with summaries of major points. Part and Chapter titles and many sub headings resemble a textbook’s emphasis on orderly presentation. Important legal and constitutional terms are explained. While the writing is clear and avoids academize, serious readers will feel a need to go back and reread sections as they move along in what is not light reading.

I looked for, but did not find, a discussion of the case of Santa Clara County v. Southern Pacific R. Co. from May 10, 1886, in which Chief Justice Waite declared "corporations are persons within the meaning of the Fourteenth Amendment to the Constitution of the United States." This declaration was not made as part of the case opinion but declared as true by proclamation in a case head note. To my knowledge it has never been disputed by Congress or a federal court, but has justified many judicial favors for corporate America, along with the prostitution of the 14^th Amendment.

Barnett and Bernick make a good case to justify their conclusions already cited above. The founding fathers accepted slavery as a condition of getting the constitution ratified. Even so Congress retained the power to abolish slavery in the territories and the District of Columbia while northern states could protect free blacks and escaped slaves. There was a begrudging acceptance of slavery for what was initially an immoral Constitution, but Barnett and Bernick establish the politicians that drafted and steered the 14^th Amendment to ratification intended to correct that, but they wanted more than that. The record cited establishes they wanted to construct privileges and immunities of citizenship known and protected equally for all. Since 1868 many judges and justices in the courts seem to think their personal interpretation will be a good substitute for the confines of positive law.  Barnett and Bernick sound as tired of that as the rest of us.

Labor Line

September 2025_________________________ 

Labor line has job news and commentary with a one stop short cut for America’s job markets and job related data including the latest data from the Bureau of Labor Statistics. 

This month's job and employment summary data are below and this month's inflation data is below that. 

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The Establishment Job Report with data released September 5, 2025.

   Current Job and Employment Data 

Jobs

Total Non-Farm Establishment Jobs up 22,000 to 159,539,000

Total Private Jobs up 38,000 to 135,972,000

Total Government Employment down 16,000 to 23,568,000 Note 

Civilian Non-Institutional Population up 216 thousand to 274,001,000

Civilian Labor Force up 436 thousand to 170,778,000

Employed up 288 thousand to 163,394,000

Employed Men up 539 thousand to 86,347,000

Employed Women down 252 thousand to 76,508,000

Unemployed up 148 thousand to 7,384,000

Not in the Labor Force down 220 thousand to 103,223,000

Unemployment Rate went up .1% to 4.3% 7,384/170,778

Labor Force Participation Rate went up .1% to 62.3%, or 170,778/274,001

Prices and inflation measured by the Consumer Price Index (CPI) for all Urban Consumers was up by a monthly average of 2.9 percent for 2024. 

The CPI September report for the 12 months ending with August shows the 

CPI for All Items was up 2.9% 

CPI for Food and Beverages was up 3.1% 

CPI for Housing was up 4.0% 

CPI for Apparel was up .2% 

CPI for Transportation including gasoline was up 0.9% 

CPI for Medical Care was up 3.4% 

CPI for Recreation was up 2.3% 

CPI for Education was up 3.5% 

CPI for Communication was down 2.1% 

This Month’s Establishment Jobs Press Report

LIKE LAST MONTH, ONLY WORSE

The Bureau of Labor Statistics published its September report for jobs in August. The civilian population increased by 216 thousand while 220 thousand others returned to the labor force looking for work. There were 288 thousand of that number that found employment. The remaining 148 thousand of them did not find work, and remained unemployed. The large increase in the unemployed and moderate increase in the employed combined to increase the unemployment rate .1% to 4.3%. The participation rate increased .1% to 62.3 percent.

The seasonally adjusted total of establishment employment was up 22 thousand for August. The increase was 63 thousand more jobs in the private service sector combined with a decrease of 25 thousand jobs from goods production. The total of 38 thousand jobs gained in the private sector combined with a(n) decrease of 16 thousand government service jobs accounts for the total increase.

Goods production decreased by 25 thousand jobs with job losses in all three subsectors. Natural resources dropped 6 thousand jobs, mostly in mining support jobs. In construction, heavy and engineering construction had 2.3 thousand new jobs, but jobs in residential specialty trade contractors and construction of buildings were both down leaving a decrease of 7 thousand construction jobs. Manufacturing lost a net of 12 thousand jobs. Durable goods employment dropped 19 thousand jobs with motor vehicle manufacturing down 14.5 thousand of the jobs; no durable goods manufacturing sub sectors did well. Non-durable goods production was up a net of 7 thousand jobs. Plastic and rubber product manufacturing had 4.3 thousand jobs and food processing had 3.1 thousand new jobs among other small gains and losses.

Government service employment decreased a net of 16 thousand jobs with the federal government employment down 15 thousand jobs. State government jobs were down 12 thousand while local government added 13 thousand jobs. State and local government jobs excluding education decreased a net 4.3 thousand; state public education was down 6.1 thousand jobs, local government education was up 9.2 thousand jobs. Private sector education lost 500 seasonally adjusted jobs, which brings the total of education to a net increase of 2.6 thousand jobs.

Health care took first place again for private service sector job gains with 47 thousand new jobs, down from last month and lower than normal increases. All four of the health care subsectors did have more jobs with ambulatory care adding 12.7 thousand jobs; hospitals added 8.8 thousand jobs; nursing and residential care were up 9.1 thousand jobs, a good month for nursing and residential care. Social assistance services added a net of 16.2 thousand jobs because individual and family services had 15.9 thousand new jobs offset by a decline of jobs in vocational rehabilitation. The growth rate for health care was down from last month to 2.40 percent, above the average of 2.23 percent per month of the last 15 years. For the last two months health care has had more than 100 percent of job totals; the second time in 28 years of Labor Line.

Trade, transportation and utilities had a net of 2 thousand new jobs. Wholesale trade dropped sharply by 11.7 thousand jobs, an ominous sign even though retail trade picked up 10.5 thousand jobs. In retail, warehouse clubs and general merchandise stores added 9.1 thousand jobs and clothing and clothing accessories added 6.2 thousand jobs, among other small retail job losses. Transportation added a net of 3.6 thousand; couriers and messengers added 3.7 thousand jobs but no other sub sector did well. Utilities lost 800 jobs.

Leisure and hospitality added 27.5 thousand jobs, modest but better than last month. Arts, entertainment and recreation had 14.3 thousand of the jobs with accommodations and restaurants adding 13.2 thousand more. Amusements, gambling and recreation had 12.7 thousand of these jobs. Restaurants had 11 thousand jobs, a small increase while accommodations added 2.2 thousand of the new jobs.

Professional and business services had yet another month of job losses, this month down 17 thousand jobs and a bigger loss than the last two months. The professional and technical services subsector was down 3.6 thousand jobs in a poor month; where management of companies had just 300 more jobs. The third sub sector, administrative and support services including waste management, lost 13.4 thousand jobs in another poor month for support services.

Among professional and technical services, management, scientific and technical consulting had 3 thousand new jobs. Otherwise computer systems design and related services lost 3.3 thousand jobs and no other professional services did well. Victims of the Trump onslaught, no doubt. Among administrative support services, services to buildings and dwellings were up 7.9 thousand jobs but offset by job losses in employment services and temporary help services, down 11.8 thousand jobs, a third month for these job losses. Business support services were down 4.4 thousand jobs.

Information services dropped 5 thousand jobs. Motion picture and sound recordings lost 7.6 thousand jobs, more than last month’s job gain. No other information sub sectors did well. Financial activities including real estate and rental and leasing services lost 3 thousand jobs, after last month’s bigger gains. Finance and insurance lost 4.7 thousand of the jobs. Insurance carriers were off 5.5 thousand jobs. The real estate sub sector added 2.9 thousand jobs offset with rental and leasing services, down by 1.6 thousand jobs. The category, other, had a net of 12 thousand new jobs: repair and maintenance services had 9.9 thousand new jobs, personal and laundry services added 4.9 thousand jobs. The non-profit associations sub sector lost 2.8 thousand jobs.

The economy added 22 thousand jobs for August, a poor month. Establishment employment in August was 159.540 million with an annual growth rate of just .17 percent, a fraction of what is necessary to sustain full employment. The total of new establishment jobs has not been this low since the pandemic. The increase in health care jobs exceeded the total of new jobs again this month; again, the job data for health care illustrates the folly of political attacks on health care. There were eight sub sectors with job losses and two more with only one to three thousand new jobs. Professional jobs outside of health care continue to decline. This month’s job total is 1.466 million above August a year ago and 3.119 million jobs above August two years ago. Both are lower this month than last. Lower interest will be unlikely to offset the depressing effect from tariffs and budget cuts. Nothing suggests private sector employment will improve while the Trump administration actively pursues depressing budget and tariff policies.

August Details 

Non Farm Total +22

The Bureau of Labor Statistics (BLS) reported Non-Farm employment for establishments increased from July by 22 thousand jobs for a(n) August total of 159.540 million. (Note 1 below) An increase of 22 thousand each month for the next 12 months represents an annual growth rate of +.17% The annual growth rate from a year ago beginning August 2024 was +.93%; the average annual growth rate from 5 years ago beginning August 2020 was +2.48%; from 15 years ago beginning August 2010 it was +1.35%. The high five year growth rate derives from the low Pandemic employment. America needs growth around 1.5 percent a year to keep itself employed.

Sector breakdown for 12 Sectors in 000’s of jobs 

1. Natural Resources -6

Natural Resources jobs including logging and mining decreased 6 thousand from July with 609 thousand jobs in August. A decrease of 6 thousand jobs each month for the next 12 months would be an annual growth rate of -11.71 percent.   Natural resource jobs were down 13 thousand from a year ago. Jobs in 2000 averaged around 600 thousand with little prospect for growth.  This is the smallest of 12 major sectors of the economy with .4 percent of establishment jobs.

2. Construction -7

Construction jobs were down 7 thousand from July with 8.295 million jobs in August. A decrease of 7 thousand jobs each month for the next 12 months would be an annual growth rate of -1.01 percent.  Construction jobs are up 58 thousand for the 12 months just ended. The growth rate for the last 15 years is 2.75%. Construction jobs rank 9th among the 12 sectors with 5.2 percent of non-farm employment.

3. Manufacturing -12

Manufacturing jobs were down 12 thousand from July with 12.722 million jobs in August. A decrease of 12 thousand jobs each month for the next 12 months would be an annual growth rate of -1.13 percent.  Manufacturing jobs were down for the last 12 months by 78 thousand. The growth rate for the last 15 years is +.64%. Manufacturing ranks 6th among 12 major sectors in the economy with 8.0 percent of establishment jobs.

4. Trade, Transportation & Utility +2

Trade, both wholesale and retail, transportation and utility employment were up 2 thousand jobs from July with 29.082 million jobs in August. An increase of 2 thousand jobs each month for the next 12 months would be an annual growth rate of +.08 percent. Jobs are up by 170 thousand for last 12 months. Growth rates for the last 15 years are +1.11 percent. Jobs in these sectors rank first as the biggest sectors with combined employment of 18.2 percent of total establishment employment.

5. Information Services -5

Information Services jobs were down 5 thousand from July with 2.926 million jobs in August.  (Note 2 below)  A decrease of 5 thousand jobs for the next 12 months would be an annual growth rate of -2.05 percent. Jobs are down by 3 thousand for the last 12 months. Information jobs reached 3.7 million at the end of 2000, but started dropping, reaching 3 million by 2004 but has stayed close to 3.0 million in the last decade. Information Services is a small sector ranking 11th of 12 with 1.8 percent of establishment jobs.

6. Financial Activities -3

Financial Activities jobs were down by 3 thousand jobs from July to 9.260 million in August. A decrease of 3 thousand jobs for the next 12 months would be an annual growth rate of -.39 percent. Jobs are up 80 thousand for the last 12 months.  (Note 3 below) This sector also includes real estate as well as real estate lending. The 15 year growth rate is +1.25 percent. Financial activities rank 8th of 12 with 5.8 percent of establishment jobs.

7. Business and Professional Services -17

Business and Professional Service jobs went down 17 thousand from July to 22.536 million in August. A decrease of 17 thousand each month for the next 12 months would be an annual growth rate of -.90 percent. Jobs are down 55 thousand for the last 12 months. Note 4 The annual growth rate for the last 15 years was +1.99 percent. It ranks as 2nd among the 12 sectors now. It was 2nd in 1993, when manufacturing was bigger and third rank now with 14.2 percent of establishment employment. 

8. Education including public and private +3

Education jobs were up 3 thousand jobs from July at 14.846 million in August. An increase of 3 thousand jobs each month for the next 12 months would be an annual growth rate of +.21 percent. These include public and private education. Jobs are up 115 thousand for the last 12 months. (note 5) The 15 year growth rate equals +.62 percent. Education ranks 5th among 12 sectors with 9.3 percent of establishment jobs.

9. Health Care +47

Health care jobs were up 47 thousand from July to 23.454 million in August. An increase of 47 thousand each month for the next 12 months would be an annual growth rate of +2.40 percent. Jobs are up 832 thousand for the last 12 months. (note 6)  The health care long term 15-year growth rate has been +2.23 percent lately compared to +2.40 percent for this month’s jobs. Health care ranks 2nd of 12 with 14.5 percent of establishment jobs.

10. Leisure and hospitality +28

Leisure and hospitality jobs were up 28 thousand from July to 17.050 million in August.  (note 7) An increase of 28 thousand each month for the next 12 months would be an annual growth rate of +1.97 percent. Jobs are up 232 thousand for the last 12 months. More than 80 percent of leisure and hospitality are accommodations and restaurants assuring that most of the new jobs are in restaurants. Leisure and hospitality ranks 4th of 12 with 10.7 percent of establishment jobs. It moved up to 7th from 4th in the pandemic decline.

11. Other +12

Other Service jobs, which include repair, maintenance, personal services and non-profit organizations were up 12 thousand from July to 6.050 million in August. An increase of 12 thousand each month for the next 12 months would be an annual growth rate of +2.38 percent. Jobs are up 75 thousand for the last 12 months. (Note 8) Other services had +.86 percent growth for the last 15 years. These sectors rank 10th of 12 with 3.8 percent of total non-farm establishment jobs.

12. Government, excluding education -19

Government service employment went down 19 thousand from July at 12.721 million jobs in August. A decrease of 19 thousand each month for the next 12 months would be an annual growth rate of -1.82 percent. Jobs are up 54 thousand for the last 12 months.  (note 9) Government jobs excluding education tend to increase slowly with a 15 year growth rate of +.36 percent. Government, excluding education, ranks 7th of 12 with 8.0 percent of total non-farm establishment jobs.

Sector Notes__________________________

(1) The total cited above is non-farm establishment employment that counts jobs and not people. If one person has two jobs then two jobs are counted. It excludes agricultural employment and the self employed. Out of a total of people employed agricultural employment typically has about 1.5 percent, the self employed about 6.8 percent, the rest make up wage and salary employment. Jobs and people employed are close to the same, but not identical numbers because jobs are not the same as people employed: some hold two jobs. Remember all these totals are jobs. back

(2) Information Services is part of the new North American Industry Classification System(NAICS). It includes firms or establishments in publishing, motion picture & sound recording, broadcasting, Internet publishing and broadcasting, telecommunications, ISPs, web search portals, data processing, libraries, archives and a few others.back

(3) Financial Activities includes deposit and non-deposit credit firms, most of which are still known as banks, savings and loan and credit unions, but also real estate firms and general and commercial rental and leasing.back

(4) Business and Professional services includes the professional areas such as legal services, architecture, engineering, computing, advertising and supporting services including office services, facilities support, services to buildings, security services, employment agencies and so on.back

(5) Education includes private and public education. Therefore education job totals include public schools and colleges as well as private schools and colleges. back

(6) Health care includes ambulatory care, private hospitals, nursing and residential care, and social services including child care. back

(7) Leisure and hospitality has establishment with arts, entertainment and recreation which has performing arts, spectator sports, gambling, fitness centers and others, which are the leisure part. The hospitality part has accommodations, motels, hotels, RV parks, and full service and fast food restaurants. back

(8) Other is a smorgasbord of repair and maintenance services, especially car repair, personal services and non-profit services of organizations like foundations, social advocacy and civic groups, and business, professional, labor unions, political groups and political parties. back

(9) Government job totals include federal, state, and local government administrative work but without education jobs. back

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Notes

Jobs are not the same as employment because jobs are counted once but one person could have two jobs adding one to employment but two to jobs. Also the employment numbers include agricultural workers, the self employed, unpaid family workers, household workers and those on unpaid leave. Jobs are establishment jobs and non-other. back

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The -911,000 and the Washington Post

 

The -911,000 and the Washington Post

On September 9, 2025 the Washington Post posted a headline “U.S. employers added 911,000 fewer jobs than first reported, new BLS data shows.” BLS is the U.S. Bureau of Labor Statistics, which reported the number on its website as a preliminary benchmark revision of its CES establishment data.

As BLS makes abundantly clear the data is for one month and one month only: March 2025: “The preliminary benchmark revisions in table 1 are calculated only for March 2025 for the major industry sectors.” Table 1 has the 911,000 breakdown by ten private sector industries and government employment. Further BLS explains “Official establishment survey estimates are not updated based on this preliminary benchmark revision.” In other words, the establishment employment data reported before March 2025 and after March 2025 remain the same, unchanged.  It will be February 2026 before new data will be published.

Nothing can be inferred about month to month changes in employment from this report, but the Washington Post decided to give the White House an opportunity to attack the Biden administration and justify their attack on BLS: “Today, the BLS released the largest downward revision on record proving that President Trump was right: Biden’s economy was a disaster and the BLS is broken.” Fresh crapola from the Washington Post, publisher of Trump propaganda.

The already reported and published BLS data shows the last 12 months of the Biden economy generated just over 2 million jobs while the first 7 months of the Trump economy generated 385 thousand jobs.

Trump, his District of Columbia Invasion, and the U.S. Constitution

 Trump, his District of Columbia Invasion, and the U.S. Constitution

Anyone following the news this August 2025 knows Trump has taken over the police force of the District of Columbia and sent in National Guard troops. He does have authority to do that although no reason exists for it. It is a completely different story for the states. Recall Trump claimed authority to control California National Guard troops and direct them and Federal Troops into Los Angeles without consulting California Governor Gavin Newsom. I have watched or read various media stories that report comments about it, or justifications for it, but I have not found a story that reports those parts of the Constitution that addresses what Trump has done and threatens to do. One of the parts would include Article IV, Section 4 of the Constitution, which I quote exactly below.

The U.S. Constitution, Article IV, Section 4 – The United States shall guarantee to every state in the union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or the Executive (when the Legislature cannot be convened) against domestic Violence.

Also include Article II as relevant. Article II, Section 2 makes the President “Commander in Chief of the Army and Navy of the United States and the militia of the several states if called into service of the United States;” If the United States is threatened with invasion or foreign attack the president is authorized to call out militia forces from some or all of the states to join in the defense of the United States. “Service of the United States” does not include domestic violence or a domestic disturbance separately identified in Article IV, Section 4. Service to the United States does not suggest authorizing the president to “federalize” state National Guard troops and use them in opposition to an elected governor against state residents.

State sovereignty, or states rights, were a major stumbling block to getting our Constitution ratified back in 1787. To get the Constitution ratified by the states the founding fathers had to make concessions to states rights advocates. The states were quite afraid an oppressive federal government would do exactly what Trump is doing, which is use military force to violate their independence and overwhelm them. Some parts of our Constitution are a little vague, but not Article IV, Section 4: the federal government can send troops upon request by state officials and only if they declare there is domestic violence they cannot control.

Article IV, Section 4 did not go far enough to convince states right advocates to ratify the Constitution. To get the constitution ratified it was necessary to include amendments later known as the Bill of Rights. The Second Amendment reads: A well- regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

The gun rights advocates have quoted just the last half of the Second Amendment for so many decades they have all but made the first part disappear. The Second Amendment ratified as part of our Constitution had nothing to do with the private ownership of firearms. Our actual constitutional right to bear arms comes through the same constitutional right we have to drive a car, drink beer, wear a blue shirt or spit on the sidewalk. These are often known as unenumerated rights. For example, it has not been necessary to enumerate the right to drive a car such as “Driving a car, being necessary for the economy of a free state, the right of the people to drive a car shall not be infringed.” Gun rights are just like all our rights, which means Congress or the state legislatures can regulate them, which gun people work so hard to deny.

The legal case of DC v. Heller from June 26, 2008 vindicates this view. By a 5 to 4 vote the U.S. Supreme Court declared the DC gun regulation as too restrictive and therefore an unconstitutional violation of the Second Amendment. Justice Scalia, who wrote the opinion for the court, provided his views. His gun rights were the “rights of law-abiding, responsible citizens to use arms in defense of hearth and home.”

Justice John Paul Stevens reviewed the history of the Second Amendment in his DC v. Heller dissent. He wrote “The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States.”

Justice Stevens wrote further “Similarly, the words ‘the people’ in the Second Amendment refer back to the object announced in the Amendment’s preamble. They remind us that it is the collective action of individuals having a duty to serve in the militia that the text directly protects and, perhaps more importantly, that the ultimate purpose of the Amendment was to protect the States’ share of the divided sovereignty created by the Constitution.”

The Second Amendment remains just as it was in 1787. It provides constitutional authority for states to maintain and deploy militia troops in combat against other state militia or federal troops that might invade their state without their express Article IV, Section 4 approval. Our corporate media, the well-to-do and elected officials like Trump have successfully avoided mention of these state rights. For Trump to invade a state with unauthorized military forces brings a confrontation over state sovereignty and the Second Amendment rights for states to have military forces ready to repel them. Trump has authority to deploy the DC National Guard, but our state governors have a right to fight back with military force. Remember our Civil War and how it started; be suspicious Trump would like a repeat?

Sherburn on Cowardice Old and New

 

Sherburn on Cowardice Old and New

Colonel Sherburn – a proud looking man about 55 – and he was a heap and the best dressed man in that town.

Do I know you? I know you clear through. I was born and raised in the South, and I’ve lived in the North; so I know the average all around. The average man’s a coward. In the North he lets anybody walk over him that wants to, and goes home and pray for a humble spirit to bear it. In the South one man, all by himself, has stopped a stage full of men in daytime and robbed the lot. Your newspapers call you a brave people so much that you think you are braver than any other people – where as you’re just as brave and no braver. Why don’t your juries hang murderers? Because their afraid the man’s friends will shoot them in the back, in the dark – and it’s just what they would do.

. . . The average man don’t like trouble and danger. But if only half a man – like Buck Harkness there – shouts ‘Lynch him! Lynch him!’ you’re afraid to back down – afraid to be found out for what you are – cowards – and so you raise a yell, and hang yourself onto that half-a-man’s coattail, and come raging up here, swearing what big things you’re going to do. The pitifulest thing out is a mob; that’s what an army is – a mob; they don’t fight with courage that’s born in them, but from courage that’s borrowed from their mass, and from their officers.

------------From Colonel Sherburn’s slow and scornful speech, Chapter 22, of Mark Twain’s Adventures of Huckleberry Finn.  

Arthur Schlesinger's Imperial Presidency

Arthur M. Schlesinger, Jr. The Imperial Presidency, (Boston: Houghton-Mifflin Company, 1973) 0-395-17713-8

Some may doubt the need, or use, to review a book about the powers and duties of U.S, presidents published 52 years ago in 1973. But wait! Allow me to quote from page 418 of this 419 page book. “If the Nixon White House escaped the consequences of its illegal behavior, why would future Presidents and their associates not suppose themselves entitled to do what the Nixon White House had done? . . . We have noted that corruption appears to visit the White House in fifty-year cycles. This suggests that exposure and retribution inoculate the Presidency against its latent criminal impulses for about half a century. Around the year 2023 the American people would be well advised to go on alert and start nailing down everything in sight.”

Arthur Schlesinger passed away in 2007 but not his relevance to Trump. The book has eleven chapters that start with two chapters outlining the 1787 constitutional debate defining the executive power of the president. Narrative for the next five chapters follow a historical chronology of events almost entirely confined to the war making and foreign policy powers in the presidential office. The last three chapters discuss democracy in relation to foreign policy, the uses and abuses of presidential secrecy and a discussion of the future of the presidential office.

The founding fathers did not want the president to have the sole power to declare war. After long debate they adopted the Alexander Hamilton proposals that the Senate will have the sole power of declaring war and the executive will direct the war authorized by Congress. There would be a separation of power: Congress would declare war, the President would be commander and chief. The 1787 debate assures no one considered the president’s role as commander in chief as a source of independent authority.

From the beginning the separation of power generated a history of struggles with the President asserting authority to make foreign policy decisions without consulting Congress, or in direct opposition by it. Except for making treaties and nominating ambassadors with the advice and consent of the Senate, Schlesinger explains the Constitution has nothing else to say about foreign affairs and diplomacy. Nothing written guides recognizing foreign governments, declaring neutrality in international disputes, the status of executive agreements or the gathering or sharing of foreign intelligence.  No sections clarify authority in military emergencies. Many of the contested decisions involve military deployment in disputes that fill chapters 3 through 7 where Schlesinger narrates the Constitutional disputes between Congress and the many Presidents from colonial times to Richard Nixon.

The presidents often got their way in foreign policy by easily exploiting a divided Congress such as John Tyler and James K. Polk with Mexico and Abraham Lincoln with the Civil War. While the Constitution provides Congress with separate powers to restrain a defiant president, these powers tend to be hard to use such as impeachment, veto of a treaty, or refusal to vote funds; consensus can be hard to assemble. Schlesinger narrates many of these episodes like the impeachment of President Andrew Johnson and the battle over Woodrow Wilson’s League of Nations after WWI. Separate chapters narrate disputes between Congress and Franklin Roosevelts in WWII, between Congress and President Truman in the Korean War, and between Congress and Presidents Johnson and Nixon in the Vietnam War.

After this thorough historical review, the narrative reaches Chapter 8 where Schlesinger characterizes the Imperial Presidency and then applies these characteristics to Richard Nixon.  He argues Nixon ignored his cabinet and brought an unprecedented exclusion of Congress, the Press, and public opinion from governmental decision making and concentrated power in the White House. Nixon asserted absolute authority over the Vietnam War and foreign policy and then expanded the imperial presidency to take over domestic policy as well.

Schlesinger lived through the Nixon era as an active and informed historian and journalist. In the Imperial Presidency he characterized Nixon as a man with “revolutionary dreams,” a “sense of life as a battlefield” and a president “whose inner mix of vulnerability and ambition impelled him to push the historical logic to its extremity.”

In domestic policy, Nixon, like Trump after him, proposed corporate tax relief, made offers of subsidies, threats of tariffs, and various lucrative deals to reward the politically compliant and punish the unregenerate. Nixon, like Trump after him, used the executive order to alter legislation, or change the authority of boards or agencies to suit his purpose. Nixon expected to shape policy by impounding funds for Congressionally approved projects he did not like. In July 1969 his Administration released a statement they would not enforce Title VI of the 1964 Civil Rights Act. He appointed an Office of Economic Opportunity director to dismantle the agency that Congress had voted to continue.

Nixon asserted power to revoke legislation such as the Family Practice of Medicine Act passed Congress by overwhelming veto proof majorities December 14, 1970. He declined to return the bill to Congress with his veto within the required 10 days but instead waited eight days and declared a five day holiday recess gave him authority to defeat the bill with a pocket veto. Republican Senator Jacob Javits declared the bill “illegally vetoed” and commented “If the pocket veto clause applies to a five-day adjournment, why should it not also apply to an adjournment of three days, or a weekend, or one day, or overnight.”

Nixon expanded executive privilege to new levels, often rejecting formal requests for documents or requests for administration officials to testify before Congress. He made unprecedented use of executive privilege to thwart investigation into his Watergate misconduct and expected to keep secrets from Congress and the country like bombing South East Asia during and after the Vietnam War.

Chapter 8 ends the narrative as historical chronology. By Chapter 9 readers have studied dozens of examples of presidents doing as they please and Congress unable to use their power to stop him. In the last three chapters Schlesinger wants to know “how a government based on the principle of the separation of powers could be made to work.” These chapters are topical rather than chronological but there are no answers, only more examples of the failure of the separation of powers to hold a president accountable.

Schlesinger’s Imperial Presidency gives readers little reason to believe our Constitution and the separation of powers can maintain democracy. In 1973 Schlesinger thought the Vietnam War proved our Constitution was obsolete and left presidents to exercise unchecked power. By the end of the book Schlesinger doubted the Constitution would be adequate to limit presidential misconduct “if the people themselves had come to an unconscious acceptance of the imperial presidency.” The country survived Nixon, but in 2025 the Nixon connection to Trump should be easy to feel. I find nothing that assures the country will survive Trump. After reading his book I feel certain Arthur Schlesinger would agree.

 

 

 

 

 

Public School Teacher Salaries in Fairfax, Virginia

Public School Teacher Salaries in Fairfax, Virginia

Recently I reviewed the Fairfax County Public School pay schedules for its classroom teachers. Fairfax County has one of the biggest school districts in the country.  The published schedules have pay for steps that have pay for each year of experience in the Fairfax County schools. The pay goes up from step to step to reflect individual seniority.

If a teacher moves up year by year, presumably from a satisfactory performance rating and also gets the cost of living adjustment for the adjusted pay schedules, then a teacher that stays in the system will get pay increases that raise their buying power, a.k.a. real wage. For example, a teacher fresh out of college at step one in 2020 received pay of $50,000. If five years later they were at step five in the 2025 cost adjusted pay scale they would earn $68,145, which provides a 10.7 percent increase in their real wage. That also equals 6.4 percent annual percent increase, more than the inflation rate for the period.

However, the story changes for those that enter teaching in later years or who enter the system with experience in other school systems. As the years have gone by the new pay scales do not keep with inflation. If I compare the step 5 salary in 2020 with the step 5 salary in 2025 for someone coming into the system, their 2020 was $58,492. For someone entering the system as a step 5 in 2025 their salary would be $63,005.  The 2025 salary is a cost adjusted salary drop in the real wage of 12.52 percent over the 2020 salary.

The decline also applies the more years of experience someone brings into the system. Someone at step 20 in 2020 received a salary of $79,469. Someone at step 20 in 2025 would receive a salary of $88,111. To keep up with inflation and keep a stable buying power the salary would need to be $97,856 in 2025. The $88,111 is a 9.96 percent decrease in the real wage for someone entering the system at step 20.

The pay scales are designed to encourage teachers to stay in the system and they will advance over time if they do, but since all new teachers have started at a systematically lower real wage year by year, they are advancing from a continuously lower real wage from the years before. In Fairfax County, Virginia, the public school teachers sink farther and farther down the economic ladder.