7301 RR 620 N #155,276
Austin, TX 78726
President of the Constitution Society
Texas State Board of Education
on textbook evaluation
July 17, 2002
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
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,
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
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
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
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
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
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
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
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
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
SE, p. 300. The statement "Most bankruptcy cases are heard now in
federal district courts." is not quite accurate. There are special
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
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
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
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
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
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
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
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
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
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.
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
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