Response
of Jon Roland to the August 6, 2002, response of Prentice-Hall
on Magruder's American Government.

Comments on other textbooks will be made in separate reports.

SE page 79 and elsewhere. "Informal amendment". The proposed changes do not correct the error, which is inherent in the use of the word "amendment", even if it is put in quotes. That word erroneously indicates changes having the force of constitutional law. The only acceptable change is to replace the phrase "informal amendment" everywhere it appears with such terms as "practice", "precedent", "custom", "tradition", or equivalent words, to indicate that they are not changes in the actual Constitution. That also means rewriting the section about the five basic ways "informal amendment" "continues to occur". Note that competing textbooks use the alternate terms.

SE page 80. "Commerce". It would be more correct to simply say "at the time of ratification, 'commerce' was understood as only 'trade in tangible commodities.'"

SE page 81. Cabinet. Your proposed changes may work, but make it clear that "cabinet" does not mean "close advisors", but the heads of departments that are in the line of presidential succession.

SE page 81. "Living Constitution". This phrase, or synonyms like "flexible Constitution", needs to be omitted everywhere it appears. It is not an innocent characterization of the Constitution, but one that detracts from its status as supreme law, with a definite meaning that investigation can find. In this context it is a fundamental error. It is editorializing where straight reporting is required. High school textbooks are not an appropriate medium for secular proselytizing. Never mind the Marshall quote. If you are going to quote Marshall, then you need to quote Marshall's opponents, such as Jefferson, Madison, John Taylor, or others.

SE page 82, Take It to the Net. Better to say "as students interpret them to get away with..."

TE, page 51, Background Note, strict and liberal. It is likely neither the teacher nor the students will have copies of the books readily available. If you are going to provide a link to www.constitution.org, it might be better to provide links to the interpretive debates there, which we will make sure are complete and balanced. It is also not correct to identify strict construction with "conservative" or Republican and "flexible" construction with "liberal" or Democrat. Both conservative Republicans and liberal Democrats tend to accept loose construction, each in different ways. The correct distinction is between constitutionalists and statists.

TE page 67. Cartoon. The proposed change is acceptable.

TE page 72.Quick Lesson Plan Focus. The proposed change is acceptable.

SE page 78 Answer 4. The proposed change to "According to Jefferson, why would a bill of rights strengthen the judicial branch?" doesn't work. Jefferson's support of a bill of rights had little to do with strengthening the judicial branch, something he was dubious about. His position was that it would strengthen the position of individuals in defending their rights.

TE, p. 80, and SE page 400. Executive agreements. Your case cites do not support your thesis that executive agreements, as a general proposition, have the same force as treaties. In both U.S. v. Belmont, 301 U.S. 324 (1937), and U.S. v. Pink, 315 U.S. 203 (1942), the U.S. government merely recognized the Soviet government as the legitimate successor to the Russian government for purposes of claims on Russian assets in the U.S. You need to read the actual decisions and opinions and not just rely on second-hand commentary, which may have an advocacy agenda that finds it convenient to misinterpret case decisions.

TR page 81. Marshall quote. Change is acceptable, but should be balanced by opposing quote from Jefferson, Madison, John Taylor, or other opponent to Marshall's views, and students should be asked to write about both quotes.

SE, Chap. 4 Sec. 1, p. 90. "Implied powers". To be correct it would need to say something like "exercise of powers many government officials claim are implied." The student should then be asked whether he or she agrees the power is implied, and if so, provide the chain of reasoning to justify that position. Implied powers should not be characterized as "thousands". Whether or not powers are implied should always be left an open question.

SE page 90. Your proposed change, characterizing the 21st Amendment, is incorrect. That amendment does not grant powers to the states to regulate alcohol. That power comes from their own constitutions. It only retains a part of the power, delegated by the 18th amendment to the federal government, to prohibit the importation of alcohol into those states where it is prohibited by state law. You need to read the actual amendment.

SE page 90. "Necessary and proper". The proposed change to "have been interpreted to mean" is acceptable.

SE, Chap. 4 Sec. 1, p. 91. The "inherent powers" you discuss are not limited to those "exclusively related to foreign affairs". You need to make it clear that just because other governments have traditionally exercised some powers, doesn't mean the Founders intended that either the federal or state governments have those powers delegated to them. There are many powers that nations ruled by monarchs might exercise that the founders of a republic might not want it to exercise.

SE page 91. "prohibit the free exercise of religion"? No, stick to the language of the First Amendment, "no law ... respecting an establishment of religion", and explain what "established" churches were.

SE page 91. Thompson quote. The proposed changes in the question and answer are acceptable.

SE page 91. Local government. The proposed change is acceptable.

SE page 291. Strict constructionists. The proposed changes almost work, but this point really needs to be expanded in the way I originally suggested.

SE, p. 291. The proposed change, "The liberal constructionists generally won that conflict in the early years of the Republic." is still incorrect. They prevailed on a few issues, not "generally". The few cases you cite are not "general" victories, although they were important cracks in the previously prevailing strict constructionist doctrines. Major departures from strict construction did not occur until the 20th century. However, it is incorrect to characterize changes in interpretative doctrine as "victories". In law, only the Constitution itself is settled, interpretations are not.

SE page 292. Consensus. The proposed changes almost work, except that the division is not between "liberals" and "conservatives" but between statists and constitutionalists.

SE page 292. www.phschool.com. If you link to www.constitution.org, we will provide a special subsite supportive of teaching American government at the high school level that will have links to relevant source documents and set forth divergent views.

SE Page 296. Direct and indirect tax. Almost acceptable, but it is not correct to say, "An income tax is a direct tax which may be laid without regard to population." That reads like a definition of income tax, but an income tax may or may not be a direct tax, depending on how income is defined and what the nature of the taxpayer is. A tax on dividends or capital gains on corporate securities would not be direct, whereas a tax on wages for individual labor would be.

SE page 297. By the time the book comes out the stock market might be up again and the deficits reversed. If you are going to discuss the present downturn, it should be discussed in terms of historical speculative bubbles, and how such business cycles influenced public policy and legislation.

SE page 300. Legal tender cases. The proposed changes are acceptable.

SE page 300. Bankruptcy courts. You need to read http://fjc.gov/history/landmark/20a_bdy.html more closely. The Act establishes a bankruptcy court within each judicial district, but a bankruptcy court is not a "district court", which has general jurisdiction over subjects not assigned to special courts, such as bankruptcy and admiralty courts.

SE page 300. McCulloch v. Maryland. The change from "defined" to "interpreted" is acceptable.

SE page 307. Interstate highways. No, the interstate commerce clause is about regulation, not building highways, and played no part in the authorization of the interstate highway system. The only other clause besides the defense clause that was actually cited in congressional debate was the Post Roads clause.

SE page 308. Implied powers. Should change to "Choose three of the possible implied powers listed above...." Always leave open the question of whether a power is implied.

SE page 308. McCulloch case. Should instead ask the student to discuss how the decision changed the way the United States has developed. As stated, the paragraph is not neutral.

SE page 393. Execute federal laws. Should change to "The Constitution requires the President to execute all federal laws, unless and until he or a court finds them to be unconstitutional." Constitutional review is not an exclusive act of judges, but a duty of all persons in a constitutional republic, especially those who have taken an oath or affirmation to preserve, protect, and defend the Constitution, a duty that may not be transferred to supervisors, judges, or legal advisors. This is the principle established by Marbury v. Madison, not that only the courts may interpret the Constitution.

SE page 394. Ordinance power. The proposed change is acceptable.

TE page 417. Federal Reserve. You need to read http://www.federalreserve.gov/faq.htm more carefully. It also says the 12 federal reserve banks are owned by their member banks (which are in turn owned by private parties). The 9th Circuit ruled in Lewis v. United States, 680 F.2d 1239 (1982) that a federal reserve bank was privately owned. See http://www.save-a-patriot.org/files/view/frcourt.html.

SE page 449. Income tax. The proposed change is acceptable.

SE page 571. Second Amendment. Your synopsis of U.S. v. Miller, 307 U.S. 174 (1939) is not correct. Read the actual decision and opinion at http://www.constitution.org/2ll/2ndcourt/supreme/7sup.htm. Don't base your statements on second-hand commentaries. The Court did not rule that a sawed off shotgun is not protected by the Second Amendment. It noted in dictum that Miller had not presented evidence or argument that the weapon had a militia use, and therefore it could not take judicial notice of such evidence or argument. (Miller had been murdered shortly before the case came before the Court, under mysterious circumstances, and his lawyer did not show up to present oral argument.) What the Court was saying was that if anyone had showed up and made such argument, the Court would probably have ruled in favor of Miller, since sawed off shotguns had in fact been used in WWI (as "trench sweepers") and by military sentries. The $200 was not a "fee" but a tax. The government charged Miller with transporting an untaxed item in interstate commerce. However, it was at the time trying to make such taxed items illegal, and their owners felons, by refusing to accept payment of the tax, even if someone offered to pay it, a practice that was found to be unconstitutional in United States v. Rock Island Armory, Inc., 773 F.Supp. 117 (C.D.Ill. 1991) at http://www.constitution.org/2ll/court/fed/us_v_rock_island.htm. Miller had also not traded or transported the item across a state line, but made it himself and used it within one state. In Miller the Court sought a relation to militia use because the issue was whether the item was taxable, that is, whether the tax imposed an undue burden on the exercise of a right. For a regular military organization, it would be easy to determine whether its items are taxable: none would be. The problem for the exercise of militia duty, however, is that almost anything might be used for militia purposes, and the Court, if it found that almost anything was exempt, would be virtually eliminating all taxation, so it had to narrow the scope of a tax-exempt purpose.

But the treatment of the Ninth and Tenth Amendments is still not adequate. As Jefferson once said, in his argument against the national bank http://www.constitution.org/mon/tj-bank.htm, "I consider the foundation of the Constitution as laid on this ground: That 'all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people.'" [10th amendment.] It should also be pointed out that the Ninth and Tenth Amendments are complementary: Every right corresponds to an undelegated power, and every delegated power to a restriction on a right.

SE page 577. Bill of attainder. A mere change of "inflicts" to "authorizes" is not sufficient. It needs to be made clear that it is a legislative disablement without judicial due process, and thus that the prohibition of bills of attainder is nearly equivalent to the Fifth Amendment protection of the right of due process. (The difference is that anyone has standing to litigate against the existence of a bill of attainder, without having to be personally afflicted by it, whereas one must be the target of official action to make a claim for denial of due process.)

SE, page 578. Presentment. No, the statement "a presentment, as the term is used here,.... " won't do. The meaning in the Fifth Amendment is a general report, which for the purpose of the Fifth Amendment, may contains one or more indictments (to authorize criminal prosecution). But the meaning of "presentment" is still any report of the grand jury, which may or may not contain or be an indictment.

SE, Ch. 20 Sec 3, p. 579, and SE page 705. Verdict. The statement "In a trial in which a jury cannot agree on a guilty verdict, ... " needs to conclude "it must report a verdict of not guilty, or guilt not proved [beyond a reasonable doubt]." It is not enough to say only that a unanimous verdict is needed to convict.

SE page 687. Revision. The proposed change is acceptable.

SE page 703. Precedents. The single word "generally" is not sufficient to make this point clear. The text needs to explain that court decisions are divided between order, finding, and dictum, and that only the first two, which comprise the edict, may establish a precedent, in a published appeals case.

SE page 703. The characterization of common law as "remedial" and equity as "preventative" doesn't quite work. You need to be more specific: "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 page 704. Grand jury. You need to say "prosecuting attorney or any citizen with a complaint..." Grand juries are supposed to be open to the public to present any matter requiring their investigation.

SE page 706. Jury lists. The proposed change is acceptable.

SE page 706. Jury instructions. Merely inserting "(This assumes that it is a valid law.)" is not sufficient, because it doesn't address what the juror is to do if the law as stated by the judge is not valid, or is incorrectly applied, or address official misconduct or abuses of the defendant's rights. It should be pointed out that the jury system exists to protect parties, especially defendants, against judges and prosecutors being corrupt or incompetent.

SE page 760. Appendix on the Constitution. The proposed changes are acceptable.

SE page 765. Strikethrough of "other direct tax". No, the question of whether the income tax was ratified is controversial, but no one claims it repealed or modified "other direct taxes".

SE Page 769. Strikethrough of Art. IV Sec. 2 Cl. 3. No, "persons bound to service" is not just a euphemism for slaves. Sometimes it was, but it sometimes it also included duly convicted criminals. That is why the 13th Amendment makes an exception for "punishment for crime".

SE page 770. Strikethrough of 1808 clause of Art. V. The proposed change is acceptable.

www.phschool.com. There should be a prominent link on each page for comments, criticisms, and requests for changes.

Ch. 4. Link to Virginia and Kentucky Resolutions. Your proposed link http://www.yale.edu/lawweb/avalon/jeffken.htm is not to the version of the Kentucky Resolutions of 1798 that was actually adopted, but to the draft version prepared by Thomas Jefferson. Better would be http://www.constitution.org/rf/vr_03.htm, which links the visitor to both the draft and ratified versions, to the 1799 resolution, to the Virginia Resolution of 1798, to the Alien and Sedition Acts, to the 1800 Virginia Report, and to the counter-resolutions of various states.

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Original URL: http://www.constitution.org/reform/us/tx/textbook/02829_jr2ph.htm
Maintained: Jon Roland of the Constitution Society
Original date: 2002 August 29 — Updated: 2002 September 5
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