The Constitution That Never Was

August 16, 2013

Extended border of 100 milesLately the Internet has been abuzz about “Constitution-free zones.” Throughout American history the government has had increased authority to search and protect at the borders. However, in the name of national security, the Department of Homeland Security has exceeded already expanded government authority. A DHS executive summary of February 2013 reminded Americans of the legitimate “warrantless searches” they can perform at U.S. (extended) borders and at their functional equivalent (international airports).

“The border search exception permits government officials to conduct ‘routine’ searches based on no suspicion of wrongdoing whatsoever.” —Congressional Report Service, 2009

The Fourth Amendment of the Constitution of 1787 requires that a search or seizure conducted by a government agent must be “reasonable.” U.S. courts have generally decided Fourth Amendment reasonableness included probable cause and the need for a judicially granted warrant. Nonetheless, the Supreme Court has made several exceptions to the requirements of reasonableness.

The Supreme Court’s border-search exceptions have effectively removed Fourth Amendment protection. What’s more, the extended border spans a distance of 100 miles inland all the way around the country. The estimate is that the extended border includes most large metropolitan areas and approximately 197 million or two-thirds of Americans. This is what the ACLU has named the Constitution-free zone.

Here is the evidence for the “extended” border:

Title 8 of the Federal Code of Regulations




287.1 – Definitions.
(a)(1) External boundary. The term external boundary, as used in section 287(a)(3) of the Act, means the land boundaries and the territorial sea of the United States extending 12 nautical miles from the baselines of the United States determined in accordance with international law.

(2) Reasonable distance. The term reasonable distance, as used in section 287(a) (3) of the Act, means within 100 air miles from any external boundary of the United States or any shorter distance which may be fixed by the chief patrol agent for CBP, or the special agent in charge for ICE, or, so far as the power to board and search aircraft is concerned any distance fixed pursuant to paragraph (b) of this section.

Bottom line: If federal laws are subject to the Constitution as the law of the land and cannot supersede them, it is logically impossible for the Constitution to be alive “here” but absent “there.” Classical physics tells us two things cannot occupy the same space at the same time. Can one be a little pregnant? No, you are either pregnant or not at all. If the Constitution is the law of the land, can there be a time or place where it is NOT be the law of the land?” I don’t think so.

The border exception is just one example of the many unconstitutional laws that continue to be made with impunity. When George W. Bush said the Constitution was just a G-D piece of paper, patriots let out a collective gasp of horror. Actually, what President George Bush blurted out may have been one of the most intelligent things he ever said.

“We have a government, apparently it holds itself exempt from the Constitution, holds itself exempt from oversight and public interest. You have this other side of government which I’ve said it’s the state religion of–you know, it’s–the state religion of the government is national security. And you don’t question it. You don’t speak ill will of it. And the last thing you do is hold up a mirror, because you hold up a mirror, you get criminalized.” -Thomas Drake, former senior executive of NSA

According to deep research of 34-year career attorney and law researcher, Dr. Eduardo Rivera, the Constitution of 1787 has never been officially adopted and this fact lies at the root of why the U.S. Government gets away with so much that is unconstitutional. He cites April 30, 1789, the day George Washington was inaugurated and took the Article II oath for the office of President of the United States, as a pivotal day in American history. Here’s why.

As president of a separate executive branch per the Constitution, Washington held two distinct offices, head of government and head of state. As head of government (Article II. Section 2), a U.S. president is the chief executive responsible for overseeing the day-to-day issues of the bureaucracy and has the power to either to accept or veto legislation passed by Congress. As head of state (Article II. Section 1.), a U.S. president has a largely ceremonial role but also explicit powers to grant reprieves and pardons and to retain the title of commander-in-chief of all military forces during times of war.

Additionally, the Constitution identifies two distinct oaths, one for each office: the familiar Article II oath for the office of head of government and the Article VI oath for the office of head of state. George Washington took the Article II oath to “preserve, protect, and defend the Constitution of the United States” as President of the United States. This oath lawfully affirmed him as head of government, the chief executive.

Article II. Section 1 oath – Head of Government

“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect, and defend the Constitution of the United States. So help me God.”

The oath George Washington did not take, however, was the Article VI oath to lawfully affirm him as head of state of the United States of America. Per Article VI of the Constitution, this second oath assures “the Adoption of this Constitution.”

Article VI

“All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

“The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” (emphasis added)

Article VI oath – Head of State

“I, _________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.” (emphasis added)

Why then did George Washington not also take the Article VI oath on Thursday, April 30, 1789? Simple. He had not fulfilled one of the three constitutional qualifications for the presidency, the residency requirement of fourteen years. (See below.) Given the 1776 founding of America, no one could meet this qualification for the office of President of the United States of America until after July 4, 1790.

Article II. Section 2. Clause 5

1) “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President;
2) neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years,
3) and been fourteen Years a Resident within the United States.”

To have been lawfully affirmed and “bound” to “support and defend the Constitution” for the office of head of state, Washington would have had to additionally take the Article VI oath conferring the “adoption” of “this Constitution” The Article VI oath reads, “all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution hereafter.” Given the importance of the meaning of words in matters of law, all executive officers means all; yet the Article VI oath has become the oath taken only by federal employees other than the president, the top executive officer of the country.

The Article II oath continues as the only oath required of presidents. It affirms a president as the chief executive officer, an employee (in commerce) answerable to the Congress of the U.S. Government. Even so, all presidents since Washington have continued to act as head of state. The Constitution as law of the land may have been one of the earliest and cruelest hoodwinks on the American people ever.

Think outside the box. Live outside the cage.