“The Best Earthly Inheritance” Our Founders Bequeathed

Every July much is said about the blessings of liberty, the meaning of the American Experiment, and the price of freedom. But this year we also mark the 240th anniversary of the signing of the Declaration of Independence and, on August 10, of the arrival of the news of this world-altering decision in London.

Benjamin Franklin is said to have advised his fellow patriots of the potential consequences of challenging the British Empire and its king: “We must all hang together, or most assuredly we shall all hang separately.” While each of the 56 British subjects who affixed their names to the Declaration risked life, fortune, and sacred honor, none may have risked as much as the delegate from Maryland, Charles Carroll of Carrollton.

At the time of the signing, Charles Carroll was the wealthiest man in the American colonies. The risk he took in siding with the cause of independence was acknowledged to be substantial, both in material terms and in his social standing as one of the most prominent citizens of Maryland. In his book, Charles Carroll of Carrollton: Faithful Revolutionary, biographer Scott McDermott recounts that when John Hancock asked Carroll to sign―and Carroll responded, “Most willingly”―a bystander commented, “There go a few millions.”

And just to make sure that everyone, including King George III, knew which of Maryland’s many Charles Carrolls was the signer, he proudly added the words “of Carrollton” (his Frederick County estate). Thus, history remembers him as “Charles Carroll of Carrollton.”

Carroll is unique among the signers for more than just his wealth. He was, in fact, ineligible to vote or to hold public office when he was chosen by the Maryland Convention as a delegate to Congress to approve the Declaration on its behalf. Maryland’s early Toleration Act granting religious freedom had been overturned in 1692, so Catholics could not vote, hold public office, worship in public, or freely educate their children in their faith.

Carroll’s participation in the War of Independence was motivated by his firm belief in natural law and rights, government by consent of the citizens, and freedom of religion. The Catholic minority in the British American colonies recognized in the cause of liberty the path to equality under law.

Carroll strongly supported and collaborated with George Washington during the war, influenced the crafting of the Maryland and the U.S. Constitutions, and served as the first senator from the new state of Maryland. His public life was long, and he was a giant figure through the early decades of the 19th century. Looked up to as an elder statesman and symbol of national unity, at his death in 1832, the Baltimore American called him “the last of the Romans”―a reference to the classical prototype of the generation who built the new but maturing Republic.

Charles Carroll’s brief testament to the America he would leave behind was written on a parchment copy of the Declaration, dated July 4, 1826. He wrote in the style of a man educated in the 18th century, but behind the formality is a stark humility and a simple message intended for today:

“Grateful to Almighty God for the blessing which, through Jesus Christ our Lord, he has conferred upon my beloved country, in her emancipation, and upon myself, in permitting me, under circumstances of mercy,…to survive the fiftieth year of American Independence, and certifying by my present signature my approbation of the Declaration of Independence adopted by Congress…, and of which I am now the last surviving signer, I do hereby recommend to the present and future generations the principles of that important document as the best earthly inheritance their ancestors could bequeath to them, and pray that the civil and religious liberties they have secured to my country may be perpetuated to the remotest posterity and extended to the whole family of man.”

As we celebrate many historic anniversaries of our freedom this year, and the legacy of each of America’s founders, let us also “remember Carroll’s sacred trust…and all [who slumber] with the just.”

Do citizens in a free society have a right to privacy in charitable giving?

Cascade Policy Institute


A Debate on Privacy in Charitable Giving


 James Huffman, J.D.


Dan Meek, J.D.


“Do citizens in a free society have a right to privacy

with respect to their charitable giving?”


Is there a compelling public interest in knowing the sources of funding to nonprofit charitable institutions?

Should all such organizations be forced to reveal the names, address, and employers of their donors,

as is now required for most political giving?


Arguing in favor of donor privacy will be James Huffman, Dean Emeritus of Lewis & Clark Law School. Arguing for public disclosure will be Dan Meek, a public interest attorney and Co-chair of the Independent Party of Oregon.  Moderating will be Nigel Jaquiss, Pulitzer Prize-winning journalist with Willamette Week. This debate is sponsored by the Arthur N. Rupe Foundation.


Background: Contributions to candidates running for elective office must be disclosed to the public. The donor must reveal his or her name, address, occupation, and employer. These “donor transparency” requirements may deter some individuals from making political contributions if they anticipate the likelihood of retribution for backing the “wrong” candidate.

Contributions to nonprofit charitable organizations do not carry the same requirements. However, in recent years, pressure has been growing to require charitable organizations to reveal more information about their donors. For example, during February 2015, U.S. Representative Raul M. Grijalva, a Democrat from Arizona’s 3rd Congressional District who is the Ranking Member of the House Committee on Natural Resources, sent letters to the heads of seven universities requesting donor information related to professors at those institutions who had previously testified before Congress regarding global warming and related topics.

The universities, including MIT, Georgia Institute of Technology, and University of Alabama-Huntsville, were asked to turn over to Congress such information as the source of funding, amount of funding, and the reason for receiving the funding related to the named professors.


About James Huffman:

Jim Huffman is Dean Emeritus of Lewis & Clark Law School and a Visiting Fellow at the Hoover Institution. He is a graduate of Montana State University, the Fletcher School of Law and Diplomacy, and the University of Chicago Law School. Over a forty-year career at Lewis & Clark, he taught many courses, including constitutional law and constitutional history. As the 2010 Republican nominee for U.S. Senator from Oregon, Jim learned much about the legal and practical implications of campaign finance regulation.


About Dan Meek:

Dan Meek is a public interest attorney in Portland, Oregon. He is a graduate of Stanford law school and has served as counsel at the California Energy Commission and as staff director of two Congressional subcommittees. He has practiced law in Portland since 1987, representing electricity ratepayers, political parties, candidates, and nonprofit organizations. He is Co-chair of the Independent Party of Oregon, representing more than 5% of Oregon registered voters.

About Nigel Jaquiss:

Nigel Jaquiss has been a journalist with Willamette Week since 1997. He is a graduate of Dartmouth College and Columbia University Graduate School of Journalism. He won the 2005 Pulitzer Prize for investigative reporting for his 2004 story exposing former Governor Neil Goldschmidt’s sexual abuse of a 14-year-old girl while serving as Portland Mayor.


Dessert buffet

Complimentary coffee, tea, iced tea

No-host bar (cash only)

This event is free. RSVP by May 29.



Cascade Policy Institute is a 501(c)(3) nonprofit organization. Donations are tax deductible and accepted with gratitude.


The Federalist Society Portland Lawyers’ Chapter

Roggendorf Law LLC

Court Says “No” to Forced Insurance Subsidy

The federal government’s HealthCare.gov website has been nearly useless for a month. Now, millions of Americans are beginning to receive letters informing them of the cancellation of their current health insurance policies―proving the inaccuracy of President Obama’s promise that “if you like your health care plan, you can keep your health care plan.”

But news reports on ObamaCare as the calendar turned to November largely missed another important story. A controversial provision of the Patient Protection and Affordable Care Act (ObamaCare) suffered a judicial setback in the D.C. Circuit Court of Appeals on November 1. Writing on behalf of the court, the judge highlighted an important civil libertarian concept which is also at the heart of many principled objections to the health care law.

In Gilardi v. U.S. Department of Health and Human Services, the D.C. Circuit Court granted the plaintiffs, who own a family business, a preliminary injunction against the imposition of the HHS Mandate requiring inclusion of contraception and abortifacient drugs in employee health insurance plans. The Gilardi family, who are Catholics, contend that the HHS Mandate requiring coverage for contraception, sterilization, and abortion-inducing drugs violates their religious beliefs and that requiring their company to cover employees’ contraception, or else pay a $14 million penalty to the IRS, is unduly burdensome. The court sided 2-1 with the Gilardis. In her ruling, Judge Janice Rogers Brown made a distinction between “noninterference” with a person’s choices and the “compelled subsidization” of those choices by another party.

The Obama Administration has consistently held that the HHS Mandate requiring contraceptive coverage is necessary to protect women’s reproductive and abortion rights. The Administration argues that women’s right to have access to contraception trumps the First Amendment rights of those who object to providing these services on religious or moral grounds. The President has refused to accommodate the conscience objections of policyholders, religious and secular employers, and charitable organizations during ObamaCare rulemaking.*

However, Judge Brown wrote on behalf of the court that “it is clear the government has failed to demonstrate how such a right―whether described as noninterference, privacy, or autonomy―can extend to the compelled subsidization of a woman’s procreative practices.”

The distinction between “noninterference” and “compelled subsidization” is important for reasons broader than conscience objections alone, and it should strike a chord with civil libertarians. The expansion of government programs and entitlements (including medical benefits specifically handpicked by the government) pits the newly created “rights” of some to receive additional products and services, against the rights of other people who may be paying for them in whole or in part (as employers, policyholders, or taxpayers).

Charles Krauthammer recently explained the connection between ObamaCare’s health care entitlements and coercion this way:

“The planners knew all along that if you force insurance buyers to overpay for stuff they don’t need, that money can subsidize other people. Obamacare is the largest transfer of wealth in recent American history. But you can’t say that openly lest you lose elections. So you do it by subterfuge: hidden taxes, penalties, mandates, and coverage requirements that yield a surplus of overpayments. So that your president can promise to cover 30 million uninsured without costing the government a dime. Which from the beginning was the biggest falsehood of them all. And yet the free lunch is the essence of modern liberalism. Free mammograms, free preventative care, free contraceptives for Sandra Fluke. Come and get it.”

Once the government has successfully compelled all Americans to purchase health coverage―even against their will―under ObamaCare’s individual mandate in order to make this wealth transfer possible, it is a short slide into compelling Americans to subsidize other people’s benefits to which they morally object.

To protect Americans’ constitutional rights, and rein in the entitlement culture, the courts need to affirm consistently that not interfering with another person’s choices does not mean forcing others to provide, subsidize, or enable those choices. According to the Becket Fund for Religious Liberty, 77 cases representing 200 plaintiffs have been filed against the HHS Mandate on First Amendment grounds. Regardless of Americans’ disagreements over the ethics of contraception and abortion, the freedom not to be financially complicit in the choices of others to which one morally objects ought to be a value on which many of us can unite. The First Amendment may end up being one of the last legal defenses citizens have against the unfettered expansion of the entitlement state.


* The HHS Mandate has an extremely narrow conscience exemption which does not apply to for-profit businesses or to organizations which may be religious by any common-sense standard but are not run by a church.

Religious Freedom in Anglo-America Began on a Day in March

If you have visited Colonial Williamsburg or Jamestown, Virginia, but have never been to St. Mary’s County, Maryland, it is worth the beautiful drive to Colton’s Point on the Potomac River to retrace a lesser-known chapter in America’s founding. A Maryland Historical Society sign on the shore near the St. Clement’s Island Museum marks the landing of The Ark and The Dove on March 25, 1634, adding, “Here, on the same day, Father Andrew White, S.J. celebrated the first Catholic Mass in the British-American colonies.”

That simple event, a Catholic Mass, inaugurated religious freedom in British North America.

From Colton’s Point you can follow the peninsula southeast to Historic St. Mary’s City, not far from the mouth of the Potomac. A National Historic Landmark, the founding site and first capital of 17th century colonial Maryland has been excavated and recreated with a museum, interpretive exhibits, and reenactors in costume. Historic St. Mary’s City celebrates the bold experiment in freedom that was early colonial Maryland. Several colonies in New England were havens for religious minorities fleeing persecution in England, but Maryland was the first to free the faith of its citizens from government control by not establishing a state church for sixty years.* Catholics and Protestants founded the colony together.

The practice of Catholicism was illegal in England in the late 16th and 17th centuries. English Catholics were subject to ruinous fines, imprisonment, and in many cases death for holding to their faith as it was practiced before the reign of Elizabeth I. To be a Catholic priest was, in itself, considered a treasonable crime punishable by being hanged, drawn, and quartered. Facing the inability to practice their faith openly, some Catholics sought to emigrate and create a new life in North America.

The religious history of early Maryland was complex. Interreligious coexistence was difficult and largely without precedent in the colonies. Respecting each other’s rights to practice their faith openly, to serve in government, and to be free of coercive taxation for the benefit of an established church required constant vigilance.

The Toleration Act passed by the colonial assembly in 1649 guaranteed that no Christian should “be any ways troubled molested or discountenanced for…his or her religion, nor in the free exercise thereof…nor any way compelled to the belief or exercise of any other Religion against his or her consent.” A midcentury coup attempted to repeal the Toleration Act, but the principle of religious freedom survived until 1692, when the Church of England was established in Maryland as in the mother country.

Despite this setback, Maryland’s experience of six decades helped pave the way for Americans to recognize that freedom of religion was a right inherent in the people that should be protected from abridgement by law. When the First Amendment to the U.S. Constitution prohibited Congress from establishing a religion “or prohibiting the free exercise thereof,” the Founders prevented the kinds of political conflicts and abuses of conscience with which their ancestors had struggled for hundreds of years and upheld human dignity.

We do not have freedom in America today because it is―or ever was―simply convenient legally or culturally, but because Americans believed that persons are not subservient to the government. Rather, government is established to protect the rights and freedoms of the citizens. Government derives its powers solely from the people, each of whom possesses inherent personal dignity. The Founders restricted the federal government’s powers, not to protect government from the beliefs and values of the citizens, but―knowing history―to protect citizens from the tendency of government to expand its powers at the expense of personal freedom. Respect for the sacred space of the human heart is the guardian of liberty. The legacy of that Mass on St. Clement’s Island in March 1634 is that a small group of English colonists sought to respect that space, and one day a new country succeeded.


*The website of St. Mary’s County describes how unusual the founding of Maryland was:

“Religious toleration became the official policy of the Maryland colony, as did recognition of the Native Americans as a separate people with inherent rights. This was extraordinary for the time, as views in the other colonies and the mother country were sharply different. These two progressive pieces of 17th-century policy foreshadowed the provisions of the U.S. Constitution guaranteeing separation of church and state and subsequent laws enacted to protect civil rights.”

“We Have a Year to Figure out How to Violate Our Consciences”

“Never before has the federal government forced individuals and organizations to go out into the marketplace and buy a product that violates their conscience,” stated Cardinal-designate Timothy Dolan, archbishop of New York and the president of the United States Conference of Catholic Bishops. “This shouldn’t happen in a land where free exercise of religion ranks first in the Bill of Rights.”

Serious constitutional concerns have been consistently raised about the Patient Protection and Affordable Care Act (PPACA, known popularly as “ObamaCare”), passed by Congress in 2010. Twenty-seven states have sued the federal government on the grounds that Congress does not have authority to require their citizens to purchase a specific product or service, in this case, health insurance. The Supreme Court has agreed to hear some of these cases in March and presumably will rule on the constitutionality of the PPACA’s so-called individual mandate by the end of June.

Beyond this fundamental constitutional objection, another aspect of the PPACA recently took a disturbing turn. In August 2011, the Department of Health and Human Services (HHS) directed virtually all employers to include coverage of contraceptives, sterilization procedures, and abortion-inducing pharmaceuticals without copayment in their employee insurance policies. The HHS mandate has an extremely narrow conscience exemption that will not include the vast majority of religiously affiliated employers and institutions, including hospitals, colleges, schools, and social service organizations which may object to these services on moral grounds.

So, not only does the PPACA require all Americans to purchase health coverage, but Americans can be forced to pay for―or to provide as employers and insurers―things their faith may teach are wrong.

The Catholic Church, along with faithful of other religious communities, protested. The Administration has not backed down. In fact, on January 20, 2012 President Obama called Archbishop Dolan to inform him that the conscience exemption will not be broadened. Enforcement of the mandate simply will be delayed until August 2013, at which time insurance coverage of “preventive services” must include all FDA-approved forms of contraception, including sterilization and some abortion-inducing drugs.

“In effect,” Dolan said publicly in response, “the president is saying we have a year to figure out how to violate our consciences.”

Opponents of the HHS mandate stress that it is very troubling for the government to attempt to force members of one of the largest religions in the world, the Catholic Church, to directly participate in what their Church considers grave moral evils. If Catholic institutions can be forced to behave in contradiction to their moral beliefs, pay massive fines to the government, or close their doors, no other group can expect to have its “free exercise” of religion protected, either.

The last two weeks have seen a firestorm of protest, from the Catholic Church and from others seriously concerned about First Amendment rights. The Catholic bishops released statements denouncing the HHS decision, read from pulpits nationwide. Orthodox, Protestant, Evangelical, Jewish, and Muslim leaders have spoken out against the mandate, noting that if “free exercise” is not respected in this case, other abuses of religious liberty and freedom of conscience surely will follow. As chancellor and CEO-elect of Reformed Theological Seminary (one of the largest Protestant seminaries in the country) Michael Milton wrote, “This is not a Catholic issue only. It is not a contraception issue. It is a religious liberty issue. It is an American issue.”

Members of the current Administration, including Secretary of State Hillary Clinton, have begun referring to the First Amendment right to “free exercise” of religion as “freedom of worship.” This is dangerously incomplete. “Free exercise” of religion is more than the ability to choose the house of worship one frequents on weekends. Free exercise is the ability to live your faith and morals seven days a week.

Members of Congress have introduced legislation intended to prohibit the federal government from requiring a provider to provide, participate in, or refer for a specific health care service contrary to the provider’s religious beliefs or moral convictions (the “Respect for the Rights of Conscience Act,” or House Resolution 1179/Senate Bill 1467). But while Congressional leaders work to defend the rights of religiously affiliated organizations, they must not forget the rights of individual Americans, either.

Americans must send the federal government a clear message: Government must not abrogate the conscience rights of employers and insurance providers, and neither should it abridge the First Amendment rights of individual Americans by forcing them to participate in something to which they morally object. It was a small step from government forcing Americans to “go out into the marketplace” and buy health care to, as Archbishop Dolan said, “go out into the marketplace and buy a product that violates their conscience.”