Our “Dying” Constitution

Our country’s founders created and ratified a Constitution to limit the powers of the new central government, institute structural defenses to individual liberty and solidify the popular sovereignty of the people.  Because their experiment in representative government was new, they were rightfully concerned that, without proper protections in place, the new republic might be hijacked by a despotic force.  But dictatorial despotism was not their only concern.  They recognized that the republic could slip into a form of majoritarianism in the event the Constitution didn’t provide express and structural defenses of individual liberty.  As James Madison stated in Federalist No. 51, “It is of great importance in a republic, not only to guard the society against the oppression of its rulers; but to guard one part of the society against the injustice of the other part.  Different interests necessarily exist in different classes of citizens.  If a majority be united by a common interest, the rights of the minority will be insecure.”  John Adams was more direct, “…despotism, or unlimited sovereignty, or absolute power is the same in a majority of a popular assembly, an aristocratical counsel, an oligarchical junto and a single emperor.  Equally arbitrary cruel bloody and in every respect diabolical.”

For the first 150 years of our country’s existence, Americans generally honored and respected the Constitution, maintaining every expectation that it would perform its primary function of limiting the Federal government’s powers and guarding against tyranny from any source.  In the 1930’s, progressive politicians decided that additional, extra-constitutional powers were “necessary”,  and they argued for a broader interpretation of the Constitution under the theory of the Constitution as a “living” document which must be “interpreted” to change with the needs of society.  Of course, what was “needed” was more power for the Federal government, less power for the states and less liberty for the people.

These progressive politicians disregarded the two legal methods of changing the Constitution provided in Article V because those methods were too “difficult” and time consuming.  Instrumental to those methods is the popular sovereignty of the American people; not so with the “living” constitution.  Unfortunately, The Great Depression rendered much of the public open to the idea of a Federal government with expanded powers.  This openness ultimately resulted in a misperceived “mandate” in FDR and the progressive Congressmen who supported him.  Ultimately, the Supreme Court capitulated and adopted an interpretive as opposed to literal reading of the Constitution in order to enable the expanded authority the progressive politicians and the public seemed to demand.  Thus, the “living” constitution was born.

Likely lost upon the American people who then leant their political support to such a scheme were the long term ramifications of this “living” constitution.   Where the “real” Constitution’s literal meaning instituted liberty and expressly limited government authority, the “living” constitution, by design, weakened those edifices.  The very purpose of the “living” constitution was to eliminate the real Constitution’s barriers to government power.  It is doubtful that they understood the implications of their desire for a more powerful government without employing Article V to specify and limit those additional powers.  Those who supported the scheme were in effect saying, “Supreme Court, we want you to read the Constitution so as to give our elected representatives more power over us.  We’re willing to trade the Constitution’s iron clad protections of our sovereignty and our liberty for the perceived security of knowing that our elected representatives can do more to solve our problems.  We trust them and need them to have the authority to act and we trust you to figure out how to reinterpret the Constitution to achieve these additional powers.  There’s no need for a formal amendment specifying what these new powers are to be.”  This interpretive approach to determining constitutional issues contemplated by the “living” constitution opened the door to representative majoritarianism in America.

Though the people have maintained the ultimate control over the government by virtue of elections, the government’s powers would now be determined by perceived social need or necessity.  The Court would turn rhetorical summersaults and stand logic on its head in order to justify new “interpretations” which would empower the government.  Those powers are limited now only by the Court’s imagination and the Justice’s perceptions of “necessity” and “justice”.  What distinguishes representative or republican majoritarianism from a constitutional republic is the constitutional restraints on what the majority is able to do.  As the restraints weaken and fall, representative majoritarianism is slowly institutionalized and the concern of a tyranny of the majority over the minority becomes very real.

An additional result of the Court’s metamorphosis in the 1930’s was the marginalization of the popular sovereignty of the American people.  Where it had once been primary, it would from then on be secondary, subject to the Supreme Court’s interpretive divergences from the Constitution, and exercisable only through Article 5.  From that time on, the will of the people expressed in the original, real Constitution could be discarded whenever the Supreme Court became convinced the new “living” constitution called for additional governmental power or new individual rights with which the states could not interfere.  The people thereby lost the primary control over effectively amending the supreme law in defining the power of government, the Constitution.

The new “interpretations” which resulted from the Court’s capitulation in the 1930’s have expanded Federal power consistently.  In more recent years, an accommodative attitude with respect to social matters and individual rights has resulted in the recognition of such rights as “constitutional” and not subject to state interference.  For several decades, we’ve now lived with the ramifications – an ever widening chasm between the “living” constitution, enabling the growing power of the Federal government; and the real Constitution, which limited its powers, honored the authority of the states, and held as its ultimate object, the sovereignty of the American people.

The Supreme Court’s recent rulings are cause for renewed attention.  In a two part effort to save the Affordable Care Act, the Court first ruled in National Federation of Independent Business v. Sebelius that the fee which will be imposed on those who fail or refuse to comply with the individual mandate to purchase health insurance is a tax and not a penalty.  This, despite the fact that Congress and the President both repeatedly assured the sovereign American people that the fee is a penalty and not a tax.

In part two, the Court ruled in King v. Burwell that, despite the express language of the statute authorizing federal tax credit subsidies only for health insurance which is purchased through an “exchange established by the State”, the subsidies are ok for health insurance purchased through an exchange created by the Federal government as well.  Again, we know that Congress intended to leave the Federal government out of the business of creating such exchanges because ACA “architect” Jonathan Gruber told us so.  “If you’re a state and you don’t set up an exchange, that means your citizens don’t get their tax credits. … I hope that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these exchanges, and that they’ll do it.”

In these rulings, the Court did more than expand governmental power pursuant to an “interpretive” reading of the so called “living” constitution.  It breached the rule of law by discarding the express language of the statute in favor of an “interpretation” which would permit the statute to survive.  The ACA could not have survived without congressional intervention if the mandate fee had been deemed not to be a tax or if the subsidies were restricted to insurance purchased through a state exchange.  In order to save Congress from itself, the Court took on a legislative role in violation of the separation of powers enshrined in the Constitution, and rewrote the statute twice by false “interpretation”, thereby making it operational where it otherwise was not.

Finally, in Obergefell v. Hodges, the Court imposed upon the states the legal recognition of same sex marriage through a new “interpretation” of the 14th Amendment.  The 14th Amendment’s “equal protection” and “due process” clauses do not restrict the states from excluding same sex marriage.  We know this because it is beyond argument that the 14th Amendment would not have been ratified if the people understood at the time that it would be interpreted to create a right to same sex marriage.  Indeed, it is beyond serious question that at no time since the original ratification of the Constitution in 1788 up to this very day would a proposed amendment establishing a right to same sex marriage have been ratified by the sovereign people of the United States by the three-fourths supermajority required by Article 5.

The 14th Amendment was ratified in 1868.  Unquestionably, the Supreme Court of 1870 would not have ruled that states are constitutionally bound by the 14th Amendment to legally recognize same sex marriage.  Nor would the Supreme Courts of 1900, 1940, 1970 or 1995.  But at some point, the 14th Amendment magically began to require that states legally recognize same sex marriage.  Only the Supreme Court can tell us when.  Like a mythical oracle, only the Supreme Court can recognize the change in meaning.  Only the Supreme Court can know when and why a reinterpretation of the Constitution is warranted to give a different meaning than it has ever had in the past.  This is how a  “living” constitution works.  What was once a document establishing the limits of the Federal government as imposed by a sovereign people, now enables the Federal government to determine the scope of its powers and the limits of our individual liberty by virtue of the Supreme Court’s interpretations.

What has for years been obvious to some is now becoming obvious to all; the original Constitution – the one which limits governmental powers, establishes the three separate branches of government, institutionalizes federalism and preserves all non-enumerated powers to the states or to the people – is being diminished.  The original Constitution—the special one, the one that made America unique, the one that birthed American exceptionalism – is becoming a hollow shell.  The original Constitution is “dying”, supplanted by the “living” constitution – the one that says whatever at least five members of the Supreme Court says it says.

As a result, the public at large has become more accustomed to living within the paradigm of the “living” constitution.  By and large, people are happy when the Supreme Court renders a decision with which they agree.  They are angry when a decision goes against their interests.  As the Supreme Court becomes more disassociated from the real Constitution and more motivated by their own political sensibilities in rendering decisions under the “living” constitutional paradigm, it is understandable that the public should see it for what it has become, a non-elected, super-legislature with life tenure and no remaining serious constitutional limitations on its power.  As the Supreme Court’s use of judicial review becomes more recognized as a tool for placing a phony veil of constitutional legitimacy on the expansion of Federal power over the people and the states, the public may understandably come to the conclusion that judicial review no longer serves any purpose, legitimate or artificial, and may demand that we do away with judicial review altogether.  Why should we permit an unelected super legislature of nine appointed lawyers to have the last word over our governance once it is fully understood that they aren’t bound by any real abidance to the Constitution?  As Justice Scalia observed in his dissenting opinion in Obergefell, “(w)ith each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the ‘reasoned judgment’ of a bare majority of this Court—we move one step closer to being reminded of our impotence.”

When organizations and individuals express happiness or satisfaction over the results of Supreme Court cases such as the ACA cases and the same sex marriage case, they tacitly ratify the loss of popular sovereignty and acknowledge their willingness to be governed subject to the new paradigm. They fail to recognize that the end result will be the loss of our Constitutionally protected liberty.  Those who celebrate a Supreme Court decision founded on the fraudulent notion of the “living” constitution should rethink the proposition they are embracing.  The “living” constitution is not a constitution at all, but rather, a license enabling the nine appointed justices to pass final judgement on public matters with no basis or support other than the temporary, tacit permission of the American people.  If that permission is withdrawn what will remain will be a real Constitution of relatively little contemporary application or effect and a “living” constitution revealed to be the fraud it has always been.  The only viable alternative may be the completion of our move toward representative majoratarianism begun when the “living” constitution became the standard of judicial review. If so, our popular sovereignty will exist not in the Constitution but in the will of the majority as it speaks and acts through its representatives. What were once unalienable rights, will become at best privileges and at worst, distant memories.

Accidental Exposure: The Hollow Promises of Modern Liberalism

 

On February 16, State Department spokesman Marie Harf appeared on Chris Matthew’s CNBC show, Hardball.  Discussing the problem of defeating ISIS, Ms. Harf called upon one of the most used modern liberal solutions for just about everything – economic prosperity in the form of jobs magically created by an all powerful central government.  Here is the pertinent portion of the exchange:

HARF: We’re killing a lot of them and we’re going to keep killing more of them. So are the Egyptians, so are the Jordanians. They’re in this fight with us. But we cannot win this war by killing them. We cannot kill our way out of this war. We need in the medium to longer term to go after the root causes that lead people to join these groups, whether it’s lack of opportunity for jobs, whether —

MATTHEWS: We’re not going to be able to stop that in our lifetime or fifty lifetimes. There’s always going to be poor people. There’s always going to be poor Muslims, and as long as there are poor Muslims, the trumpet’s blowing and they’ll join. We can’t stop that, can we?

HARF: We can work with countries around the world to help improve their governance. We can help them build their economies so they can have job opportunities for these people

Regardless of whether Ms. Harf was speaking “off the cuff”, revealing her own sentiments, or had prepared in advance to make these remarks as an official perspective of the State Department, she revealed an underlying but not always obvious truth of the American modern liberal movement.  It lacks depth due to its exclusive focus on the consolidation of political power at home.  The modern liberal manual of solutions was constructed to consolidate domestic political power.  Though it has sadly proven to be effective in that regard, it is ill-suited for application to problems of national security.

As a result, Ms. Harf’s allusions to governments building better economies in order to create jobs seem, at best, incoherent ramblings calling for further explanation.  At worst, they constitute an arrogant attempt to dissuade Americans.  Perhaps Ms. Harf and the State Department believe that the American people are preconditioned to accept “more government provided jobs” as an answer to any problem, and so they expected a Pavlovian response from the audience.  One might wonder whether she envisioned thousands of Americans staring at their televisions with blank looks on their faces, nodding their heads in agreement, and repeating, “MUST CREATE JOBS TO DEFEAT ISIS”.

I have an alternative vision.  I envision thousands of Americans staring at their televisions with a stunned look of indignation on their faces having finally come to the realization that the modern liberal supposition of improved economic conditions in exchange for yielding more liberty to the state has always been a false promise.  Ms. Harf’s ridiculous postulate that “more jobs” is the answer to defeating ISIS might prove to be a happy accident on her part if it helps to illustrate that modern liberal promises are generally hollow and devoid of any real benefit for anyone other than those seeking to maintain and consolidate power and their cronies who support them in return for patronage and favoritism.

Jonathan Gruber: The Face Of Modern Liberal Tyranny

 

An abridged version of this blog was originally published by The American Thinker and can be found here.

A few weeks ago, I wrote an article on “The Corrupt Operating Principle of Modern Liberalism”.  The point of that piece is that “modern liberalism is an ‘ends justifies the means’ ideology driven by a single corrupt principle – expediency.”  I explained that “modern liberalism uses whatever tools it can muster to advance its policy agenda” and that “modern liberalism focuses on winning the policy issue by whatever means necessary.  Fidelity to democratic processes and adherence to constitutional principles are not required.”

I could not have known that my thesis would be so famously corroborated by a real life example so soon.  While it’s not surprising that there would be examples to be found, I could never have expected one so indefensible and so utterly incapable of being “spun” by modern liberalism’s legions of apologists.  Responsible is a man who, despite his Harvard doctorate degree and his deep involvement in the politics of misdirection, is apparently incapable of understanding the value of deniability and the permanent recording capabilities of modern technology.

We all know Jonathan Gruber by now.  He was highly involved in the development of the Affordable Care Act.  In October of 2013, Mr. Gruber participated in a panel discussion at The University of Pennsylvania on the ACA.  Anyone reading this likely knows very well what he said and has seen the now notorious video.  Here’s a word for word restatement of his now famous comments:

This bill was written in a tortured way to make sure CBO did not score the mandate as taxes. If CBO scored the mandate as taxes, the bill dies. Okay, so it’s written to do that. In terms of risk rated subsidies, if you had a law which said that healthy people are going to pay in – you made explicit healthy people pay in and sick people get money, it would not have passed… Lack of transparency is a huge political advantage. And basically, call it the stupidity of the American voter or whatever, but basically that was really really critical for the thing to pass… Look, I wish Mark was right that we could make it all transparent, but I’d rather have this law than not.

Much has been made of Jonathan Gruber insulting American voters by calling them stupid. Though worthy of contempt, that comment is one of the least interesting aspects of this short statement, which is otherwise chock-full of revelations with respect to the modern liberal mindset. Insulting the American voter is bad. Demonstrating altogether one’s disregard for democratic principles is far worse.

First, Gruber says that the bill was written in a tortured way to make sure that the Congressional Budget Office did not score the mandate as a tax because, had it been scored as a tax, the bill would have died. The fact that the bill was written “in a tortured way” implies more than mere difficulty or complexity in the drafting process. When Gruber said “the bill was written in a tortured way,” he was saying that the drafters intentionally distorted or perverted the bill’s real meaning in order to fool the Congressional Budget Office.

Modern liberalism operates on expediency exclusively. Nothing matters but winning. The democratic process can be – must be – sacrificed to win. Gruber willingly proclaimed his disregard for the democratic process when he declared that “lack of transparency is a huge political advantage.” He demonstrated with perfect clarity that modern liberalism is indeed an “ends justifies the means” ideology driven by expediency when he said, “I wish…that we could make it all transparent, but I’d rather have this law than not.”

For one brief moment, videotaped for posterity, Jonathan Gruber personified the modern liberal mindset. In an instance of perfect irony, he pontificated on the political advantages of avoiding transparency while simultaneously shining the bright light of day on the black heart of modern liberalism in the most transparent way possible. His perspective would be no clearer had he said, “It would be nice if we could tell the public the truth, but only if we get our way. If the only way we can get the bill passed is by perpetrating a fraud on the CBO and on the American people, so be it. Transparency and the democratic process be damned.”

As I wrote earlier:

Because modern liberalism as reflected by the actions of its establishment flag bearers is entirely policy driven and has no regard for our constitutional rule of law, the democratic process, or the truth, it is bankrupt of any guiding principle other than expediency. Its approach to governance and the acquisition of power is ultimately tyrannical because it seeks to impose its policies and obtain the political power necessary to do so by whatever means possible, without regard for any of the fundamental principles of our founding; principles which they no doubt deem outdated…the democratic process, limited government constrained by a constitution created by a sovereign people, and the unalienable rights of free individuals.

Jonathan Gruber certainly never intended to expose modern liberalism’s tyrannical approach so completely – but expose it he did. The revelations he provided should be often remembered and never forgotten.

 

 

It’s Time For A State Initiated Balanced Budget Amendment

Only one day after the midterm elections resulted in overwhelming gains for the Republican Party, presumptive Majority Leader Mitch McConnell ceded Congress’s bargaining position with respect to negotiating  spending cuts when he proclaimed in a news conference that,  “we’re not going to be shutting down the government or defaulting on the national debt.”  His reference to “defaulting” on the debt was only a scare tactic.  Refusing to increase the debt limit would not require a default.   Tax receipts are more than adequate to service the debt.  Defaulting would require an affirmative choice not to make debt payments.  But the establishment spenders in Washington D.C. know how to fear monger.  Dissembling has no party affiliation.  McConnell’s message is loud and clear – the elected Republican establishment will not rock the boat on America’s excess spending.

Republican gains were not limited to the Federal government.  State governments also saw substantial advances.  Republicans picked up control of at least 9 state legislative chambers.  They now control 31 state legislatures outright and share control between two chambers with Democrats in 8 others.  As it is clear that the national Republican establishment will not address America’s spending and borrowing spree, it’s time to look to the states for a solution.

Article 5 of the U.S. Constitution provides two avenues for its amendment.  The first requires a formal decision by Congress to initiate the process.  The second does not.  Whenever “the legislatures of two thirds of the several states, shall call a convention for proposing amendments”, Congress “shall call a convention for the proposing of amendments.”  Any amendments thus proposed become effective only “when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof.”  With 50 states, 34 are required to propose an amendment for consideration by the states for ratification and 38 states would be required to ratify.

Historically, 27 state legislatures have proposed amendments which would limit the Federal government’s ability to borrow, thus demonstrating substantial interest in utilizing their constitutional power to enforce fiscal responsibility upon the Federal government.  Because of a confluence of circumstances, now is the time for the state legislatures to make the notion of a state initiated balanced budget amendment a reality.

First, our rendezvous with economic destruction grows nearer and nearer at a faster and faster pace.  The debt is $18T and only growing.  Serious people are rightfully concerned at the burden we are placing on our children.  The magnitude of the problem, the swiftness of its worsening and the concern we have for future generations of Americans all make now the right time for the states to pursue a solution.

Second, McConnell’s comments are only the most recent confirmation of a truth we should have acknowledged long ago – neither national party is interested in returning the U.S. to fiscal responsibility.  We must face reality.  When it comes to our national leadership, selfishness is the rule; integrity the exception.  For most of Congress, the first objectives are re-election and consolidation of personal power, both of which might be jeopardized if tough decisions were imposed on the American people to reduce spending, raise taxes or both.  Where self preservation prevails over honor and duty, borrowing and spending provide an easy answer so long as society is willing to ignore the ultimate consequences.

Third, state Republicans have accumulated strength in numbers not seen since the very early part of the 20th century.  Those numbers indicate that the likelihood of achieving the 34 states necessary for a proposed amendment is as good as it’s ever been.

Fourth, because state Republicans are not drunk on national power and media fawning, they are addicted to neither.   They have every reason to be motivated to address such a crucial national problem.  Indeed, the self interest that compels national Republicans to ignore the debt crisis might just compel state Republicans to address it.  Attacking profligate Federal spending and borrowing may be both excellent leadership and an opportunity for historical greatness.  If America is to survive its decades long debt addiction, history will record with admiration and reverence those who lead us to redemption.

Finally, regardless of whether ratification can be won, America is ripe for the debate.  Our submersion into debt is ignored by national leaders and media alike.  There is no national discussion even though the issue demands attention.  Moreover, even if a balanced budget amendment ultimately fails to gain ratification, the country deserves the opportunity to actually decide the issue.  Anyone who is concerned for the well being of the country and for future generations must feel the need to frame the debate, have the argument, and come to a national decision.  Surely it is better to attempt to avoid disaster rather than to do nothing but await its arrival.

Those who want to maintain the status quo have a strategy – to avoid the debate.  One sure way to avoid losing an argument is not to have it.  Their favored tactic is to ignore the issue.  That tactic has worked well because everyone with an amplified voice, both national parties and the national media, keep it out of their talking points and off of the front page.  Whenever a balanced budget amendment is mentioned, they employ a second tactic – they demonize the constitutional process arguing that a convention of the states would be “dangerous”.  They ignore the fact that any proposed amendment would require ratification by 38 states in order to take effect, pretending that the convention itself could actually affect changes in the Constitution.  Notwithstanding the weakness of their arguments, in order to alleviate any concerns whatsoever concerning a convention, the notion of a compact among the states has been thoroughly developed and vetted.  It would eliminate the need for a formal convention thus eliminating any concern that other amendments might be proposed or adopted.

As the Federal government has grown more powerful over the past many decades, the authority of the states has diminished.  Most state officials have become accustomed to having almost no role in national affairs.  Not surprisingly, state legislatures generally see their responsibilities limited to the ambit of intrastate concerns.  However, there remains an important constitutional function codified in Article 5.  Nothing that has occurred in the past 80 years to unconstitutionally empower the Federal government has changed that fact.  The Article 5 authority conferred upon the states remains, unadulterated by any of the interpretive constitutional contortions achieved in the past to empower the Federal government.

The founders recognized the states’ role as a check against overreaches by the Federal government.  Alexander Hamilton argued in Federalist Number 26 that “…the state Legislature…will always be vigilant…suspicious and jealous guardians…against encroachments from the Federal government…and… will be ready enough, if any thing improper appears, to sound the alarm to the people.”  Even more on point, he stated in Number 85 that “we may safely rely on…the State legislatures to erect barriers against the encroachments of the national authority.”  Now is the time for the state legislatures to remember their important place in the balance of national power and to rediscover their duty to exercise that power in defense of their citizens and their nation in crisis.

The Uninformed Should Not Be Encouraged To Vote

The title of this blog gives me pause.  Does the notion that uninformed voters should not vote really need to be explained?  Do we live in a society where such an obviously correct assertion is not generally accepted by society at large?  Apparently we do.

I recently heard a radio interview of a former state senator in my home state.  He was upset with the reported fact that my home state is at or near the bottom of the list when it comes to the percentage of citizens who vote.  His goal is to help change that status.  When the interviewer suggested that the former senator must surely agree that we want citizens to have a basic understanding of the issues before voting, the former senator disagreed.  Paraphrasing, he said that it doesn’t matter whether voters are informed.  What is important is that the state’s voting statistics improve.  The interviewer then conceded that there is a “civic responsibility to vote”.  I also read a recent opinion column in my local paper wherein the columnist asserted that “the greater the participation in the voting process, the better and stronger our country is in the long run.”

These few local examples exemplify a national attitude that has developed relatively quickly over the past several years.  The notion is that voting is an inherent good.  The effort has been to turn out the vote, no matter how uninformed.  Such campaigns seldom make any reference at all to the necessity of becoming informed prior to voting.  “Just vote” seems to be the mantra.  I’ve heard at least one nationally known, highly informed commentator repeat the mantra that voting is good, without any reference to whether the voter knows anything at all about the candidates or the issues.

Though I’m not sure what has driven this perspective, I am sure that it makes no sense.  At best, the mass of uninformed votes it induces simply cancel each out and leave us with a result which reflects the votes of the more informed and interested voters.  In any other scenario, what results is damaging to any democratic system of governance.  In essence, the results of our elections are being influenced by voters whose criteria for making a selection may be little more insightful than flipping a coin.

There are many human activities which we recognize as inherently good.  Exercising, eating healthfully, getting plenty of sleep, limiting stress and developing a positive, happy outlook are all deemed by society to be inherently good activities.  Unlike such activities, voting does not necessarily result in a good or helpful outcome.  The decision that is made in the voting booth can ultimately be good or bad for society.  Judgment based on careful study and consideration is necessary.  A person who votes without exercising judgment based on careful consideration makes no positive contribution to society.  In fact, by diluting the votes of those who have undertaken their civic responsibilities in a serious way, such a person undercuts the process and provides a disservice to society at large.

Voting is simply one step in the complex process we employ to govern ourselves. In no other human or societal activity do we urge incompetent people to perform a function simply for the sake of performing it.  Likewise, in no other human or societal activity do we seek the input of unknowledgeable people in making important decisions.  For example, families do not typically seek the input of every member in deciding whether to make a major purchase or whether the primary income earner should accept a new job.  Businesses do not typically seek the input of all stakeholders in deciding whether to change accounting systems or marketing plans.  Charitable institutions do not typically take a vote of donors to determine how best to utilize existing funds to achieve their charitable goals.  Surgeons do not seek the input of everyone else in the operating room when making a crucial decision.  The reason is obvious.  Families, businesses, charitable institutions and surgeons want to make the correct decisions when it comes to such important matters.  Accordingly, they leave those decisions to the people with the most knowledge.

Of course, everyone meeting basic legal criteria have a right to vote.  But that is no explanation for why society should encourage the uninformed to exercise that right.  Citizens also have the right to free speech and the right to own firearms.  Society doesn’t go out of its way to encourage citizens to exercise their right to free speech or to acquire and keep firearms.  Criminals have the right not to incriminate themselves.  Though they are informed of that right, society does not encourage them to exercise it.  Society is far better off when guilty suspects waive that right and confess to crimes they have committed.  The fact that voting may be deemed a right is no excuse for urging citizens to exercise that right.

In the radio interview of the former state senator, he posited that even if many voters are uninformed, the right decision will still be made by the electorate.  He offered no explanation for such a ridiculous assertion, presumably because there is none.  Uninformed voters will make their decisions in the voting booth based on something.  It might be which name they like better.  It might be who a friend or family member recommended.  It might be who looked the best in television advertisements.  Uninformed voters, by definition, will not make their decisions in the voting booth upon their own judgment exercised only after having studied and considered the issues and the candidates.  At best, the uninformed voters will cancel each other out.  In other words, the best that we can hope for is that their efforts will result in an outcome that mirrors the outcome which would have occurred if they had not voted at all.  Any other result damages the democratic process because the decisions we make are less likely to be based upon relevant information and good judgment.

Society should leave uninformed and disinterested citizens alone.  Anyone who is so disinterested in our self governance and the processes required to maintain it so as not to bother to vote does us all a favor by staying home on election day.  The uniformed, disinterested citizen is almost universally inclined not to vote.  That instinct is correct.  The rest of us should not try to persuade him otherwise.

 

 

 

Constitutionalism: Searching For A Voice In A Two-Party System

I recently posted a blog addressing the corrupt operating principle of modern liberalism Because it is entirely policy driven and has no regard for constitutional rule of law, the democratic process, or the truth, modern liberalism is bankrupt of any motivating principles other than expediency.  Its approach to governance and the consolidation of power is tyrannical because it seeks to impose its policies and obtain the political power necessary to do so by whatever means possible.

Unfortunately for us all, modern liberalism is the motive political power behind the national Democrat Party.  As a result, the only current competitive alternative for constitutionalists to find a national voice is the Republican Party.  While the Republican Party is certainly not immune to criticism for growing the Federal government, it typically has a less broad policy agenda and is generally somewhat more committed to maintaining some fidelity to our constitutional process.  On balance, though the mainstream Republican Party is unquestionably to a large degree statist in its governing philosophy, its policy positions are usually less offensive to constitutionalists and government minimalists than those of modern liberalism.  However, being not as bad as the Democrats is hardly sufficient.  Constitutionalists need a national voice that boldly articulates and defends adherence to the Constitution and the rule of law as the only true entitlements we have as American citizens.  The national Republican Party is not fulfilling that role.

The unfortunate hallmark of the national Republican Party has been its unwillingness to deconstruct the artifices of modern liberalism once established.  In fact, once modern liberals succeed in establishing in the Federal government a more expansive role in governing some aspect of society, Republican officials often seem as eager to exercise the new power as are their modern liberal counterparts.  As a current example, consider how many Republicans running for office advocate repealing the Affordable Care Act.  Repeal of the ACA is simply not a primary campaign issue in this year’s mid-term elections.  At most, we hear establishment Republicans speak of “fixing” the ACA.  This, despite the fact that most say they believe the ACA is unconstitutional and despite polling that demonstrates the American people have never supported it.

The standard operating procedure of the Republican establishment seems to be to make a passable showing of opposing most modern liberal policy advancements for a time, but only for a time.  At some point, whether after losing a key vote, after losing a court battle, or after simply growing weary of the battle, the Republican establishment stops fighting, cedes the issue and then rushes in to exercise the new power as quickly as possible.  The political argument all too often becomes, “we can wield this power better than the Democrats”, rather than “we recognize that this power is misplaced in the Federal government and is destructive of liberty.  We will therefor continue to fight it as long as there is any viable possibility of defeating it.

As a result, it is difficult to ascertain the motivating principles of the Republican establishment today.  Though they often speak of freer markets, decreased regulation and returning to the founding principles, their actions more often reflect a disposition to conciliation and compromise.  When, in a two party system, one party is motivated by conciliation and compromise while the other is motivated only by expediency, one outcome alone can result—policy will trend toward the objectives set by the party of expediency.  How quickly public policy will trend left is dependent upon many factors.  But regardless of timing, it should be clear that where one party has specific objectives and is willing to do virtually anything to achieve them and the other mostly operates from a position of compromise, the party of expedience will achieve its objectives over some period of time.  As a result, we have seen throughout recent American history since the advent of the progressive movement and particularly since the New Deal, a continuous move toward bigger and bigger Federal government with more and more authority over all aspects of society.  The few interruptions in our march to ever bigger government have been short lived.  For the most part, we’ve had two parties working together in the interests of “getting things done” or “in the spirit of compromise”, to push the U.S. to ever higher degrees of statism for many decades.  While we might debate whether the Republican Party wittingly or unwittingly played its part in this process, that it has played its part is not subject to serious debate.

What we have to show for our ever expanding Federal government is not pretty – a liberty stifling regulatory system, $18T in debt and growing fast, more dependency and a quickly deplenishing spirit of individuality and personal responsibility.  With this expansion our Federal government has become nonresponsive, even uninterested in the opinions of the people and more focused on protecting its power and in growing even further the scope its authority.  At a time when the people desperately need political leadership persuading us toward individual liberty and away from statism, what we have instead are two parties leading us to oblivion.  The Democrats urge “full speed ahead” while the Republicans argue for a nice steady cruise control.  They both have us headed for a cliff.  They only differ in how quickly they’ll have us plunging over the edge.

If the Republican Party is to be the vehicle of our national salvation, it will have to change.  Clearly, it will not change from the top down.  The vast majority of the leadership of the Republican Party shows little interest in expanding freedom, little interest in shrinking government and absolutely no interest whatsoever in addressing the government debt that is sure to be our ruin.  One need only consider the disdain establishment Republicans show for the Tea Party to see the truth of the matter.  The national Republican Party is ambivalent about the debt until challenged politically.  Once challenged by true fiscal conservatives, they become fierce in the defense of their power.  Their ambivalence turns to scorn as they work to vilify their challengers.  By implication, they dismiss or even mock Tea Party concerns over the debt.

If the Republican Party is to be the vehicle of our national salvation, it will change from the grass roots up.  The Tea Party and others committed to fiscal responsibility and individual liberty will be the organizing and motivating factors.  The Republican Party will have to shed its decades long mode of operation.  Opponents have pejoratively called it “the party of ‘no’”.  We need for it to truly become the party of “NO” and enthusiastically embrace that role.  No more compromise toward economic ruin.  No more expanding power and spending in the spirit of “getting things done”.  No more spending growth.  No more government growth.  No more fostering dependency.  No more political cowardice in the face of the left’s ridiculous allegations meant only to induce the division inherent in identity politics.  We desperately need a new Republican Party led by constitutionalists who believe in liberty, free markets and limited government, who are proud to defend those principles and who are capable and willing to persuade their constituents and their colleagues to their point of view.  This can only happen if it originates from the base.  Constitutionalists have to stop hoping for better leadership and start working towards it.

Modern Liberalism’s Multi-Faceted Attack On Americanism

America was founded on the enlightenment principles of classical liberalism.  Limited government and the strict application of the rule of law were intended to ensure individual liberty.  The Constitution’s role in institutionalizing “Americanism” is central and fundamental.  It was and is the contract of a sovereign people as to what its national government is and what that government is authorized to do.

Because the Constitution was designed to limit the powers of the Federal government, it has been the obstacle statists have sought to avoid since the second coming of the progressive movement in the 1930’s.  The now decades long assault on the Constitution has been nothing less than an assault on that which is central and fundamental to Americanism – limited government and the rule of law.  By slowly defeating the Constitution, modern liberalism is slowly defeating Americanism.  By logical extension, it is slowly defeating the structural legal protections of individual liberty.

This assault on Americanism is very much like a metastasized cancer’s assault on a living organism.  Modern liberalism attacks the Constitution, the rule of law, and individual liberty not by utilizing a coordinated strategy targeted at some perceived vulnerability of the body politic, but by a systemic multi-faceted attack on Americanism.  Consider the modern liberal issue of same sex marriage.  In modern society, marriage exists as a legal union, recognized by the state.  Rights and obligations are conferred by the state on those who enter into such a legal union.  Accordingly, it makes perfect sense that those who find themselves outside of the legal qualifications for marriage, but are otherwise similarly situated in terms of their commitment to one another, would challenge the notion that the state should exclude them from the rights, benefits and obligations enjoyed and undertaken by those who seem to them arbitrarily to qualify.  To those who love liberty and shun the illegitimate force of the state, this argument is easily understood and persuasive.  If those advocating same sex marriage sought it’s implementation in accordance with our Constitution and the rule of law – by pursuing legislation in each state to accomplish legal recognition – their objectives and their tactics for achieving them would be in accord with principles of liberty and in accord with the rule of law and the popular sovereignty of the American people as expressed in the Constitution.

But the left has not pursued legal same sex marriage in accordance with the Constitution and the rule of law.  Instead, it has sought a judicial solution.  Though the Constitution is subject to legal amendment within the rule of law by following the processes specified in Article 5, statists seek to “amend” it through the courts by obtaining outrageously ridiculous rulings from activist judges who almost single handedly modify the Constitution’s “meaning” and make it conform to whatever the modern liberal establishment demands.  With each fraudulent interpretation, the rule of law is defeated and the Constitution’s role as the underpinning of limited government is weakened.  Sadly, we’ve reached the point where the notion that the Constitution effectively limits the powers of the Federal government is legitimately subject to question.  By logical extension, we’ve reached the point where the notion that the Constitution effectively protects personal freedom is increasingly subject to question.

The Constitution clearly does not protect same sex couples from governmental exclusion from the institution of marriage.  Even so, modern liberalism has sought the imposition of same sex marriage by and through a fallacious interpretation of the 14th Amendment.  They have convinced activists courts to reject the clear language and the known purpose of the 14th Amendment to mean something which was clearly not meant when it was ratified by a sovereign people.  In so doing, they have imposed a misinterpretation of the most fundamental law of the land upon all of society.  That the 14th Amendment does not restrict the states from excluding same sex marriage can not be seriously questioned.  It’s beyond argument that the 14th Amendment would not have been ratified in 1868 if the people understood that it would be interpreted to create a right to same sex marriage.  Indeed, it is beyond serious question that at no time since the original ratification of the Constitution in 1788 would an Amendment creating a right to same sex marriage have been ratified by the sovereign people of the United States.  That being the case, what possible justification can any court have for interpreting the 14th Amendment to create such a right?  Modern liberalism seeks to achieve by judicial fiat that which it can not achieve legally – a de facto amendment to the Constitution.  Thus far, what they’ve won for their efforts appears to be the imminent nationwide legal recognition of same sex marriage.

But legal recognition by the states and by the Federal government is not nearly enough for the left.  To get more, they attack another facet of Americanism – personal freedom of association – individual liberty itself.  While pursuing state recognition by contorting the Constitution rather than through proper democratic channels, the modern liberal establishment has simultaneously moved to impose private recognition of same sex marital unions.  Whether it involves a private contract to purchase a wedding cake or a private contract to perform the marriage ceremony, modern liberalism has begun its effort to impose its will upon private actors.  And who is to implement and exercise the force of law upon private parties to make them recognize and service same sex marriage?  The state, of course.

A 2013 Coeur d’Alene Idaho ordinance which bans discrimination based on sexual orientation in places of public accommodation is only one of the first in what is sure to be many, many efforts by the left to force private actors to recognize and serve same sex couples in violation of their religious beliefs or personal preferences.  Though religious entities are exempt from the ordinance, city officials have taken the position that because these particular individuals operate a for-profit wedding chapel, they should be obligated to conform to the requirements of the ordinance.  Setting aside for the moment the left’s almost maniacal obsession with demonizing the profit motive (which motivates each and every rational human being), we see here in bold relief the tyrannical methodology of modern liberalism.  The left works to simultaneously eliminate state restraints with respect to their cause while imposing state enforced coercions upon other individuals in order to give favored liberal classes special protections and recognition in private matters.  Modern liberalism uses the judicial function of state authority to achieve a falsely modified Constitution in order to impose upon a sovereign people an individual “right” to same sex marriage to which the people never assented while at the same time using the force of law in the legislative arena to impose restrictions on the liberties of others.

For another illustration of the same methodology at work, consider abortion and the pretend “debate” over contraception.  For modern liberals, it is not enough that the states can no longer outlaw abortions or contraception making both completely legal across the country.  Modern liberalism wants much more.  Independent individuals – other citizens – must be forced to pay for abortions and contraceptives with their tax dollars or by and through the health insurance that they purchase as employers.  Whether these other citizens consent or volunteer to fund abortions and contraceptives for others can not be determinative.  They must, by force of law, be compelled to provide such funding.  Thus, the modern liberal approach to liberty is selective.  “Liberty!” is their battle cry when they argue that the states should not have the authority to exclude same sex marriages.  But “liberty” will find no place in their arguments in favor of state imposed coercions and restraints forcing the rest of society to act in a certain manner when dealing with same sex married couples in what would otherwise be private, voluntary transactions.

Modern liberalism is an “ends justifies the means – win at all cost” ideology devoid of principles.  It has no regard for the rule of law, no regard for the Constitution and no regard for the popular sovereignty of the American people.  Constitutionalists value individual liberty and therefore revere the rule of law and the procedural superstructure set up by the Constitution despite the fact that they know strict adherence to those principles means they can not win every political issue.  Modern liberalism wants only one thing – its way.  Principles and values such as strict adherence to the Constitution, the rule of law, popular sovereignty, even individual liberty only impede their single minded pursuit of transforming society to conform to their notion of social justice.  The ruination of Americanism in the process is not a sacrifice. It’s a strategic success.

President Obama’s Audacious Disrespect For The Popular Sovereignty Of The American People

In a recent interview with Al Sharpton, President Obama commented on Democrat candidates who are distancing themselves from him and his policies.  “(T)hese are all folks who vote with me; they have supported my agenda in Congress…these are folks who are strong allies and supporters of me”, he said.  In this age of political dissuasion and denial, such candor might seem surprising and is certainly welcomed.  In our constitutional system of self governance and popular sovereignty it is crucial that the people understand what candidates running for office actually stand for.  Any candidate who seeks to hide from his record or obfuscate her goals and objectives as an officeholder should be exposed as thoroughly as possible so that the people can make an informed decision at the ballot box.

However, what President Obama said next revealed that his candor was a mistake; an unguarded moment when he accidently gave the listening audience a peek behind the curtain.  Referencing his communications with fellow democrats who are not acknowledging the truth about their affiliations with Obama or his policy stances, he said, “I tell them — I said, you do what you need to do to win.”  With that, he laid bare the tyrannical mindset of the ruling class.  Their objective is not the efficient and effective exercise of popular sovereignty.  Nor is it to inform and persuade the people to their particular policy stances or governing philosophy.  Their objective is simply to win – even at the cost of undermining the popular sovereignty our system of self government was founded upon.  Fooling the sovereign people is just part of the process.  If the people can’t be convinced of the propriety of a candidate’s actual policy stances, then the people must be mislead so they’ll vote for him anyway.

More and more it is the case that the ruling class views the people as an impediment to the implementation of their schemes rather than the real sovereign authority in whose interests they serve.  To them, American politics is not about the process of constitutionally determining the will of the people with respect to their government.  It is about playing a high stakes game for the opportunity to impose their will on civil society.  The game’s only rule is to win.

There was a time in the not too distant past when a national political figure would have been ruined politically for boldly admitting that it is ok to dupe the electorate in order to win an election.  No more.  Our cynical body politic has come to expect disrespect from our leaders.  Integrity to our founding principals is a scarcely seen characteristic in modern day American political leaders.  So it is that President Obama’s acknowledgment draws criticism, but not consequences.  His revelation has engendered excited enthusiasm from the Republican opposition at the prospect of using it to their political advantage. But we hear nary a whisper of condemnation for the unspoken message of his comment; that the American citizenry are merely obstacles to be circumnavigated, manipulated or avoided by the ruling class.

Until we the people demand respect from our elected officials for our fundamental constitutional role – that of the sovereign – we’ll only get more of the same.  We can effectively demand that respect only by rewarding honesty and candor and by punishing any candidate who lies and deceives us in hopes of fooling us for our vote.  We must demand that candidates frankly and honestly articulate their policy stances and that they respectfully work to persuade us to the propriety of their governing philosophy.  Those seeking public office must be made to understand that dissuading the voters will only ensure electoral failure.  They must be made to know that their only chance of electoral victory is to respect their constituency and convince us with clear and cogent reasoning why we should vote for them and by extension, the policy positions and governing philosophy which they advocate.

 

The Corrupt Operating Principle of Modern Liberalism

Like individuals, organizations conduct themselves based on their values and their principles.  What they value determines their ultimate goals and objectives.  Their principles determine how they go about conducting themselves as they strive to achieve those goals.  Modern liberalism’s overarching value is that government should be an active force for good in society.  This value in turn results in the modern liberal goal of a ubiquitous Federal government actively involved in affecting most aspects of society.  Many who value liberty find modern liberalism’s values and goals offensive because large, active government necessarily translates into the exercise of power over individuals.  Because I believe strongly that the proper scope of government is limited to protecting individual rights, administering justice and providing for national security, I also find modern liberalism’s notion of good government offensive.  But the liberal establishment’s goal of big and active government is not the most offensive aspect of modern liberalism.  What is most offensive is how establishment liberals readily violate the structural underpinnings of our governing processes in order to advance their policy agenda.  What is most offensive, is the principle that directs its conduct.

Establishment liberals focus exclusively on the ends they want to achieve.  They have repeatedly demonstrated a willingness to employ almost any means to institute their policy objectives.  Indeed, their most radical adherents have perpetrated criminal violence as a means of reaching their policy goals.  The fact that ex-convicts such as Bill Ayers and Kathy Boudin committed acts of unspeakable violence in order to advance their collectivist ideology, yet are welcomed and admired by the modern liberal establishment demonstrates the left’s relativist approach to violence.  Violence perpetrated for “good” reasons is more easily forgiven, a fact which corroborates my thesis; modern liberalism is an “ends justifies the means” ideology driven by a single corrupt principle – expediency.

Many on the left pay lip service to the democratic process and would certainly prefer that people believe public policy proceeding from the elected representatives of a fully enfranchised populace is the fundamental principle underlying modern liberalism.  But the most casual consideration of their actual tactics demonstrates otherwise.  Modern liberalism uses whatever tools it can muster to advance its policy agenda.  Whether environmental, health care, fiscal, economic or redistributive, modern liberalism focuses on winning the policy issue by whatever means necessary.  Fidelity to democratic processes and adherence to constitutional principles are not required.

Accordingly, when they were able to win the congressional vote on the passage of The Affordable Care Act, the left was satisfied.  But they are just as happy to impose their policy proscriptions for environmental policy through EPA regulations, regardless of what the majority of our elected representatives might think about the particular policies involved.  Once the power to affect policy is placed within a regulatory agency such as the EPA, modern liberals are satisfied to leave it there to be exercised by administrators insulated from the electoral process so long as the policies they favor are advanced, regardless of whether the public at large and/or Congress oppose the EPA’s overreach.

Further, where policy objectives can’t be won through either the democratic process or imposition by the regulatory state, the liberal establishment resorts to the courts.  Even where the electorate had considered and rejected same sex marriage, modern liberals didn’t hesitate in seeking its mandate upon society by court order.  To the extent the Constitution doesn’t comport with their policy objectives they argue for a new interpretation and seek to appoint judges who will mollify the Constitution to remove any impediment it poses.  And as is so obvious in the case of illegal immigration, the liberal establishment consciously disregards the rule of law and the will of the electorate when it overtly refuses to enforce existing laws which run counter to their policy objectives.

Finally, modern liberalism employs identity politics in order to maintain or strengthen political power.  The left constantly works to identify subgroups and convince them they have a grievance against society at large.  Having stoked the fires of a newly contrived “cause”, modern liberalism then takes on the mantle of champion of the supposedly disadvantaged subgroup.  No better example can be found than the ridiculous “fight” over contraception.  To be sure, there is undoubtedly a collectivist fringe that actually believes society has an obligation to provide everyone their contraceptive of choice free of charge.  But the liberal establishment doesn’t gain anything by championing that cause because the fringe that holds this belief certainly consists entirely of diehard leftists.  In order to benefit politically from such an issue, the liberal establishment must use it to create new voters or drive existing voters to the polls when they might otherwise have stayed home.  Accordingly they demagogue, demonizing and ascribing false policy positions to political adversaries in order to create the perception of a debate over contraception that doesn’t exist.

Because modern liberalism as reflected by the actions of its establishment flag bearers is entirely policy driven and has no regard for our constitutional rule of law, the democratic process, or the truth, it is bankrupt of any guiding principle other than expediency.  Its approach to governance and the acquisition of power is ultimately tyrannical because it seeks to impose its policies and obtain the political power necessary to do so by whatever means possible, without regard for any of the fundamental principles of our founding; principles which they no doubt deem outdated…the democratic process, limited government constrained by a constitution created by a sovereign people, and the unalienable rights of free individuals.  These were the founding principles employed by our forefathers to achieve what they valued most, a value modern liberalism does not share – a society free of tyranny and despotism.

 

A Bold Attack On Freedom Of Political Speech In America

On September 11, 2014, the Senate voted 54-42 to end debate on Senate Joint Resolution 19.  Sixty votes were needed to end a filibuster and force a vote on the resolution.  Because the required sixty votes were not obtained, the resolution could not overcome the filibuster and it died.  Fifty four Senators, all Democrats, voted to end debate and go forward with a vote on the resolution.  Included among those 54 Senators were 48 who co-sponsored the resolution.

The point of the resolution was to propose an amendment to the United States Constitution.  Had the resolution gone to a vote, a two/thirds majority of both houses of Congress would be necessary in order to submit the amendment to the states for ratification.  In the Senate, that would require 67 votes, a number clearly unattainable since there were not even enough votes to overcome the filibuster.  That the resolution was doomed from the outset is clear.  Equally clear is that the lack of respect for the U.S. Constitution among our elected representatives is an historic problem that continues to this day.

The proposed amendment is short and easily understood.  It states in its entirety as follows:

Section 1. To advance democratic self-government and political equality, and to protect the integrity of government and the electoral process, Congress and the States may regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections.

Section 2. Congress and the States shall have power to implement and enforce this article by appropriate legislation, and may distinguish between natural persons and corporations or other artificial entities created by law, including by prohibiting such entities from spending money to influence elections.

Section 3. Nothing in this article shall be construed to grant Congress or the States the power to abridge the freedom of the press

The ultimate ratification of the proposed amendment by the states would have authorized governmental powers over political speech expressly denied by the First Amendment which states in its entirety as follows:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

The proposed amendment would, by it’s express terms, empower Congress and the States to regulate raising and spending money “to influence elections”.  Because any political speech can reasonably be deemed “to influence elections”, the government would have been empowered to regulate those persons and corporations spending money on disfavored political issues while leaving others deemed by the government to be advancing more “acceptable” political positions unmolested.  Because spending money is the only reliable method to ensure that a message is widely disseminated, the amendment would have empowered the government to choose who is entitled to amplify their political messages by spending money and who is not.  It would have enabled the government to criminalize the spending of money to communicate one message, while leaving those espousing the opposite message free to spend as they wish to communicate to the public.

History has proven that it is naïve in the extreme to hope that those in power will honor the limits on their constitutional powers.  The Federal government has historically and repeatedly argued in favor of extraordinarily broad interpretations of the powers enumerated in the Constitution.  The Commerce Clause provides one of many examples.  Article One provides that Congress has the power “to regulate commerce…among the several states…”  For many years Congress used this power either not at all or in a relatively limited fashion as intended—to prevent the states from implementing protectionist trade policies against each other.  For several years leading up to the New Deal era Congress, with the approval of the Supreme Court, interpreted its powers under the Commerce Clause to regulate more than strictly commerce.  Congress began regulating labor among interstate carriers, the “channels” of commerce and the instruments of interstate commerce, such as the rail cars and railroad safety devices.

The New Deal brought a continuous flow of legislation seeking to regulate wages and industry, ostensibly pursuant to the power to regulate commerce among the states.  For a time, the Supreme Court rebuffed such unconstitutional assertions of power.  But in the end and in the wake of FDR’s effort to pack the Supreme Court in order to emplace more “progressive” jurists, the Supreme Court buckled and approved the use of the constitutional power to regulate commerce among the states to, among other things, broadly regulate labor and products regardless of whether they were implicated in interstate commerce in any direct manner.  Since 1937, the Commerce Clause has been used repeatedly to justify federal regulation of matters which are not “commerce among the several states”.  On each occasion, the Federal government has expanded it’s power over the people despite the fact that it lacks any constitutional authority to do so.

With Senate Joint Resolution 19, 48 presiding U.S. Senators expressed in clear terms their desire.  They want to regulate political speech despite the fact that the Constitution specifically denies them the authority to “abridge the freedom of speech”.  The Supreme Court has not been so availing as it was nearly 80 years earlier in turning a blind eye to the illogical and extreme contortions of the Commerce Clause.  But the question remains; what did the 48 sponsors hope to achieve by proposing the resolution?  As noted, it was doomed from the start.  What did they hope would result from proposing the resolution?

One can only conclude that they hoped to score political points with the electorate.  In the 1930’s FDR and Congress perceived that the electorate would support their efforts to expand federal power despite the lack of constitutional authority.  They used the attendant political power to pressure the Supreme Court until it finally gave in, ushering in a new paradigm of federal power.  Rather than a power limited to regulating commerce among the states, the Federal government has since wielded its power unconstitutionally over almost all things arguably deemed to affect the economy.  Those who would now eliminate our right to free political speech have apparently concluded that there is sufficient public support for their efforts to enable them to utilize the debate over the resolution as an election year gimmick to compete for votes, to create a spring board for a groundswell of popular support, or both.

Regardless of their motive, it is clear that the disregard many of our elected representatives have for the Constitution, for it’s limitations on their powers and for the protocols it establishes to ensure that the Constitution can only be amended at the will of the sovereign people is at least as problematic as it has ever been.  That 48 out of 100 U.S. Senators would support a measure to obliterate the First Amendment is a sad commentary on the status of our leadership, the level of accountability demanded by the citizenry and the diminishing measure of importance we the people place on limiting the authority of our government over us and on maintaining our popular sovereignty.

 

 

 

 

 

 

Current Events and Timeless Ideas Pertaining to the Societal Benefits of Liberty and the Rule of Law and the Social Destruction Occasioned By Restraint, Coercion and Cronyism

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