Category Archives: Constitutionalism

Beyond The Right To Carry Firearms

Judging from social media comments, there is a lot of misunderstanding concerning the recent ruling by the 9th Circuit Court of Appeals in Peruta v. County of San Diego.  The purpose of this article is to clear up the some of the confusion and to call attention to a potential scenario whereby the question of the 2nd Amendment ‘right to carry’ might ultimately be used by the left in an effort to damage the Constitution beyond the 2nd Amendment.

In Peruta, the 9th Circuit ruled that there is no 2nd Amendment right to carry a firearm in public.  The states comprising the 9th circuit are: Alaska, Arizona, California, Idaho, Montana, Nevada, Oregon and Washington.  Because Peruta is a decision by the 9th Circuit, it affects only those states.  Importantly, it does not make carrying a firearm illegal in those states.  It doesn’t nullify or void or de-constitutionalize any 9th Circuit member states’ laws permitting citizens to carry.  It merely states that there is no individual 2nd Amendment right to carry a firearm.  Thus, states may choose to disallow carrying a firearm, but they are not required to do so.  Any state in the 9th Circuit which chooses to permit carrying may do so.  That has not changed.  And the 9th Circuit decision has no direct legal effect at all in any state outside of the 9th Circuit.

Of course, that is not so say that the Peruta decision is no cause for concern outside of the 9th Circuit.  If a citizen’s rights are infringed, we should all be concerned.  Similarly, anytime an American court attempts to justify perceived impositions upon constitutional rights, we rightfully worry about the rule of law and the continued diminishment of our Constitution.  Finally and most importantly, the practical ramifications of the 9th Circuit decision might be more profound and much more imposing than would initially appear.

In the event the Peruta decision is accepted on appeal by the Supreme Court, or a similar case from another Circuit results in such an appeal being accepted by the Supreme Court, then the Supreme Court will have the opportunity to decide for the entire nation what, if any constitutional right individuals have to carry firearms.  Were the Supreme Court to issue a decision in accord with the holding in Peruta, there would be virtually no individual constitutional right to carry a firearm, whether concealed or open carry.  Any state could legislate stringent restrictions or virtual bans.  But again, they would not be obliged to do so.  A rights respecting state would still have the ability to enable individuals to carry firearms despite the ruling that they have no 2nd Amendment right to do so.  There is however a larger concern in the event all three branches of government align.

‘The Supremacy Clause’ of the Constitution is contained within Article 6 which provides in part that the “Constitution, and the laws of the United States which shall be made in pursuance thereof…shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”  The Supremacy Clause made perfect sense when drafted because there was an expectation that the powers of the Federal government, limited as they were by the Constitution itself, would remain limited.  The founders expected that any significant attempt by the Federal government to illegally expand its power would by rebuffed by the states and by the people.

The New Deal era ushered in a new age in Federal Government power.  As I wrote more extensively here, a Supreme Court which had been a stalwart protector of the Constitution against overreaching New Deal legislation, became compliant to Congress and FDR almost overnight.  Where it had typically used judicial review of federal legislation to limit the Federal Government to its constitutional sphere, it began reinterpreting the now ‘living’ Constitution so as to enable a massive expansion of Federal Government power.  One of its favorite and well-worn avenues for doing so was the misinterpretation of ‘The Commerce Clause’ of the Constitution.

Article 1, Section 8 of the Constitution specifies Congress’s powers.  Included is the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”  The Commerce Clause was intended to enable Congress to regulate trade among the states so that it could be normalized and in order to avoid trade conflicts between and among the states.  For decades that’s how it was utilized and interpreted.  Only after the advent of the ‘living’ Constitution, did the Federal Government use the Commerce Clause to justify the widespread intrusion upon myriad private economic and personal relationships between and among individuals – and the Supreme Court rubberstamped virtually every expansion for decades.

Finally, in 1995 the Supreme Court decided the case of Lopez v. United States.  In Lopez, the Court considered the constitutionality of the Gun-Free School Zones Act of 1990.  The Act made it a crime to knowingly possess a firearm at a place that the person knows, or has reasonable cause to believe is a “school zone”.  The statute in no way purported to regulate a commercial activity, nor did it require any link between the possession of the fire arm or the fire arm itself, to interstate commerce.  The sole basis asserted for constitutional authority was that possession of a firearm in a school zone ‘substantially affects’ interstate commerce.

In its effort to defend the statute, the government argued that a firearm may result in violent crime and that violent crime in and around a school could be expected to affect the national economy in two ways.  First, the costs are substantial and those costs are ultimately spread throughout the entire population.  Second, violent crime reduces the desire or willingness of individuals to travel to areas deemed unsafe.  Also, guns in and around schools could damage the learning environment ultimately resulting in a less productive economy.  Based on this reasoning, the government contended that Congress had a rational basis to conclude that the statute would substantially affect interstate commerce.

The opinion was authored by Justice Rehnquist.  Justices Thomas, O’Connor, Scalia and Kennedy joined in majority for the decision.  The opinion  identifies several prior cases where the Court found Federal legislation to be authorized under the Commerce Clause and argues that each involved an economic activity that substantially affected commerce.  Specific examples provided are Hodel (“intrastate coal mining”), Perez, (“extortionate credit transactions”), Katzenbach (“restaurants utilizing substantial interstate supplies”), Heart of Atlanta (“inns and hotels catering to interstate guests”) and the infamous Wickard v. Filburn (“consumption of homegrown wheat”).  The distinguishing factor in the Court’s decision to disallow the Gun-Free School Zones Act was the notion that the activity regulated was not commercial or economic activity.  With Lopez, the Court finally drew a line in the sand beyond which it would not permit to Congress to use the misinterpreted Commerce Clause to legitimize an expansion of Federal power.  If activity isn’t commercial or economic, the Commerce Clause won’t be read to authorize Congress to regulate it.

To be sure, the statists who desire an ever expanding Federal Government would like nothing more than to overturn Lopez and return the misinterpreted Commerce Clause to its former status as an infallible and infinite source of federal power – which brings us back to Peruta and its potential aftermath.  One can foresee a two stage effort statists might employ to simultaneously achieve two goals; erode the 2nd Amendment and overturn Lopez.

The first stage would employ an appeal to the Supreme Court in an effort to nationalize the Peruta decision or some variation of it.  The end goal would be a Supreme Court decision declaring that there is no 2nd Amendment right to carry a firearm, whether concealed or open carry.  If that effort succeeds, the second stage would employ Federal legislation, purportedly authorized by the Commerce Clause, to make concealed carry illegal nationally.  Because of the Supremacy Clause, any such legislation would override any state legislation recognizing the legality of concealed carry.

Of course, the Federal law banning carrying nationwide would necessarily result in an appeal to the Supreme Court based on Lopez.  It’s one thing for the Supreme Court to have ruled in the first stage that there is no 2nd Amendment right to carry.  It’s another thing altogether for Congress to assert the authority at the Federal level to ban carrying firearms.  Lopez established that there is no such authority under the Commerce Clause.  Thus, the left would seek to overturn Lopez.  If successful, the statist effort could result in a Supreme Court decision that both recognizes the legitimacy of Federal legislation outlawing the carrying of firearms and overturns Lopez thus reopening the font of illegitimate federal power that was the misinterpreted Commerce Clause.

I’m not predicting this scenario will come to pass or even that statist forces will make the effort.  But if the day comes when statists judge that the Supreme Court would seriously consider nationalizing the Peruta decision and overruling Lopez and that Congress would pass national concealed carry legislation, it would be extremely naïve to believe that they wouldn’t make the effort.  The left is nothing if not patient and should be expected to make this effort when the time is right even if not for many years.  Those who would defend the Constitution, federalism and individual liberty should be mindful of such a strategy and vigilant if circumstances develop which tend to indicate such an effort is underway.

 

 

 

 

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The Good In West Virginia’s Budget Dispute

I live in West Virginia where state government is embroiled in a budget battle.  Tax revenues have dropped substantially.  Through the regular legislative session and 12 days of a special session, the legislature could not agree on a combination of spending cuts, tax increases and/or the use of ‘rainy day’ account funds capable of gaining a majority of both houses.  Finally, on Friday, a budget passed both houses.  It’s now on the governor’s desk.  Most anticipate a veto.

Partisan positioning based on ideology has been prevalent.  For the first time in my memory, the legislature is reflective of a two-party system and the ideological divisions that come with that distinction are still somewhat of a novelty here.  In the past, whenever revenues dropped off, the only responses likely to be considered involved revenue enhancement, i.e., tax increases.  Now, a Republican disdain for tax increases is running head long into the unfortunate and nearly universal political desire to not cut spending.  That struggle is largely new to West Virginia and the legislature has floundered in the effort to find majority support for any combination of the available approaches to deal with the reality of falling revenue.

Partisan squabbling based on achieving political advantage in the November general election has been rampant; who is ‘at fault’ for the delay in achieving a budget…who should ‘have seen this coming’ and planned for it better…who doesn’t care about the state employees who may see their pay cut or might be subjected to a furlough…who doesn’t care about education…who wants to single out smokers for taxation, etc…

Social media has been very active with budget discussions and debates among the politically inclined and those who may not typically be policitally interested but are compelled to the debate in an effort to protect their personal ox from being gored.  Local newspapers and websites have been laser focused on the daily machinations, reporting every suggested resolution and each inevitable opposing response.

Though I have no data, I’m certain delegates and senators are hearing from their constituents in a loud and clear fashion exactly how they feel about various aspects of the budget dispute.  And no doubt, those delegates and senators are feeling the electoral pressure that flows naturally from an interested and attentive citizenry.

And it’s all been a good thing.  That’s not to say that each suggested resolution, each response in opposition, each transparent effort at political posturing and every hateful private debate made public by virtue of the internet has been a good.  But what has been a very, very good thing is the process – the forest, if not each of the trees.

I’m happy for the opportunity to finally live in a state where political solutions are not forgone conclusions and therefore not subjected to public debate.  I’m happy to finally live in a state where the push/pull between balancing revenue and spending is a real contest for public opinion.  But most of all, I’m happy for the reminder which witnessing this process provides as to what self-government can and should be.

The United States was founded in part on federalism.  The federal government and the states were to share sovereignty.  The federal government was to have very limited and specified powers.  James Madison wrote in Federalist No. 45 that “The powers delegated by the Constitution to the Federal Government, are few and defined.  Those which are to remain in the State Governments are numerous and indefinite.” 

 There were a number of reasons for this approach.  Practically, the states could not be expected to ratify a Constitution that didn’t preserve for them broad powers.  Individuals generally identified the state in which they resided as where their allegiance lay.  Many were skeptical at the notion of granting the central government any additional authority beyond those anemic powers specified in the Articles Of Confederation.  Simply, the Constitution could not have been ratified were it not for the fact that the states retained substantial sovereignty.

Fundamentally, the framers recognized that there were only certain functions the central government could perform effectively.  They recognized that effective self-government implies local government and that representative government requires the people to have access to their representatives with respect to the issues that matter most in their lives.  The more local the government, the more likely the public to remain engaged, the more likely self-government would truly be ‘self-government’.  As Madison wrote, “The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the State.

Since the 1930’s the Federal Government has acquisitioned the constitutional authority of the states through many mechanisms.  The Supreme Court has regularly and intentionally misinterpreted the Constitution in order to enable the expansion of federal power.  More directly, the Federal Government has ‘purchased’ state sovereignty by returning taxed money to the states, but only with strings attached – strings which force the states to act or refrain from acting as directed by the Federal Government.  The result is an ever more powerful Federal Government acting as puppeteer, manipulating the states to yield their constitutional sovereignty in exchange for a return of moneys previously funneled from the people to Washington via the taxing authority.

That centralization of power in Washington is rendering Madison’s vision of the states legislating in all matters most important to the people a broken promise.  And as power is moved from state capitals to Washington, it’s only natural that the people become disengaged politically.  As I previously wrote here, “Centralization of everything from healthcare to public education to speed limits on local highways slowly engenders a defeatist attitude in the mind of the civically interested individual.  Her political voice, once easily heard on a local or even state level, has become a mere whisper, taking a back seat to the special interests groups and cronies who have the financial wherewithal to amplify their voices loud enough to be heard in Washington.  The ever growing and seemingly all powerful regulatory and administrative state is even worse, often leaving individuals with feelings of helplessness and inevitability.”

The West Virginia budget debate, though difficult, fraught with political infighting and subject to varying opposing perspectives, is representative government in America as it was intended to be.  Concerned citizens can be heard and can participate.  Politicians hear the voices of their constituents and expect to be held to account.  Regardless of the outcome of the debate, West Virginians should take satisfaction in the fact that their voices and their votes matter to a degree which cannot be replicated at the federal level where individual citizens are dissuaded by design from becoming involved and, when they do decide to speak, find it extraordinarily difficult to be heard.  Citizens of every state should keep this in mind when confronted with Washington’s next, inevitable effort to usurp constitutional sovereignty from the state capitals to Washington D.C.

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Constitutional Concerns Over Trump

Donald Trump’s brash, non-political celebrity and outspoken approach have introduced, for better or worse depending on your perspective, a new dynamic in presidential politics.  Prospective voters can choose from any number of hot button political topics and love or despise him for his position, or perhaps just as importantly, for the manner in which he articulates his positions.  While I have personally enjoyed the metaphorical thumb he intentionally and repeatedly sticks into the eye of those who insist on political correctness, I have many concerns with regard to how he might govern.  Chief among them is a concern that he doesn’t respect or understand the Constitution or its structural mechanisms which limit and disperse governmental power.

Trump made two public comments this week which perfectly illustrate the basis for my concern.  In a CNN Town Hall this past Tuesday night, Trump was asked a question from the audience regarding what he considers to be the top three functions of the federal government.  In response, he listed national security, healthcare and education, in that order.  The following day Chris Matthews asked him how he would go about banning abortions.  Trump didn’t have an answer, but the discussion led to a follow-up question regarding whether women who have an abortion should be punished, presumably through some criminal sanction.  Trump asserted that yes, “there has to be some form of punishment”.

While I fully expect a statist Democrat candidate or an establishment Republican candidate to assert that the regulation of healthcare and education are properly within the powers of the federal government, I continue to hold out hope that the Republican Party might identify and nominate a candidate who not only understands, but appreciates that the federal government has only limited and specifically enumerated constitutional powers and that they decidedly do not include the regulation of health care or education.  Though Trump ultimately stated that responsibility for education policy should be returned to the states, one gets the distinct impression that this opinion is based on something other than an understanding that the federal government has no legal authority in the education arena.  That impression is bolstered by the fact that he continues to advocate for a substantial federal role in healthcare without any apparent regard for the question of constitutional authority.

Similarly, the abortion question is simply not a policy concern for any president who is a constitutionalist.  Why?  Because the regulation of abortion is exclusively within the constitutional authority of the states.  Were Roe v. Wade overruled tomorrow, the question of abortion would return to individual state legislatures.  If a state were to outlaw abortions, it would also determine whether women and/or doctors receiving or performing illegal abortions would be subject to criminal sanctions and, if so, what those sanctions would be.  Simply, there is no constitutional role for a president in determining the legality of abortion or the penalty for violating any state law outlawing abortion.  In the media aftermath of the abortion comment, Trump has clarified his initial comments to suggest that only doctors who perform illegal abortions should be punished and not the women who receive them.  The clarification only reconfirms his misunderstanding – or disregard – of the Constitution’s limits on federal authority.

If we are ever to return the country to a condition of deep and widespread individual liberty, we must pursue constitutionalism.  The separation of powers among the federal branches and between the federal government and the states left individuals in a far better position to protect and defend liberty than the current paradigm where so much unconstitutional power is concentrated in Washington, out of reach – often even out of sight – of the populace.  The president is uniquely situated to lead the country toward constitutionalism while putting constitutionalism out front and center as a matter of public debate.  Those who cherish liberty should seek and embrace a presidential candidate who understands and appreciates the Constitution and the manner in which it distributes governing authority and should shun any who promise to wield unconstitutional power, regardless of how appealing the policies advocated by that candidate may appear.  Constitutionalism is the way to liberty in America.  Any other path holds only the empty promise of temporary policy victories while maintaining the status quo of unconstitutional power consolidated in Washington.  Any other path offers only diversion and a delay from the ultimate goal.

I’ll continue to keep an open mind with respect to Donald Trump.  I’ll wait for him to demonstrate an understanding of the Constitution and a commitment to constitutionalism.  So far, he has tended to demonstrate the opposite at most every opportunity.

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The Constitution Cannot Be Restored At The Ballot Box

When it comes to an Article V convention of states to propose amendments to the Constitution, there is no shortage of opinions.  Mark Levin’s The Liberty Amendments and the existence of serious and well organized efforts to achieve an Article V convention such as Compact For America and Convention of States have induced public debate for many months.  More recently, Texas Governor Greg Abbott came out with his own plan for an Article V convention.

Some who might otherwise sympathize with the government limiting objectives of these efforts criticize the idea due to concerns over a ‘runaway convention’.  They argue that there is no effective way to limit the convention to specific topics and they fear that a convention might propose radical and dangerous amendments.  Such arguments ignore the Compact For America approach which leverages consensus among the paritipating states to build in safeguards at every stage in order to prevent the convention from so much as discussing an amendment outside of the specific text of a pre-drafted amendment.  More obviously, they ignore the requirement that three fourths of the states must ratify any amendment such a convention might propose before it could take legal effect.  The likelihood that 38 states would ratify a radical and dangerous amendment is remote in the extreme.

But the most dangerous perspective often advanced by these Article V naysayers is found in their explanation of what should be done to reinstitute constitutionally limited government.  A recent article by Mark Pulliam, a contributing editor of Law and Liberty, typifies this fatalistic thinking with respect to the viability of the Constitution as the definitive statement on the limits of government power.  After making the usual arguments regarding the supposed dangers of a ‘runaway convention’, Mr. Pullium offers the following as the proper way to re-establish constitutional fidelity:

(T)he ultimate solution to our current dilemma lies in the election of a conservative President and a principled U.S. Senate, who would appoint and confirm a majority of sound, committed originalists to the U.S. Supreme Court. We don’t need to amend the Constitution. We need to enforce it. Our nation has been led astray by feckless legislators and progressive jurists who for generations have failed to follow the Constitution that was ratified in 1789. It is time for voters to restore the Constitution, at the ballot box, by insisting on constitutionalists–elected officials who will respect the Constitution and the rule of law. (emphasis added)

Unfortunately, this attitude is not uncommon among those who desire a return to constitutional fidelity. It’s danger exists in the fact that it necessarily implies that the Constitution is not only already a dead letter as the supreme word on the limits of the federal government’s authority, but that we should not attempt to rejuvenate it – rather, we should rely on the electorate as the ultimate check on federal power.

The Constitution was drafted and ratified as the definitive articulation of a sovereign people’s creation of, and delegation of power to, their new government.  The very specific point of the Constitution was to preserve individual rights and limit the federal government so that it could not interfere with those rights or with the sovereignty of the states.  The founders believed that majoritariansim was to be avoided because individual rights would be non-existent if exposed to the whims of electoral politics – rights subject to the will of the majority are reduced to mere privileges.  As a result, the founders made the expansion of the government’s powers “off limits” to normal electoral politics.  No mere majority could infringe on the unalienable rights of others by voting the government more power.  The idea was to limit the government’s powers subject only to expansion, or reduction, by amendment pursuant to Article V.

The great and terrible victory of the progressive movement was to circumvent Article V and achieve vastly expanded federal power by judicial fiat.  ‘Living constitution’ theory permitted judges to amend the Constitution from its original meaning by reinterpreting it so as to expand federal power based on society’s perceived ‘needs’ as determined by judges and the politicians who appointed them.  This extra-legal revision of the Constitution by ‘interpretation’ fundamentally transformed the nature of the Constitution from a permanent charter of individual liberty chiseled in granite to a hunk of soft clay subject to easy manipulation.  As federal power has expanded, our ability to effectively limit it has been shifting from the Constitution to the ballot box.  Where we once could simply appeal to the Constitution itself to negate any attempted expansion of federal power, we’re now too often forced to the ballot box where, if sufficient numbers exist, we might induce the government not to exercise power (as opposed to establishing that the power does not exist at all)Accordingly, we now often find ourselves in a situation the Constitution was specifically designed to avoid – appealing to the sympathies of voters as our last line of defense in restraining governmental power.

Thus, the notion that we could “restore the Constitution, at the ballot box, by insisting on constitutionalists–elected officials who will respect the Constitution and the rule of law” is a fallacy.  Just as an addict cannot be rehabilitated by overdosing, the Constitution cannot be “restored” at the ballot box.  Subjecting the Constitution’s limits on government power to the ballot box is the problem; it cannot be the answer.  We must return the Constitution to its status as the definitive statement on the limits of government power.  When the government is once again effectively constrained by the Constitution without reliance on electoral politics, we will again have our real Constitution and the constitutional republic envisioned by our founders.  We should defy all efforts to continue our metamorphosis into a majoritarian republic where the people might once in a while (and temporarily) be convinced to return to first principles.  ‘Restoring the Constitution at the ballot box’ is a contradiction in terms.  Pretending otherwise serves only to invite further erosion in public respect for the Constitution as the definitive word on federal authority and to usher in the representative majoritarianism which naturally follows.

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How FDR Got Federalism Right

In Federalist No. 40, James Madison wrote that “the general powers (of the new federal government) are limited, and … the states in all unemumerated cases, are left in the enjoyment of their sovereign and independent jurisdiction.”  Madison wrote in Federalist No. 45 that “the States will retain under the proposed Constitution a very extensive portion of active sovereignty” and that the powers “which are to remain in the State Governments are numerous and indefinite.”  Further, he wrote that “the powers delegated by the Constitution to the Federal Government, are few and defined” and that the “operations of the Federal Government will be most extensive and important in times of war and danger” and “those of the State Governments, in times of peace and security.”  The states’ retention of sovereignty was crucial to the ratification of the Constitution.  It was important to the people that they retain local governmental control over the things that affect their lives the most.  In that vein, Madison wrote that “(t)he powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the State.

As American government continues to move inextricably toward complete centralization in Washington D.C., our governance exhibits ever fewer indicia of the strong federalism intentionally established by our founders via the Constitution.  Like virtually every other manner in which our original Constitution has been deconstructed, the weakening of federalism began as an idea in the minds of the early progressives and was brought to life by the policy initiatives of the New Deal under FDR.  In 1913, Theodore Roosevelt complained that “the State’s rights fetish” was “effectively used…by both courts and Congress to block needed national legislation.”  But it was not until the 1930’s that Franklin Roosevelt was able to breach the Supreme Court’s constitutional sensibilities and usher in the era of big central government and diminished state authority which we have lived with ever since.  Interestingly, FDR didn’t come into the presidency as an outspoken advocate in favor of central government and against federalism.

James P. Warburg was one of FDR’s original economic advisors.  He was impressed by FDR’s first campaign for presidency, but quickly became disillusioned when he realized that FDR “has done a few things that he promised to do – more things that he promised not to do – and still more things that his Socialist opponent (Norman Thomas) promised to do.”  Warburg left the administration mid-way through FDR’s first term and wrote his book, Hell Bent For Election, in an effort to alert the country to the dangers of FDR’s policies or, as he put it, “to flag an express train before it reaches a broken culvert.”

Though only 78 pages and easily readable in a sitting or two, Hell Bent For Election provides meaningful insights from an FDR insider as to the changes in his attitudes toward governing once he came into office.  In assessing Roosevelt as the time came for the country to determine whether he deserved a second term, Warburg sought to answer a few seemingly simple questions, including: how have his actions since becoming president compared with his pre-election statements and promises?  Of particular relevance to federalism, Warburg quoted the following excerpts from an FDR speech delivered in March of 1930, almost exactly three years before he took the oath of office.  Though FDR’s comments in favor of state sovereignty in 1930 are curious when considered in the larger context of his presidency, they are no less true now than they were when originally spoken:

The preservation of this “Home Rule” by the States is not a cry of jealous Commonwealths seeking their own aggrandizement at the expense of sister States. It is a fundamental necessity if we are to remain a truly united country. The whole success of our democracy has not been that it is a democracy wherein the will of a bare majority of the total inhabitants is imposed upon the minority, but that it has been a democracy where through a division of government into units called States the rights and interests of the minority have been respected and have always been given a voice in the control of our affairs.…

Now, to bring about government by oligarchy masquerading as democracy, it is fundamentally essential that practically all authority and control be centralized in our National Government. The individual sovereignty of our States must first be destroyed, except in mere minor matters of legislation. We are safe from the danger of any such departure from the principles on which this country was founded just so long as the individual home rule of the States is scrupulously preserved and fought for whenever it seems in danger. Thus it will be seen that this “Home Rule” is a most important thing, a most vital thing, if we are to continue along the course on which we have so far progressed with such unprecedented success.…

Let us remember that from the very beginning differences in climate, soil, conditions, habits and modes of living in States separated by thousands of miles rendered it necessary to give the fullest individual latitude to the individual States. Let us further remember that the mining States of the Rockies, the fertile savannas of the South, the prairies of the West, and the rocky soil of the New England States created many problems and introduced many factors in each locality, which have no existence in others. It must be obvious that almost every new or old problem of government must be solved, if it is to be solved to the satisfaction of the people of the whole country, by each State in its own way….

So it was that FDR got federalism right – before he began his presidency, completely changed his position, and began the unconstitutional transition of power from the states to the federal government which continues to this day.

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Our Other Dying “Constitution”

A short time ago, I wrote a blog concerning the death of our founding document, the Constitution.  The point of that blog is that the incremental moves by our Supreme Court away from any devotion to the actual text and the original meaning and intent of our Constitution are rendering it of little meaning or value in politics and in jurisprudence.  As a result, I postulated that the American people may not be willing to abide the Supreme Court as our final arbiter of what the Constitution says and means for much longer.  The Supreme Court is an undemocratic institution.  If it isn’t going to abide by the Constitution, why would we agree to abide by its rulings?

In this blog, I’m addressing a different “constitution”.  Merriam-Webster defines “constitution”  in part as follows: “the structure, composition, physical makeup, or nature of something”.  The point of this article is to demonstrate the manner in which the nature of the American people is changing to the point of non-recognition when compared to what it once was.

To begin, we need to consider what our nature as a people once was.   After our founding on principles of limited government, popular sovereignty, individual liberty and personal responsibility, people from all over the world came here for the opportunity that exists only in liberty.  They did not have perfect lives here.  They struggled.  They suffered.  They faced injustices.  But over time they prevailed and created for themselves a society like no other.  They assimilated.  Their assimilation was not only by language or custom.  Their assimilation was by creed—a  creed reflective of our founding principles of individualism and individual liberty and responsibility.  Relatively quickly, hostilities between and among immigrants from different areas of the world abated as fear, prejudice and misunderstanding were replaced by familiarity and a common language.  Through time, they ultimately understood that they had far more in common with each other than not.  Despite the fact that they spoke with different accents and worshipped in different ways, they shared the same essential creed which is what compelled them to America in the first place.  A prevailing respect and adherence to our creed continued to set the table in America for much of the best a human life can achieve.

Sadly, our creed has suffered through various mechanisms over time.  Intentional political manipulation at the hands of those who have sought to defeat and replace it has done its damage.  Such people have worked for generations to persuade our citizenry that the positive changes and attributes of individualism and free market capitalism are either inadequate or occur at too slow a pace.  As a result, we’ve seen our society incrementally yield freedom and liberty to governmental authority in exchange for promises that rarely materialize.  We’ve seen our creed diminished as such people have worked to drive wedges between “segments” or “classes” of society in order to marshal power for themselves.  Such “segments” or “classes” are created, supported and magnified by such people.  Such “segments” or “classes” would not even exist if our creed were still as strong.

Our creed has suffered at our own hand as well, through atrophy and inattention, as our focus has tended more toward leisure and personal satisfaction.  Our material successes seem to have bred complacency.  The cost of our loss of focus has been a knowledgeable and wary citizenry, capable of understanding that the benefits of liberty are necessarily accompanied by burdens of obligation and inconvenience necessary to maintain that liberty.  We’ve been too easily convinced that we can avoid those burdens by turning responsibility (and thus, power) over to our elected officials and appointed judges.

Finally, the way in which our government has been structurally altered has emplaced real and psychological obstacles to meaningful individual civic involvement.  As a result, the nature of the subset of Americans who are still wedded to our original creed is even at risk of changing.  Centralization of everything from healthcare to public education to speed limits on local highways slowly engenders a defeatist attitude in the mind of the civically interested individual.  Her political voice, once easily heard on a local or even state level, has become a mere whisper, taking a back seat to the special interests groups and cronies who have the financial wherewithal to amplify their voices loud enough to be heard in Washington.  The ever growing and seemingly all powerful regulatory and administrative state is even worse, often leaving individuals with feelings of helplessness and inevitability.

All of these factors are diluting our creed, whether intentionally, by manipulation and propaganda, inadvertently, by our own sloth or lost sense of priority, or by virtue of the perceived immovability of our huge, centralized government.  These factors can be seen at work in any and all areas of society and in all our institutions.  To provide just a few examples:

Education:  In our early years, education was primarily the responsibility of parents.  They sought for their children a classical education which included instruction in the enlightenment.  Children were taught the value of individual liberty and they came to understand and appreciate the greatness and uniqueness of their popular sovereignty.  In more recent years, we’ve yielded our education to “experts” who do not appreciate the importance of teaching our founding history and our founding principles in the context of other governmental and economic systems. Accordingly, when enemies of our creed seek to discredit it, they appeal to minds which have not been prepared to understand and appreciate liberty and free market capitalism.  Moreover, whenever educators themselves oppose our creed, they are perfectly positioned to work to defeat it. When that happens, public education itself becomes a tool in the hands of those affirmatively seeking to change our nature as a people.  Finally, as the authority for local education has moved from cities and counties to state capitals and from state capitals to Washington, our ability to affect meaningful change or even be heard on issues bearing directly on our own children has been diminished.

Entitlement/Dependency:  In our early years, there was little or no notion that society owed anyone anything, other than the protection of the laws.  As the country became materially more prosperous, the idea of a “safety net” garnered favor, particularly when the country faced hard times.  So averse to welfare were the American people that FDR needed to fool them into accepting social security. He did so by packaging it as a retirement savings program into which everyone pays and from which everyone would benefit.  But the amount an individual paid in often had little or no direct relationship to the amount paid out.  Social Security benefits have always been tied directly to longevity, which has nothing to do with the amount an individual paid in.  It was never a true savings vehicle, but a device for transferring wealth.  In modern times, we see that society as a whole is less reticent to entitlements and wealth redistribution schemes.  Wealth redistribution is accomplished through payroll taxes, income taxes, state taxes, our new national healthcare system, forced wages, volumes of regulations and cronyism.  The malevolent forces working against our creed make matters worse by their efforts to divide us as a people.  They instill a sense of victimization and entitlement in subgroups.  This tactic has the intended effect of pitting subgroups against each other, making it more difficult to see us all as a common people with a common creed.  Further, because the citizenry is no longer sufficiently educated to appreciate our founding principles, we are less likely to rally against all these redistributive schemes. Finally, the ubiquity of wealth redistribution which now infiltrates so many aspects of society renders many unsure of their personal interests.  So many receive benefits of one form or another that it is not always clear who are the net winners and who are the net losers in the redistribution game.  What has resulted is a society on autopilot, all too often acquiescing to whatever tweaks and modifications are made to our vast and encompassing redistributive system.

Media:  In our early years, the press understood its role as a government watchdog on behalf of the people.  It worked to safeguard our liberties and alert us to threats of government overreach.  Over time, many in the media became enemies of our original creed and came to the belief that it should be defeated in favor of an egalitarian and redistributive mechanism.  As a result, most of what we get from our national press is, at best, reported in terms which exemplify an acquiescence to the current big government paradigm and an expectation that it will continue.  At worst, it exhibits an affirmative effort to diminish and discredit the founding principles, capitalism, and individual liberty in favor of an even bigger national government with more control over every aspect of our lives.  Finally, too many of us care little about issues of civic importance preferring leisure, or even work, to time spent becoming informed or active with respect to matters of civic importance. Exacerbating this problem, many are overwhelmed and resigned to the belief that there is little they can do. As such, they lose interest in following civic issues, have little interest in current events and few expectations of the press.

In these examples, we see three forces working in concert and effectively reshaping the very nature of the American people.  Malevolent forces undermine it.  Complacency causes it to atrophy.  The centralization and scope of government causes it to become dispirited. The forces changing our nature are much stronger and more effective working together than any one of them would be working alone and there is no sign of any of them reversing course.  As such, it’s difficult to envision us readopting our original creed unless those who still stand for that creed redouble their efforts to persuade the American people as a whole back to our founding principles.

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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.

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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.

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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.

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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.

 

 

 

 

 

 

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