Category Archives: Federalism

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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A Teacher Speaks Out Against Testing

Tracie Happel, a veteran teacher from South Carolina, authored the following letter wherein she logically and concisely lays out the reasons for her objections to standardized testing and requests that her students not be required to take the two standard assessment in South Carolina. While New York teachers have been the vanguard of the effort by educators against the testing monstrosity, teacher support from the rest of the country is much needed and welcomed. Ms. Happel’s motivation for taking a stand against testing is obvious. While her deep concern for her students does her credit, her willingness to speak out demonstrates real courage and commitment to their education and well being.  Kudos to Ms. Happel.  Here’s to a thousand more like her.

 

I have had the immense fortune of being able to be in front of children for 25 years, as of this year, as a teacher in many different capacities. It truly humbles me to know that for 25 years, parents have entrusted my professionalism, training, care, creativity, and judgment when it comes to their children. My experiences include both regular/general education, and special education. I’ve been able to teach in public schools but I’ve also taught two years in private schools, as well as overseas in New Zealand and China. I’ve been in front of children, college students, and adults. I have loved almost every minute of it.

We all know teachers tend to be a bit more caring than others’ are required to be in their jobs. We are the ones to kiss little boo-boos from the playground, give hugs when a best friend is mean, help tie shoes, do some hand-over-hand guiding when those darn scissors get the most of a little second grader. We are the ones to offer some tough love when writing is not up to par, or math problems can be done better. We are the ones who wipe tears, offer hugs, and offer empathy and part of our lunch when a little one comes without breakfast.

For most of my career, I have taught kids who have special needs; mostly kids with what the profession calls “specific learning disabilities.” This means my students are below the achievement gap, as indicated by ability testing, in reading and/or math. In some schools, they are pulled out for either or both classes and taught a separate or modified curriculum. In some schools, they are mainstreamed, or in the regular class along with me, where I accommodate their lessons according to their learning needs. But no matter the learning environment, the one thing I have consistently heard from my student with learning disabilities is, “I am stupid.”

One of my students this year had tears in his eyes when he asked me why he was “retarded.” I told him he wasn’t at all…he just learned differently. His response was, “Then why am I in the retarded class and all my friends are in the other class?” My students get angry that we are reading texts written for 2nd and 3rd graders when their friends are reading big, fat, thick chapter books. But what big, fat, thick chapter book is out there for kids who read at such a low level? My students KNOW they are different, and from that, they conclude they are retarded, or stupid. And when they say “retarded,” they are talking about the purest sense of the word, not the slang, unacceptable colloquialism that is so common today.

Everyday part of my job is to remind my students they are beautiful, smart, capable, amazing, creative, and worthy. Everyday I work HARD to show them the ways they CAN instead of the ways they can’t. They are all too aware of how they can’t. And it’s not right. Our educational system is set up to show kids what they can’t do. Especially when it comes to testing.

My middle school students, who read between a high first grade level to a high third grade level will have to sit for hours and weeks being forced to read material on a test in all core subject areas: reading, math, science, and social studies that will give them a score. Sure, we can say the score doesn’t matter. We can say it doesn’t affect the kids, and only has meaning for the school or the administration or the teachers. But in reality, we all know kids want to make adults happy. Especially adults who care. My students know I care about them, and when they sit in front of that test, trying their hardest to make me happy and do their best, they will only be reminded that they are stupid. That they can’t read. That they are behind their peers. And their feelings of inadequacy or being retarded will only be pushed further into their heads. For a student who is capable of reading Junie B Jones and being forced to read about Ansel Adams, taking this test will only make them feel worse about themselves. I love what Diane Ravitch says, “Sometimes, the most brilliant and intelligent minds do not shine on standardized tests because they do not have standardized minds.”

My students are far from standardized. Just look at their IEPs. Even better, come spend a few hours in my classroom and see how they can draw, hear how they can rebuild an engine, how they take care of their sick mothers or grandmothers, how they handle a horse no one else in their family can handle, how they can cook for their family of eight. As a matter of fact, come spend a day with any student in any school and see how not one student is standardized. Isn’t that what we teach them all the time? That they are unique and individual, and not like any one other person on this planet? Why would we change our tune for testing? We shouldn’t change it.

Some people will argue this and say testing shows achievement. It shows learning. As a teacher, who has taught for a very long time, I am here to tell you it does not. And if you are an educator, you already know that. If you are a parent, or a community member, you need to hear and understand it. It is one test. Taken in one day (mind you, each subject area is taken each day, culminating into days and days of testing). Results are not given to teachers in a timely manner, and if/when they are given, they are not diagnostic or useful. They only give us one moment in time showing us either Johnny failed or shined on that day. Nothing more, nothing less. There is no achievement in testing. Just pure, and total failure.

The following are reasons that I object to standardized testing in general and especially for the learning disabled children I serve as it developmentally, psychosocially, and professionally wrong to test these students on an academic level we know is well above their ability. I object to the inhumane test environment imposed upon us. This single test will potentially rank and sort children so that labels of failure may be applied and the door will open for takeover of public schools by private interest groups in the name of ‘accountability’.

I object to treating my students like guinea pigs in an experiment that has not produced any real learning gains but will increase drop-out rates, decrease motivation and will increase anxiety disorders leading to what we’ve already seen: increased suicide among teenagers for the incredible pressure they are put under. I object to the use of Pearson’s set “cut-scores” predicting ⅔ of our kids. These scores will not inform our instruction but will discourage the incredibly hard-working school staff and diminish brave innovation in coming school years. I object to the lack of trust in classroom experts which has been replaced by faith in test publishers devoid of teaching experience and who deny the whole child’s uniqueness. I object to the time stolen as testing becomes the main goal of my reading, writing and language instruction. I object to the fact that SC PASS and SC READY because by failing this test students will lose faith in their individuality, self-worth and higher education or career prospects. Confidence is key to perseverance. I object to the use of SC PASS and SC READY or any standardized assessment that directly correlates to family income. Students of color, English learners, and those with low socio-economic status are disproportionately harmed by standardized testing and yet we continue to increase it-often IN THE NAME OF CLOSING THE ACHIEVEMENT GAP. This is ludicrous. I object to the lack of transparency on test items and scoring mechanisms; that teachers and parents are not permitted to view the test or the answers their students write is insulting to the people who know a child best. Teacher assessment data and report cards are disregarded by accountability ‘experts’ who strive to label students for their own purposes. I object to the misuse of precious revenue spent on SBA scoring, on practice tests, on required test materials, on contracts with test-prep corporations’ consultants and on staff time for training to teach to the test as well as training for administering the test.

I object to how financial backers for the corporate takeover of education are funding campaigns for candidates who will support SBA testing using billions of dollars earned on the backs of hard-working taxpayers whose children are harmed by this test. I object to the undemocratic process of adopting testing and South Carolina State Standards whereby members of society, notably parents and educators, have not been engaged in ethical discourse around the ultimate purpose of public education and whether or not new standards may or may not solve the real problems impacting education.

I object to the socialist approach to the methods used before and during testing with our families, and students, and in our classrooms, where parents have a right to opt out of other school activities such as field trips, and students have the right to opt out of other school activities such as pep rallies, but neither have a right to object to testing.

I object to forcing children to sit through hours of bubble tests when they don’t even understand what they are doing and why they are doing it. This is inhumane.

I object to children who are just learning to speak, read, and write in English being forced to take standardized tests using English academic language and culturally biased language.

I object to forcing children with special needs to take standardized grade level tests when they have already proven to be 1 ½ to 2 years behind typical peers via a formal evaluation using standardized tests.

I respectfully request that my students not be required to take the SC PASS and SC READY, which goes against my professional conscience.

 

With Best Regards and in Sincerity,

Tracie Happel, M.S., ABD

Teacher

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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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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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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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The Common Core Debate’s Implications For A Return To Constitutionalism.

The grass roots effort to defeat the Common Core might be interpreted by many as a sign of hope.  In an age when federal overreach is routine and the centralization of governmental authority in Washington is widely accepted or even welcomed by the States, the media and a great portion of the citizenry, a proponent of decentralized government and constitutionalism might find the opposition to the Common Core a welcome reason for optimism.  Perhaps not since the advent of the Tea Party movement has there been an issue that coalesced individuals in a cause against centralized government on such a wide spread basis.

To be sure, the reasons for the movement against the Common Core are many.  Not all are motivated by concern over the potential for the centralization of education in Washington or the potential loss of local control over curricula.  Some are motivated by concern over the testing protocol, others by the collection and consolidation of personal information and privacy issues implicated thereby and still others by the perceived lack of rigor embodied in the standards. But it is clear that the “federalization” of education is among the primary concerns giving cause for the movement. For this reason, constitutionalists might be heard to breathe a sigh of relief.  Sadly, further reflection leads me to conclude the opposite—the grass roots movement to defeat the Common Core illustrates the magnitude of the centralization problem and the revelation is disheartening.

One would have a difficult time identifying an issue that could be more important to people than education.  The public apathy for political issues is widespread and obvious, but Americans still love their children and grandchildren and we still go to great lengths to plan their futures for the best and to manage their lives while they remain under our care.  During the debate over the Affordable Care Act, it occurred to me on many occasions that there are not many issues more personal and thus, of greater importance than health care.  It seems to me that maintaining the ability to influence public education is one such issue.

Unfortunately, the debate over the ACA became bogged down in the minutia over the efficacy and costs of the plan.  Rather than focus on the free market and constitutional principles involved and the implications for human liberty, the debate was too much based on the pragmatic; would the ACA improve healthcare, how much would it cost, and how would it be paid for.  Happily, it does seem that the debate over the Common Core may be developing somewhat more of a focus on the fundamental principles involved.  Certainly the proponents of Common Core would be happy if the debate could be made to focus on pragmatic issues.  Arguing about the supposed benefits of nationwide standards or a technical debate over the details of the standards themselves would suit their purpose.  If the debate can be made to be technical and obscure they know that most eyes will glaze over and they’ll be far more likely to get the result they want—people leave it to others to figure out the best approach and bow out of the debate.  As long as a substantial focus of the debate remains on the ability to affect decision making at the local level, the grass roots is more likely to remain interested and engaged.

For today, my sad point is this: If it is this difficult to gain sufficient widespread support to defeat Common Core, an issue which implicates our ability to influence and affect our children’s education, how far removed must we be from an age where constitutionalism and widely dispersed government are generally appreciated and ultimately demanded?  If Americans will not “wake up” in sufficient numbers to protect the free market in health care or demand a continued say in the education of their children, what will be required to awaken them to all the other benefits of constitutionalism?  The decades long trend of diminishing State sovereignty and federalism in favor of growing and centralized power in Washington must be broken if we are to enjoy the larger liberty, free markets and individual role in self government contemplated by the founders. That it is so difficult and effortful to engage sufficient numbers of Americans in the effort to ensure the continued local control of public education does not bode well for breaking that trend without some larger, likely terrible eventuality to trigger a national introspection on the slow decay of our first principles.

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