I’m With Stupid

If you’re gone, baby it’s time to come home

There’s an awful lot of breathing room

But I can hardly move

            —Matchbox Twenty, If You’re Gone

 

A couple of weeks ago I was traveling on business, and while scrolling the TV channels in my hotel room I had the misfortune of the remote getting stuck briefly on what I gather was a “reality” show featuring the Kardashians—who for my life I can’t figure out why they’re famous or what about them merits anyone’s attention.  Two of them were in the kitchen, where one was preparing some sort of dish in which she was going to eat her own placenta.  That is not a typo, and I didn’t even make it up.  And for the record:  Ew.

But more seriously, this is the sort of garbage with which people are filling their minds?  And calling it “entertainment”?

It got me thinking that this is a real reflection of the root of what is so wrong with this country today.  Consider that among the top rated television programs today, those that aren’t football consist of offerings like The Big Bang Theory—which centers on a bunch of adults who are still obsessed with comic books, fantasy, and video games—and Modern Family—essentially an LGBT propaganda device.  Mix in juvenile remakes of The Odd Couple (Two and a Half Men) and Laverne & Shirley (Two Broke Girls), a half-dozen or so iterations of “talent” shows featuring performers of wildly varying degrees of actual ability, and a few versions of mindless and over-sexed “reality” de-selection shows like Survivor and The Bachelor, and you’ve got the bulk of today’s primetime bill of fare.

I lost 25 IQ points just typing that last paragraph.

It says a great deal when a current ad for the new Playstation 4 video game system features not adolescents, but unkempt twenty-somethings sitting in the wasteland of what had been their video game battleground, eating Taco Bell and taunting their friends for not having bought their new systems in time to arrive before the battle was over.  In other words, instead of pitching their latest toy by showing children in their living room playing a game, Sony features ostensible adults living in a fantasy land (a fantasy land, by the way, in which no one ever suffers any consequences, and even if you die you just go back to the last place you started).  And they do this for good reason: that’s who their market is.

The problem is, these people who spend their adult time watching the Kardashian sisters and playing video games also vote.  And one fears that a growing portion of the voting age population knows more about World of Warcraft than about the Constitution.  Unfortunately, there is evidence to support that fear.

Last year, U.S. News reported on an Xavier University study that showed over a third of American citizens failed the civics portion of the immigrant naturalization test (97% of immigrant citizenship applicants pass).  Among the lowlights: 

  • 85% could not define “the rule of law”
  • 75% did not know the function of the judicial branch
  • 71% could not identify the Constitution as “the supreme law of the land”
  • 63% could not name even one of their State’s Senators
  • 62% could not identify the Speaker of the House
  • 62% could not identify their State’s Governor
  • 57% could not define “amendment”

And the Xavier study isn’t an aberration.  In a 2008 survey by the Intercollegiate Studies Institute—repeating their results from two previous studies—71% of Americans failed a basic multiple choice test of American history, civics, and economics; the average score was a 49 (I scored a 94, for those who are wondering).  Those with a college education fared no better than those without.  Again in summary: 

  • Less than half could name the three branches of government
  • Only 21% knew that the phrase “government of the people, by the people, and for the people” comes from Lincoln’s Gettysburg Address
  • Only 53% knew that the power to declare war resides with Congress; 40% thought it belonged to the President
  • 27% knew that the Bill of Rights expressly prohibits the establishment of an official national religion
  • Less than 20% knew that the phrase “a wall of separation” between church and state comes from a letter written by Thomas Jefferson; almost half believe—incorrectly—that it can be found in the Constitution.

More and more, the people of this country know less and less about where America came from, the idea of self-governance upon which it was originally based, or the rules framework under which it was supposed to operate.  They don’t know what their rights are, what the source of those rights is, or what mechanisms the Founders established to protect them. 

Or why. 

But they damn sure know who’s in the finals of American Idol.  They know the rules of Survivor.  They can identify Miley Cyrus’ tongue (or whatever body part she’s most recently put on display).  They know how many days Lindsay Lohan spent in jail and rehab last month.  

Look, I understand that the whole population can’t be made up of Rhodes Scholars.  But you can’t expect a democratic republic to function when so many in the voting base that directs it have so little grasp of—or even know they have a personal stake in—how it works.  When people know (and care) more about who is sleeping with whom in Hollywood than they do about, say, Solyndra or Benghazi, they can’t possibly make informed decisions in the voting booth; that is particularly true when they also have no concept of the fact that of those three, two actually affect them and one does not.

But that’s where we are now.  People get more of their information about the world from their Twitter feed and vulgar comedians than they do from actual news sources (in fairness, that’s in part because there are virtually no real news sources left).  That’s why you have a President who spends more time acting hip and cool on Comedy Central, The View, and Letterman than he does answering substantive questions at press conferences, and yet still manages to get re-elected despite his objective record of abject failure.

As a sovereign people, we have abdicated the throne in favor of the boob tube.  The sad truth is too many of us have become too lazy to inform ourselves about what’s going on around us, especially with respect to what people in the District—people who are supposed to work for us, not rule over us—are actually doing.  And too many of us have become too soft or too fearful to engage in the critical thinking necessary for self-governance.  We’re much more interested in bathroom humor and sophomoric sexual innuendoes than in understanding our basic freedoms.  We prefer to experience the repeated death of a fantasy character in a fantasy world over learning about real world current events that affect our real lives. 

Apparently some of us will even watch an overweight moron devour her own afterbirth rather than pick up a copy of the Constitution. 

Speaking in a slightly different context, future President Ronald Reagan warned us in 1961:

“[I]f we lose that war, and in so doing lose this way of freedom of ours, history will record with the greatest astonishment that those who had the most to lose did the least to prevent its happening.  Well, I think it’s time we ask ourselves if we still know the freedoms that were intended for us by the Founding Fathers . . . If we lose freedom here, there’s no place to escape to.  This is the last stand on earth . . . We’ll preserve for our children this, the last best hope of man on earth, or we’ll sentence them to take the last step into a thousand years of darkness.”

I fear we may be at that point, dragged into the abyss by the albatross of stupidity and willful ignorance hanging about our collective neck.

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Civics 201: What Might Have Been

“Oh, Brad!  Brad, my darling, how could I have done this to you?  Oh, if only we hadn’t made this journey.  If only the car hadn’t broken down.  If only we were amongst friends . . . or sane persons.  Oh, Brad, what have they done with him?”

            —Susan Sarandon as Janet Weiss in The Rocky Horror Picture Show

 

God bless my junior Senator, Ted Cruz, for being one of the very few in the Senate GOP contingent with the stones to stand up and try.  I have no idea what John Cornyn—who is all over his website and social media saying he supports defunding Obamacare—is doing leading the effort to stop him.  Voting for cloture and ending Cruz’s filibuster—which requires 60 votes Harry Reid doesn’t have without Cornyn’s help—only allows the Democrats to get to a vote on an amendment adding the funding back in, where Cornyn knows full well Reid does have the 51 votes he needs even over Cornyn’s objection; Cornyn’s Nay at that point is a hollow gesture, and for my life I don’t understand why Cornyn and the GOP establishment in the Senate would be so willing to cast down the only weapon they have left and quit the field.

But looking at the split between my State’s two Senators got me thinking: but for a grossly unfortunate Constitutional turn a century ago, we might well be in a different position today.  So I wanted to backtrack and cover a little history and civics.

Recall that the attendees at the Constitutional Convention in 1787 were not sent as at-large representatives of the population.  They were sent as delegations selected by their respective State legislatures, and their specific task was to represent those States as independent sovereign entities.  Indeed, one of the primary sticking points in the Constitutional debates was how these States, particularly smaller ones, would be able to protect their sovereignty once power was ceded to a central federal government.

The Framers’ solution, in their wisdom, was to create a bicameral legislature; two houses, with the Senate being the chamber in which the States, as States, would be represented.  As James Madison explained in Federalist No. 10:

“The proposed Constitution, so far from implying an abolition of the State governments, makes them constituent parts of the national sovereignty, by allowing them a direct representation in the Senate[.]”

Thus, Article I as originally written provided that the Senate would be comprised of two Senators from each State, “chosen by the Legislature thereof.”   This gave each State as an independent sovereign equal representation within the federal government, embodied in members selected by, and ultimately responsible to, the governments of those States.  That was to be the safeguard of the States’ sovereignty and their retained powers under the 10th Amendment.  That, ultimately, is what federalism is.

But a funny thing happened on the way to Utopia.

Progressives recognized that this structure posed a barrier to the imposition of their agenda.  Wouldn’t it be simpler if they could bypass the buffer of the State legislatures so they could use their populist rhetoric to elect Senators directly by popular vote?  So in 1913 they pushed through the 17th Amendment, which substituted at-large elections in place of the selection of Senators by the State legislatures, and with it eliminated any responsiveness the Senate had to the States as sovereigns.  The entire point of a bicameral Congress was defeated.

So what does this have to do with Obamacare and Ted Cruz?

At 7:05 a.m. on Christmas Eve 2009, the Senate passed a 2,000+ page bill none of them had read by a vote of 60-39; that bill would become Obamacare.  That fact might seem of little importance by itself.  But shortly after the President signed the bill into law in 2010, several States sued the federal government to stop its implementation.  By January 2011, the number of States that had joined those lawsuits or filed their own had grown to 27.  Interestingly, of those 27 States suing the federal government to stop Obamacare, 15 of them had at least one of their Senators vote Aye back in 2009—seven had both Senators vote in favor—22 Ayes in all.  In other words, nearly a quarter of the entire Senate voted in favor of legislation that so upset their home State governments that those States joined in litigation to un-do it.

How different might that Christmas Eve vote have been had there been no 17th Amendment, such that those Senators were representative of, and responsible to, their home State governments?  I have no illusions that you would have seen a much different result for the delegations from Washington or Colorado, both of which have wholly lurched Leftward in recent years.  But consider the State-level environment in the remaining 13 States suing the government to un-do a vote by their own Senators.  Every one of those States—Alaska, Florida, Indiana, Louisiana, Michigan, Nebraska, Nevada, North Dakota, Ohio, Pennsylvania, South Dakota, Virginia, and Wisconsin—have Republican governors, and legislatures controlled by the GOP. 

One has to think that under those conditions, a Senate with members subject to selection by those State governments would have yielded a very different vote.  Even if you indulge in the assumption that the Senate delegations for Michigan (2 Ayes), Nevada (1 Aye), and Pennsylvania (2 Ayes) would have voted the same way, you still get a flip of 13 votes, resulting in the bill being defeated 47-52.  You could further assume—although I think it unlikely—that both Virginia Senators would still have voted Aye, and the Democrats still would have come up one vote short.  And recall that the 2009 Senate vote was on strict party lines; the Democrats had no defections, meaning that in a closer or losing vote, they had no arms left to twist.  Meanwhile, Jim Bunning (R-KY) missed the vote, and one suspects if he were going to have been the difference-maker the GOP could have found a way to persuade him to come in from the bullpen.

But for a little-known alteration in the fundamental structure of the Republic, Senator Cruz might not have found himself in the well of the Senate, all-but alone on the front line of a fight he shouldn’t have had to be fighting.

Go get ‘em, Ted.  Some of us citizens are behind you all the way.

Dropping Birth Rate Is Trouble

 

Declining numbers at an even rate

At the count of one we both accelerate

My Stingray is light, the slicks are starting to spin

But the 413’s really diggin’ in

            —The Beach Boys, Shut Down

 

Last Thursday I found myself in waiting room hell, pending surgery to repair a ruptured biceps tendon (hazards of starting martial arts training in one’s mid-40’s).  All three TVs (plus the one in pre-op) were mercilessly tuned to ABC’s The View.  As a side note, Thursday’s episode featured guest host Katherine Schwarzenegger, whom ABC billed as an “author and activist”—she in fact has written a book titled Rock What You’ve Got: Secrets to Loving Your Inner and Outer Beauty from Someone Who’s Been There and Back, whatever that has to do with anything—but who in reality is a 23 year old recent college graduate with two famous actor parents.  I am at a complete loss as to what she could bring to the table, although I suppose her level of insight and expertise fit right in with Whoopie Goldberg (actor/comedian), Barbara Walters (faux journalist), Joy Behar (actor/comedian), and Sherri Shepherd (actor/comedian—anyone seeing a pattern here?).

Despite my best efforts to run or hide, I was unable to avoid a segment entitled “The Child-Free Life.”  Goldberg introduced the segment by referring to a recent piece in Time—she gave no specifics as to the date, issue, author, or even the title, which I soon learned is apparently standard procedure on the program, but I think I found it here—that noted the U.S. birth rate has dropped to significantly low levels.  The general premise of the segment, it became immediately apparent, was that this was OK, maybe even a good thing.  And for the next four minutes, the ladies discussed the evils of having children and the virtues of not, all to the intermittent cheering of the studio audience.

I’m not sure when children, as an abstract concept, became such anathema in this country that we cheer their non-existence.

Among the arguments offered by the esteemed panel:

  • It costs $295,000, before college, to raise a child (Walters, spouting a very official-sounding exact figure, but citing nothing);
  • Years ago someone did a poll showing that 100% of parents of adolescents regretted having children (Walters, operating from memory);
  • Child-free is happier and stress-free (Schwarzenegger, citing her own personal observation from her vast 23 years of life experience, with which she expressly disagreed in the very next breath);
  • Not everyone should have children (Schwarzenegger, to spontaneous roars from the audience);
  • Mommy has to be the conflict-resolver whether there’s one child or multiple (Goldberg, never explaining why that’s a problem); and
  • Children nowadays don’t/won’t take care of their parents (Walters, again citing nothing).

The level of analysis and intellectual depth of the discussion was just staggering.  To her credit, Behar—in her lone contribution to the conversation—did argue that you should have one child “in case you need a matching donor.”  I’m not even sure she wasn’t serious; if it was a joke, no one laughed.

Now, I will agree with Miss Schwarzenegger that not everyone should have children, and I won’t argue that we should enforce some kind of mandatory birth quotas.  But the tenor of the discussion on The View, I fear, reflects a growing societal aversion to children.  And that’s troubling indeed.

The Time piece Goldberg apparently used to kick off the segment centered on 2009 data from the National Center For Health Statistics, and took the position based on loose generic anecdotes to Europe and the idea that lost births can simply be replaced with immigration, that a dropping fertility rate was no problem.  But The Washington Times recently did a piece using the same study updated to 2011 data, and the necessary conclusions are problematic.

The general fertility rate fell to 63.2 births per 1,000 women aged 15 to 44, a historic low.  The total fertility rate fell to 1.89 births per woman.  The reason this is trouble is it’s well below the statistical replacement threshold of 2.1 necessary simply to maintain a population.  In other words, all else being equal, a birth rate that low means population decline.  And in a society dependent upon multiple ponzi-scheme-driven entitlement programs, what that means is the economic engine is running out of gas.

Consider Social Security, which even the Social Security Administration openly admits is dependent upon having perpetually growing numbers of payors paying into the system in order to fund future outlays; in debt parlance this is referred to as an “unfunded liability”—an obligation to pay in the future for which there is no present savings or revenue stream.  With a declining population, there simply aren’t enough future young people paying in to fund the benefits payments to the larger number of retirees.  The system becomes upside-down, and it necessarily collapses on itself.

Medicare is in largely the same situation, with benefits payments to seniors being dependent upon funding from a sufficiently large base of younger taxpayers.  In a different way, Obamacare will eventually also face the same problem, as there are fewer and fewer younger healthy premium contributors to offset the disproportionate benefits payments to the older and sicker cohort.  None of which is sustainable.

That’s assuming all else is equal, which, of course, it’s not.  And that’s not necessarily a good thing.

As noted above, the Time piece assumed that any declines resulting from low fertility rates will be made up through immigration.  Query whether they should.  I have previously noted that the bulk of our immigration does not consist of wealthy skilled people likely to be large net contributors to our entitlement system, but of impoverished low-skilled laborers, mostly from Latin America, likely to be net consumers.  Rather than curing the fiscal imbalance in the system, the immigrant population increases an already unsustainable draw on ever-depleting funding resources.  But there’s another issue.

While the population as a whole is at fertility rates below replacement levels, consider that the Pew Center reports that the fertility rate among U.S. Muslims is around 2.8, meaning that the muslim population is increasing—in addition to immigration—while the general population is decreasing.  And when you add in the fact that the Muslim population is younger, thus further increasing their potential for total births—a 20 year old is more likely to have additional children over her lifetime than a 35 year old—and the potential for dramatic demographic shift is clear.  One need only look to Europe, where the declining birth rate phenomenon has been playing out for decades, to see the consequences.  Much of Europe has already become Islamicized, with many countries expecting to see Muslim populations exceed 10% within the next 15 years.  In Britain, some predict a Muslim majority by 2050.  

Why is that a problem?

Leave aside the fact that in a 2011 Pew Research poll nearly 20% of U.S. Muslims found themselves unable to say that violence in defense of Islam was never justified, and that a similar percentage had either a “favorable” view of Al Qaeda, or did not know.  Never mind that 20% said they did not want to assimilate—then why the hell are you here?—and another 16% said they wanted to both assimilate and remain distinct from larger American society—query how you have it both ways.  And forget that while Pew didn’t publish U.S. results for this question, globally the overwhelming majority of Muslims favor making Sharia the law of the land (it’s impossible to give a figure because Pew deliberately broke the results down by region to mask it, but except for Southern/Eastern Europe, regional majorities in favor ranged from 64% to 84%).

No, don’t worry about that.  Forget how women and homosexuals fare in places where Muslims wield political control.    Pay no mind to the fact that the only tolerance Islam admits is of itself, and they will sue for all things accommodating Islam, while at the same time accommodating no one else.  Leave all that aside, because worrying about such things makes you an Islamophobe, and the ladies of The View simply can’t have that.  Just consider this:

76% of U.S. Muslims approved of Barack Obama’s job performance as of 2011

68% of U.S. Muslims favor even bigger government and more services.

Even the DNC doesn’t get those kinds of numbers.

This is where we’re heading with current birth trends and immigration.  Thought you might want to know.

****************

EDITOR’S NOTE:  I am in a cast following my surgery, making typing difficult.  Will try to post when I can, but traffic is likely to be slow for awhile.

Who Rules?

 
“This ain’t about justice.  You think this is about justice?  No!  This is about order!  Who rules.  ‘Cause, see, fascism is coming back!”
—Kevin Bacon as Willie O’Keefe in JFK
Here’s a trivia question for you:  who governs the United States?  If you ask this question on the street, my guess is nine out of ten people will answer “the President.”
And they’ll be wrong.
Monday’s Houston Chronicle re-printed a half-page no-byline piece from the New York Times entitled “Obama’s Use of Executive Action Growing,” outlining the Administration’s increasing resort to executive fiat to accomplish agenda objectives Obama can’t get through Congress.
We’re glad you noticed.
Obviously, this is an issue I’ve chronicled many times in this space over the last year.  Attempting to pass it off as simply Obama finally catching up to the normal Presidential exercise of initiative, the piece quotes NYU law professor Richard H. Pildes: “Obama’s not saying he has the right to defy a congressional statute[.]”  I guess Pildes missed Obama partially repealing No Child Left Behind by executive order, re-writing Obamacare by agency rule, and unilaterally refusing to enforce immigration laws and the Defense of Marriage Act through an express policy of inaction by the Departments of Justice and Homeland Security.
What’s scary, though, is the very matter-of-fact tone the article takes with respect to the creep of Presidential authority.  The piece is correct that Obama’s use of executive orders isn’t new—in fact the practice dates back to at least Jefferson.  My concern is the apparent general acceptance of the notion that Presidents can wield original power via the issuance of unilateral edicts.  Worse, the article repeatedly couches the use of executive action in terms of the normal exercise of the “executive power to govern,” or changes in Obama’s “governing style.”  Hell, even Newt Gingrich was out there earlier this week talking about the need to make sure that presumptive GOP nominee Mitt Romney is “effective both in winning this fall and then, frankly, in governing.” 
University of Chicago political science professor William G. Howell is quoted in the article as saying the concept is “built into the institution of the presidency.”  Harvard law professor Jack L Goldsmith says “this is what presidents do.”  And I fear that among the general population there is widespread acceptance that this is OK, and an assumption that the President in fact has the authority to rule in this fashion.
Well, he doesn’t.
Article II of the Constitution lists the powers of the President, and there are exactly five: (1) the “executive power” (Section 1), (2) the power to act as Commander in Chief (Section 2), (3) the power to grant reprieves and pardons for offenses against the United States (except impeachments) (Section 2), (4) the power to make treaties (with Senate approval) (Section 3), and (5) the power to appoint ambassadors and other public officials (Section 3).  That’s it.  Of these, the only one that needs any definition or further explanation is the “executive power.”  “Executive” means “of or capable of carrying out duties,” or “empowered to administer laws.”  To “execute” means “to carry out or administer.”  To “administer” means “to manage.” 
Carry out.  Administer.  Manage. 
There can be no question that, in vesting the President with the “executive power,” all the Constitution authorizes is for the President to implementlaws.  Nowhere in Article II does the Constitution give the President the power to create laws; creating laws is what it means to legislate, and the power to legislate is expressly vested exclusively in the Congress in the Constitution’s very first substantive sentence.  And the only power the Constitution gives the President to change or omit laws Congress creates is the limited power of veto, subject to override by a 2/3 majority vote.  It is for the President to carry out the laws Congress gives him.  It is not within the President’s commission to enact laws where Congress doesn’t, or to edit or delete the laws Congress does enact.
More to the point, nowhere in Article II do we see any form of the word “govern,” or anything suggesting the concept.  To “govern” means “to exercise authority over; rule, control[.]”  The President was never intended to rule or control anything.  In fact, the Founders deliberately rejected this idea.  The Declaration of Independence catalogued the “train of abuses and usurpations” of an absolute ruler, and the War of Independence was fought precisely to be rid of the despotism that results when total dictatorial power is concentrated in a single head of state.  Suggestions that George Washington be installed as a king were discarded in favor of establishing the presidency as a temporary and specifically limited office. 
No, the President doesn’t govern the United States—or at least isn’t supposed to.
Somewhere we’ve gotten away from the original idea, and have come to consider the President as a ruler, rather than as an executive.  This is not just an Obama phenomenon; he is merely the latest incarnation in a long evolutionary chain.  We now see Presidents behaving like the rest of government serves at their pleasure, as though Congress and the Supreme Court were so many corporate vice presidents reporting to him as the CEO, and the States merely wholly-owned subsidiaries of the all-consuming federal parent.  This was essentially the relationship between King George III, Parliament, and the colonies leading up to the American Revolution.
Why do we put up with this?  Have we become that lazy?  Are we just so ignorant of our founding principles and the basic civic structure actually set forth in our founding documents that we don’t know any better?  If we don’t speak up and get this genie back in the bottle, we’re going to turn around one day and find that it’s 1776 all over again. 
Only this time the Redcoats have tanks and airplanes.  And we don’t.

Into the Great Divide

 
They got a divorce as a matter of course,
and they parted the closest of friends.
Then the King and the Queen went back to the Green,
but you can never go back there again.
—Billy Joel, Scenes from an Italian Restaurant
As a general rule I don’t believe in divorce.
But, my Liberal Honeys, we need to talk.
If you’re honest with yourself, deep down you want me to shut up, not be seen, and certainly not vote—in short, you would really just as soon I weren’t here.  If I’m honest with myself, I feel the same way about you.
The chasm goes way beyond a superficial disagreement on policy or program.  We have fundamentally different worldviews about how things operate, the appropriate direction for this country, and quite often even over right and wrong.  And no matter how much you keep hoping I’ll cave in, or how much I keep praying you will overcome your illness, it’s got to be clear to us both by now that neither is gonna happen.  This isn’t something that can be worked out or negotiated into an agreement.  This is a true case of what we call “irreconcilable differences.” 
There’s plenty of blame to go around.  But the simple fact is you can’t live with me anymore, and I can’t live with you.  A divorce is not only the best thing for us, but it’s inevitable.  And at this point one wonders whether there remains any reason to continue to resist it.
The first dozen or so essays in the Federalist Papers laid out the reasons it was a good idea to get together in the first place.  They can be boiled down to four basic points:
       1.      Protecting against dangers from foreign force (Nos. 2-5);
       2.      Preventing internal dissention, infighting, and factions (Nos. 6-10);
       3.      Regulating commercial relations and providing a navy (No. 11); and
    4.    Leveraging the revenue-collecting ability and other efficiencies of centralized government (Nos. 12 & 13).
But do the concerns that made getting together a good idea in the 18th Century still hold for us in 2012?
The first and primary argument for Union was guarding against foreign force—i.e., national defense.  The idea was that the 13 States would be better able to raise an army and defend themselves as a collective unit than each defending itself alone.  True enough, but consider the situation in 1787.  European powers Great Britain, France, and Spain all had territorial footholds in North America bordering on one or more States.  Not only was the prospect of a foreign invasion real, but control of commercial traffic on the Mississippi River, then the closest thing to a railroad or highway system at that time, was at risk.
Today the threat of armed foreign invasion is nonexistent.  The European powers are gone; the U.S. stretches from the Atlantic to the Pacific, and controls the Mississippi from its headwaters to its mouth.  Does anyone seriously think there’s any risk the Canadians are going to invade?  And the federal government is already not stopping the invasion from Mexico.  The Chinese may buy us out, but they’re not going to launch a flotilla across the Pacific to try a Normandy-style landing outside L.A.  Total Union is no longer necessary for self-defense (and in any event, you on the Left don’t even think self-defense in itself is necessary anymore).
The second major collection of arguments for entering the Union was the prevention of internal strife.  In this regard I submit that the Union has utterly failed.  But more importantly, the safeguard here wasn’t really the creation of a Union as such, but its structure as a republic versus a true democracy.  The idea was that by adhering to a representative form of government, it was less likely that a tyrannical majority would dominate the minority (see No. 10).  Nothing about maintaining a total and permanent Union consisting of all its members is necessary to achieve that end.
The third group of arguments stemmed from the promotion of commercial relations and maintenance of a navy.  Again the issue was the ability to control the Mississippi and defend merchant traffic in the Atlantic, valid concerns in 1787 that just don’t exist anymore.  To the extent these things remain desirable, there is no reason subgroups of States could not do this on their own.  Texas alone had her own navy for a time.
The final group of reasons for total Union consisted of a central government’s ability to collect taxes and supposed inherent efficiencies in that regard.  Suffice to say, to the extent you want to argue that these remain (or ever really were) valid arguments, or that the collection of taxes is a good thing that should be encouraged, I submit them as exhibits A and B demonstrating the fundamental philosophical gulf between us.
The reasons for creating the Union in the 1780s are at best severely diluted in our present time, which begs the question:  Why keep dragging it on?  The only real motivation to resist dissolution is that one party has something to offer that the other wants.  Well, let me be clear that I don’t want anything from you, my Liberal friend.  And if you want something from me—presumably my income to fund your version of Utopia—that’s all the more reason I want a divorce.
Consider this modest proposal.  We could let individual States vote, and I’m happy to do that.  But I suggest moving directly to the following division (and with apologies to my friends in California, Ohio, and New Jersey—this is just kind of how the cookie split to keep it more or less even and contiguous—y’all can come stay with me in Texas)  might be more efficient:
 
I’ll take Alabama, Alaska, Arkansas, Arizona, Colorado, Florida, Georgia, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Nebraska, Nevada, New Mexico, North Carolina, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Wyoming.
 
You take California, Connecticut, Delaware, Hawaii, Idaho, Illinois, Indiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, New Hampshire, New Jersey, New York, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, West Virginia, Wisconsin.
 
I’ll even let you have D.C. and Puerto Rico, and you can make them States if you want (and even institute Spanish as an official alternative language).  You keep Hollywood, and I’ll keep the military.  Set up your Constitution with gay marriage, free universal healthcare, legalized pot, central economic planning, an end to private property, and whatever else you like.  I’ll set mine up as the Founders originally intended, deleting the racially-charged provisions in Articles I and V, and also deleting the 16th and 17th Amendments, and adding a balanced budget and a strict construction provision.  We give everyone five years to move to one side or the other if they choose, and then at that point we shake hands, and part ways.
We can continue to go on making each other miserable, or we can be adults and admit that this isn’t working.  Hell, I’m even happy to keep having you over for Thanksgiving if you’ll otherwise leave me alone.
Just don’t come begging me for gasoline when your Volt runs out of algae-generated electricity.
 
**************
EDITOR’S NOTE:  This marks the 100th installment of Chasing Jefferson.  Thanks so much to those of you who have not only kept reading, but have been so encouraging.

Marbury Revisited

 
Dearly beloved,
We are gathered here today
To get through this thing called life.
Electric word, “life,” it means forever
And that’s a mighty long time.
—Prince and the Revolution, Let’s Go Crazy
A buddy of mine has at times accused me of pining away for the day Marbury v. Madison gets overruled.  I supposed in a sense he wasn’t far off. 
Then I started to think about it.
I know a number of my readers have Juris Doctorates, but I’ll bet few of you have given much thought to Marbury since law school.  It tends to be one of those things that’s taught academically, but in practice it’s sort of just accepted without discussion as part of the fundamental framework within which we have to function.  Kind of like air—we all know it’s there and it’s important, but we don’t consciously worry much about it unless/until something goes wrong with it. 
Perhaps it’s worth reviewing the history a bit, particularly for those who may have little more than a vague idea of Marbury and its significance.
During his lame-duck period, John Adams and the Federalists sought to pack the federal courts with a large number of newly-appointed Federalist judges and justices of the peace (even then, Liberal Statists sought to exercise power through the courts rather than legitimate electoral and legislative processes).  Outgoing-President Adams made dozens of appointments on his last day in office, all of which were immediately confirmed by the outgoing Federalist Senate.  Upon taking office the next day, new President Thomas Jefferson directed his administration not to deliver the signed commissions to the appointees, thus preventing them from assuming their positions.  Among those denied his commission was William Marbury, who sued directly in the Supreme Court for a writ of mandamus—a judicial order compelling a public official to discharge his duty—ordering Secretary of State James Madison to deliver it.
Chief Justice John Marshall, writing for a unanimous (at the time, 4-0) Court, held that the Supreme Court lacked authority to grant the relief Marbury sought.  The Judiciary Act of 1789 purported to grant the Supreme Court the power to hear suits for writs of mandamus as part of its “original jurisdiction”—that is, cases that could be brought directly in the Supreme Court, as opposed to on appeal from a lower court.  Marshall found that this grant conflicted with Article III of the Constitution, which provides that the Supreme Court’s original jurisdiction extends only to cases involving certain public officials and States as parties, and that “[i]n all the other Cases” the Supreme Court’s jurisdiction was appellate.  Thus, Marshall’s opinion on its face appears to be limiting the reach of the judicial branch, ceding an area as beyond the Court’s constitutional purview.
But notice the intellectual judo here.  In surrendering a limited bit of power in this isolated instance—the ability to grant mandamus relief—Marshall in fact embraced a much broader one.  His holding that the Judiciary Act’s grant of mandamus jurisdiction was unconstitutional secured for the Supreme Court (and, by extension, lower federal judges) the ability unilaterally to void acts of Congress (and the States under the Supremacy Clause) by claiming sole dominion over what is and is not allowable under the Constitution:
It is emphatically the province and duty of the Judicial Department to say what the law is.”
While this concept of “judicial review” was not new, Marshall’s opinion in Marbury cemented it forever into American jurisprudence. 
The doctrine has a certain practical necessity to it.  After all, someone has to determine what the Constitution says, and to enforce its limits.  And this power of judicial review serves as an important check against the other two branches of government (although one might argue the Court gave it back over time with its Commerce Clause jurisprudence, culminating with Wickard v. Filburn and its progeny).  Indeed, it is really the only backstop the minority has to defend against the capricious tyranny of the majority.
That was all well and good as long as the Court confined itself to applying the actual plain language of the Constitution as it is written.  But later Courts began “interpreting” that language, often bending the actual text (or even “implying” (read: inventing) text) not to enforce the law, but to promote a progressive agenda.  The Constitution ceased to be defined by the 6,000 or so words of the document itself (including Amendments), and instead by a maze of thousands of pages of case law. 
(As an aside, just stop with this nonsense about the genius of the Constitution being its character as a “living and breathing document.”  It either means what it says or it doesn’t.  If its meaning can change with the whim of the time (or at least of a majority of the then-sitting Court), then it is in effect without any meaning at all.  In a country founded upon the rule of law, where people govern their affairs based on the understanding that the same words that meant “XYZ” yesterday can be counted on to mean “XYZ” tomorrow, the supreme law of the land can’t be subject to amendment by vote of five (see Article V)).
While judicial review serves as a valuable check against Congress exceeding its power, there is no corresponding check against the judiciary in its use or abuse of that power. 
Compounding this problem is Article III’s provision for lifetime appointments.  The Founders created lifetime appointments for the judiciary for the sound reason of insulating the Courts from shifting political tides; judges need to be free to apply the law without fear of reprisal.  This worked well in 1789 when average life expectancy was less than 40, and the chance of anyone appointed to the federal bench remaining there very long was low.  You could only do so much damage. 
But today life expectancy is around 80, and it is not uncommon for judicial appointees to remain on the bench 30 years or more.  Justice Anthony Kennedy has 37 years on the federal bench, 24 of it in the Supreme Court.  Justices Ginsberg and Breyer each have 31 years on the federal bench.  District Judge Manuel Real (C.D. Cal.) tops the list of active federal lower court jurists with 46 years of judicial service.  Among federal judges with senior status, I count nearly forty with between 40 and 51 years (yes, some of those are Eisenhower appointees) on the federal bench.  What this means is absent impeachment—and that’s rare—federal judges often stay around a long time, which can spell real trouble if they are inclined to stray from constitutional moorings with no effective check.     
I don’t think the Framers foresaw our modern dilemma.  There needs to be some form of check against rogue judges perverting the Constitution.  I might suggest an Amendment establishing a protocol of periodic re-confirmation by a simple majority in the House.  Maybe something like every 6 years for District Courts, every 8 years for Courts of Appeals, and every 10 years for the Supreme Court, with a lifetime maximum of, say, 25 years at all levels combined.  This regimen would afford some kind of relief valve to limit the damage that can be done by judges who cannot or will not confine themselves to the Constitution.
Although some term limit reform is in order, on reflection, I don’t think I’d overturn Marbury and its important check on Congress.  As we sit here today, judicial review is our only meaningful hope of putting the brakes on Obamacare.  For all their campaign trail bluster, neither Mitt Romney, nor Rick Santorum, nor Newt Gingrich can repeal it if elected, because Presidents don’t have that power.  And it’s unlikely that there will be a sufficient swing in Congress any time soon to repeal it legislatively.  The judicial backstop of Marbury is all we have left to save our Constitution, if it’s not already too late.  
And if the elevator tries to bring you down—go crazy.

The Boundless Commerce Clause

Phil:    Let me ask you guys a question.
Gus:    Shoot.
Phil:    What if there were no tomorrow?
Gus:    No tomorrow?  That would mean there would be no consequences.  There would be no hangovers.  We could do whatever we wanted!
—Bill Murray as Phil Connors, and Rick Ducommun as Gus in Groundhog Day
  
Last Friday, I had the privilege of listening to Senator Mike Lee (R-UT) address a luncheon gathering of the Houston Lawyers’ branch of the Federalist Society (and, let me say, his book The Freedom Agenda is a must-read).  Senator Lee’s theme was that liberty is a right that we as citizens must assert for ourselves; no one else is going to do it for us.  And if we don’t start doing it soon, it’s going to be too late.
What did he mean by that?  Well, I’ll bet you didn’t know that that the federal government has already claimed for itself the power to prevent you from growing your own food on your own private property, and to fine you if you do it.
Rusty, that’s crazy.  You’re off in government-conspiracy la-la land again.
Oh, yeah?  Let me introduce you to Roscoe Filburn (pictured above).  Filburn owned and operated a small family farm in Ohio, where he raised livestock and grew wheat.  It was his practice to sell part of that wheat that he grew on his own private property via the sweat of his own brow, and to use the other part of that wheat to feed his family, feed his animals, and as seed for the next year’s crop.  Sounds like pretty ordinary activity for a farmer, and commendable self-reliance.  Indeed, it’s precisely what Americans have done for themselves literally since the day our forbears got off the boat (longer than that if your forbears, like some of mine, met the boat when it landed).
There was just one problem.
In 1938, the New Deal was in full swing, and as part of that, Congress enacted the Agricultural Adjustment Act, which was intended to raise agricultural prices by artificially restricting supply.  It did this by paying farmers subsidies for not growing certain crops.  It was later amended to go a step further by establishing maximum quotas for the production of wheat, and imposing fines for growers who exceeded those limits.  In other words, the government went beyond simply incentivizing farmers not to grow, and actually criminalized the use of private property to grow more of certain crops than the government allowed.
Let me repeat, especially for those of you who like to talk about the need to do something about hungry babies: in order to prop up grain prices, the United States federal government made it a crime to grow food.
Under the AAA, Filburn’s 1941 allotment for wheat allowed him to sow 11.1 acres at a normal yield of 20.1 bushels per acre.  He nevertheless chose to plant 23 acres, resulting in the production of 239 more bushels of wheat than the government said he was allowed to produce.  Although Filburn’s extra production was intended for his own consumption and never entered commerce at all—much less crossed state lines to become interstate—he was fined, and the extra production was effectively impounded to secure the government’s lien to ensure payment of that fine.  Filburn sued, claiming that the regulation went beyond Congress’ authority under the Commerce Clause.
What resulted was the United States Supreme Court’s 1942 opinion in Wickard v. Filburn, 317 U.S. 111.  Writing for an inexplicably unanimous Court, Justice Robert Jackson upheld the regulation, reasoning that Congress has, under the Commerce Clause, the power to enact legislation regulating even private activity, however small, if the effect of that activity when aggregated together with the other similar activity “affects” interstate commerce.  In Filburn’s instance, his decision to provide for himself by growing his own wheat on his own property meant that he would not be buying the wheat he needed from someone else; if enough people did that, there would be less demand in the open market, and prices would fall.  This potential “effect” on interstate commerce was, in the Wickard Court’s judgment, sufficient to permit Congress to regulate Filburn under the Commerce Clause.
It is this perversion of the Commerce Clause that has gotten us where we are now, and the Framers wouldn’t recognize it.  But consider the actual text of Article I, Section 8 itself.  It’s not long, it’s not complicated, and you don’t need a J.D. from Harvard to be able to understand it:
“The Congress shall have Power To . . . regulate Commerce with foreign Nations, and among the several states, and with the Indian Tribes[.]”
The Framers never intended this clause to be an all-empowering provision authorizing Congress to do anything it deems a good idea, or to regulate private activity on private property just because if enough people did it it might “affect” interstate commerce. 
What the Framers meant by the “Power To . . . regulate Commerce” was the power to bring about order and uniformity; in other words, to avoid balkanizing—the breaking up of a whole into smaller hostile units—of the fledgling national economy through individual States enacting protectionist tariffs against trade from other States.  Madison and Hamilton addressed this idea repeatedly in the Federalist Papers.  Hamilton wrote in No. 7: 
“Competitions of commerce would be another fruitful source of contention [between the States].  The States less favorably circumstanced would be desirous of escaping from the disadvantages of the local situation, and of sharing in the advantages of their more fortunate neighbors.  Each State, or separate confederacy, would pursue a system of commercial policy peculiar to itself.  This would occasion distinctions, preferences, and exclusions, which would beget discontent.”
See also Federalist Papers Nos. 11, 22, and 42 (Madison), all discussing the same idea.  There is no question that what the Framers were getting at was they didn’t want New York imposing an import duty on goods made in New Jersey.  That’s all the Commerce Clause was intended to do.  And for 150 years, everyone pretty well understood this.
But somewhere along the way we lost the critical understanding that our federal government was intended to be a limited one whose powers were “few and defined.”  This lack of understanding, coupled with officials in all three branches of government pushing a self-perpetuating statist agenda, and the question stopped being asked whether government had the power to do this or that, and it became “who is going to stop us?”  Wickard cast aside any real pretense of limitation on Congress’ authority under the Commerce Clause, and only twice since 1942 has the Supreme Court told Congress it couldn’t do something under the Commerce Clause.  After all, if Congress can tell a farmer in Ohio that he cannot grow his own food on his own property, there is little else it cannot reach.  This is going to come as a tremendous shock to those trying to live “off the grid” when one day some bureaucrat comes to levy a fine on them because they are not purchasing electricity from the government-subsidized wind farm.  But that idea flows directly from Wickard’s grossly overbroad “interpretation” of the Commerce Clause.  There simply aren’t any real limits on federal authority if you follow Wickard to its logical conclusion.
Wickard, of course, also provides the intellectual framework for Obamacare, and therein lay what may be the biggest challenge and biggest opportunity in the upcoming Supreme Court battle.  The government will argue that the Supreme Court’s Commerce Clause jurisprudence under Wickard and its progeny support Congress’ authority to enact Obamacare, and it will have a point.  To overturn Obamacare, the Court may have to overturn Wickard and its progeny, and therein lay the opportunity.  Query, however, whether this Court has the temerity to do it.
Which brings us back to Wickard itself and Senator Lee’s challenge that we must assert these rights ourselves.  Justice Jackson’s opinion made this very point in Wickard that the ultimate check on the broad federal commerce power lay not with the courts, but with the electorate:
“[E]ffective restraints on its exercise must proceed from political rather than from judicial processes.”
We cannot count on the third branch to protect us; they have become complicit in the statist’s game.  We must assert these rights ourselves, which means winning at the ballot box.
Here’s hoping we can continue in November what was begun in 2010.

The Contraception Mandate And Eroding Liberty, Part I

 
Slip sliding away,
Slip sliding away,
You know the nearer your destination,
The more you’re slip sliding away.
—Paul Simon, Slip Sliding Away
 
WARNING:  THIS ARTICLE HAS A FRANK DISCUSSION ABOUT SEX AND SEXUAL PRACTICES.  READER DISCRETION IS ADVISED.
 
Frankly, I had hoped we’d be past the whole contraception mandate issue by now, because I thought we had bigger fish to fry.  Now, I’m not so sure.
Let me be clear up front:  NOBODY is trying to keep you from obtaining and using contraceptives if you so choose.  I don’t advocate that the government institute a legal ban on them—let’s leave aside true pure abortifacients like the so-called “Plan B,” which are a different issue—and as far as I know even the Catholic Church has never sought one, either.  If you want to use a condom or The Pill, fine.  I’m not going to cast any moral judgments on you.  Just don’t make me pay for it, which has been the core of the standard—and correct—First Amendment free exercise of religion argument. 
I fear, however, that the issue and the potential danger here go to something much deeper.  Last Friday, talk radio host Andrew Wilkow was taking a slightly different tack and making an Article II argument:  it’s not just that the mandate violates the First Amendment, it’s also outside the scope of the power given to the President.  And Wilkow’s right.  The President simply has no Constitutional authority to issue an executive edict requiring either Catholic hospitals, or their private insurance companies, to pay for contraception for someone else.
But what scares me here is the logical train Wilkow’s discussion sent me thinking my way down, because if we follow this out the implications are chilling. 
Let’s start by asking the question why we need “free” contraceptives.  The Left will immediately begin shrieking about the need to protect women’s right to “preventative health care.”  Just last week, Press Secretary Jay Carney was out there talking about the “right” to contraception “free of charge.”  House members Thursday were complaining that those objecting to the mandate were diminishing the “interests of women”  “who want and need coverage for basic preventative health care services[.]”
On closer examination, this “preventative health care” mantra doesn’t hold water.  As I’ve pointed out before, the only form of contraception with any legitimate preventative health care link in any normal understanding of the term is condoms, and not only are they cheapless than a buck apiecebut they’re also already widely available for free.  You simply don’t need a federal mandate that they be covered by insurance. 
But what about the health consequences of unwanted pregnancy? 
Well, the simple and incontrovertible fact is that the easiest, safest, cheapest, and most effective way of avoiding the potential negative health effects of pregnancy (or STDs, for that matter), is abstinence.  It’s literally free even without insurance.  It’s accessible to everyone, everywhere, 24/7/365.  And it’s 100% safe, and 100% effective.  If what you’re all about is protecting women’s health, then abstinence should be at the top of your list, and there is simply no need for an insurance mandate to force other people to pay for it.
No, this isn’t about women’s health and pregnancy.  It’s about sex.
How so, Rusty?
The only reason to push contraceptives and ignore abstinence is that what the Left really wants, but can’t say out loud, is to make sure women can have recreational sex without consequences.  Taking them at their word that they’re pushing this issue in the interest of women’s health, because we’ve just seen that this health concern isn’t, and can’t be, about the health aspects of pregnancy, it must be that there are health benefits related to sex itself, and contraception is somehow a necessary tool for facilitating access to those benefits. 
Now, I’m not disagreeing with the idea that sex has health benefits so far as it goes, but the issue isn’t what you do or with whom you do it.  It’s whether you can make me pay for it. 
The underlying premise is that there’s not only a health benefit to sex without consequences, but that it’s such a compelling need that we have to override other people’s First Amendment right to free exercise of religion and their Fourth Amendment right to private property and make them pay for the contraceptives that make it possible.  And we’re going to ignore the Article II limitations on the power of the Chief Executive in order to do it. 
Well, where does that idea lead us?
If one citizen can be compelled to provide another citizen with birth control in order to obtain the health benefits of sex, what that really means is that the one citizen must ensure the other citizen has the things necessary to access the health benefits of sex.  Well, what if even with birth control the sex just isn’t satisfactory enough to generate those health benefits?  If we can compel one citizen to pay for another’s birth control in order to ensure the other’s access to the health benefits of sex, can’t the President order one citizen to pay for another citizen’s pornography (and if so, can’t that pornography take whatever prurient form is necessary to get the job done)?  What about sexual aids—can the President order one citizen to pay for another’s adult toys?  Once the issue is enabling access to the health benefits of sex, there’s no difference between forcing one citizen to provide another’s condom and forcing him to provide any other tool or implement necessary to enable that access. 
But wait.  Let’s keep following the logic train.
If one citizen can be ordered to provide the implements necessary for another citizen to get access to the health benefits of sex, it’s only a slight step further to say that one citizen can be compelled to provide another citizen with the sex itself.  Those of you who like to scream about the government keeping its hands off your ovaries should start worrying about the government’s hands going somewhere else.  And before you complain that I’m just out there flapping in the winds of paranoia, bear in mind that a lot of the people pushing this contraception mandate are the same folks who push for gay marriage, and who think Roman Polanski should be canonized.  So there’s no telling where that might lead. 
Now, do I really think it’s going to get as far as all this?  No, probably not.  But I raise the issue to point out the serious erosion of personal liberty that’s going on here.  To return to our Article II complaint, this administration is so far out of bounds they can’t even see the Constitution from where they are now.  And the more we let them get away with, the less the tethers the Constitution was supposed to place on President’s authority to act as a dictator mean. 
And let me tell you, friends, history teaches us that at some point it takes a whole lot of blood to get liberty back once it’s lost.

Brave New World

Be careful what you wish for
‘Cause you just might get it all
You just might get it all
And then some you don’t want
—Daughtry, Home
By now most of you have picked up on the fact that, as a matter of substantive policy, I am, well, in sharp disagreement with this President.  Today’s not about that.  Today I want to focus on process, and especially for those of you on the Left—you know who you are—I want you to pay particular attention, because this should scare you to death.
The year is 2038.  Sounds very futuristic, but it’s really only 26 years from now.  Not far off, in the grand scheme of things.
The President is Republican David Wainwright*, a former one-term senator from Alabama.  Wainwright came to national prominence with a stirring keynote address at the 2032 GOP national convention.  During his campaign in 2036, the Leftist media tried to raise alarms about some of Wainwright’s associations with Big Oil and the Klan, but these largely fell upon deaf ears as a public long-tired of being beaten down with excessive taxes—the so-called “Buffett Rule,” originally enacted in 2013 during Barack Obama’s second term to impose a flat tax of 30% on those making over $1 million, was later expanded to apply down to those making more than $150,000—was more interested in his “Keep Your Money” message of tax reform.
But in his second year in office, Wainwright faces serious opposition from a Democrat-controlled Congress.  Nevertheless, the Wainwright administration presses forward with his vision of transforming America with the following initiatives:
 
  • Calling it “unworkable in practice,” and impatient with Congress’ failure to enact amendments on its own, Wainwright directs his Department of Education to begin granting waivers from the school integration and busing requirements of Title IV of the Civil Rights Act of 1965.  The first states to receive these waivers:  Alabama, Arkansas, Georgia, Mississippi, Texas, and Illinois.
  • Citing a protein deficiency in the American diet—and dismissing reported connections between high administration officials and lobbyists for the National Cattlemens’ Beef Association—the Secretary of Agriculture issues an order directing all public schools to include increased minimum quantities of beef in all school lunches.
  • As part of an initiative “to better safeguard women’s health,” the Department of Health and Human Services issues new guidelines requiring all women over the age of 16 to undergo annual gynecological exams, to be conducted under the supervision of an HHS officer physically present in the exam room.
  • Concluding that it is unconstitutional—even though no court has so held—the Attorney General, acting at the President’s direct instruction, announces that the Department of Justice will no longer prosecute cases under the Voting Rights Act.  All cases on appeal are dropped.
  • In an effort to reduce the crippling cost of federally-funded abortions under the state-run National Insurance Program and “to enhance poor women’s access to preventative health services,” Wainwright establishes the Federal Birth Control Bureau.  The FBCB’s mandate is to set up clinics in inner-city neighborhoods, where women seeking a second abortion must also submit to sterilization surgery.
  • The Treasury Department creates a panel—whose members are appointed by the Department, with no Senate review—to review tax cases and no longer prosecute actions to recover unpaid taxes against certain people who “have historically been economically disadvantaged” by the tax system.  The criteria the White House establishes for this review center on whether the person being reviewed falls into a tax category whose share of total tax burden exceeds its share of gross national income.
  • To reduce the impact of ever-increasing mental health claims during the holiday season, HHS promulgates a new regulation requiring every homeowner to purchase and display a Nativity scene at Christmas.  President Wainwright dismisses atheists’ First Amendment claims, saying there must be a balance between free exercise (or non-exercise) of religion, and the national interest in ensuring peoples’ mental health.  As an accommodation, however, he relaxes the rule and instead requires all homeowners’ insurance plans to cover the cost of the displays. 
Rusty, you’re dealing with a doomsday fantasy land.  These things could never happen.
Oh, no?
Let’s rewind to the present day.
As I’ve tried repeatedly to explain in this space, the current administration has become a serial abuser of unconstitutional executive fiat power.  The Civil Rights Act waivers above are in both verbiage and practice almost identical to Obama’s action last week unilaterally granting state exemptions to the requirements of No Child Left Behind.  The beef example is similar to the individual mandate in Obamacare, and the gynecological exam and abortion examples are fairly natural extensions of it (once they can make you buy health insurance, they can justify almost anything as a “preventative measure” aimed at reducing the cost of that insurance).  The Voting Right Act example is exactly what the current administration has done with the Defense of Marriage Act (and, in limited cases, with the Voting Rights Act itself).  The panel for selective enforcement of the tax code is very much like the deportation review panels now being established.  And the Nativity scene mandate is very similar to HHS’ recent rule (as “accommodated”) requiring Catholic schools to cover their employees’ contraception.
In our Constitutional system, Presidents don’t have the power to legislate.  They have a veto power, but that veto extends only to entire pieces of legislation—despite Reagan’s forceful arguments for it, later echoed by Clinton and Bush 43, we still don’t have a line-item veto.  Once passed and signed into law, the ONLY power a President has is the mandate to enforce it.  A President cannot add laws by executive order, and cannot repeal laws through selective enforcement.  Yet that’s exactly what this President is doing—bypassing and overriding both the current and prior Congresses by executive edict. 
The examples I’ve used here are extreme, and they’re deliberately crafted to bother you on the Left in their substance, because I’m trying desperately to get your attention.  But the real problem here isn’t the substance, it’s the process.  This administration is totally out of control in terms of its usurpation of powers the Constitution does not grant to the executive.  And as you can see, once we become completely divorced from our Constitutional moorings, we have a real problem.  There cease to be any limits on what a President can do.  
 
You may love it now because you like the substance of all the hope and change this President is creating.  But he won’t be President forever—I’m still clinging to the assumption that even HE can’t overcome the 22nd Amendment—and you’ll find then that what’s good for the goose is good for the gander.  You’ll rail against a President Wainwright and claim he’s suspending the bill of rights, that he doesn’t have the Constitutional authority to do what he’s doing.  And you’ll be right.   
 
You’ll also be too late.
_____________________________
*This is a made-up name of a purely fictional character employed here for purposes of illustration only.  I am not aware of any real person by that name, and any resemblance between the portrayal of the character here and any real person, living or dead, is purely coincidental.

Federalism And The Great Rock & Roll Swindle

 
Give ‘em the old flim-flam flummox
Fool and fracture ‘em
How can they hear the truth above the roar?
Throw ‘em a fake and a finagle
They’ll never know you’re just a bagel
Razzle dazzle ‘em
And they’ll beg you for more!
—Billy Flynn in “Razzle Dazzle” from Chicago
I’ve touched on federalism a couple of time in this space before.  Let’s expand a bit.
Following the defeat of Great Britain and the Treaty of Paris, what existed on these shores was a loose union of 13 otherwise independent States under the Articles of Confederation.  Although drafted in terms of “We the People,” our Constitution required each of the States as sovereign entities to sign off on it, rather than being adopted by popular vote.  As James Madison wrote:
“Each State, in ratifying the Constitution, is considered as a sovereign body independent of all others, and only to be bound by its own voluntary act.  In this relation, then, the new Constitution will, if established, be a federal and not a national constitution.” 
           
Federalist Paper No. 39 (emphasis original).
Ratification of the new Constitution and creation of the Union were by no means certain.  Having just fought for eight years to get out from under the thumb of an oppressive central regime, the States were wary of trading one set of shackles for another.  Of particular concern was that with the formation of a central government, the States would lose their individual sovereignty, and that the central government would soon grow out of control, thus putting the States and their respective citizens right back where they started.  It was for this reason that the Framers added the Ninth and Tenth Amendments to the Bill of Rights:
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Alexander Hamilton (together with his conscripts Madison and John Jay) wrote the Federalist Papers to overcome these concerns.  They were, in effect, a sales pitch.  Although Madison addressed the State sovereignty issue (most notably in No. 45, which I have and will continue to quote in this space often), it is the writings of Hamilton on this subject that sting today.
Like Madison, Hamilton told the readers of their Publius essays that there was nothing to fear from the Constitution, and that the central government it created would not encroach upon the liberty so dearly won:
“It may safely be received as an axiom in our political system that the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority.”
Federalist Paper No. 28.  Indeed, Hamilton pooh-poohed to the point of ridicule those who objected that a central government, once created, would eventually expand and consume all aspects of State sovereignty and individual liberty:
“The moment we launch into conjectures about usurpation of the federal government, we get into an unfathomable abyss and fairly put ourselves out of the reach of all reasoning.  Imagination may range at pleasure till it gets bewildered amidst the labyrinths of an enchanted castle, and knows not on which side to turn to escape from the apparitions which itself has raised.  Whatever may be the limits or modifications of the powers of the Union, it is easy to imagine an endless train of possible dangers; and by indulging in an excess of jealousy and timidity, we may bring ourselves to a state of absolute skepticism and irresolution.”
Federalist Paper No. 31.  Why, these fears of a central government taking over everything, that’s just crazy talk.
As Bill Cosby would say:  Riiight.
Hamilton continued:
“An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them would be altogether dependent upon the general will.  But as the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States.”
Federalist Paper No. 32 (emphasis original).  He even went on to argue that the Bill of Rights itself—which, of course, includes the Ninth and Tenth Amendments—was unnecessary, because the Constitution so limited the authority of the central government that there was no need to protect against that which that central government already couldn’t do:
“I go further and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution but would even be dangerous.  They would contain various exceptions to powers which are not granted . . . [W]hy declare that things shall not be done which there is no power to do?”
Federalist Paper No. 84.
Yeah, if you’ll buy that, I’ll throw the Golden Gate in free.
In his effort to sell the new Constitution and its central government to the reluctant States, Hamilton repeatedly assured that there was nothing to be concerned about, and that the central government would be adequately held in check.  Read in context with the Ninth and Tenth Amendments, one can even see how Hamilton might be taken at his word.
But any good car salesman is believable.
History shows us that what Hamilton really did was pull off the greatest bait-and-switch in human history.  Having sold the Constitution in 1788 as creating a limited and controllable central government, by 1790 Hamilton as Secretary of the Treasury of that new central government had sponsored the first U.S. government bailout by pushing through a bill for the federal government to assume the States’ outstanding war debts, and in 1791 he established the first National Bank.  Neither action finds support in the text of the Constitution, although the National Bank concept was later accepted by the Supreme Court in McCulloch v. Maryland—yes, I know McCulloch dealt with the second National Bank and not the first, but the National Bank concept was Hamilton’s—providing the framework for the exceedingly dangerous doctrine of implied powers. 
Why declare that things shall not be done which there is no power to do?  That’s why.
In only three years, Hamilton had laid the foundation for unleashing the very Pandora’s Box he argued so vociferously didn’t exist.  His fingerprints can be seen even today in almost everything emanating from the District, including Medicaid, No Child Left Behind, TARP, “stimulus,” FEMA disaster relief, EPA, Obamacare, dictating what must be included in school lunches, and what will surely someday soon be federal bailouts of California and other bankrupt States.  Hamilton’s autograph serves as a watermark to President Obama’s signature on his most recent unconstitutional executive fiat appointments of yet another series of czars and bureaucrats to regulate and dictate, without oversight from Congress or accountability to the citizenry.  Daniel Hannan, in his recent book The New Road to Serfdom, warns us against this very phenomenon of allowing the central government to erect an ever-more complex series of bureaus and agencies through which innumerable un-elected and unaccountable officials become entrenched in power.  These, my friends, are the steps by which liberty is lost, never to be regained. 
Somewhere in heaven, the Framers are trying to find Hamilton to get their money back.