Counting Diminishing Blessings

Nuke:              How come you don’t like me?

Crash:            Because you don’t respect yourself, which is your problem.  But you don’t respect the game, and that’s my problem.  You got a gift.

Nuke:              I got a what?

Crash:            You got a gift.  When you were a baby, the gods reached down and turned your right arm into a thunderbolt.  You got a Hall-of-Fame arm, but you’re pissing it away.

           —Tim Robbins as Ebby Calvin “Nuke” LaLoosh, and Kevin Costner as “Crash” Davis in Bull Durham

Are you comfortable?

Do you have enough to eat without having to scratch your subsistence out of the dust?  Are you able to read at night by virtue of fixtures and appliances powered by electricity available to you at the flip of a switch?  Can you travel essentially anywhere, using a privately-owned vehicle that can transport you safely and quickly over distances of hundreds of miles in a day?  Are you earning an income by working for an organization that produces goods people want or need (or for an entity that provides valuable services to such organizations)?

I’ll wager that the answer to every one of those questions is Yes.  But chances are you have rarely, if ever, considered the root source of those blessings.

That you enjoy the comforts of living in the most wealthy society in the history of man is not an accident.  Your abundance, your modern conveniences, your economic prosperity (yes, prosperity, even given the extended recession) are all fruits of a harvest sown by the seeds planted for us by the founding generation.  The freedom of self-governance and self-determination they left us is directly responsible for the development of the United States into an economic and industrial power; and regardless of your relative station in life here, you are far better off for it than you would have been otherwise.

It is the single greatest gift any human being has ever bestowed on another.

Consider for a moment the price your ancestors paid to give you that gift.  With no money, no training, no experience, no supplies, and few weapons to speak of, they dared to take on the most powerful professional military force the world had ever seen up to that time.  They left everything, and risked everything.  They suffered through Northeastern winters with essentially no shelter, and inadequate clothing.  They ate their shoes.  And their dogs.  25,000 of them died, representing a loss of 1% of the total population at the time;  to put that in perspective, if we had to fight that fight today, we’d see 3.2 million dead—1,095 casualties every single day for eight years—more than double all the American dead in all the wars we have ever fought combined.

Why did they do this?  What possessed them to seek a forcible divorce from Britain, and embark on so radical an experiment at such great cost?  Well, we don’t have to wonder about that, because in the Declaration of Independence they told all the world for all time why they did what they did.  But look at some of their specific complaints and consider whether we are faithfully preserving that which they left us.

As Jefferson put it, the colonists’ core issue was “a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism . . .”  “Despotism” is the abuse of government through the consolidation of unlimited sovereign power in the hands of one man.  Hmmmm.  And Jefferson listed specific examples of this trend of despotic behavior on the part of the British monarch and his minions; see if any look familiar. 

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them . . . taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments . . . suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.  You mean like a President effectively amending or repealing legislation such as FUBARCare, the CLASS Act, the Defense of Marriage Act, or the Immigration Reform and Control Act through unilateral executive orders and refusals to enforce all or parts of the laws as enacted by Congress, and imposing burdens on States over their objection?  You mean like repeatedly suing States to stop enforcement of State laws on matters such as border security?

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.  How about a President engaging in endless governance-by-crisis, marked by perpetual stalemates born of his absolute refusal to negotiate so much as a single comma on anything?  How about habitually summoning legislators to his mansion to be lectured like so many unruly schoolchildren?

He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.  You mean like EPA?  OSHA?  IRS?  NSA?

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.  Would that we had the Army amongst us.  Instead we have the NSA tapping our phones and reading our emails, while a heavily armed DHS patrols our streets in armored vehicles and “monitors” Tea Party rallies.

He has affected to render the Military independent of and superior to the Civil power.  We have the opposite: a President who has affected to render the military impotent and wholly subject to him and his ideology, while all dissent is purged.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation.  Have you met the U.N.?

[P]rotecting [troops], by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States.  The present administration has gone to great lengths to ensure that no one in it is held accountable for anything, ever.  Eric Holder in Fast & Furious.  Hillary Clinton and Susan Rice in Benghazi.  Lois Lerner in the IRS targeting episode.  Kathleen Sebelius with FUBARCare.  The White House always runs its own “investigation,” inevitably concluding that there was no wrong doing.  Nothing to see here.  Move along, Citizen.

[I]mposing Taxes on us without our Consent.  FUBARCare’s individual mandate penalty is a tax, when this President told us there wouldn’t be any new tax in it.  “Stimulus” and “Quantitative Easing” are stealth taxes in that they devalue the money you have, such that while you have the same number of dollars, you can’t buy as much with them today as you could yesterday.

He has excited domestic insurrections amongst us[.] This President is an endless font of race-baiting and class-warfare mongering.  He was a vocal supporter of the Occupy movement.  Divide and conquer

So many of the founding generation’s specific complaints enumerated in the Declaration find close parallels today, which means we’re slipping back into the very situation the Revolution was fought to eliminate.  How cheaply are we giving back that which they paid so dearly to leave to us?  Perhaps it’s come to us too easily; perhaps if we’d had to pay some of the cost to earn the freedoms we were bequeathed, we’d be more reluctant to see them taken from us.

We would do well to remember that we do not hold clear title; we are but life tenants, holding those freedoms in trust for the future generations that own the remainder.

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Independence Day

“And why, I ask myself, why have I put up with you?  I can’t imagine, but now I know.  Fear.  Yellow freakin’ fear.  I’ve been too chicken shit afraid to live my life so I sold it to you for three hundred freakin’ dollars a week!”
            —Tom Hanks as Joe Banks in Joe Versus The Volcano
This morning my youngest was working on a word search puzzle titled “4th of July Word Find.”  And as I looked at that and pondered it it occurred to me that there was something significantly wrong with that title.  So I took it from her, borrowed her pencil, and I replaced “4th of July” with “Independence Day.”  She looked at me with a quizzical face and said, “Daddy, those are the same thing.”
No, they’re not.  And the distinction is huge.
“4th of July” is a date on the calendar, like any other date except that it is a federal holiday and the banks and post office are closed.  We mark it with fireworks and beer, but it could just as easily be the 2ndof July, the 15th of March, or the 28th of February.  It’s an arbitrary point in time as we reckon and count it.
“Independence Day” is an idea, and it is that idea that we honor and celebrate on that fourth day in the month of July.  And unfortunately as time passes that idea is becoming an ever fainter image of its former self.
We place Independence Day on July 4 because that is the day our Declaration of Independence was formally adopted by the Continental Congress.  But although the document was adopted and signed on the 4th, the actual separation from Britain was accomplished by the adoption of a resolution of independence two days earlier.  The Declaration itself formalized and explained the reasoning behind what the Continental Congress had in fact already done.
So what is this idea we celebrate with Independence Day?  Jefferson very eloquently laid it out in his opening of the Declaration (which everyone should read periodically—it’s not long, and it’s not a difficult read):  
“When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”
We rightly tend to focus on Jefferson’s statement of our “self-evident” freedoms of Life, Liberty, and pursuit of Happiness.  But in so doing we lose sight of the fundamental point of the document, which is that government exists solely by virtue of what power the governed willingly give it, and when that government goes beyond its proper authority the governed have the right to terminate that government and start over:
“[W]henever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government[.]”
In other words, when government gets too big for its britches, the people always have the right to kick it out.  That is what the Founders were doing with the Declaration: terminating their relationship with and subordination to a government that had gone too far out of control.
If you read the Declaration it is clear that the Founders intended an extremely limited role for government.  Its sole function was to secure our fundamental rights to live, have our private property (i.e. the fruit of our labor) protected, and to be able to pursue our interests without interference from government or others.  That is, Government was to preserve an orderly society in which people would be free to go about their business and live their lives without having to worry about someone else killing them, taking their stuff, or getting in the way.  Nothing more.  That’s what liberty and freedom were.
Part of the price of that liberty and freedom is responsibility.  You are free to live your life, but you have to take care of yourself and your family.  You have to provide for your own needs, make your own provisions for medical care, save for your own old age, etc.  Freedom includes the ability to go as far as your talent, labor, and interest will take you, but with that necessarily includes the possibility of failure.  The Founders never intended for government to give you your life, only to protect your ability to do with it what you will.
The problem is over the last hundred years or so, politicians discovered that people like it when government gives them stuff, so they’ve increasingly introduced programs and policies that, under the guise of helping you, have institutionalized themselves as a permanent ruling class.  We’re so afraid of failure that instead of living our lives ourselves, we’ve become dependent on government to do things for us.  But it can only do that by taking what it gives away from someone else, and/or by in the process acquiring a little more power by taking a little more of your freedom to live your life on your own.  Liberty is thus incrementally lost to government creep until one day we find there is none left and the Beast has slowly but ever so surely swallowed us whole.
Today we celebrate our Independence Day, when our Fathers exercised their God-given natural right to throw off the shackles of a government that had gone too far out of its proper bounds.  It was a bold and even dangerous action, defying a sovereign backed by the most powerful military on the planet.  A quotation often attributed to Benjamin Franklin at the signing of the Declaration goes, “We must, indeed, all hang together, or assuredly we shall all hang separately.”  He may or may not have said that, but the Founders were undoubtedly aware that they were literally risking everything they had for the cause of being rid of tyranny. 
If we do not learn from their example, if we do not stand up and resist a government that no longer confines itself to its appropriate role, we soon may find that Independence Day has become nothing more than the 4th of July. 

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.

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.

Getting Rid Of Professional Career Politicians

“Let’s just say you’ll pay me because it’s in your interest to pay me.”
—G.D. Spradlin as Senator Pat Geary in The Godfather, Part II
A few days ago one of you suggested that we eliminate full lifetime salaries for Congress.  While members of Congress don’t actually get full lifetime salaries (they do have a retirement pension plan), the point is a good one, and worth expounding a bit.
Our Founders were not professional career politicians.  George Washington tried to decline his salary as President.  And prior to the 1850s, Congressional salaries were largely limited to a modest per diem paid only while Congress was in session.  The country was set up with the citizen-legislator in mind; people engaging in temporary public service for the sake of public service.
The problem today is our system incentivizes people to do things to get re-elected, instead of to do what needs to be done.  As a result, the District today is populated almost exclusively by professional politicians, in it for perpetual personal profit, rather than any genuine desire to engage in public service.  They like the wealth, the trappings, and the power of the office, and they want to keep them.  Of course the easiest way to do that is to promise to give things—preferably by taking them from someone else—to the voters who elect them, and to the special interest groups who fund their campaigns.  Both sides of the aisle are guilty of this.  And so we have this sort of unholy symbiosis where a dependent recipient class continues to vote for the career politician, who in turn gives more and more government freebies and services to the recipient class, and so on, and so on.   
That, ultimately, is why the Beast is as engorged as it is today.
You’re not going to get rid of the government-benefits addicts.  So to correct this problem, you have to get rid of the professional politician.  You could just say throw out all the incumbents, and I have some sympathy for that view.  But without systemic changes, we’d just end up replacing them with different faces who sooner or later would succumb to the same corruption.  No, to make any real fix we have to change the system itself so it doesn’t provide so much personal incentive to remain in office forever for its own sake.  Let me offer some suggestions.
1.         Term Limits
The easiest step, and the one in my judgment most likely to have an impact, is to impose term limits on Congress.  I appreciate the benefits of continuity, and that there is a certain amount of expertise that’s helpful in the legislative process.  But nobody needs to remain in Congress forever.  Daniel Inouye (D-HI) has been in the Senate for 48 years.  Seven Senators have been in office 30 years or longer.  In the House, John Dingell (D-MI) has been in office a ridiculous 56 years (by my count some 174 House members—and the current POTUS—hadn’t even been born yet when Dingell took office).  John Conyers (D-MI) has been in office 46 years.  Another 20 (10 Republicans, 10 Democrats) have been in office 30 years or more.
Even the office of President is subject to term limits.  I would suggest that something like four terms for the House (eight years total) and two terms (twelve years total) in the Senate would go a long way towards curbing the abuses of office and removing the incentive to act as a professional career politician.  
2.         Limit Pay, Benefits, and Profit from the Office
Members of Congress make $174,000 a year (senior leadership positions make a little more).  That’s more than three times the median U.S. income.  They also receive health benefits, and with a minimum five years of service, qualify for the same retirement pension as other federal employees, which can be as high as 80% of the member’s final salary.  Pretty nice work, if you can get it.  And according to a USA Today piece, somehow a lot of these long-term Congressmen have managed to accumulate sizeable net worths:
 
Congressman
Tenure
Estimated Net Worth
John Dingell (D-MI)
56 years (House)
$3.2 million
Dan Inouye (D-HI)
48 years (Senate)
$3.2 million
Charlie Rangel (D-NY)
40 years (House)
$1.2 million
Pete Stark (D-CA)
38 years (House)
$3.9 million
Henry Waxman (D-CA)
36 years (House)
$1.1 million
Ed Markey (D-MA)
35 years (House)
$1.4 million
Orrin Hatch (R-UT)
34 years (Senate)
$3.9 million
Nick Rahall (D-WV)
34 years (House)
$2.4 million
Thad Cochran (R-MS)
33 years (Senate)
$2.1 million
Carl Levin (D-MI)
32 years (Senate)
$1.7 million
James Sensenbrenner (R-WI)
32 years (House)
$18.7 million
Tom Petri (R-WI)
32 years (House)
$28.1 million
David Drier (R-CA)
32 years (House)
$8.5 million
Barney Frank (D-MA)
32 years (House)
$3.2 million
Chuck Grassley (R-IA)
30 years (Senate)
$3.2 million
Ralph Hall (R-TX)
30 years (House)
$1.1 million
Hal Rogers (R-KY)
30 years (House)
$3.7 million
Of these only Stark (banking), Hatch (law), Rahall (family), Cochran (law), Levin (law), Sensenbrenner (family), Dreier (family/real estate), Hall (law), and Rogers (law) appear to have had significant means of generating wealth prior to entering Congress, suggesting that half or more of these long-term millionaires accumulated their estates while serving in Congress.
Where are the 99% when you need them?
Following their tenure—if they ever leave—it is common for members of Congress to take private sector jobs and/or accept lucrative honoraria, trading on the stature conferred by having occupied a public office.
If you’re interested solely in public service, it shouldn’t take a giant pay and benefits package to attract you, and you certainly shouldn’t still be profiting from the office after you’ve left it.  I submit that an annual salary pegged at, say, double the median should be quite sufficient.  Allow members to contribute to an IRA during their tenure, but they don’t need a federally-funded full pension.  And while it is difficult to restrict members from seeking employment after they’ve left office (particularly if you’re going to limit how long they can stay in office in the first place) it seems like a heavy tax (say, 50%?) on honoraria income would at least allow the public to share in the post-office benefits generated by virtue of the public office itself.  While we’re at it, we might consider requiring all Congressmen to place all investments into a blind trust during their term in office, so we can avoid the ugly insider-trading issues publicized by 60 Minutes a couple of weeks ago.
3.         Limit Lobbyist Perks
Lobbying—attempting to influence a Congressman’s vote on particular legislation or issues—is a long-standing practice in the District, and a solid argument can be made that it is an essential part of our First Amendment right to petition the government.  Indeed, how on earth can my Representative represent me if I’m not allowed to tell him how I think he should vote on an issue and why?  But the potential for abuse is rather obvious, and unfortunately the temptation is simply too great.  Although professional lobbyists are prohibited from giving money or “gifts” to lawmakers, there are few restrictions on what private citizens and organizations can do. 
I would suggest three things to help draw a bright line to distinguish communication from bribery.  One, restrict all in-person communication with a member of Congress or their staff to the Capitol grounds or the Congressman’s D.C. or home office.  Two, prohibit anyone other than immediate family members from directly or indirectly giving anything of value to a sitting member of Congress or their staff.  Period.  Three, restrict expenditures of campaign funds to the payment of expenses directly and demonstrably related to the Congressman’s election campaign itself that are incurred within a Senator’s home state or Representative’s home district during the 12 months preceding an election.
These are not complex solutions, but I submit they would go a long way towards eliminating the incentive to hold office for its own sake (and thus the incentive to legislate to buy votes, instead of to further the best interests of the country). 
Just some thoughts.
 
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Editor’s Note:  Taking some time off for the holidays, so posting may be sparce between now and the end of the year.