Constitutional Conservative

The Constitution: No Coerced Charity

2011-04-08T03:42:00.000-07:00

Is It Immoral To Cut the Budget?

The Good Samaritan parable instructs us to attend to the afflicted voluntarily, not through coercive government programs.

By ROGER PILON

'What Would Jesus Cut?" So read the headline of a full-page ad published in Politico last month by Sojourners, the progressive evangelical Christian group. Urging readers to sign a petition asking Congress "to oppose any budget proposal that increases military spending while cutting domestic and international programs that benefit the poor, especially children," it was the opening salvo of a campaign to recast the budget battle as a morality play.

Not to be outdone, Catholics for Choice took to Politico on Tuesday to run "An Open Letter from Catholic State Legislators to Our Colleagues in the US Congress." The letter condemned "policies that unfairly target the least among us," echoing a blogger at the National Catholic Reporter who averred last month that the federal budget is, after all, "a moral document."

Even House Speaker John Boehner seemed to agree with that, albeit with a twist, when he told a National Religious Broadcasters convention recently that "it is immoral to bind our children to as leeching and destructive a force as debt." He added that "no society is worthy that treats its children so shabbily."

Well, if morality is the plain on which the federal budget battle is to be fought, let's get on with it. At the least, as the Sojourners say, the budget is a statement about the nation's priorities—much like a family's budget reflects what its members think important, or not.

But the similarity ends there because a nation, unlike a family, is not bound by tendrils of intimacy and affection. America, especially, is not one big family.

"We the People" constituted ourselves for the several reasons set forth in our Constitution's Preamble, but chief among those—the reason we fought for our independence—was to "secure the Blessings of Liberty to ourselves and our Posterity." Yet nowhere today is that liberty more in jeopardy than in a federal budget that reduces us all, in so many ways, to government dependents.

Our tax system sucks the substance and spirit of entrepreneurs and workers alike, filters that substance through Washington, then sends it back through countless federal programs that instruct us in minute detail about how to use the government's beneficence. Manufacturing, housing, education, health care, transportation, energy, recreation—is there anything today over which the federal government does not have control? A federal judge held recently that Congress can regulate the "mental act" of deciding not to buy health insurance.

The budget battle is thus replete with moral implications far more basic than Sojourners and Catholics for Choice seem to imagine. They ask, implicitly, how "we" should spend "our" money, as though we were one big family quarreling over our collective assets. We're not. We're a constitutional republic, populated by discrete individuals, each with our own interests. Their question socializes us and our wherewithal. The Framers' Constitution freed us to make our own individual choices.

The irony is that Jesus, properly understood, saw this clearly—both when he asked us to render unto Caesar what is Caesar's and unto God what is God's, and when he spoke of the Good Samaritan. The ads' signers imagine that the Good Samaritan parable instructs us to attend to the afflicted through the coercive government programs of the modern welfare state. It does not. The Good Samaritan is virtuous not because he helps the fallen through the force of law but because he does so voluntarily, which he can do only if he has the right to freely choose the good, or not.

Americans are a generous people. They will help the less fortunate if left free to do so. What they resent is being forced to do good—and in ways that are not only inefficient but impose massive debts upon their children. That's not the way free people help the young and less fortunate.

And it's not as if we were bereft of a plan for determining our priorities as a nation. Our Constitution does that quite nicely. It authorizes a focused but limited public sector, enabling a vast private sector of liberty. But early 20th-century Progressives— politicians and intellectuals alike— deliberately shifted that balance. Today the federal government exercises vast powers never granted to it, restricting liberties never surrendered. It's all reflected in the federal budget, the redistributive elements of which speak to nothing so much as theft—and that's immoral.

Mr. Pilon is vice president for legal affairs at the Cato Institute and director of Cato's Center for Constitutional Studies.

Why Liberals Fear the Constitution

2011-03-31T05:53:00.000-07:00

Who's Afraid of America's Constitution?

By Seth Lipsky from the March 2011 issue

When historians look back on the predicament of American liberalism, no doubt they will regard with amazement the fracas that broke out when it became clear that the House of Representatives would open the 112th Congress with a reading of the United States Constitution. The hoots of derision, the outrage, the keening were such that one might have supposed a plan had been hatched for a reading of… well, it's hard to think of what else could have ignited such a panic among liberals save the laws brought down from Sinai.

It is true that the plan to read the Constitution had been hatched in the wake of an election that was electrified by a Tea Party movement that had sought, above all, a revival of constitutional fundamentalism. Yet one might have expected the idea to be quickly embraced by the politicians and intelligentsia in the liberal camp. Liberals, after all, had won or secured many of their most famous victories -- from the minimum wage to school integration to racial preferences in college admissions to abortion rights -- by wielding the very text that the Congress would be reciting.

Yet instead of a joint celebration of our patriotic parchment, the plan to read its 8,000 or so words ignited in the liberal camp an outburst of sneering aimed not just at the conservatives but at the Constitution itself. "A ghastly waste of time" is how it was characterized by the New York Times in an editorial dripping with derision. A blogger for theWashington Post, Ezra Klein, seemed to suggest in a television appearance that the Constitution was confusing because it was written more than a century ago and "has no binding power." In print, he quickly backpedalled to acknowledge that, in fact, it is binding. At the online magazine Salon, the headline over Michael Lind's piece declared, "Let's stop pretending the Constitution is sacred."

"Freedom rests on a culture of constitutionalism, not a particular document," the headline went on to say. To illustrate the piece, Salon ran a photograph identified as having been snapped in 2009 in Pleasanton, California, at a Tax Day Tea Party. It showed a person holding aloft a sign that said:

I Believe in the
CONSTITUTION
I'M A
‘Right-Wing Extremist'

David Corn, under the title "The House GOP Weaponizes the Constitution," warned at PoliticsDaily.com that the Founding Fathers "wouldn't cotton to lawmakers exploiting their well-crafted document and turning it into hollow political ammo." Once the reading actually took place, it was set down in the Daily Kos as the "most boring circus ever."

So what's to account for this eruption of hostility and angst on the part of our most vocal liberals to our most important secular law? The answer, it is becoming ever more clear, is that the Constitution threatens the whole liberal project -- and at a crucial time. I don't mean to suggest that the Constitution is partisan; it's neither a Republican nor a Democratic document. But the "change" that President Obama was referring to in his famous campaign cry turns out to be a vast expansion of government and of federal power. The only place the federal government gets any of its powers is in the Constitution. And in its plain language the Constitution grants the federal government only limited powers.

ONE OF THE WAYS the Founders limited the powers of Congress was that they enumerated them. They listed them carefully, one by one. And -- the crafty critters -- they did so in writing. Most of these enumerated powers are in Article I. It is the article that establishes the Congress and its two cameras, the Senate and the House. The actual enumeration of the powers is in Section 8. The more one reads that list and the powers that are granted, here and there, at other spots in the Constitution, the more it is clear how shrewd the decision to enumerate, and write down, the powers being granted really is.

This fact is marked powerfully in the Bill of Rights, which, in the 10th Amendment, so pointedly reserves all powers not specifically granted to the federal government, or prohibited to the states, to the states themselves or to the people. The way this has all been done sets up in our time a perfect storm of constitutional issues, on everything from Obamacare, to the war, to same-gender marriage, to the regulation of the Internet, to the financing of education, to immigration, to birthright citizenship, and even to -- dast one mention it? -- the question of who gets to decide whether a candidate seeking access to the presidential ballot can be required by a state to present a birth certificate.

A lot of elements of the Constitution are going to come into play in the coming storm, but the most exciting ground opening before us is enumerated powers. No sooner had America revoked the Democrats' mandate in the House than the speaker-to-be, John Boehner, announced that henceforth all bills would require a citation of where in the Constitution the power was granted to Congress to do what it was being asked to do. The idea is to force the Congress to take a harder look at what it is doing to see where in the 20 or so powers enumerated in Article 1, Section 8, it is getting its authority.

My prediction is that four powers are the ones to watch: the power to tax; the power to regulate commerce among the several states; the power to establish "an uniform rule of naturalization"; and -- your author's favorite -- the power to coin money and regulate its value. Potentially historic contests involving taxing, regulating interstate commerce, and controlling immigration are already moving through the courts. It is hard to predict how the fourth of those enumerated powers might erupt in controversy, but with the dollar having collapsed, at one point recently, to less than a 1,400th of an ounce of gold it is not hard to imagine the courts at some point testing whether our national currency has to be accepted as legal tender and even to take a new look at whether the Federal Reserve is constitutional.

THE POWER TO TAX hove into view as a thunderhead during the climactic weeks of the debate in the Senate over Obamacare. The Republicans, led by Senators John Ensign of Nevada and Jim DeMint of South Carolina, raised a rare, constitutional point of order, demanding to know where in the Constitution Congress could find the power to require someone to purchase health insurance. The query was quickly brushed aside by the Democrats, whose spokesman, Max Baucus, declared that one of the places they had the authority was over what is called the General Welfare Clause.

It happens that the General Welfare Clause appears in the sentence granting Congress the power to tax. The granting to the federal government of a taxing power was, in and of itself, an enormous victory for those who wanted a strong federal government. The Articles of Confederation, the claptrap agreement that the Constitution superseded, hadn't given the federal government any power to tax. It's no coincidence that taxing was the first of the enumerated powers. The way the Founders phrased it is that the Congress shall have the power "to lay and collect Taxes, Duties, Imposts and Excises, to pay for the Debts and provide for the Common Defence and general Welfare of the United States."

Liberals like to suggest that the reference to the "general welfare" means Congress can do almost anything. Yet the record suggests that the Founders saw the General Welfare Clause as a limit on its taxing power. They even foiled a bid by one of the wordsmiths of the Constitution, Gouverneur Morris, to change the grammar of the clause by changing the comma after the word "excises" to a semi-colon and making a separate paragraph out of the phrase "to pay for the Debts and provide for the Common Defence and general Welfare of the United States." This would have created not a limit on the taxing power but a separate and limitless spending power. Morris's scheme was defeated; there was even testimony about it in the Congress by an early treasury secretary, Albert Gallatin. One scholar, Philip Hamburger of Columbia University Law School, has summed up the contretemps by noting, "Rarely has so much rested on so small a point."

Not that parsing the grammar is the only way we have to divine the Founders' intent with respect to the General Welfare Clause. James Madison himself addressed the matter inFederalist 41, when he, Alexander Hamilton, and John Jay were trying to get the state of New York to ratify the Constitution. He noted that it had "been urged and echoed" that the taxing power "amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare." He called the view "a misconception," noting that had it been true there would have been no need to continue with the long list of enumerated powers that follows.

However abstruse the grammar of the General Welfare Clause may be, it is likely to be only one of the issues in the case against Obamacare that has now been launched by more than half the states and is working its way toward the Supreme Court. For authority to require Americans to buy health insurance, Senator Baucus also cited another enumeration of federal power, the Commerce Clause. It grants Congress the power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." InThe Citizen's Constitution, my annotated guide to our basic law, I liken the Commerce Clause to a "kind of constitutional shuttle on the loom of our national fabric -- flung in one direction by states wanting to regulate matters that are beyond their reach, and in the other direction by a Congress that wants to regulate matters where it has no authority."

History suggests that it would be reckless to take this power for granted. It was under the Commerce Clause that President Franklin Roosevelt's administration tried to defend the centerpiece of the New Deal, a law called the National Industrial Recovery Act. The law was challenged by a family of poulterers from Brooklyn, the Schechter brothers, who had been convicted of criminal charges for failing to follow its dictates. The Supreme Court concluded the feds didn't have the authority to regulate the butchers' business within New York State and threw out the law in a decision that was unanimous.

Whether the Court will take such a line in respect of the health insurance mandate in Obamacare is hard to predict. The Schechter case stunned FDR and put it in his mind to pack the Supreme Court by expanding its membership. His court-packing scheme, while it failed in the Senate, seems to have rattled the Court. For no sooner was the packing plan presented than the Court started reversing course on the Commerce Clause, using it in a big case against Jones & Laughlin Steel to allow the regulation of labor and even, within a few years, to let the government prohibit a farmer, the hapless Roscoe Filburn of Ohio, from growing crops on his own farm for his own use.

AS THE OBAMA ADMINISTRATION presses for ever more power, the battles over the General Welfare Clause and the Commerce Clause will be something to behold. But they may prove weak beer compared to the immigration case that is shaping up at Arizona. It presents an odd reversal of roles from the Obamacare cases. The challenges to Obamacare are being brought by states that assert the Congress acted where it didn't have an enumerated power. In the immigration case, known as United States v. Arizona, the claim is that a state acted where the Congress holds the enumerated power, putting the Grand Canyon State in violation of the Supremacy Clause that establishes the Constitution, and the United States laws and treaties made under it, as the supreme law of the land.

Congress's power in respect of immigration is enumerated as the power to "establish an Uniform rule of naturalization." The plain meaning of the phrasing suggests that insisting on a rule that is uniform the Founders wanted to make sure that there wasn't a different route to becoming an American depending on which state was involved, i.e., they wanted a nation. "The Constitution and the federal immigration laws do not permit the development of a patchwork of state and local immigration policies throughout the country," is the way America puts it in the complaint in United States v. Arizona.

The supremacy of the enumerated power of naturalization that the Constitution gives to Congress isn't the only issue in the Arizona case, though; there are civil rights claims as well. One of the odd things about the Arizona case, in any event, is that America is asserting a power that it could be argued it has chosen not to use -- or, if there is a uniform rule, to enforce. It is hard to predict how the case will fare should it get to the Supreme Court. But it is not hard to predict that, given the scale of the failure to secure the southern border and the level of tensions on both sides of the question in Arizona and other states, the case could emerge as explosive.

NOT, HOWEVER, AS EXPLOSIVE as the question of whether the dollar has to be accepted as legal tender, which I believe is the most important constitutional question awaiting a champion. It happens that the Constitution didn't create the dollar; it was in existence at the time the Constitution was written. What the Constitution did was grant Congress the power to coin money and regulate its value. It first did so in the Coinage Act of 1792, which adopted the dollar as the unit of account and set its value at 371 grains of pure silver or the free market equivalent in gold.

The greenback came into being as a way to pay for the Civil War, and no doubt preserving the Union was worth an enormous risk. But the dollar has gone downhill from there, rarely more rapidly than in the past decade, in which the dollar has plummeted in value to little more, at the time of this writing, than a 1,400th of an ounce of gold. Despite the plunge in value, the greenback has to be accepted as legal tender in payment of debts. It has been that way since 1871, when the Supreme Court decided a pair of cases, one involving a payment for a flock of sheep and the other some land, that the greenback would have to be accepted. It later ruled, in a case involving payment for cotton, that even without war as an excuse, the greenback had to be honored.

So sickening has been the steepness of the recent plunge in the value of the dollar that there are serious people thinking about whether it would be possible to reopen the question of legal tender. They are not worried about inflation as defined by the consumer price index; they are worried about future inflation and the very definition of the dollar. Received wisdom suggests it would be impossible to challenge legal tender laws. But feature this. A group of the most distinguished judges on the federal bench -- Peter Beer, U. W. Clemon, Terry Hatter, Thomas Hogan, Richard Paez, Laurence Silberman, and A. Wallace Tashima -- is asking the Supreme Court to overturn a decision of Congress to suspend an automatic adjustment in their pay to account for the inflation that had been ravaging their income. The judges don't like the prospect of getting paid in dollars that aren't as valuable as they used to be. In that, they are just like the rest of us.

Or are they? Well, not quite. It turns out that Founders who framed our laws were so furious about the way George III made judges subservient to his own will for payment of their salaries that they listed -- right in the Declaration of Independence -- the abuse as an enumerated cause of our seceding from England. Then they wrote into the Constitution that the pay of a federal judge shall not be diminished during his term in office. That is American bedrock. So if in, say, the year 2000 a judge was paid in dollars that were worth a 265th of an ounce and today is being paid with dollars worth less than a 1,300th of an ounce of gold, has his pay been diminished?

To consider the scale of what one is talking about, regard the pay of Judge Silberman. When he was assigned to the District of Columbia Circuit of the United States Court of Appeals, the salary of a federal appeals judge -- $83,200 at the time -- was worth 258 ounces of gold. The value of the current pay of a judge on one of the appeals circuits -- $184,500 -- has plunged to a measly 139 ounces of gold. Were Judge Silberman paid in gold from the start, his pay would today be something on the order of $350,000, which is much more like what it should be, particularly given what the federal bench needs to be paying to attract the best minds in the legal profession.

This isn't quite the argument the Honors suing over their pay are making before the Supreme Court, at least not yet. Their petition for a Supreme Court hearing suggests they want merely to enforce the automatic adjustment that Congress in recent years has suspended. I don't mind saying that, while I believe the justices have been wronged by Congress, I hope they lose on the question of whether a suspension in the automatic pay adjustment is unconstitutional. That should get them angry enough to come back and look legal tender in the face. They could force the Congress to pay them in the gold or silver equivalent of a federal judge's salary at the time they were appointed to the bench. It would move judges to the kinds of salaries the lawyers before them are receiving.

And people would start to ask: If judges deserve honest money, why shouldn't the rest of us?

To those who suggest such a scenario is far-fetched, one can say, no more far-fetched than the notion that the entire post-Civil War monetary regime of America would rest on disputes of more than a century ago over payment for a flock of sheep and some bales of cotton. Or that centuries of law on abortion could be upended in a fell swoop by one Supreme Court ruling. Can the Court cast aside precedent to decide such a sweeping issue as legal tender? It certainly didn't hesitate -- nor should it have -- in disposing of the notion that racially separate schools could be equal. With everyone from the United Nations to Communist China calling for the abandonment of the dollar as a reserve currency, is it so hard to imagine that the Supreme Court might revisit the legal tender cases?

NO WONDER THE LEFT FACTIONS are so upset, even horrified, at a reading of the Constitution. Its plain language is a challenge to those who think the government can do whatever it wants. The very decision of the Founders to establish a written constitution -- England's is not written, though parts of it, like the Magna Carta, are -- was a radical one, creating, as it did, a device through which the terms on which the people and the states were contracting could be enforced over time. Here's how Chief Justice Marshall put it in the most important of all Supreme Court cases, Marbury v. Madison: "The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written." The liberal camp can take hope in the fact that, while the powers that were granted to Congress may be limited, they are not niggling. Even the limited powers given to Congress are enormous. Conservatives can take hope in the fact that as a runaway administration seeks to break free of the constraints laid down by the Founders there is a parchment on which the terms of agreement were written down, signed, and sealed.

Seth Lipsky, founding editor of the New York Sun, is the author of The Citizen's Constitution: An Annotated Guide (Basic Books).

No Time For Symbolic Gestures

2011-02-11T05:47:00.000-08:00

Rand Paul At CPAC: The Point of No Return

by John Hayward

Posted 02/11/2011 ET

Senator Rand Paul is not without a sense of humor, as he demonstrated with a bit of prop comedy, highlighting the “stupidity of government” with a gas-powered alarm clock the EPA has approved as an “energy-saving device.” He can also be blunt, as when he criticized the spending cuts proposed by House Appropriations Committee Chairman Hal Rogers, a Republican from Paul’s own state of Kentucky, by saying “it’s too little, it’s not enough, it’s too timid, and we must be more bold.”

He’s a loyal son, using a CNN interview to cheerfully inform Donald Trump that his chances of winning the presidency are “less than my father’s,” after Trump told the Ron Paul cohort at CPAC that their man had a “zero percent” chance of sitting in the Oval Office. Rand Paul nevertheless looked a bit annoyed with his dad’s most ardent supporters during his own CPAC presentation, which they interrupted more than once.

Such are the contradictions of the freshman Senator from Kentucky, slapped with a media caricature of eccentricity because he asks big questions about an insane system. The romance of Big Government has no appeal to Rand Paul. He has calculated the doom of Obama-style socialism to four decimal places, and he has no patience for symbolic gestures or feeble half-measures.

“My aim is not to pass bills, but to repeal them,” Paul explained, “especially those that do violence to the Constitution.” He acknowledged that his job as a Senator is to represent the interests of his constituents, and insisted “the main interest of my constituents is liberty.” He pursues that interest in the shadow of a system whose critics were told to be silent until it began to implode… and are now denounced as “extremists” for laying out the drastic measures required to save it.

Paul is especially eager to beat the Commerce Clause monster back into the basement where it belongs. “For sixty or seventy years, we worked with the notion the Commerce Clause means we can do anything,” he said, illustrating his point with the infamous Wickard v. Filburn case from 1942. As Paul explained it, farmer Filburn was slapped with a fine for growing too much wheat, even though he used the surplus for his own consumption. The fine was justified under the Commerce Clause because Filburn’s home-grown wheat made it unnecessary for him to engage in interstate commerce, and thus affected the price of wheat in other states.

This was the pivotal act of judicial hocus-pocus which transformed the limited government of the Founders into the leviathan of the New Deal, and Paul thinks it’s time to find a counter-spell. He sees a revolution brewing if the Supreme Court upholds the Florida judge who struck down ObamaCare, hoping it will begin the unraveling of Wickard v. Filburn unlimited-government jurisprudence. At stake will be the answer to “whether our government can be restrained by the Constitution.” For this reason, he emphasized the importance of winning presidential elections with strong conservative candidates, because “it is important who sits on the Supreme Court.”

Paul warned we are approaching the “point of no return,” where the national debt equals the entire output of our economy – a limit he notes Japan has already passed, and from which no government has ever recovered. To avoid passing this point, he asserted, “we must be more bold” than declaring spending freezes, or passing puny symbolic spending cuts. His concept of boldness includes abolishing the entire Department of Education.

He also insisted those bold spending cuts must include entitlements, like Social Security and Medicare, coupled with “a long and hard look at our military budget.” This was the most contentious line of his speech. “The most important duty of government is national defense,” Paul acknowledged, “but the doubling of our military budget over the last 10 years has not been spent wisely.” Former Defense Secretary Donald Rumsfeld, who would later take the stage to accept the Defender of the Constitution Award (and insist on sharing it with the men and women of the United States Armed Forces), responded to this assertion by pointing out that defense bills have been just as liable to gain a coating of pork-fried earmarks as any other legislation.

It remains to be seen whether trimming this fat would be good enough to satisfy Rand Paul’s call for “compromise” on spending cuts from conservatives. It’s fair to say there is plenty of room for “long and hard looks” at everything, when you’re creeping around inside the haunted house of a $3.6 trillion federal budget.

Whatever one’s opinion of his specific proposals, Rand Paul is commendably forthright in saying that we cannot solve a massive problem like government insolvency by thinking small. When he asks the Tea Party faithful to join him in “defending the Constitution,” he cautions them it won’t be an easy task. The hour is late, and the timid content themselves with dreams of bravery, while the bold prepare to get a little crazy in doing battle with utter madness.

John Hayward is a staff writer for HUMAN EVENTS, and author of the recently published Doctor Zero: Year One. Follow him on Twitter: Doc_0. Contact him by email atjhayward@eaglepub.com.

At Last:Recognizing Constitutional Restrictions

2011-02-01T18:40:00.000-08:00

The Constitutional Moment

Judge Vinson introduces ObamaCare to Madison and Marshall.

'If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself."

Federal Judge Roger Vinson opens his decision declaring ObamaCare unconstitutional with that citation from Federalist No. 51, written by James Madison in 1788. His exhaustive and erudite opinion is an important moment for American liberty, and yesterday may well stand as the moment the political branches were obliged to return to the government of limited and enumerated powers that the framers envisioned.

As Judge Vinson took pains to emphasize, the case is not really about health care at all, or the wisdom—we would argue the destructiveness—of the newest entitlement. Rather, the Florida case goes to the core of the architecture of the American system, and whether there are any remaining limits on federal control. Judge Vinson's 78-page ruling in favor of 26 states and the National Federation of Independent Business, among others, is by far the best legal vindication to date of Constitutional principles that form the outer boundaries of federal power.

At the heart of the states' lawsuit is the individual mandate, which requires everyone to purchase health insurance or be penalized for not doing so. "Never before has Congress required that everyone buy a product from a private company (essentially for life) just for being alive and residing in the United States," Judge Vinson writes.

Rep. Marsha Blackburn on the health-care ruling.Congressional Democrats and the Obama Administration justified this coercion under the Commerce Clause, so it is fitting that Judge Vinson conducts a deep investigation into its history and intent, including Madison's notes at the Constitutional Convention and the jurisprudence of the fourth Chief Justice, John Marshall. The original purpose of the Commerce Clause was to eliminate the interstate trade barriers that prevailed under the Articles of Confederation—among the major national problems that gave rise to the Constitution.The courts affirmed this limited and narrow understanding until the New Deal, when Congress began to regulate harum-scarum and the Supreme Court inflated the clause into a general license for anything a majority happened to favor.

In a major 1942 case, Wickard v. Filburn, the Court held that even growing wheat for personal use was an activity with a substantial economic effect on interstate commerce, thus justifying federal restrictions on the use of agricultural land meant to prop up commodity prices. It wasn't until the William Rehnquist Court, a half-century later, that the Justices began to recover some of the original limits, notably in the Lopez (1995) and Morrison(2000) cases.

Yet even in its most elastic interpretations, the Commerce Clause applied only to "clear and inarguable activity," Judge Vinson writes, the emphasis his. It never applied to inactivity like not buying health insurance, which has "no impact whatsoever" on interstate commerce. He argues that breaching this frontier converts the clause into a general police power of the kind that the Constitution reserves to the states. As the High Court put it in Lopez, obliterating this distinction would "create a completely centralized government."

The Administration contends that not purchasing insurance—inactivity—is really activity, because everyone will eventually need medical care and their costs will be transferred to the insured. But Judge Vinson dissects that as a "radical departure" from the Constitution and U.S. case law. It is "not hyperbolizing to suggest that Congress could do almost anything it wanted," he writes. "Surely this is not what the Founding Fathers could have intended."

Unlike Judge Henry Hudson in Virginia, who also found ObamaCare to be unconstitutional, Judge Vinson addresses the Administration's fallback argument that the Constitution's Necessary and Proper Clause justifies the law even if the Commerce Clause doesn't. He writes that this clause "is not an independent source of federal power" and "would vitiate the enumerated powers principle." In other words, the clause can't justify inherently unconstitutional actions.He notes that no one can opt out of eating any more than they can from the medical system, so return to the Wickard example of wheat: "Congress could more directly raise too-low wheat prices merely by increasing demand through mandating that every adult purchase and consume wheat bread daily, rationalized on the grounds that because everyone must participate in the market for food, non-consumers of wheat bread adversely affect prices in the wheat market."

Judge Vinson also went beyond the Virginia case in striking down the entire ObamaCare statute—paradoxically, an act of judicial modesty. Democrats intentionally left out a "severability" clause if one part of the bill was struck down, and the Administration repeatedly argued that the individual mandate was "essential" to the bill's goals and mechanisms and compared it to "a finely crafted watch." Judge Vinson writes that picking and choosing among thousands of sections would be "tantamount to rewriting a statute in an attempt to salvage it."

***

We take a measure of vindication in the decision—David Rivkin and Lee Casey, the lawyers who argued the Florida case, first suggested in these pages that the individual mandate was unconstitutional. Judge Vinson's learned opinion has put down a Constitutional argument that will reverberate all the way to the Supreme Court.

Dictatorship of the Bureaucrats

2011-01-08T07:34:00.000-08:00

A nation choking on endless laws

By MICHAEL A. WALSH

Last Updated: 12:32 AM, January 7, 2011

Posted: 10:01 PM, January 6, 2011

Heading back to work this week, Americans were greeted not only by a new year but also by a whole slew of new laws -- 31,000 of them at the state level -- covering everything from guns to 100-watt light bulbs to, of course, "health care." As usual, most of these laws tell us what we can't do: texting while driving (duh), cyberbullying and smoking in bars.

In the near future, everyone will be a criminal for at least 15 minutes, whether they know it or not.

But aside from some laws easing state restrictions on lawful gun ownership, precious few of them tell the government what it can't do. To the ruling class, there is almost nothing the government, at some level, can't do -- not only via legislation, but regulation as well. Two recent examples come to mind:

First, the federal Environmental Protection Agency, under Lisa Jackson, has decided that its mandate now includes the very air we exhale -- carbon dioxide --and is introducing stringent standards to help fight such "pollutants" and so-called greenhouse gases.

Never mind that the "science" is far from settled, that the Climategate e-mails showed active collusion among researchers to misrepresent the facts about alleged "global warming," that some of the 1,700 British scientists who signed a declaration defending the researchers' professional integrity have said they felt pressured into doing it (or didn't work on "climate change" at all) and that Al Gore is a certified crackpot.

Never mind, as well, that the US Senate rejected the Kyoto Treaty by a vote of 95-0 -- during the Clinton administration. Never mind that the Waxman-Markey anti-warming "cap and trade" bill died in the Democratic-controlled 111th Congress. Jackson will simply "phase in" the regulations.

A second example is the Federal Communications Commission's December party-line vote to enforce "net neutrality." It's a complex, debatable subject, but it's not the wisdom of the decision that's at issue here. Rather it's the fact that the FCC under Julius Genachowski, a classmate of President Obama's at Harvard, went ahead despite a) the clear wishes of Congress, which expressly declined to give the commission authority over the Internet and b) a ruling by a DC federal court pointing out precisely that.

Both the EPA (a child of the Nixon administration) and the FCC (which dates back to FDR's first term) nominally answer to Congress but have become, like Frankenstein's monster, rogue agencies that threaten both our economy and our liberty.

When a mere agency can thumb its nose at its nominal masters, then we are on the road away from republican democracy and toward tyranny -- not the imaginary "dictatorship of the proletariat" beloved of Marx, but something even worse: dictatorship of the bureaucrats.

Which is why it's encouraging that the first major act of the Republican-controlled House under John Boehner will be a vote to repeal the bureaucratic nightmare of ObamaCare. The 2,000-page Reid-Pelosi monstrosity stands as a monument to the perversion of the legislative process, cobbled together in back rooms by a cabal of staffers, lawyers, ideologues, hacks and stooges and rammed through using every parliamentary maneuver the desperate Democrats could think of.

Repeal is unlikely to pass the Senate and would certainly fall victim to the presidential veto pen, but as a statement of principle over process it's a banner to which freedom-loving Americans will happily rally -- and which will pay off handsomely in 2012.

So it wasn't just symbolic when the Constitution was read aloud yesterday in Congress. Short, clearly written and to the point, the Constitution is not just another one of 31,000 new laws -- it is the law. It tells us what the government must do -- roads, post offices, patents, armies -- and, more important, what the government can't do. The Bill of Rights is one long Thou Shalt Not aimed at the feds.

It's high time Congress stopped worrying about being "productive" -- which means "passing more laws" -- and started undoing the very real mess it's made. Repeal of ObamaCare is a good place to start. So is putting Lisa Jackson on the hot seat, and abolishing the FCC.

NEW YORK POST is a registered trademark of NYP Holdings, Inc

Ignoring the Constitution

2011-01-03T06:48:00.000-08:00

Outsourcing Democracy

by Daniel J. Flynn

Posted 01/03/2011 ET

The 112th Congress opens today with a reading of the Constitution in the House of Representatives. Hopefully, the lawmakers pay special attention to Article 1, where the Founders outlined the powers of Congress. These include coining money, declaring war, and making law.

The past century or so has witnessed Congress outsource these and other powers to the Federal Reserve, the regulatory bureaucracy, the executive branch, and the courts. This is bad news for the American people, whose direct role in electing congressmen stands in contrast to their indirect role in electing presidents and approving judges—let alone their impotence to hold anonymous bureaucrats accountable. We have become more a government of, by, and for people unknown to the people.

Bypassing the democratic process has become more popular within the Obama administration as the Obama administration has become less popular within the country.

The American people rejected the idea of saving the feds money by incentivizing end-of-life-counseling, the so-called “death panels.” Rather than accept the judgment of Congress, the Obama administration quietly slipped the rejected measure into the federal code. Though apparently decided upon in early November and included in the Federal Register published in early December, the rule buried beneath a byzantine labyrinth of regulations was not reported until Christmas Day by the New York Times.

How might the controversial incentive be implemented? A University of Michigan doctor offered a hypothetical counseling situation to theTimes: “If you have another heart attack and your heart stops beating, would you want us to try to restart it?” One can see why the Obama administration would cover-up “health care” policies perversely dedicated to saving money at the cost of lives.

The stimulus depressed the economy. The appetite in the Congress for a second stimulus was unsurprisingly nil. But within the Federal Reserve, the notion of a monetary stimulus to supplant the fiscal stimulus was popular. So, the Federal Reserve decided in late October to print $600 billion dollars. The Constitution didn’t award them such powers. But they exercised them nevertheless.

The Democrats, despite their control of the Congress and the presidency, couldn’t pass so-called cap-and-trade. So, the Environmental Protection Agency is imposing new limits on carbon emissions. The unelected bureaucracy decrees a decrease of 5 percent of 2005 emissions by 2020. One can debate the efficacy of legislation to combat global warming. Debating whether that legislation should be devised by duly elected lawmakers or by unelected usurpers is a slur upon republican government.

These issues were all raised before the elected representatives of the people and rejected by the elected representatives of the people. There was no stomach for end-of-life counseling, a second stimulus, or cap-and-trade. Yet, the Obama administration refused to take “no” for an answer.

Given that the president circumvented Congress when his party controlled it, his willingness to sidestep the process now that Republicans have upped their numbers will likely be much greater. Expect executive orders, bureaucratic legislation, and judicial fiat to implement the Obama agenda that lawmakers, and their constituents, increasingly balk at. This is to say nothing of the Constitution’s objections to the substance (and not just the process) of the administration’s program.

One would be tempted to see Congress as the victim of all this usurpation if Congress hadn’t itself outsourced its powers to other entities. Since the establishment of the now-defunct Interstate Commerce Commission 124 years ago, Congress has given its imprimatur to a slew of alphabet-soup agencies—FDA, SEC, FCC, etc.—with quasi-legislative powers. But the people delegated the lawmaking function to Congress. It wasn’t theirs to give away.

Changing its constitutional responsibilities is not one of Congress’s powers. The people entrusted legislators to exercise these powers, not to hand them over to entities unaccountable to the people. A century of lazy, cowardly, and masochistic Congresses have engineered Congress’s own irrelevance.

One can no longer say that lawmaking by the unelected is unprecedented in America; one can still say that it is unconstitutional.

The problem of America 2011 is the problem of America 1776: government governs without the consent of the governed. The solution then as now is Constitutional government.

A good first step is for congressmen to read the Constitution. An even better step would be for the president to do so too.

Daniel J. Flynn is the author of A Conservative History of the American Left (Crown Forum, 2008), Intellectual Morons (Crown Forum, 2004), and Why the Left Hates America (Prima Forum, 2002). He has appeared on Fox News, MSNBC, CNN, Sky News, PBS, CSPAN, and other broadcast networks. His articles have appeared in National Review, the Boston Globe, and City Journal. He blogs at www.flynnfiles.com.

Adhering to the Constitution

2010-12-24T18:43:00.000-08:00

November 2010

Larry P. Arnn

President, Hillsdale College

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Outline of a Platform for Constitutional Government

Larry P. Arnn, the twelfth president of Hillsdale College, received his B.A. from Arkansas State University and his M.A. and Ph.D. in government from the Claremont Graduate School. From 1977 to 1980, he also studied at the London School of Economics and at Worcester College, Oxford University, where he served as director of research for Martin Gilbert, the official biographer of Winston Churchill. From 1985 until his appointment as president of Hillsdale College in 2000, he was president of the Claremont Institute, an education and research organization based in Southern California. In 1996, he was the founding chairman of the California Civil Rights Initiative, the voter-approved ballot initiative that prohibited racial preferences in state employment, education, and contracting. He sits on the board of directors of several organizations, including the Heritage Foundation and the Claremont Institute. He is the author of Liberty and Learning: The Evolution of American Education.
The following is largely adapted from remarks delivered on September 17, 2010, at the dedication of Hillsdale College’s Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship in Washington, D.C.

TODAY IS THE 223RD anniversary of the submission of the Constitution of the United States for ratification. It is the greatest governing document in human history. And on this day we dedicate our Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship near Capitol Hill here in Washington. Let me explain briefly why we are launching this center. The reason has to do with the times in which we live, and it has to do with the purposes of Hillsdale College.

The times are pretty easy to estimate. I’ll just mention two things about them that are astonishing and fearful. The first is that we have managed, in about the last 30 years of relative peace and unprecedented prosperity, to pile up a debt that rivals the one we piled up while winning the Second World War, the most disastrous and largest war in human history. And this debt is of a different character. The Second World War was going to end at some point, and we were either going to win and go back to living and working and pay off the debt—which is what happened—or else we were going to lose and then the debt would never be paid. In contrast, our debt today has become the ordinary way our government and our country operate. As my father, a schoolteacher in Arkansas and a wise man, used to say, it is the kind of debt that means it really doesn’t matter how rich we’ve become, because we can waste money faster.

The second sign of the times that I’ll mention is this: We have now a figure in the American government called the regulatory czar. Not only is it shameful and wrong for anybody in America to let himself be called that, he takes the title seriously. Indeed, he writes that some people should be allowed to regulate speech rights—to redistribute them, much as the government redistributes wealth—in the name of what he and his political allies regard as fairness. His is a far different kind of argument about speech than the one our Founders made, which was that speech is an individual right. His argument not only opposes the prohibition the founders placed in the First Amendment, which says that “Congress shall make no law . . . abridging the freedom of speech,” it rejects the understanding of human nature that grounds the very idea of constitutionalism. James Madison summarized that understanding when he wrote in Federalist 51 that because men are not angels, they need government, but that government must be controlled and limited for the same reason. Because those in our government are men rather than angels, we must not allow them the kind of power that this regulatory czar desires and claims.

There needs to be an argument about whether Madison and the founders are right or this bureaucratic czar and his allies are right with regard to civil liberties, just as there needs to be an argument about whether our nation should keep piling up unsustainable debt. There is going to be an argument about these and other big questions in this city in coming years, and the Kirby Center will have a hand in that argument.

What then of the purposes of Hillsdale College? Those purposes do not change. The College was built in 1844. Just yesterday we had a meeting of our Board of Trustees, and we began that meeting, as we begin every meeting, by reading from the College’s Articles of Association. Those articles commit us to two things. The first is “sound learning,” learning in the liberal arts. This is the kind of learning that lets us answer such questions as: What do we mean by “the laws of nature and of nature’s God”? Who is this God? What is He like? What is man? What is he like? What do we mean by “nature”? These are the ultimate questions. They are the questions in virtue of which ultimately all of our choices are made. And it just so happens that human beings, ever since they have been writing things down, have been writing beautiful things about these questions, things collected in old books. The founders of our country, like the founders of Hillsdale College, thought that if we were to be able to read the Declaration of Independence, and follow its arguments, we would need to read some of these old books. We have always read them at our College. We are not only devoted, we are chained to the reading of them. They are in our core curriculum. There is no escaping them at Hillsdale.

So that’s one thing about the College. And the second is, as they say in the Bible, like unto it. The College is devoted in the first sentence of its Articles of Association to the principles of “civil and religious liberty.” These principles are America’s gift to the world. We are all of us products of that gift. We are not sons of dukes and earls—or of czars. We are Americans because of this gift. And signs are lately that Americans do not much want to give it up. This is a very hopeful thing.

Hillsdale College has always taught the Constitution and has always fought for it. Our teaching of it is intense, difficult, challenging. As for fighting, we are famous in modern times for a decade-long lawsuit against the federal government, and for the fact that we refuse to take money from that government. It is expensive these days, indeed increasingly so, for a college not to take federal money. But we believe that the price of taking it is dearer still.

No one should think, however, that in refusing money from the modern bureaucratic form of government that exists in this city today, we have forgotten our loyalty to the constitutional form that flourished here for so long.

There is only one way to return to living under the principles of the Declaration of Independence and the institutions of the Constitution. We must come to love those things again. And if we love them, then we will serve them. But we cannot love them until we understand them. And we cannot understand them until we know them. So the first step is to study them and teach them, and Hillsdale College comes to Washington meaning to do that. We aim to create an atmosphere in this city of the study and knowledge and understanding and love of the principles of America.

* * *

In the previous greatest crisis of the Constitution, when our College was very young, we also served in its defense. In the summer of 1854, with the extension of slavery not just a threat but a reality, the people of Michigan were invited to join together “to protect our liberty from being overthrown and downtrodden.” The result of that meeting was the birth of the Republican Party on July 6 of that year, in Jackson, Michigan, just over 30 miles from the Hillsdale campus. Several College faculty and administration members were leaders of this movement. One of them, Austin Blair, later governor of Michigan, was chosen to be on the committee on resolutions. The first president of Hillsdale College, later lieutenant governor of Michigan, also played a leading role. Among the resolves of that Michigan gathering was the following:

That slavery is a violation of the rights of man as man; that the law of nature, which is the law of liberty, gives to no man rights superior to those of another; that God and nature have secured to each individual the inalienable right of equality, any violation of which must be the result of superior force . . . .

Remembering this history, we have set our minds, in beginning our work at the Kirby Center, to thinking about what a platform for constitutional government today might look like. As was the case in 1854, the specifics of what to do amidst changing circumstances, and in light of the need to enlist the agreement of the American majority, are complex and difficult and require statesmanship. Solving our deepest problems will take years, and will require imaginative policies not yet contrived. But the general principles and goals seem to us clear. They were laid out for us by our fathers. We have set our hands to begin writing them down in the document that follows.

Outline of a Platform for Constitutional Government

On June 17, 1858, Abraham Lincoln said in his House Divided Speech, “If we could first know where we are, and whither we are tending, we could better judge what to do, and how to do it.” His analysis was founded upon a profound contemplation of the Declaration of Independence and its embodiment in the Constitution of the United States. It issued in a set of proposals designed first to limit and then to extinguish slavery by strictly constitutional means.

We require a similar kind of analysis today. Our most difficult policy issues are embedded in a vast administrative state that is built without regard for the principles of the Declaration in their true meaning, or for the proper constitutional operation of government.

The Declaration of Independence articulates the place of man in nature: below God and above the beasts. It says that we may be governed only by our consent. Woodrow Wilson and the founders of modern liberalism called these doctrines “obsolete.” They argued that we live now in the age of progress, and that government must be an engine of that progress. This idea changes how we view not only the purpose of government, but also the rights of its citizens.

Franklin Roosevelt added economic security to the natural rights, as the Declaration of Independence states, of “life, liberty, and the pursuit of happiness.” Government grew as a result, especially under Lyndon Johnson and Richard Nixon. And it continues to grow—all in the name of progress. Indeed, the current administration is the most aggressive proponent of the doctrines of Progressivism since they were first introduced.

Under the influence of these new doctrines, the government has grown to be, in simple quantitative terms, the largest single force by far in the land. It now consumes nearly half of all we produce, and it is soon to accumulate a public debt as a percentage of Gross Domestic Product equal to the largest in our history, matching our debt level at the end of the Second World War. This debt leaves us vulnerable to every mischance that may come upon the nation from abroad or at home. The burden of it stifles enterprise and closes opportunity for all but the well connected.

As the government has grown, it has become a powerful interest in the everyday affairs of the nation. Increasingly, bureaucracy is a factor in every operation our citizens undertake. In the management of our businesses, in the accomplishment of our jobs, in the rearing of our children, and in the very caring for our own bodies, there now are rules too numerous to count. Ominously, these rules now seek even to intrude into the electoral processes by which our free people choose their representatives.

These rules originate in laws passed by Congress that are much too long for anyone to read. After these laws are passed, they are enhanced, expanded, interpreted, and complicated by regulatory agencies. We forget therefore the words of the Father of the Constitution, James Madison:

It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?

All these developments, so long entrenched in our politics, are presented by their proponents as a natural extension of the original principles and the original institutions of the nation. Doubtless those who argue this also believe it, but it cannot possibly be true.

Gone now is the caution about human nature that recognizes that human beings must live under law in order to protect their rights, and that those who make and enforce the law are no more likely to be perfect—or less likely to violate the rights of their fellow citizens—than others. The current tendency toward unlimited government undermines the foundation of constitutional rule in our country. That foundation is stated by Madison in a few words: “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.”

Men must be governed because they are imperfect—less than God, less than angels. But then so too are those who make and enforce the law imperfect. They also have interests. Therefore government must have strong powers, but these powers must be limited and checked.

If this is where we are, then it is easy to see “what to do, and how to do it.” We must return to the principles and institutions of the founding of our country. We must revive constitutional rule. To do so, we propose the following four pillars of constitutional government.

1. Protecting the equal and inalienable rights of individuals is government’s primary responsibility.

a. By rights, America’s founders meant those things naturally belonging to us, and those things earned by our own labor. The protection of rights understood in this way breeds harmony in the society, because each of us claims for himself what he can also give to all others. We may all speak, worship, assemble, and keep our justly earned property without taking from another.

b. Each branch of government is subservient to the Constitution.

c. The federal government has the constitutional duty to ensure that each state maintains a republican form of government. This obligation is strengthened and clarified in the 14th Amendment. It must ensure that no state infringes on the rights or the “privileges or immunities” of citizens. Yet it must also recognize the constitutional standing of state governments.

d. The duties of Congress are clearly delineated in Article I, Section 8 of the Constitution. It should do no more, lest liberty be endangered. It should do no less, else anarchy ensue.

2. Economic liberty is inversely proportional to governmental intrusion in the lives of citizens.

The platform upon which Abraham Lincoln was elected president stated “that the people justly view with alarm the reckless extravagance which pervades every department of the Federal Government.” It urged “a return to rigid economy and accountability” that “is indispensable to arrest the systematic plunder of the public treasury by favorite partisans. . . .” Likewise today:

a. American economic recovery requires that we liberate the American people to work, to save and to invest, secure in their property, confident about the dollar as a store of value, and sure that the government will be an impartial enforcer of the law and of contracts.

b. In all administration of federal programs we must demand the utmost economy, and that every care be taken to avoid further growth and sprawl in the federal administrative establishment.

c. Our massive public investment in entitlement programs must be protected through privatization programs, which should utilize the real practices of insurance against catastrophe and of savings for future needs. In this process our investment must be safeguarded from loss, as the government must keep its contracts.

d. Sound money is among the most sacred of the federal government’s responsibilities, and price stability should be the aim of monetary policy.

e. The federal government must not subsidize corporations or individuals in its tax code or any other policy.

f. Philanthropy is the natural outgrowth of American principles and institutions. It should be encouraged and relied upon, along with local and state government, as the great engine of social reform and the amelioration of distress.

3. To accomplish its primary duty of protecting individual liberty, the federal government must uphold national security.

a. National defense has been for most of American history the chief undertaking of the government under the Constitution. It has been supplanted by the federal entitlement and regulatory state. This reversal of priority hampers growth at home, deprives the American people of scope for self-government, and undermines the defense of the nation.

b. We should pursue relentlessly every form of defense against foreign threats. Especially is this true in the case of attack by weapons of mass destruction. Therefore missile defense and a vigorous policy to combat Islamic and other forms of terrorism are urgently required.

c. We must overcome all international and domestic efforts to undermine American sovereignty, including those mounted through the United Nations and other international organizations, or through efforts to impose new treaties.

d. Promotion of democracy and defense of innocents abroad should be undertaken only in keeping with the national interest.

4. The restoration of a high standard of public and private morality is essential to the revival of constitutionalism. As the Northwest Ordinance of 1787 states, “Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” The Constitution itself says nothing about education, for the same reason it says nothing about families or marriage or child-rearing: the federal government should not control or regulate these things. Parents and teachers, not the federal government, teach children. What they teach them matters most, for without proper moral and civic education a republican form of government will falter. With it, and with a strong defense of our right to religious liberty, republican government can flourish.

We close again with the words of Lincoln, from the same speech with which we began. Quoting the Bible, Lincoln said that “a house divided against itself cannot stand.” We shall be governed either by ourselves, under a Constitution, or else we shall be governed by the new kind of master invented in our day, the bureaucrat, and by the impenetrable web of rules that he fabricates and enforces.

Let us stand together against the rule of bureaucracy, and for liberty and the Constitution.

Lame Duck soup

2010-11-19T06:25:00.000-08:00

This Lame Duck Session Should Be the Last

In 1933, Americans ratified the 20th Amendment to eliminate lame duck Congresses. For two decades Washington has been ignoring its intent.

By BETSY MCCAUGHEY

Americans ought to make this lame duck session of Congress the last in history. Members who lose re-election have no moral authority to continue governing: They were fired by the voters, who should demand that they clean out their desks and go home.

On Nov. 2, the voters replaced the Democratic majority in the House of Representatives with at least 61 new Republican members who campaigned on lower spending and less government power. Allowing members who were not re-elected to legislate national policy or set the 2011 federal budget is like allowing a fired employee to run the office another two months, or letting your ex-spouse continue managing your checkbook.

Lame duck sessions were unavoidable before jet planes. The framers of the U.S. Constitution provided 17 weeks for newly elected members to travel to the capital and take their seats on March 3. That was the 18th century.

In 1933, Americans ratified the 20th Amendment to eliminate lame duck sessions. It set Jan. 3 as the day newly elected members would take their seats. That still left seven weeks after the election, but no one imagined that the old Congress would return to the capital during that time.

For a half-century, the 20th amendment worked. Except during World War II and the Korean War, Congress did not reconvene after November elections. But for the last two decades, lawmakers have hurried back to the capital after Election Day to deal with spending bills and controversial legislation they deliberately had avoided before the election.

It's time to fix the problem. Rep. Tom Price (R., Ga.) tried last summer, unsuccessfully offering a resolution proposing Congress not reconvene after Nov. 2, except in the event of an unforeseen national emergency. Mr. Price warned that otherwise a lame duck Democratic majority would try to push through an extravagant 2011 spending bill and controversial policy measures "out of step with mainstream America."

This is exactly what's happening now. The Democratic majority is pushing for an omnibus spending bill totaling $1.1 trillion.

Discretionary spending soared 24% during the past two years. Republicans want to push it back down to 2008 levels. To achieve this goal, Senate Republicans should filibuster to stop the omnibus spending bill, delaying action until after Jan. 3. Stopping it is vital not only to shrink government spending but also to defund ObamaCare.

The midterm election was in good part a repudiation of ObamaCare. Repeal is unlikely while President Obama remains in office, but the new Republican House majority that will take charge on Jan. 3 can starve the beast.

The Obama health law authorizes spending on many discretionary programs, but each year Congress will have to appropriate money.

If Republicans say "no" to the Democrats' lame duck omnibus bill, then in January Republicans can write numerous, specific appropriations bills that fund federal departments but bar money from being used to implement the new health law. They can prohibit funds appropriated for the Internal Revenue Service from being used to hire agents to enforce compulsory insurance, and bar funds for the Department of Health and Human Services from being used to write ObamaCare regulations.

On Nov. 14, President Obama said Republicans should not carry their election strategy—"all about saying no"—into the lame duck session of Congress, because it will cause gridlock. The president is wrong. The unrepresentative lame duck Congress should do as little as possible. The one exception should be negotiating an extension of the Bush tax rates. That is essential, because otherwise taxpayers will automatically be hit with increases. On every other matter, the less done the better.

When John Boehner, the presumptive House speaker, takes charge in January, he should introduce a bill providing that Congress will not meet between the November 2012 election and Jan. 3, 2013. That simple change in the law will put the voters back where they always belong: in charge.

Ms. McCaughey, a former lieutenant governor of New York state, is the author of "Obama Health Law: What It Says and How to Overturn It" (Encounter Books, 2010).

"Support and Defend the Constitution"

2010-11-03T11:37:00.000-07:00

Welcome, Senate Conservatives

Remember what the voters back home want—less government and more freedom.

By JIM DEMINT

Congratulations to all the tea party-backed candidates who overcame a determined, partisan opposition to win their elections. The next campaign begins today. Because you must now overcome determined party insiders if this nation is going to be spared from fiscal disaster.

Many of the people who will be welcoming the new class of Senate conservatives to Washington never wanted you here in the first place. The establishment is much more likely to try to buy off your votes than to buy into your limited-government philosophy. Consider what former GOP senator-turned-lobbyist Trent Lott told the Washington Post earlier this year: "As soon as they get here, we need to co-opt them."

Don't let them. Co-option is coercion. Washington operates on a favor-based economy and for every earmark, committee assignment or fancy title that's given, payback is expected in return. The chits come due when the roll call votes begin. This is how big-spending bills that everyone always decries in public always manage to pass with just enough votes.

But someone can't be bribed if they aren't for sale. Here is some humble advice on how to recognize and refuse such offers.

First, don't request earmarks. If you do, you'll vote for legislation based on what's in it for your state, not what's best for the country. You will lose the ability to criticize wasteful spending. And, if you dare to oppose other pork-barrel projects, the earmarkers will retaliate against you.

In 2005, Sen. Tom Coburn (R., Okla.) offered a measure to kill funding for the infamous "Bridge to Nowhere." Before the vote, Sen. Patty Murray (D., Wash.), an appropriator, issued a warning on the Senate floor.

"If we start cutting funding for individual projects, your project may be next," she said. "When Members come down to the floor to vote on this amendment, they need to know if they support stripping out this project, Senator Bond [a Republican appropriator] and I are likely to be taking a long, serious look at their projects to determine whether they should be preserved during our upcoming conference negotiations."

The threat worked. Hardly anyone wanted to risk losing earmarks. The Senate voted 82-15 to protect funding for the Bridge to Nowhere.

Second, hire conservative staff. The old saying "personnel is policy" is true. You don't need Beltway strategists and consultants running your office. Find people who share your values and believe in advancing the same policy reforms. Staff who are driven by conservative instincts can protect you from unwanted, outside influences when the pressure is on.

Third, beware of committees. Committee assignments can be used as bait to make senators compromise on other matters. Rookie senators are often told they must be a member of a particular committee to advance a certain piece of legislation. This may be true in the House, but a senator can legislate on any matter from the Senate floor.

Fourth, don't seek titles. The word "Senator" before your name carries plenty of clout. All senators have the power to object to bad legislation, speak on the floor and offer amendments, regardless of how they are ranked in party hierarchy.

Lastly, don't let your re-election become more important than your job. You've campaigned long and hard for the opportunity to go to Washington and restore freedom in America. People will try to convince you to moderate conservative positions and break campaign promises, all in the name of winning the next race. Resist the temptation to do so. There are worse things than losing an election—like breaking your word to voters.

At your swearing-in ceremony, you will, as all senators do, take an oath to "support and defend the Constitution." Most will fail to keep their oath. Doing these five things will help you maintain a focus on national priorities and be one who does.

Congress will never fix entitlements, simplify the tax code or balance the budget as long as members are more concerned with their own narrow, parochial interests. Time spent securing earmarks and serving personal ambitions is time that should be spent working on big-picture reforms.

When you are in Washington, remember what the voters back home want—less government and more freedom. Millions of people are out of work, the government is going bankrupt and the country is trillions in debt. Americans have watched in disgust as billions of their tax dollars have been wasted on failed jobs plans, bailouts and takeovers. It's up to us to stop the spending spree and make sure we have a government that benefits America instead of being a burden to it.

Tea party Republicans were elected to go to Washington and save the country—not be co-opted by the club. So put on your boxing gloves. The fight begins today.

Mr. DeMint is a Republican senator from South Carolina.

Separation of Church & State: In the Constitution?

2010-10-24T10:10:00.000-07:00

This article reprinted from http://www.redstate.com/alexashrugged/2010/10/21/church-state-and-the-first-amendment-what-coons-needs-to-know/

I read this article by Ken Paulson, the President of the First Amendment Center and had to respond to almost everything he wrote.
Church, State and the First Amendment: What O’Donnell needs to know
Sometimes political debates generate light as well as heat.
Delaware Republican Senate candidate Christine
O’Donnell’s question "Where in the Constitution is the separation of
church and state?" in an exchange Oct. 19 over teaching creationism in public schools
tells us something about her but also reminds us of how often America’s
bedrock principles on government and religion are misunderstood.
Democratic candidate Chris Coons was quick to tell
O’Donnell that religion and government are kept separate by the First
Amendment.
"You’re telling me that’s in the First Amendment?" she responded.
Indeed it is.
Indeed it is NOT! O’Donnell explicitly asks where in the Constitution the words "separation of church and state" appear and when Coons wrongly asserts it is in the First Amendment she seeks to clarify that he is indeed making the false statement that it is in the First Amendment.
Here’s a quick take on what the First Amendment says — and doesn’t say:
Keeping government out of religion and religion out of government is a core principle of the First Amendment.
The first 16 words say, "Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof."
Keeping government out of religion is spelled out in the first 16 words, but what in those words keeps religion out of government and where are the words "separation of church and state" that Coons says can be found there?
That means government can’t limit our personal faith or favor one
religion over others. [Yes] . It also means that creationism cannot be taught in
America’s public schools.
Um, whaaaaaaat??? That is quite a leap! Maybe that part can be found in the mythical version of the Constitution where the words "separation of church and state" appear…
The separation of church and state has been a cornerstone of American ideals for centuries.
As early as 1640, Rhode Island founder and theologian Roger Williams
cited the need for "a hedge or wall of separation between the garden of
the church and the wilderness of the world."
Perhaps a better indication of the cornerstone of American ideals comes from the Declaration of Independence. This non-secular document signed by the Continental Congress acknowledges that our rights are given from God. It also references "Nature’s God," "a firm Reliance on the Protection of divine Providence," and "appealing to the Supreme Judge of the World." Does this sound like the beginnings of a nation that would want to keep church and state separate?
James Madison, the author
of the Bill of Rights, would later explain the need for this separation,
saying, "religion and Govt. will both exist in greater purity, Â the
less they are mixed together."
Madison says church and state are respectively best when their joining is kept to a minimum. That is not the same as saying that there must be a separation of church and state, nor is it saying that that is what was intended in the First Amendment.
Fortunately, there are Congressional transcripts that can tell us what was discussed DURING the drafting of the Bill of Rights:

"Mr. Madison thought, if the word national was inserted before religion, it would satisfy the minds of honorable gentlemen. He believed that the people feared one sect might obtain a pre-eminence, or two combine together, and establish a religion to which they would compel others to conform. He thought if the word national was introduced, it would point the amendment directly to the object it was intended to prevent…"
Clearly Madison’s concern was the establishment of a national religion on the whole country - kind of like how there’s a Church of England - and NOT with abolishing religion from government altogether.
The words "separation of church and state" appear nowhere in the Constitution.
That’s true, [Thank you! ] and O’Donnell’s camp now says that’s what she really
meant.["NOW" says? It was clear from the beginning that was what she meant! ] The phrase stemmed from a letter Thomas Jefferson wrote to the
Danbury Baptist Association in 1802. He cited the language of the First
Amendment and said that it built "a wall of separation between Church
and State." This was not just some poetic flourish. This was one of the
nation’s founders and author of the Declaration of Independence
explaining exactly what the First Amendment means.
At least Paulson is careful here in saying that Jefferson was a founder and author of the Declaration - he was NOT an author of the Constitution. In fact, he was in Europe while it was being drafted and his letter was written 10 years after the First Amendment was ratified. While Jefferson is certainly an important forefather whose opinions are key to our understanding of the founding of our nation, he was not present and did not participate in the debates on the Bill of Rights and thus could not "explain[] exactly what the First Amendment means."

Later in the debate, O’Donnell challenged Coon to

name the five freedoms of the First Amendment. He came up four freedroms
short.
Welcome to the club. First Amendment Center surveys show that most
Americans can name just one freedom in the First Amendment and only one
in 25 can name all five — freedom of religion, freedom of speech,
freedom of the press and the rights of petition and assembly.
"Welcome to the club"??!! That’s all he gets for not knowing a basic tenet of the Constitution?! While O’Donnell gets a long lecture despite her being correct that "separation of church and state" is nowhere written in the Constitution and Bill of Rights?!

Obviously this article was not written to inform or correct the record on the First Amendment, but to provide political cover for Coons’ errors and continue the incorrect narrative that O’Donnell didn’t know her Constitution.
Crossposted at AlexaShrugged .

Dangers of a "Living Constitution"

2010-10-16T09:22:00.000-07:00

Constitutional Conservatism is Vital - Ken Blackwell

Ken Blackwell, a contributing editor at Townhall.com, is a senior fellow at the Family Research Council and the American Civil Rights Union.

Congressman Jim McGovern (D-Mass.) was being pressed in a live TV debate, so he may be excused for blurting out the truth. Here’s a portion of what very liberal Mr. McGovern said:

We have a lousy Supreme Court decision [in the Citizens United case] that has opened the floodgates, and so we have to deal within the realm of constitutionality. And a lot of the campaign finance bills that we have passed have been declared unconstitutional by the Supreme Court. I think the Constitution is wrong. I don’t think that money is the same thing as human beings."

What a stunning statement! There are several things to consider in this argument. For us as constitutional conservatives, it’s entirely acceptable to disagree with the U.S. Supreme Court. I say every day that Roe v. Wade was a terrible decision and should be corrected. The Kelo ruling set a dangerous precedent. That 2005 case allowed the City of New London to condemn a private homeowner’s beautiful house, not for a bridge or tunnel, not for a fort or a federal highway, but simply because the city government could gain more revenue by taking the house and leasing the property to a private developer! That’s a shocking ruling. If that ruling is not corrected, your home will no longer be your castle, it will only be your trailer.

Congressman McGovern doesn’t take issue with the Supreme Court, however, he says the Constitution itself is wrong. Did Mr. McGovern take an oath to support the U.S. Constitution? Does he consider himself bound by his oath?

Sure, you can responsibly disagree with portions of the Constitution. Ronald Reagan, for example, disagreed with the two-term limit for President. He thought the Twenty-second Amendment had been a mistake. But Reagan dutifully left office after two terms. Reagan would have supported an amendment to repeal the Twenty-second Amendment, but as long as it was in the Constitution, he felt bound to respect it.

In Congressman McGovern’s case, however, we see why liberals believe in a “living Constitution.” The living Constitution idea was characterized by Justice Scalia as a Magic Slate. You can write on it, get the interpretation you want, then lift up the plastic screen, and re-write your constitution, according to the passions of the moment.

I think Mr. McGovern is wrong in his analysis of the Citizens United ruling. The Supreme Court did not say that money was more important, or even the same thing, as human beings. It said nothing like that. What the Court did say is that you don’t lose your First Amendment rights because you express your ideas through a corporation, a union, or a non-profit organization.

In striking down major portions of the McCain-Feingold Act, the Supreme Court ruled that government cannot stop pro-life groups, for example, from highlighting the records of politicians like Jim McGovern before an election. By preventing pro-life citizens from drawing voters’ attention to how their elected representatives actually vote, this unwise and unconstitutional measure denied citizens their rights to communicate about political matters. That’s one of the main reasons for the First Amendment’s protection of free speech.

Now that he mentions it, does Jim McGovern really think “money is [not] the same as human beings?” If so, maybe he’ll join Congressman Mike Pence’s (R-Ind.) drive to de-fund Planned Parenthood. That outfit gets billions in taxpayer funds and it kills 350,000 unborn children—undeniably human beings—every year.

It would be great to welcome Jim McGovern to the ranks of those of us who believe human lives are more important than money. I’m not cynical, but I must admit I have doubts that Mr. McGovern, should he win re-election next month, will put his fine words into practice when it comes to unborn children.

Now, we can see why “constitutional conservatism” is important. Without a firm reliance on the Constitution as our anchor, the entire ship of state is adrift. Under the current administration and the current Congress, our ship of state is headed for the rocks.

Restoring Our Heritage

2010-10-11T06:48:00.001-07:00

Congressman Offers Blueprint to Restore the Republic

by Christian Toto Posted 10/10/2010 ET

Rep. Devin Nunes doesn’t need several hundred pages to explain his plans for America’s resurgence.

In Restoring the Republic: A Clear, Concise, and Colorful Blueprint for America‘s Future, the California Republican breaks down the game plan in well under 200 pages. It’s a no-nonsense book that diagnoses the country’s current ills and offers solutions in a straightforward way even Ed Schultz can grasp.

Today’s politicians, Democrats and some Republicans alike, hearken back to the Federalists who gave Thomas Jefferson fits during the country's earliest days, Nunes writes. They crave a powerful central government that inevitably leads to less freedom for all.

The congressman begins by recalling the fear mongering that greeted the passage of TARP (Troubled Asset Relief Program), the bank bailouts that we were told were the only way to prevent an economic catastrophe. The national conversation “was insulting to the intelligence of the American people,” he writes, but both parties succumbed to the rhetoric.

Today, the bailout critics seem to be multiplying and often the very same legislators who approved TARP are the ones decrying it now. But the bailouts were only the first in a series of assaults against common sense—and the country’s coffers. The Obama Administration’s healthcare reform package instigated a whole new entitlement program and cooked the books to make it seem like the country could afford it.

The solutions offered in Restoring start with a call to end redistricting trickery, even though that’s a subject that barely registers on the voters’ collective radar. Nunes argues that the gerrymandering of voting districts helps keep politicians in power rather than making them accountable to their constituents. It’s a practice both parties too eagerly embrace.

“Today’s gerrymandered congressmen are like old European royals … who knew they could never survive free and fair elections,” he writes.

The country’s need for efficient energy is in constant peril thanks to the environmentalist lobby. Its bullying tactics all but silence critics despite overheated claims and the group's anti-human tendencies. That’s one reason the global-warming brigade poses such a threat. Environmentalists use warming claims to instigate measures like cap-and-trade that could cripple the economy. And, when the globe doesn’t warm as planned, they simply exchange the term “global warming” for “climate change” and start anew, he says.

Nunes offers a multi-pronged approach to energy in the 21st Century, combining drilling in ANWR (Arctic National Wildlife Refuge), with the construction of new nuclear power plants and embracing coal refinements.

Nunes targets the “big three” next, the trio of entitlement programs that pose such a danger to the country’s fiscal house. Why not give Americans more control of the money taken out of their paychecks to pay for Social Security, Medicaid and Medicare, Nunes asks? If it’s good enough for members of Congress, who receive personal accounts called Thrift Savings Plans, than it should be just right for Joe and Jane American.

When the country’s top economic guru, Treasury Secretary Timothy Geitner, can’t help running afoul of tax trouble, it’s a safe bet the system could use some streamlining. And despite the combination of personal and corporate income taxes, capital gains taxes, estate taxes, sales taxes and local property taxes—just to name a few—the country has run up a staggering deficit.

The Obama Administration is likely planning another massive tax to foist on the public—a value added tax—meant to attack that deficit. So Nunes recommends a fair tax solution for California, a state already bogged down by job-killing bureaucracy. Its high tax rates and staggering deficit would make it the perfect place to start such an individualized approach, one that could later be copied by other distressed states.

Immigration reform also demands our attention because of the increasing drug-related violence roiling across our Southern border. Nunes shares anecdotes from newly christened Americans to hammer home how vital the immigrant experience is to the country. Then, he shares a three-point plan to fix the illegal immigrant problem: Rigorously securing the border with U.S. forces and touchback and guest worker programs to settle the chaotic situation at long last.

Restoring the Republic also looks at the looming threats across the globe from the rise of radical Islam to the combative regime in Iran. But fixing our domestic issues should be the first step toward addressing foreign policy matters. This country can’t support the Iranian freedom fighters and Venezuelans opposed to Hugo Chavez if our house of financial cards teeters toward collapse.

“Our rivals and enemies, of course, know full well where our weaknesses are and they craft their strategies accordingly,” he writes.

Restoring the Republic promises to give those enemies fits if modern politicians would consider the lessons explained so well within its pages.

Mr. Toto is a freelance reporter

It's Our Money, Not the Government's

2010-09-16T19:15:00.001-07:00

Steve Czonstka

Okaloosa GOP SCM

4554 Redbud Trail

Niceville, FL 32578-8768

850 897-4775

tmezonk@cybertron.com

http://constitconserv.blogspot.com

http://constitutionalheritage.wordpress.com/

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The Difference Between Thine and Mine

By J.T. Young on 9.16.10 @ 6:08AM

The President's budget reform panel is being encouraged to sniff for smoke in the midst of flames. At its latest public meeting it was told that tax breaks are "backdoor spending." There is a two-fold problem in accepting such an equivalence. First, the nation's fiscal predicament is not any so-called "backdoor spending," but uncontrolled "front door" spending. Second, not only are the two not quantitatively comparable, they are not qualitatively so either.

The budget reform panel, officially named the National Commission on Fiscal Responsibility and Reform, is akin to a fire marshals' convention in a burning building. How hard could it be to follow the flames to an inferno? In the case of the federal budget, the government is spending a quarter of all America produces -- the highest peacetime level in U.S. history.

Still, at its latest meeting, outside witness Maya MacGuineas, of the Committee for a Responsible Federal Budget, identified so-called "tax expenditures" as "the most important area of the budget to reform." She went on to state that it was her organization's belief that all stipulations applied to spending should apply to such tax breaks too.

This is no less than ignoring the fire in search of the flammable.

First, it is important to understand what tax expenditures are: exemptions within the regular tax code. These allow individuals to pay less in taxes than they otherwise would -- such as the mortgage interest deduction. They are tax breaks, in other words.

From an economic standpoint, tax expenditures have their detractors because they use the tax code to intervene in the market. The market itself should decide where investments and spending go, not tax breaks that encourage one course over another. In their opinion, the goal should be for neutrality between decisions.

From a tax policy perspective too, there are critics. They believe the goal should be the broadest, fairest, flattest, and simplest system possible. Exceptions mean taxes must be higher elsewhere, in order to raise the same amount of intended revenue.

With so many reasons to question them, it is easy to denigrate them. So why then seemingly defend them? Because it is all too easy to make a fundamental mistake in equating them with government spending. And that error opens the door to an even more serious one.

Admittedly, it is easy to mistake tax expenditures for spending from a fiscal standpoint. As a subtraction from the ledger's revenue side, their effect is akin to an addition to the ledger's spending side.

It is from the qualitative perspective where tax expenditures and spending are significantly dissimilar. Tax expenditures amount to allowing someone to keep more of the money they have earned. They keep a person's money with its earner.

Federal spending is the use of someone else's money by the federal government. It is giving someone else's money to another person. Regardless of how well-intentioned, federal spending remains the distribution of the general taxpayer's money to another individual.

The use of one's own money and the use of someone else's money are not the same thing.

If tax expenditures are to be examined as part of a broader budget reform proposal -- and there are certainly reasons to do so -- any revenue saved should be set aside for reducing the underlying tax rates. The last thing an elimination of tax expenditures should be used for is offsetting more federal expenditures.

This is why the distinction between tax expenditures and federal expenditures is so important. Blurring their sharp distinction only makes it easier to continue the current fiscal fiasco: the government's use of others' money as if it were the government's.

Federal spending is our fiscal problem, but even this is symptomatic of a larger philosophical one: the inability to distinguish between "thine and mine." Without that distinction, there is no theoretical brake on federal spending. The government can simply continue to arrogate more of the nation's resources to itself and its own self-defined better intentions.

To fix the nation's fiscal problems, we must control its spending. To control spending, we must recognize that the money is not government's, but taxpayers'. And to do that we must acknowledge that taxpayers have a greater claim on their money than the government ever can.

If we are going to talk of reform, we must at least start from a common understanding, and an accurate one, of what real reform entails. This can not be done, if we fail to properly recognize what should be the first fundamental principle between a government and its citizens.

J.T. Young served in the Department of Treasury and the Office of Management and Budget from 2001 to 2004 and as a Congressional staff member from 1987 to 2000.

17th Amendment:Big Government

2010-09-07T06:24:00.000-07:00

History Lesson 2010

By Ross Kaminsky on 9.7.10 @ 6:09AM

When Colorado Republican Senate candidate Ken Buck briefly (and temporarily) suggested support for allowing state legislatures rather than the public to select U.S. senators, he stuck his well-known bovine digestive refuse-covered boots into the messy civics lesson that is the 2010 election.

For the first time during my 25 years of following politics, people who have the poor taste to bring up (in public!) the Founders, the Constitution, the Declaration of Independence, natural rights, and basic precepts of good government are no longer automatically judged to be wacko fringe extremists and likely members of "militias," nor automatically tagged with the perennial establishment insult of "libertarian" -- being called which has always been my own version of Br'er Rabbit being thrown into the briar patch.

The American public, with minds largely uncluttered -- just how the left wants you -- by a basic education in what used to be called "civics" (then "social studies," and now "comparative Native American basket weaving philosophies -- see footnote on page 273 for information on George Washington"), is learning the importance of fundamental American precepts the hard way: by living through government of, by, and for people who dislike, distrust, and completely misunderstand those precepts.

The day after Mr. Buck expressed his position on legislatures selecting senators, he retracted that position and has restated his current position -- leaving the election of senators in the hands of the public -- multiple times since. The Democratic Senatorial Campaign Committee ("DSCC") nevertheless ran an ad calling Buck's idea "radically different," saying Buck wants to "rewrite the Constitution" and "end our right to vote."

The message of the DSCC is that Ken Buck, a mainstream conservative Republican, is "extreme." But the presumption of their message is that Americans are too ignorant of our own history to know that Ken Buck's original suggestion represented little more than returning to the system of senatorial selection preferred by our Founders and which was in place for the majority of our republic's history.

In particular, the United States Constitution in its original form said in Section 3, Clause 1 that "The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof…" It was not until the 17th Amendment, passed by Congress in 1912 and ratified in 1913, that "chosen by the Legislature" was changed to "elected by the people."

The DSCC's ad is doubly dishonest: It says that Buck holds a position which they know he doesn't hold, and they portray the position as radical even though it represents the system which was in place for 55% of the time since our Constitution was adopted. Unfortunately, the DSCC is rightly betting that few who see the ad will know this history (or that Buck doesn't support the repeal of the 17th Amendment.)

What people should -- but mostly won't -- learn from the DSCC's ad is nothing about Ken Buck and a lot about the impact of the 17th Amendment. It's not as if the small handful of (Republican) candidates for federal office who have suggested its repeal will be able to get more than a 5 second discussion on the issue from John Boehner. (OK, 5 seconds is an exaggeration since Boehner's likely response of "What planet are you from?" can be scornfully delivered in two seconds flat. I timed it myself.) But even the mention of the idea seems to scare the DSCC -- as it should, more than it should scare any other group on the planet.

The 17th Amendment is a direct attack on federalism and one of the greatest transfers of power from the states to the federal government, and particularly to Democrat senators, in our nation's history. In a moment of remarkable candor, a U.S. government website states directly that the change was pushed by "Progressive reformers." It's no wonder; they knew exactly what they were doing.

In an important paper on "The History of the Seventeenth Amendment and its Implications for Current Reform Proposals," George Mason University law professor Todd Zywicki makes some key points:

• The Senate was intended "to provide an anti-democratic role under the Constitution, an American version of the English House of Lords designed to check the democratic excesses of the House of Representatives…"

• "Appointment of Senators by state legislatures gave the states a constituent role in the national government and a means to protect themselves from laws emanating from Washington designed to subvert state sovereignty and independence."

• Following the passage of the 17th Amendment, "the 1920s showed for the first time federal intervention in traditional state functions, and the first use of federal grants to the states -- along with accompanying federal control. Moreover, the state governments have more and more been downgraded from independent policy-making bodies to mere instrumentalities of the federal government… Indeed, it is inconceivable that a Senator during the pre-Seventeenth Amendment era would vote for an 'unfunded federal mandate,' thereby requiring state legislatures to raise taxes and spend money on projects they did not devise and for which they receive no political benefit."

(You can hear a Cato Institute podcast on the topic with Todd Zywicki here.)

Even Alexander Hamilton, the leading champion among the Founders of a powerful central government, said (in Federalist 59) that while there is risk to the central government from a system in which state legislatures choose senators, a system which had direct election of senators "would doubtless have been interpreted into an entire dereliction of the federal principle; and would certainly have deprived the State governments of that absolute safeguard which they will enjoy under this provision."

The threads of the original intent -- and why Democrat senators in particular would want those threads shredded -- quickly become clear. Weakening a senator's connection to his state and putting him in a position to buy citizens' votes with other people's money -- standard operating procedure for both of today's major political parties -- erodes any incentive to protect federalism or to fight for limited, low-cost government.

Direct election of Senators turns them into slightly-glorified Representatives, people who work in a body with slightly different rules and who can wait 3 or 4 years before putting on a full-court fund-raising press before their next elections rather than House members who have to shake their tin cup for campaign funds barely 12 months after an election. It's a distinction without a difference, but a real difference is what our Founders intended for good reason.

To be sure, the repeal of the 17th Amendment would not necessarily change much. Even if not required by the federal Constitution to have popular election of senators, most states would simply implement that same policy on a state level -- as many did at the urging of Progressives prior to the amendment's passage. Furthermore, the sad history of the past several decades in which the federal government peddled its opiate of "block grants" and "highway funds" other "free" money to the now-addicted states is something that will require a rather potent budget-methadone treatment that many citizens -- and most politicians -- might not be able to handle.

But just having the discussion about repealing the 17th Amendment -- and I thank Ken Buck for bringing it up while wishing he had the courage to stick with his gut instinct -- represents a valuable service to Americans by stoking a much-needed national remedial civics lesson. When the Constitution becomes a topic for public debate, it forces Democrats and Progressives to explain why they routinely ignore, dismiss, or attack the Constitution with their ultra-expensive Nanny State policies and their faux philosophies of government such as a "living Constitution." And when our Constitution takes center stage in political discussion, particularly when it can be shown that we ignore it at our own peril, America takes a baby step toward relearning the value of our Founding documents and principles. When even Germans are telling us that "America has become too European," the civics lesson can't come a moment too soon.

Ross Kaminsky is a professional derivatives trader, a fellow at the Heartland Institute, and a frequent contributor to Human Events. He blogs at Rossputin.com.

A Fourth Branch of Government

2010-09-04T14:51:00.000-07:00

Judges Gone Wild!

By Robert F. Sanchez, JMI Policy Director
“Let the people vote!” That was the media’s hue and cry when the Legislature rebuffed Governor Crist’s plea to pass a constitutional amendment barring oil drilling in Florida waters. As House Speaker Larry Cretul noted, calling an emergency special session was unnecessary. Florida law already bans offshore drilling, and nobody was inclined to change that law anytime soon – especially not while the investigation into BP’s oil spill continued.

Yet that was then; this is now. So, where’s the media hue and cry now that the liberal wing of the Florida Supreme Court has denied Floridians the right to vote on not one, not two, but three proposals that the Legislature had placed on the November ballot?

One proposal would have clarified the contradictory redistricting standards mandated by two petition-driven amendments the Court cleared. Another would have offered property-tax relief. A third would have let Floridians have a say on “Obamacare” and its mandate that everyone must buy health insurance.

Meanwhile, another proposal tentatively scheduled for the November ballot – the amendment the Legislature proposed to ease some of the class-size amendment’s rigid restrictions – is also under attack by the usual suspects, including the teachers union.

Also awaiting the Florida Supreme Court’s eventual scrutiny are two other troubling examples of judicial activism. One is a lower court ruling that a 2009 law modifying the state’s growth-management system is somehow “unconstitutional.” The other is a judge’s ruling that lets plaintiffs proceed with a lawsuit complaining that the Legislature isn’t “adequately” funding education.

Taken together, these rulings suggest an urgent need for revisions in Florida’s civics curriculum. Instead of three branches of government – judicial, executive, and legislative – Florida now has a fourth: an all-powerful entity wherein appointed judges legislate from the bench.

Who Will Lead the Supermajority?

2010-09-01T06:49:00.000-07:00

The New American Supermajority

By Peter Ferrara on 9.1.10 @ 6:08AM

The aerial photograph does not lie. Glenn Beck's Restoring Honor Rally drew just about as many people as any other rally ever held at the Lincoln Memorial.

I took the train into town from home in Northern Virginia, packed in like in those Tokyo subway video clips, even though I was late. I marched down to the Memorial from the nearest subway stop at Foggy Bottom, where the D.C. bureaucrats had helpfully disabled the steep escalators from the underground tubes to greet the half a million or more celebrants of liberty on the way in.

From my perspective on the ground, arriving late at about 11:15 (the rally started at 10), I could never get close enough to the podium even to see. But I could hear. And that was all I needed.

On his radio and TV shows, Beck has emphasized economics, political history, and near libertarian political philosophy. He has previously indicated his personal belief in God. But in this speech, he revealed a vision that encompasses the whole Reagan coalition from 1980.

Beck tutored me once again with his insight that the founders grew up in an America where the evangelist George Whitefield crisscrossed the colonies inspiring a national religious revival, that they probably personally heard or read Whitefield sermons, and that this foundation informed their work in later founding America.

Of course, Whitefield himself suffered some moral blindness and shortcomings, as has Beck in his past, as we all have. That is why we all need God. As Beck said in explaining the message of the event:

Saturday's message -- shhh! It's a big secret. I've only talked about it for six months on one of the biggest cable news shows in history and the third largest radio show in America…so…just between us. Don't anyone tell the media: The secret is God…We're running low on personal responsibility. We've got a loss of integrity, a loss of shame in this country, a loss of principles and values. We've lost our way because we have lost God…. And hopefully, we will mutually pledge to each other, our lives, our fortunes, and our sacred honor [as the signers of the Declaration of Independence did]. At least we will begin to look at those things, start to maybe challenge that we haven't valued those things high enough --honesty, integrity, merit, personal responsibility, family, and God. That is why we call it the "Restoring Honor" event.

And that is why the event involved spotlighting those in the military who have earned honor by demonstrating merit, something many in the media also couldn't understand. Beck explained that this is the road to the revival of America: "We have lost our honor. We must restore our honor first, our principles."

But Beck's point about Whitefield made clear to me that the Reagan coalition, which Beck embodies quite well, goes all the way back to 1740, and was the foundation of the American Revolution itself. Indeed, it goes all the way back to the Mayflower Compact.

The 70% Supermajority

Beck kept emphasizing to the crowd, "You are not alone." That is fully documented in Arthur Brooks' brilliant new book, The Battle: How the Fight Between Free Enterprise and Big Government Will Shape America's Future. Indeed, Brooks goes on to make much the same argument as Beck and his Restore Honor rally, but in purely secular, academic, carefully logical terms. Brooks writes:

Whether we look at capitalism, taxes, business, or government, the data show a clear consistent pattern: 70 percent of Americans support the free enterprise system and are unsupportive of big government. By contrast, somewhere between 20 and 30 percent of the adult population opposes free enterprise and prefers government solutions to our problems.

Here's a wow moment from the book. An April 2009 survey of registered voters asked which of the following statements about the role of government comes closer to your view:

(a) Government should promote fairness by narrowing the gap between rich and poor, spreading the wealth, and making sure that economic outcomes are equal.

(b) Government policies should promote opportunity by fostering job growth, encouraging entrepreneurs, and allowing people to keep more of what they earn.

Only 31 percent chose (a), which is the foundational view of the liberal/left. Over twice as many, 63 percent, chose (b), which is a classic formulation of the conservative, libertarian, free market philosophy. And this was at the height of the reign and popularity of Obama's liberal/left regime.

Brooks also recounts that in March 2009 the Pew Research Center asked Americans: "Generally, do you think people are better off in a free market economy, even though there may be severe ups and downs from time to time, or don't you think so?" Brooks reports that 70 percent agreed they were better off in a free market economy. Only 20 percent disagreed. And this was at the depths of the financial crisis, when the American people lost trillions in financial wealth, in their homes and in the stock and bond markets. Brooks adds:

Free enterprise is even more popular than [the terms] capitalism and free markets. In the same Gallup poll mentioned above [January 2010], a stunning 86 percent have a positive image of free enterprise. Only 10 percent have a negative image. Similarly, 84 percent have a positive image of entrepreneurs, while just 10 percent see them negatively.

On taxes, Brooks reports a spring 2009 poll finding that "69 percent of Americans think the top federal tax rate should be 20 percent or lower. Even 62 percent of Democrats think this." A 2009 Pew Values Survey found that "76 percent of Americans believe the strength of this country is mostly based on the strength of American business…. In 2010, Gallup found that 66 percent of American believe that when big business earns a profit it helps the economy, while just 18 percent think it hurts the economy." Also, "51 percent of Americans believe unions hurt rather than help the nation's economy."

On government, Brooks reports a survey which asked, "Overall, would you prefer larger government with more services and higher taxes, or smaller government with fewer services and lower taxes." An overwhelming majority of 69 percent of Americans preferred smaller government, while only 21 percent favored larger government. Moreover, emerging Republican Congressional majorities take note, 63 percent of Americans favor cuts in government spending, with only 14 percent against.

The Moral Foundations of Liberty

But the more fundamental point that Brooks makes is that to win the battle for the future of America, advocates for the 70% majority need to do a better job of advancing their cause. They cannot concede that the left best represents fairness and the true interests of the poor, while focusing only on economic growth and materialistic concerns. They need to go back to the moral foundations for liberty and free enterprise, and explain that free markets best promote true fairness, equality, and human happiness, and the true interests of the poor and working people.

Brooks explains, "The main issue in the new American culture war between free enterprise and statism is not material riches -- it is human flourishing. This is a battle about nothing less than our ability to pursue happiness," which means freedom. But, Brooks adds, "Rarely do we use the aspirational themes necessary to make the moral case for free people and free markets that we know in our hearts is right."

Brooks argues that it is the 30 percent coalition that advances the cold, mechanistic, crassly materialistic view. Just give the poor money, and they will be happy, as will everybody else that matters when we give them money too taken from the rich to attain greater income equality. He explains the moral foundations of the 70% view, saying:

By contrast, the 70 percent majority are New Age radicals. They have simple faith that ingenuity and hard work can and should be rewarded….They know that no amount of unearned money can ever heal the human heart. Money is fine, but it is something else entirely -- something less tangible and more transcendental -- that really brings satisfaction. The 70 percent majority understands that the secret to human flourishing is not money but earned success in life.

People flourish when they earn their own success. It's not the money per se, which is merely a measure -- not a source -- of this earned success. More than any other system, free enterprise enables people to earn success and thereby achieve happiness.

Brooks goes on to explain exactly what is meant by "earned success":

Earned success means the ability to create value honestly -- not by winning the lottery, not by inheriting a fortune, not by picking up a welfare check. It doesn't even mean making money itself. Earned success is the creation of value in our lives or in the lives of others. Earned success is the stuff of entrepreneurs who seek explosive value through innovation, hard work, and passion. But it isn't just related to commerce. Earned success is also what parents experience when their children do wonderful things, what social innovators feel when they change lives, and what artists feel when they create something of beauty.

The point, in other words, is "The big problem is not that unhappy people have less money than others. It is that they have less earned success. Your mother was right: Money can't buy happiness." But the crassly materialistic, redistributionist left misses this point.

Brooks explains the implications of this for public policy:

Knowing as we do that earning success is the key to happiness, rather than simply getting more money, the goal of our political system should be this: to give all Americans the greatest opportunities possible to succeed based on their hard work and merit [Beck's word again]. And that's exactly what the free enterprise system does -- makes earned success possible for the most people. This is the liberty our founders wrote about, the liberty that enables the true pursuit of happiness.

The Equality of Liberty

Included among the moral foundations of liberty is the principle of equality. "But for the large majority of us, this means equality of opportunity, not equality of outcome…. If this leads to income inequality -- above some acceptable floor -- so be it." In other words, the 70% supermajority accepts safety net programs for the truly needy, to ensure that no one suffers in deprivation. But they do not support going beyond this to income redistribution, taking from the successful to give to the less successful just to achieve more income equality. That is just stealing. This is a fundamental, rock bottom principle that we should all promote with more awareness and fervor. As Brooks explains:

The majority believes government should protect the returns for hard work and merit. The 30 percent coalition effectively wants to penalize success…. [But] equality of income is not fair. It is distinctly unfair. If you work harder than a coworker but are paid the same, that is unfair. If you save your money but still retire with the same pension as your spendthrift neighbor, that is unfair. And if you stay in your house and make the mortgage payments even when its value drops but your neighbor walks away from his without recourse, that is unfair.

What most helps the poor, moreover, is not government programs, but free market opportunity and prosperity. Brooks further explains:

Only free enterprise truly addresses the root causes of poverty. Our solutions are not based on a reslicing of the existing economic pie by government officials and bureaucrats, effectively taking money from the well-off and giving it to the poor through punitive taxation and growing welfare. They are based on an expansion of the pie in ways that will increase everyone's share through policies and a culture that creates incentives for Americans, allows them to tap into the generative power of entrepreneurship, and ultimately lets them earn their own success.

In contrast, "Because they do not strengthen culture and reinforce values, American welfare programs have spectacularly failed to end poverty."

Consequently, let us not forget either the broad public appeal of economic growth and empowerment as a political and policy theme, and the common sense appeal of incentives in explaining how that works. Martin Luther King III told the Huffington Post on the day of the Beck rally that his father in 1967 and 1968 "was focused on economic empowerment….We have made great strides, but somehow we've got to create a climate so that everybody can do well, not just some." That is a tailor made theme for the 70 percent Supermajority as well, as the late Jack Kemp demonstrated during his political career.

Moreover, blue collar labor union activists are really just after prosperity for their families as well. It's just that they don't recognize yet that general free market economic prosperity is the best way to achieve their goals. Better explaining how that works could vault the 70 percent Supermajority into the 85 percent Consensus.

A broad explanation of the appeal of free market economics seems to be necessary to win the votes of the whole 70% coalition. Adding the economic growth theme to Reagan's traditional conservative themes seemed to be what promoted the Republicans from the mid-40s in their share of the vote to a long term governing majority. Because of the workings of the British political system at the time, Margaret Thatcher focusing on consistent conservative themes was able to dominate British politics for a record time with only that same mid-40s share of the vote.

This is not a prediction. But with perceptive leaders like Glenn Beck and Arthur Brooks lighting the way, I am expecting to see an authentic American political giant who truly understands the 70 percent Supermajority liberate America in 2012 with their record setting votes. I just note that authoring the introduction to Brooks' book was Newt Gingrich.

Peter Ferrara is director of entitlement and budget policy at the Institute for Policy Innovation, a policy advisor to the Heartland Institute, a senior fellow at the Social Security Institute, and general counsel of the American Civil Rights Union. He served in the White House Office of Policy Development under President Reagan, and as Associate Deputy Attorney General of the United States under the first President Bush. He is a graduate of Harvard College and Harvard Law School.

First Amendment-More Than Just Religious Freedom

2010-08-30T17:23:00.000-07:00

Amendment I- "Congress shall make no law (1)respecting an establishment of religion, or prohibiting the free exercise thereof; or (2)abridging the freedom of speech, (3)or the press, or (4) the right of the people to assemble, and (5) to petition the Government for redress of grievances."

The World Trade Center Mosque and the Constitution

By MARK HELPRIN

The plan to erect a mosque of major proportions in what would have been the shadow of the World Trade Center involves not just the indisputable constitutional rights that sanction it, but, providentially, others that may frustrate it.

Mosques have commemoratively been established upon the ruins or in the shells of the sacred buildings of other religions—most notably but not exclusively in Cordoba, Jerusalem, Istanbul, and India. When sited in this fashion they are monuments to victory, and the chief objection to this one is not to its existence but that it would be near the site of atrocities—not just one—closely associated with mosques because they were planned and at times celebrated in them.

Building close to Ground Zero disregards the passions, grief and preferences not only of most of the families of September 11th but, because we are all the families of September 11th, those of the American people as well, even if not the whole of the American people. If the project is to promote moderate Islam, why have its sponsors so relentlessly, without the slightest compromise, insisted upon such a sensitive and inflammatory setting? That is not moderate. It is aggressively militant.

Disregarding pleas to build it at a sufficient remove so as not to be linked to an abomination committed, widely praised, and throughout the world seldom condemned in the name of Islam, the militant proponents of the World Trade Center mosque are guilty of a poorly concealed provocation. They dare Americans to appear anti-Islamic and intolerant or just to roll over.

But the opposition to what they propose is no more anti-Islamic or intolerant than to protest a Shinto shrine at Pearl Harbor or Nanjing would be anti-Shinto or even anti-Japanese. How about a statue of Wagner at Auschwitz, a Russian war memorial in the Katyn Forest, or a monument to British and American air power at Dresden? The indecency of such things would be neither camouflaged nor burned away by the freedoms of expression and religion. And that is what the controversy is about, decency and indecency, not the freedom to worship, which no one denies.

Although there is of course no question of reciprocity—no question whatever of a church in Mecca or anything even vaguely like it—constitutionally and if local codes applied without bias allow, there is unquestionably a right to build. Reciprocity or not, we have principles that we value highly and will not abandon. The difficulty is that the principles of equal treatment and freedom of religion have, so to speak, been taken hostage by the provocation. As in many hostage situations, the choice seems to be between injuring what we hold dear or accepting defeat. This, anyway, is how it has played out so far.

The proponents of the mosque know that Americans will not and cannot betray our constitutional liberties. Knowing that we would not rip the foundation from the more than 200 years of our history that it underpins, they may imagine that they have achieved a kind of checkmate.

Their knowledge of the Constitution, however, does not penetrate very far, and perhaps they are not as clever as they think. The Constitution is a marvelous document, and a reasonable interpretation of it means as well that no American can be forced to pour concrete. No American can be forced to deliver materials. No American can be forced to bid on a contract, to run conduit, dig a foundation, or join steel.

And a reasonable interpretation of the Constitution means that the firemen's, police, and restaurant workers' unions, among others, and the families of the September 11th dead, and anyone who would protect, sympathize with and honor them, are free to assemble, protest and picket at the site of the mosque that under the Constitution is free to be built.

A reasonable interpretation of the Constitution means that no American can be forced to cross a picket line in violation of conscience or even of mere preference. Who, in all decency, would cross a picket line manned by those whose kin were slaughtered—by the thousands—so terribly nearby? And who in all decency would cross such a line manned by the firemen, police and other emergency personnel who know every day that they may be called upon to give their lives in a second act?

Michael Bloomberg, the mayor of New York, says of those who with heartbreaking bravery went into the towers: "We do not honor their lives by denying the very constitutional rights they died protecting."

Mr. Mayor, the firemen, the police, the EMTs and the paramedics who rushed into those buildings, many of them knowing that they would die there, did not do so to protect constitutional rights. They went often knowingly to their deaths to protect what the Constitution itself protects: people, flesh and blood, men and women, mothers and fathers, sons and daughters, sisters and brothers. Although you yourself may not know this, they did.

The choice is not between abandoning them or abandoning the Constitution, for although the liberties the Constitution guarantees sometimes put us at a disadvantage even of self-preservation, they also make it possible for 300 million Americans to prevail—reasonably, peacefully, and within the limits of the law—against provocations such as this.

They make it possible to prevent the construction of the mosque at this general location—with no objection whatsoever to, but rather warm encouragement of, its construction elsewhere—not by force or decree but by argument, persuasion, and peaceable assembly. These are rights that the Constitution guarantees as well, and clearly it is one's constitutional right to oppose the mosque, not to participate in the building of it, and to convince others of the same.

This small and symbolic crisis is not a test of constitutional liberties, for in regard to the question at hand the Constitution allows discretion. It is rather a test of how far America can be pushed, and America is not at all as powerless as it has been portrayed.

That is because the street in front of the mosque that the Constitution says can be built can be filled with people who can effectively protest it because the Constitution says that they are free. Those who do not fear to do so need only go there and stand upon their convictions, their beliefs, their reason, their laws, their history, and what is in their hearts.

Mr. Helprin, a senior fellow at the Claremont Institute, is the author of, among other works, "Winter's Tale" (Harcourt), "A Soldier of the Great War" (Harcourt) and, most recently, "Digital Barbarism" (HarperCollins). Copyright 2009 Dow Jones & Company, Inc.

Conservatism Remains Strong

2010-08-28T07:50:00.000-07:00

The Death of Conservatism Was Greatly Exaggerated

In 2008 liberals proclaimed the collapse of Reaganism. Two years later the idea of limited government is back in vogue. By PETER BERKOWITZ

Last August left little doubt that a conservative revival was underway. Constituents packed town-hall meetings across the country to confront Democratic House members and senators ill-prepared to explain why, in the teeth of a historic economic downturn and nearly 10% employment, President Obama and his party were pressing ahead with costly health-care legislation instead of reining in spending, cutting the deficit and spurring economic growth.

Still, whether that revival would have staying power was very much open to question. A year later—and notwithstanding the Democrats' steadily declining poll numbers and the mounting electoral momentum that could well produce a Republican majority in the House and a substantial swing in the Senate—it still is.

Sustaining the revival depends on the ability of GOP leaders, office-holders and candidates to harness the extraordinary upsurge of popular opposition to Mr. Obama's aggressive progressivism. Our constitutional tradition provides enduring principles that should guide them.

In late 2008 and early 2009, in the wake of Mr. Obama's meteoric ascent, the idea that conservatism would enjoy any sort of revival in the summer of 2009 would have seemed to demoralized conservatives too much to hope for. To leading lights on the left, it would have appeared absolutely outlandish.

In late October 2008, New Yorker staff writer George Packer reported "the complete collapse of the four-decade project that brought conservatism to power in America." Two weeks later, the day after Mr. Obama's election, Washington Post columnist E.J. Dionne proclaimed "the end of a conservative era" that had begun with the rise of Ronald Reagan.

And in February 2009, New York Times Book Review and Week in Review editor Sam Tanenhaus, writing in The New Republic, declared that "movement conservatism is exhausted and quite possibly dead." Mr. Tanenhaus even purported to discern in the new president "the emergence of a president who seems more thoroughly steeped in the principles of Burkean conservatism than any significant thinker or political figure on the right."

Messrs. Packer, Dionne and Tanenhaus underestimated what the conservative tradition rightly emphasizes, which is the high degree of unpredictability in human affairs. They also conflated the flagging fortunes of George W. Bush's Republican Party with conservatism's popular appeal. Most importantly, they failed to grasp the imperatives that flow from conservative principles in America, and the full range of tasks connected to preserving freedom.

Progressives like to believe that conservatism's task is exclusively negative—resisting the centralizing and expansionist tendency of democratic government. And that is a large part of the conservative mission. Progressives see nothing in this but hard-hearted indifference to inequality and misfortune, but that is a misreading.

What conservatism does is ask the question avoided by progressive promises: at what expense? In the aftermath of the global economic crisis of 2008, Western liberal democracies have been increasingly forced to come to grips with their propensity to live beyond their means.

It is always the task for conservatives to insist that money does not grow on trees, that government programs must be paid for, and that promising unaffordable benefits is reckless, unjust and a long-term threat to maintaining free institutions.

But conservatives also combat government expansion and centralization because it can undermine the virtues upon which a free society depends. Big government tends to crowd out self-government—producing sluggish, selfish and small-minded citizens, depriving individuals of opportunities to manage their private lives and discouraging them from cooperating with fellow citizens to govern their neighborhoods, towns, cities and states.

Progressives are not the only ones to misunderstand the multiple dimensions of the conservative mission. Conservatives have demonstrated blind spots, too.

In 2010—in an America in which the New Deal long ago was woven into the fabric of our lives—conservatives can not reasonably devote themselves exclusively to limiting the growth of government. Government must effectively discharge the responsibilities it has had since the founding of the republic, but also those it has acquired over more than two centuries of social, political and technological change.

Those responsibilities include putting people to work and reigniting the economy—and devising alternatives to ObamaCare that will enable the federal government to cooperate with state governments and the private sector to provide affordable and decent health care.

A thoughtful conservatism in America—a prerequisite of a sustainable conservatism—must also recognize that the liberty, democracy and free markets that it seeks to conserve have destabilizing effects. For all their blessings, they breed distrust of order, virtue and tradition, all of which must be cultivated if liberty is to be well-used.

To observe this is not, as some clever progressives think, to have discovered a fatal contradiction at the heart of modern conservatism. It is, rather, to begin to recognize the complexity of the conservative task in a free society.

To be sure, the current conservative revival was not in the first instance inspired by reflection on conservative principles.

The credit for galvanizing ordinary people and placing individual freedom and limited government back on the national agenda principally belongs to President Obama, House Speaker Nancy Pelosi and Senate Majority Leader Harry Reid. Their heedless pursuit of progressive transformation reinvigorated a moribund conservative spirit, just as in 1993 and 1994 the Clintons' overreaching on health care sparked a popular uprising resulting in a Republican takeover of Congress.

The Gingrich revolution fizzled, in part because congressional Republicans mistook a popular mandate for moderation as a license to undertake radical change, and in part because they grew complacent and corrupt in the corridors of power.

Perhaps this time will be different. Our holiday from history is over. The country faces threats—crippling government expansion at home and transnational Islamic extremism—that arouse conservative instincts and concentrate the conservative mind.

Mr. Berkowitz is a senior fellow at Stanford University's Hoover Institution.

What the 14th Amendment Really Says

2010-08-15T08:41:00.001-07:00

Birthright of a Nation

By PETER H. SCHUCK

DESPITE persistent calls for comprehensive immigration reform, the hot debate today is about an old issue: birthright citizenship.

The citizenship clause of the 14th Amendment, adopted in 1868, provides that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States...” This language has traditionally been interpreted to give automatic citizenship to anyone born on American soil, even to the children of illegal immigrants.

Congress plans to hold hearings this fall on a constitutional amendment to change that language, something even moderate Republican senators like South Carolina’s Lindsey Graham support. With a new study showing that undocumented mothers account for a disproportionate number of births, even some Democrats might find it hard to stand opposed to altering the citizenship clause.

Fortunately, the history of the clause suggests an effective, pragmatic solution that should appeal to both parties.

The clause’s purpose was to guarantee citizenship for former slaves — a right Congress had enacted in 1866 — and to overrule the infamous Dred Scott decision, which had denied blacks citizenship and helped precipitate the Civil War.

But the clause also excluded from birthright citizenship people who were not “subject to the jurisdiction thereof.” This exclusion was primarily aimed at the American-born children of American Indians and foreign diplomats and soldiers, categories governed by other sovereign entities.

The citizenship clause reflected a new American approach to political membership. Under common law dating back to the early 17th century, national allegiance had been perpetual, not consensual. Our country contested this assumption during the War of 1812 after the British impressed Americans into the Royal Navy, insisting that they remained the king’s subjects.

By 1868, Congress had come to view citizenship as a mutual relationship to which both the nation and the individual must consent. This explains why it passed — one day before the citizenship clause was ratified — the Expatriation Act, allowing Americans to shed their American or foreign citizenship.

Particularly relevant to today’s controversy was the floor debate on the citizenship clause. It suggested that the American-born children of resident aliens would indeed be citizens, a suggestion confirmed in an 1898 Supreme Court decision involving the son of a resident Chinese couple.

Congress did not, however, discuss the status of children of illegal immigrants — at the time, federal law didn’t limit immigration, so no parents were here illegally.

Nevertheless, it is hard to believe that Congress would have surrendered the power to regulate citizenship for such a group, much less grant it automatically to people whom it might someday bar from the country. The Supreme Court has never squarely held otherwise, although it did assume, without explanation, in a brief 1982 footnote that the American-born children of illegal immigrants were constitutional citizens. This history suggests that Congress can act on birthright citizenship without a constitutional amendment.

Fast-forward to today to an America with 11 million illegal immigrants. If the Constitution permits Congress to regulate their children’s citizenship by statute, what should that statute provide?

This question is much harder than the zealots on both sides suggest. The argument against any birthright citizenship is that these children are here as a result of an illegal act and thus have no claim to membership in a country built on the ideal of mutual consent.

In the extreme case of “anchor babies” — children born after a mother briefly crosses the border to give birth — the notion of automatic citizenship for the child strikes most people as not only anomalous but also offensive. No other developed country except Canada, which has relatively few illegal immigrants, has rules that would allow it.

At the same time, we rightly resist punishing children for their parents’ crimes. Without birthright citizenship, they could be legally stranded, perhaps even stateless, in a country where they were born and may spend their lives. And because more than a third of undocumented parents have a least one American child, ending birthright citizenship would greatly increase the number of undocumented people in the country.

Fortunately, these strongly competing values, combined with the notion of mutual-consent citizenship, suggest a solution: condition the citizenship of such children on having what international law terms a “genuine connection” to American society.

This is already a practice in some European countries, where laws requiring blood ties to existing citizens have been relaxed to give birthright citizenship to children of illegal immigrants who have lived in the country for some time — Britain, for example, requires 10 years and no long absences from the country.

Congress should do likewise, perhaps conditioning birthright citizenship on a certain number of years of education in American schools; such children could apply for citizenship at, say, age 10. The children would become citizens retroactively, regardless of their parents’ status.

Other aspects of the larger immigration debate would continue, of course. But such a principled yet pragmatic solution to the birthright citizenship question could point the way toward common ground on immigration reform.

Peter H. Schuck, a professor of law at Yale, is a co-editor of “Understanding America: The Anatomy of an Exceptional Nation.”

The Checks & Balances of "Limited Government"

2010-08-10T19:30:00.000-07:00

RAND PAUL: CONSTITUTIONAL CONSERVATIVE

By Rand Paul

It's often repeated in stories about me or my race for U.S. Senate that I am a "libertarian." In my mind, the word "libertarian" has become an emotionally charged, and often misunderstood, word in our current political climate. But, I would argue very strongly that the vast coalition of Americans — including independents, moderates, Republicans, conservatives and "Tea Party" activists — share many libertarian points of view, as do I.

I choose to use a different phrase to describe my beliefs — I consider myself a constitutional conservative, which I take to mean a conservative who actually believes in smaller government and more individual freedom. The libertarian principles of limited government, self-reliance and respect for the Constitution are embedded within my constitutional conservatism, and in the views of countless Americans from across the political spectrum.
Our Founding Fathers were clearly libertarians, and constructed a Republic with strict limits on government power designed to protect the rights and freedom of the citizens above all else. Our deep respect for these principles of liberty and the laws that protected them are what allowed America to become the greatest, most prosperous nation in human history.
Other principles shared by libertarians and traditional conservatives will be familiar to most, because they are the story of our greatness.
They include sound money (meaning a dollar that keeps its value over time); a foreign policy of peace through strength, of neither military weakness nor overreaching nation-building; and a government that lives within its means and abides by the limits set forth in the Constitution.
These are the views that unite many conservatives and libertarians. And they form the basis for my campaign this year, one that has struck a chord with Republicans, independents, libertarians, and Tea Party activists.
Trouble started decades ago
Our current economic crisis, the recent bailouts and the overreach of the one-party rule in Washington have crystallized something for millions of Americans — that something has gone terribly wrong. And it didn't start in 2008. It goes back decades.
More and more power became centralized in Washington, D.C., as the federal government responded to every new crisis — from the Great Depression to the Great Recession of today — by expanding its reach deeper into all of our lives.
Now Washington forces us to buy health insurance while limiting our choices. Programs must fit its bureaucratic standards, effectively putting government in control of what medicines and treatments millions of Americans can get. The bailouts and federal takeovers of the past two years have made the federal government the nation's top mortgage lender and a major player in auto manufacturing, as well as Wall Street's ATM of first and last resort.
This departure from the limited government envisioned by the Founders has encouraged too many Americans to forget their heritage of freedom. When there is a problem, Washington tells us, more government is the solution.
A careful look at some libertarian views, however, could reawaken in us the virtues this nation was founded upon: hard work, individual responsibility, families and neighbors taking care of one another, and honest competition in the marketplace — not phony competition in which politicians deem favored businesses "too big to fail."
The people's role
What the Founders intended, and what many libertarians today want, is something different: a federal system that keeps decision-making close to the people. The federal government should not do what the states can do for themselves, the states should not do what local governments can do for themselves, and local governments should not do what families, faith groups and individuals can do for themselves.
The Founders understood, however, that the federal government has important roles to play, both in protecting our nation and in protecting the rights of its citizens. State and local governments can exceed their powers and injure citizens' rights just as the federal government can.
That's why the Constitution explicitly forbids states to do certain things, such as issue their own currency. Before the Constitution was ratified, states created inflationary currencies to defraud creditors. Sometimes federal action is necessary to correct violations of rights at the state and local levels. Liberty is secure in a federal system when the federal government and the states check one another, not when either side completely dominates the other at the expense of freedom.
Liberty is our heritage; it's the thing constitutional conservatives like myself wish to preserve, which is why Ronald Reagan declared in 1975, "I believe the very heart and soul of conservatism is libertarianism."
I am sure that this belief is becoming more and more vital to our very survival as a nation — that belief in self-reliance, limited government and the Constitution hold the keys to fixing our problems and getting our nation back on track. And, I also believe that the common bond of liberty can unite Americans and build a winning political collation to stand up against big government elites in both parties while reclaiming our freedom and prosperity.
Rand Paul is the Republican candidate for the U.S. Senate in Kentucky.

American Exceptionalism

2010-07-26T07:39:00.000-07:00

Not a State-Broken People
By George Will

George Will is a Pulitzer Prize-winning newspaper columnist, a Newsweek columnist, a regular panelist on ABC's This Week, and the author of numerous books on politics and baseball. He delivered these remarks at the Cato Institute's biennial Milton Friedman Prize for Advancing Liberty Dinner on May 13.
I want to thank all of the people in this room for making Cato and its work possible. I also want to thank a few million more people who, in recent weeks, have toiled to demonstrate in a timely manner why Cato is necessary. I refer, of course, to the people of Greece.
Milton Friedman, whose name we honor tonight, was honored often for his recondite and subtle scholarship. But it was complemented by a sturdy common sense much in fashion nowhere now. About 40 years ago he found himself in an Asian country where the government was extremely eager to show off a public works project of which it was inordinately and excessively fond. It was digging a canal. They took Milton out to see this, and he was astonished because there were hordes of workers but no heavy equipment. He remarked on this to his government guide, who replied, "You don't understand, Mr. Friedman. This is a jobs program. That's why we only have men with shovels." To which Friedman said, "Well, if it's a jobs program, why don't they have spoons instead of shovels?"
The attempt to educate the world to the principles of rationality and liberty never ends. For a lot of us, it began in earnest in 1962 with the publication of Capitalism and Freedom. In 1964, two years later, we got a demonstration of how urgent it was to have that book, when Lyndon Johnson, campaigning for president, said, "We're in favor of a lot of things, and we're against mighty few."
In 1964, the man running against Johnson was Barry Goldwater who, to the superficial observer, appeared to lose because he carried only six states. When the final votes were tabulated, 16 years later, it was clear he had won. It was, however, a contingent victory.
In 2007, per capita welfare state spending, adjusted for inflation, was 77 percent higher than it had been when Ronald Reagan was inaugurated 27 years earlier. The trend continues and the trend is ominous. Fifty-one days ago the president signed into law health care reform, that great lunge to complete the New Deal project and the Great Society, that great lunge to make us more European. At exactly the moment that this is done the European Ponzi scheme of the social welfare state is being revealed for what it is.
There is a difference. We are not Europeans. We are not, in Orwell's phrase, a "state-broken people." We do not have a feudal background of subservience to the state. No, that is the project of the current administration - it can be boiled down to learned feudalism. It is a dependency agenda that I have been talking about ad nauseam.
Two recent examples. First, when the government took over student loans, making it the case that the two most important financial transactions of the average family - a housing mortgage and a loan for college - will now be transactions with the government, they included a provision that said there will be special forgiveness of student loans for those who go to work for the government or for nonprofits. Second, one third of the recent stimulus was devoted to preserving unionized public employees' jobs in states and local municipalities. And so it goes. The agenda is constant.
In 1965, the Elementary and Secondary Education Act (the final dissolution, in some ways, of the federal government's sense of restraint) was advertised as aid for the poorest of the poor. Eighteen years later, in 1983, 90 percent of all school districts were participating in this. It is a principle of liberal social legislation that a program for the poor is a poor program. The assumption is that middle class Americans will not support a program aimed only at the poor. That is a theory refuted by the fact that the Earned Income Tax Credit - a policy supported and extended by Ronald Reagan - is extremely popular in this country. But it does reveal the fact that dependency is the agenda of the other side. Their agenda is to make more and more people dependent on the government for more and more things.
We can see today, in the headlines from Europe, where that leads. It leads to the streets of Athens, where we had what the media described as "anti-government mobs." Anti-government mobs composed almost entirely of government employees going berserk about threats to their entitlements!
The Greeks and the Europeans have said all along, as they increase the weight of the state, "So far, so good." It reminds me, as everything eventually does, of a baseball story. In 1951 Warren Spahn, on the way to becoming the winningest left-handed pitcher in the history of baseball, was pitching for the then-Boston Braves against the then-New York Giants in the then-Polo Grounds. The Giants sent up to the plate a rookie who was zero for twelve. It was clear this kid, name of Willie Mays, could never handle big league pitching. Spahn stood out on the mound 60 feet and six inches away, threw the ball to Willie Mays, who crushed it - first hit, first home run. After the game the sports writers came up to Spahn in the Club House and asked, "Spahnie, what happened?" Spahn said, "Gentlemen, for the first 60 feet that was a hell of a pitch!"
It's not good enough in baseball and it's not good enough in governance, either. Let me give you a framework to understand this extraordinarily interesting moment in which we live. I believe that today, as has been the case for 100 years, and as will be the case for the foreseeable future, the American political argument is an argument between two Princetonians: James Madison of the class of 1771, and Thomas Woodrow Wilson of the class of 1879. I firmly believe that the most important decision taken anywhere in the 20th century was the decision where to locate the Princeton graduate college. Woodrow Wilson, then Princeton's president, wanted it located on the campus, others wanted it located, where it in fact is, up on the golf course away from campus. When Wilson lost that, he had one of his characteristic tantrums, went into politics, and ruined the 20th century.
I'm simplifying a bit. Madison asserted that politics should take its bearings from human nature and from the natural rights with which we are endowed, and which preexist government. Woodrow Wilson, like all people steeped in the 19th century discovery that history is a proper noun - History - with a mind and a life of its own, argued that human nature is as malleable and changeable as history itself, and that it's the job of the state to regulate and guide the evolution of human nature and the changeable nature of the rights we are owed by the government that - in his view - dispenses rights.
Heraclitus famously said that you "cannot step into the same river twice," meaning the river would change. The modern Progressive believes you can't step into the same river twice because you change constantly.
Those of us of the Madisonian persuasion believe that we take our bearings from a certain constancy. Not from - to coin a phrase - "the evolving standards of decency that mark the progress of a maturing society." That phrase, from Justice Warren, has become the standard by which the Constitution is turned into a living document - a Constitution that no longer can constitute. A constitution has, as Justice Scalia has said, an anti-evolutionary purpose. The very virtue of a constitution is that it's not changeable. It exists to prevent change, to embed certain rights so that they cannot easily be taken away.
Madison said rights pre-exist government. Wilson said government exists to dispense whatever agenda of rights suits its fancy, and to annihilate, regulate, attenuate, or dilute others. Madison said the rights we are owed are those necessary for the individual pursuit of happiness. Wilson and the Progressives said the rights you deserve are those that will deliver material happiness to you, and spare you the strain and terror of striving.
The result of this is now clear. We see, in the rampant indebtedness of our country and the European countries, what Yuval Levin has called a "gluttonous feast upon the flesh of the future." We see the infantilization of publics that become inert and passive, waiting for the state to take care of them. One statistic: 50 percent of all Americans 55 years old or older have less than $50,000 in savings and investment. The feast on the flesh of the future is what debt is.
Let's get a sense of the size of our debt. In 1916, in Woodrow Wilson's first term, the richest man in America, John D. Rockefeller, could have written a personal check and retired the national debt. Today, the richest man in America, Bill Gates, could write a personal check for all his worth and not pay two months interest on the national debt. By 2015, debt service will consume about one-quarter of individual income taxes. Ten years from now the three main entitlements - Medicare, Medicaid, and Social Security - plus interest will consume 93 percent of all federal revenues. Twenty years from now debt service will be the largest item in the federal budget.
Calvin Coolidge, the last president with whom I fully agreed, once said that when you see a problem coming down the road at you, relax - nine times out of ten it will go into the ditch before it gets to you. He was wrong about the one we now face. We are facing the most predictable financial crisis - the most predictable social and political crisis - of our time. And all the political class can do is practice what I call "the politics of assuming a ladder."
There's an old story where two people are walking down the road, one an economist, the other a normal American, and they fall into a pit with very steep sides. The normal American says, "Good Lord, we can't get out." The economist says, "Not to worry; we'll just assume a ladder." This seems to me to be the only approach politicians have to the Ponzi nature of our own welfare state.
It is time for us to understand that the model we share - so far in attenuated form - with Europe simply cannot work. It states that we should tax the rich (a.k.a. the investing and job-creating class), while counting on spending the revenues of investment and job creation. No one has explained to the political class that it is very dangerous to try to leap a chasm in two bounds.
We are now being told that a Value Added Tax is going to be required. A VAT would help the political class to shower benefits on those who can vote for them while taxing people who can't vote for them. The beauty of the VAT is that it taxes everybody, but nobody quite notices it.
We are going to come to a time when America is going to have to revisit Madison's Federalist Paper no. 45, and his statement, "The powers delegated by the proposed Constitution to the federal government are few and defined." The cost of not facing this fact, of not enforcing the doctrine, in some sense, of enumerated powers, is that big government inevitably breeds bigger government. James Q. Wilson, one of the great social scientists in American history, put it this way. "Once, politics was about only a few things. Today, it is about nearly everything."
Once the legitimacy barrier has fallen, political conflict takes a very different form. New programs need not await the advent of a crisis of extraordinary majority, because no program is any longer new. It is seen, rather, as an extension, modification or enlargement of something the government is already doing. Since there is virtually nothing the government has not already tried to do, there is little it cannot be asked to do. And so we have today's death spiral of the welfare state; an ever-larger government resting on an ever-smaller tax base - government impeding the creation of wealth in order to enforce the redistribution of it. They are not, however, fooling the American people.
This morning, the Wall Street Journal announced, with a sort of breathless surprise, that 80 percent of the American people disapprove of Congress - raising a fascinating question: who are the 20 percent!? It is a sign of national health that Americans still think about Washington the way they used to talk about the old Washington Senators baseball team, when the saying was, "First in war, first in peace, and last in the American League." Back then they were run by a man named Clark Griffith who said, "The fans like home runs, and we have assembled a pitching staff to please our fans."
That is why the American people do not mind what they are instructed by their supposed betters to mind, the supposed problem of legislative gridlock. Gridlock is not an American problem, it is an American achievement! When James Madison and 54 other geniuses went to Philadelphia in the sweltering summer of 1787, they did not go there to design an efficient government. That idea would have horrified them. They wanted a safe government, to which end they filled it with blocking mechanisms: three branches of government, two branches of the legislative branch, veto, veto override, supermajorities, and judicial review. And yet, I can think of nothing the American people have wanted intensely and protractedly that they did not eventually get. The world understands, a world most of whose people live under governments they wish were capable of gridlock, that we always have more to fear from government speed than government tardiness.
We are told that one must not be a "Party of No." To "No," I say an emphatic "Yes!" For two reasons. The reason that almost all improvements make matters worse is that most new ideas are false. Second, the most beautiful five words in the English language are the first five words of the First Amendment, "Congress shall make no law." That is: no law abridging Freedom of Speech, no law establishing religion, no law abridging the right to assemble and petition in redress of grievance. The Bill of Rights is a litany of "No's" - no unreasonable search and seizure, no cruel and unusual punishments, no taking of property without just compensation, and so it goes.
The American people are, I think, healthier than they are given credit for. They have only one defect. They have nothing to fear, right now, but an insufficiency of their fear itself. It is time for a wholesome fear of what people with a dependency agenda are trying to do. We have few allies. We don't have Hollywood, we don't have academia, and we don't have the mainstream media. But we have two things. First, we have arithmetic. The numbers do not add up, and cannot be made to do so. Second, we have the Cato Institute. The people in this room are what the Keynesians call "a multiplier." And, for once, they are right!
In Athens, the so-called "cradle of democracy," the demos (a Greek word for "the people") have been demonstrating, in recent days, the degradation that attends people who become state-broken to a fault - who become crippled by dependency and the infantilization that comes with it. We shall see. I think America is organized around the very principle of individualism, which I can illustrate with what is, I promise you, the last baseball story.
Rogers Hornsby, the greatest right-handed hitter in the history of baseball, was at the plate, and a rookie was on the mound. He was, quite reasonably, petrified. The rookie threw three pitches that he thought were on the edge of the plate, but the umpire called, "Ball one! Ball two! Ball three!" The rookie got flustered, and shouted at the umpire, "Those were strikes!" The umpire took off his mask, looked out at the rookie, and said, "Young man, when you throw a strike, Mr. Hornsby will let you know."
Hornsby had become the standard of excellence. If he didn't swing, it wasn't a strike. We want a country in which everyone is encouraged to strive to be his own standard of excellence and have the freedom to pursue it. There are reasons to be downcast at the moment. Certain recent elections have not gone so well. Let me remind you, however, of something, again going back to 1964. In 1964 the liberal candidate got 90 percent of the electoral votes. Eight years later the liberal candidate got 3 percent of the electoral votes. This is a very changeable country.
Recall the words of the first Republican president who, two years before he became president, spoke at the Wisconsin State Fair, with terrible clouds of civil strife lowering over the country. Lincoln told his audience the story of the Oriental despot who summoned his wise men, and assigned them to devise a statement to be carved in stone, to be forever in view and forever true. They came back ere long, and the statement they had carved in stone was, "This, too, shall pass away."
"How consoling in times of grief," said Lincoln, "How chastening in times of pride." And yet, said Lincoln, if we cultivate the moral world within us as prodigiously as we Americans cultivate the physical world around us it need not be true. Lincoln understood that freedom is the basis of values, not the alternative to a values approach to politics. Freedom is the prerequisite for the moral dimension to flower. Given freedom, the American people will flower. Given the Cato Institute, the American people will, in time, secure freedom.
georgewill@washpost.com

Page Printed from: http://www.realclearpolitics.com/articles/2010/07/26/not_a_state-broken_people_106463.html at July 26, 2010 - 08:59:47 AM CDT

Defining A Federal "Tax"

2010-07-23T05:14:00.000-07:00

Why the ObamaCare Tax Penalty Is Unconstitutional

The federal power to tax is not unlimited, as the Supreme Court recognized when it struck down the first national income tax.

By J. KENNETH BLACKWELL AND KENNETH A. KLUKOWSKI

The Justice Department announced last week that it would defend the new federal health-insurance mandate as an exercise of Congress's "power to lay and collect taxes," even though Barack Obama had insisted before the bill's passage that it was "absolutely not a tax increase." The truth is the mandate is not a tax—and if it were it would be unconstitutional.

A tax is when the government takes money from individuals, puts it in the Treasury, and plans to spend it. With the health-insurance mandate, the government is not taking money from private individuals; rather, it is commanding them to give their money to another private entity, not to the Treasury. If individuals don't obey the mandate, they pay a penalty to the Treasury. But penalties aren't taxes. The mandate is legally separate from the penalty.

Even if the Justice Department were to get the mandate considered a tax, it would be an unconstitutional one. Unlike states, the federal government has limited jurisdiction. Under the 10th Amendment, the federal government has only those powers enumerated by the Constitution, and all other powers are reserved to the people or the states. Every federal action must be authorized by a constitutional provision. If there is no such provision, then the action is unconstitutional. No provision of the Constitution authorizes the federal government to command people to buy insurance.

The Taxing and Spending Clause in Article I of the Constitution gives the federal government broad power to tax the American people. But that power is not unlimited.

The Constitution originally allowed only three types of taxes. The first was a duty(1), which is a tax on imports. The second was an excise tax(2), which is a tax for the privilege of doing something, such as buying alcohol or holding a professional license to practice law. Both duties and excise taxes are indirect taxes that can be passed on to consumers.

The third type of tax was a direct tax(3), which cannot be passed on to someone else. The only type of direct tax permitted by the Constitution was a "capitation tax," or head tax, which every person could be required to pay. The Constitution required that any capitation tax be apportioned, meaning that every person in a given state had to pay the same amount. New Yorkers might have to pay $600 per year while Virginians only pay $500, but every person within each state must pay equally.

When Congress created an income tax in the late 1800s, the Supreme Court struck it down on the grounds that it was a direct tax but not apportioned. That 1895 decision, Pollock v. Farmers' Loan & Trust, rejected the idea that Congress had some generic power to tax outside the three categories laid out in the Constitution.

That's why, in 1913, the 16th Amendment to the Constitution was required in order to institute a national income tax. Since then, a tax on income has been the fourth and final type that the federal government can impose (4).

The individual health-insurance mandate fits into none of these four categories and is therefore not constitutionally justified as a tax.

But the Constitution is only as good as the Supreme Court interpreting it. The Senate's imminent vote on Elena Kagan's nomination is a poignant reminder that we need a court that faithfully upholds the Constitution. Such a court would strike down ObamaCare.

Mr. Blackwell is the former Treasurer of Ohio and a professor at Liberty University School of Law. Mr. Klukowski is special counsel at the Family Research Council and senior legal analyst at the American Civil Rights Union. They are the authors of "The Blueprint: Obama's Plan to Subvert the Constitution and Build an Imperial Presidency" (Lyons, 2010).

Guarding Against Government Abuse of Power

2010-07-14T12:25:00.000-07:00

Booting the Constitution?

by Donald Devine

In reacting to the BP oil spill, President Barack Obama famously said he was consulting with the experts “so I know whose ass to kick.” His Interior Secretary Ken Salazar topped his boss when he promised to keep his “boot on the neck” of BP top executive Tony Hayward, recalling George Orwell’s book “Nineteen Eighty Four,” where he defined totalitarianism as “a boot stamping on a human face, forever.” When poor Hayward testified before Congress in June, he was hit from both sides of the political isle and was lucky to escape with any dignity at all.

President Obama then followed words with action and demanded that BP create a $20 billion fund to pay for the negative effects of its oil spill. Yet, as Penn State law professor David Zaring responded to a Wall Street Journal legal reporter when asked whether the president had the legal authority to do so, he replied: “I doubt it. The Oil Pollution Act, which gives the government special powers in this area, caps economic damages for off-shore drilling at $75 million. The government can also require the company to pay for clean up costs, and there’s this interesting provision in section 2716 of the Act, which applies to offshore facilities in the event of catastrophe. [In certain instances, the Section allows liability up to $150 million.]” But what is a little thing like the law when the public is so aroused?

Was the public angry? When Texas Congressman Joe Barton called the probably illegal Obama demand a “shakedown” he was forced by his own Republican Whip and leadership to recant or lose his ranking membership on the energy committee. The White House press secretary condemned him at his daily briefing and the Democratic Party promised to run campaign ads against the whole Republican Party. The dean of the Washington press establishment justified the rebukes on the ground that “almost everyone else” agreed with the president’s action and so the statement was politically foolish. There was no comment about the legality or lack thereof of the proposed action or even a remark about the courage it takes for a Congressman to tell the truth to an angry multitude.

America’s Founders feared concentrated power, even the power of the people. Fortunately, the Constitution these days is back in vogue among the people, especially on the right. In Federalist Paper 10 “Father of the Constitution” author James Madison claimed there were only three solutions to their presumption that human beings were created free. The first was “destroying the liberty that is essential to” the disorder that results from freedom. He argued that authoritarian solution would be equivalent to the foolishness of destroying air to suppress the possible dangers of fire that sometimes causes harm. Freedom causes disorder but it is also as essential to vibrant human life as is air to nature.

The second solution is to demand or manipulate things so that all citizens or at least a majority agree upon the same opinion, the solution of Mr. Obama and the progressives when he insists that all Americans need to “come together on common goals.” This Madison dismisses as “impractical” as long as people naturally have different interests and types and amounts of property and are allowed to exercise their freedoms.

The third and proper solution according to Madison is “controlling its effects” – the negative effects of freedom – through a “proper structure” of the government, one which allows popular representation but balances public interests between multiple institutions that share power.

If men were angels, no government would be necessary. If angels were to govern men, neither internal nor external controls on government would be necessary. In framing a government which is to be administered by men over men the great difficulty lies in this: You must first allow the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government but experience has taught mankind the necessity of auxiliary precautions.

This view of humanity was set deep within the Western tradition, seeing human nature not as a univocal bad or good but as a balance between angelic and troublesome tendencies. If man were a devil, no good form of government could be created because he would corrupt it. If he were an angel, no government would be necessary to control him because he would always act virtuously. This tradition of the Founders viewed human beings as somewhere in between where differences, divisions, factions and even conflict are innate to social life, arising naturally even from minor disagreements. Major differences, as over religion, have led to great disorder but the most enduring source of conflict is over property and the inequality that results naturally from freedom of its possession. But freedom also promotes the commerce and entrepreneurship that drives the engine of prosperity.

Why not just limit freedom to eliminate its ill effects? Individual rights come from and are justified by the fact of a Creator who endowed individuals with “unalienable rights” and governments were to be evaluated based upon how well they secured those rights. Only by placing those rights in a place human power could not reach, could they remain secure from encroachment, especially from government. It was the fact that these Creator’s rights were abused that justified America breaking from England. As long as the government generally respected the Creator-given rights, the citizen was obliged to obey.

Fear of government abuse underlay the entire structure created by the American Founders. Without the proper internal and external restraints, even the people would abuse freedom. Progressives today consider such fear outdated. The man most responsible for making the progressive view the dominant one – at least among intellectuals and political elites – in the United States was former president and academic, Woodrow Wilson, in his enormously influential classic, Congressional Government, way back in 1885.

Wilson had just returned from observing European governments and came away enormously impressed how they, especially Prussia which was a rising power that had created the first welfare state, had concentrated government power to do good for society. He came to the conclusion that America’s “federal government lacks strength because its powers are divided.” This is the “defect which interprets all the rest,” he argued. The American Founders simply “shrank from placing sovereign powers anywhere.” The problem was the Constitution itself: “It is therefore manifestly a radical defect of our federal system that it parcels out power and confuses responsibility.”

The Founders were so obsessed with controlling power, Wilson argued, because they believed it would inevitably lead to abuse. But power could be harnessed to do good if there was a popularly elected government. The U.S. should at least follow Britain and combine the legislative and executive branches. Unifying power and the resulting accountability from having one institution responsible for all decisions, he insisted, were the “essential constituents of good government.” As early as the preface to his 1900 edition, Wilson could applaud the shift of authority from Congress to the president as the result of the Spanish American War for moving in the required direction, which centralized power he advanced mightily when he became Chief Executive a few years later. Except for his immediate successors Warren Harding and Calvin Coolidge and later Ronald Reagan, all following presidents held his rather than the Founders’ views.

The Founders were well aware of the problem and put great emphasis upon courts isolated from popular pressure to limit abuses resulting from mass jealousies and resentments, especially by popular representatives to gain popular favor against the more privileged in difficult economic times. It is unquestioned legal doctrine today that national courts are expected to review countrywide (if not necessarily local) legislative and executive actions and test whether they have abused Constitutional protections of freedom, especially those protected by its first ten amendments in the Bill of Rights.

Consider the case of unpopular business executive Jeffrey Skilling, the former CEO of the Enron oil-trading and financial company. He was prosecuted in 2006 when his energy empire collapsed and financially hurt many employees, pensioners, investors, clients and customers. He was convicted on several accounts including the crime of depriving others of ones “honest services.” He was quickly judged guilty and sent to prison for 24 years. But on June 24, 2010, the Supreme Court overturned that part of his conviction because the term honest services was so impossibly vague it did not allow a normal person to understand beforehand that he might be engaging in criminal behavior. The same day a similar conviction of publisher Conrad Black was reversed, which was expected to reopen at least a half-dozen other such cases.

In these days of ideologically divided and even partisan courts, what was unique about this controversial case was that it was unanimous. It is true that the three most conservative justices argued to invalidate the law completely and the full majority only agreed that Congress should try to redraft the concept in a more concrete manner. Yet, the fact that the entire court overruled the convictions was significant. The decision was written by progressive stalwart Justice Ruth Bader Ginsberg and the justices, especially the more progressive ones, took criticism for freeing these so-called “top dogs of business.” Indeed, that same Washington Post op-ed called the decision “a free pass for the corrupt.”

The vague concept of so-called honest services had long been subject to judicial scrutiny and was actually overturned previously in 1987, after which Congress tried to tighten the definition. Still, according to Columbia University law professor John Coffee, executive branch prosecutors used “any kind of skullduggery,” to keep broadening its application. “It’s a technique used to go after the infamous as opposed to the criminal,” added Washington attorney Paul Wareham, “and its high time that it’s over with.” Congress will try again and nothing has been done about the abuse of the conspiracy statutes, at least so far, but this nonetheless was an important step toward using legal rather than emotional or political reasoning when deciding constitutionality.

Are the progressives correct that human nature and its representatives can be trusted with centralized power even when their passions are hot? Or were the Founders correct that power needs to be checked and balanced by different institutions or it will be abused? What if Sec. Salazar had the unchecked power to use his boot? The people, fortunately, still see human nature more like the Founders than the progressives. The prestigious Pew poll – after repeating the research three times due to its belief it must be a “misread” of how angry people were – found that only 22 percent of Americans say today that they trust the government in Washington “all” or even “most of the time,” near an historic low. Americans still know better than to trust human nature without the proper Constitutional restraints.

Donald Devine, the editor of ConservativeBattleline Online, was the director of the U.S. Office of Personnel Management from 1981 to 1985 under Ronald Reagan and is Senior Scholar at Bellevue University’s Center for American Vision and Values.

No Celebration Needed

2010-07-07T07:20:00.001-07:00

Dependence Day: Where are we headed?

The reason we Americans observe July 4th is self-evident. Or it ought to be. We wonder sometimes.

The Declaration of Independence makes very clear why the colonists took up arms against their own government:

"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."

One sentence was all it took for the signers to explain why government exists. It is "to secure these rights." End of explanation.

That is the foundation of our great national experiment. Tired of the abuses heaped upon them by King George III and Parliament, the colonists, all British subjects, hit "reset." They risked, and many lost, their lives for one simple reason: to create a government that would secure their rights -- and do nothing more.

Today, however, we ask our government to do just about everything. If we lack a creature comfort, where is the first place many of us turn? To Washington. We ask it to provide us with job security, a pension, food and medical care, even entertainment (what else is the National Endowment for the Arts?).

The less we do for ourselves and our fellow man, the more Washington expects it should do for us. Instead of protecting our rights and otherwise leaving us alone, we have a government that seeks to provide for us and, increasingly, direct our behavior. And no foreign power imposed this upon us. We did it to ourselves.

It is time we decide whether we will return to being a people "free and independent," as the Founders intended, or whether, like Europe, we want to become a people safe and dependent, our liberty sacrificed for whatever security we can grab via the collective power of the state.

Legacy of Free Enterprise

2010-07-02T05:04:00.000-07:00

The Other 1776 Freedom Legacy

By Ron Ross on 7.2.10 @ 6:08AM

Our nation will soon celebrate its 234th birthday. Another event of profound and enduring significance also occurred in 1776. It was the publication of Adam Smith's The Wealth of Nations.

Our Declaration of Independence and the subsequent Constitution turned out to be enormously important for the cause of freedom not only in this country but what they inspired in other countries around the world. The Wealth of Nations and the lessons it taught have also reverberated far and wide since its publication. Smith's insight and genius are reflected in the book's full title -- An Inquiry into the Nature and Causes of the Wealth of Nations. In a systemic way Smith set out to understand and explain the sources of a country's economic health and growth.

The average life expectancy in England at the beginning of the 19th century was 41 years. At the beginning of the 21st century in the U.S. the life expectancy was 78 years. What accounts for that unprecedented improvement in human welfare? There are numerous factors -- better nutrition, sanitation, refrigeration, advances in medical knowledge, for example -- but most of them would not be possible without dramatic improvements in productivity and material wealth.

Recent history has reminded us of the widespread hardship resulting from economic stagnation. The worldwide recession has made virtually all our societal problems worse. More than two and a quarter centuries ago Adam Smith recognized the critical importance of economic growth and vitality.

Smith took issue with the prevailing political-economic philosophy of the time, something called "mercantilism." The mercantilists believed that a nation's power and strength depended on accumulations of gold. The mercantilists advocated government policies encouraging exports and discouraging imports, something we now refer to as "protectionism." It is a policy that some still advocate.

Smith built a devastating case against mercantilist logic. He showed that a nation's strength stemmed from its productivity and the efficiency of workers and businesses. He explained how a free market economy generates incentives and signals that push the economy in the direction of productivity and growth.

The first sentence in The Wealth of Nations makes the following observation: "The greatest improvement in the productive powers of labor, and the greater part of the skill, dexterity, and judgment with which it is anywhere directed, or applied, seem to have been the effects of the division of labor." Smith was referring to what we now call specialization, and it continues to be one of the most important sources of economic progress. If not for the market and voluntary exchange we would all need to self-sufficient. Self-sufficiency makes specialization impossible.

Just as our Constitution laid the groundwork for political freedom, The Wealth of Nations established the intellectual foundation and rationale for economic freedom. He showed that government interference with the free market almost always does far more harm than good. He showed that unfettered voluntary exchange is the best path to economic progress.

Smith explained that in a market economy, "Every individual necessarily labours to render the annual revenue of society as great as he can. He generally, indeed, neither intends to promote the public interest, nor knows how he is promoting it. He intends only his own security; and by directing that industry in such a manner as to produce the greatest value, he intends only his own gain, and he is in this, as in many other cases, led by an invisible hand to promote an end which was no part of his intention."

Smith was a persuasive and masterful writer. For example, "Taxes on the necessaries of life have nearly the same effect upon the circumstances of the people as a poor soil and a bad climate."

Smith did not invent the free market. No single person did. He was the first, however, to grasp and understand how a market system functions. He therefore made it possible for others to understand and see the benefits of the market.

The primary value of having a theory of the free market is to provide a defense against those who want to interfere with it. Since well before Smith's time there has been no shortage of those who want to substitute their judgment for that of the market.

A market economy can function whether or not anyone understands how it functions. A free market system is one of "spontaneous order." The auto-pilot nature of the market is one of its greatest strengths, but it is also its greatest vulnerability. The market's immense benefits get taken for granted. Since being aware of how the market functions is not a necessity, most people don't bother learning about it.

The central theme of Milton Friedman's classic Capitalism and Freedom is that a free market is a necessary condition for achieving political freedom. You can't have one without the other. As we celebrate the birth of our political freedom we should also give thanks for another event that year that helped make our freedom meaningful and enduring. We can give thanks for those freedom-loving geniuses who lived on both sides of the ocean.

And using Adam Smith as an inspiration we should all do what we can to combat the latter day "mercantilists" in all their various incarnations. Many things have changed since 1776, but our fundamental challenges remain the same.

Ron Ross Ph.D. is an economist and author of The Unbeatable Market. He can be reached at rossecon@gmail.com