Blog

Part two of a Podcast interview from Change535

This is the conclusion of my interview on the Change535 podcast about the Tenth Amendment.  We cover Obamacare, who decides what is constitutional, and even some founding principles.  You can visit their page and listen to archives of other shows they have done at Change535.org.  I hope you enjoy it.

 

Feb 19, 2011 | Categories:Founding Principles, Interview | Tags: , , , , , | Leave A Comment »

Dan Casey, is this the best you can come up with?

What would you do if you were forced to argue a position that anyone with a room temperature I.Q. would instinctively know is wrong? 

“RULE 12: Pick the target, freeze it, personalize it, and polarize it.” Cut off the support network and isolate the target from sympathy. Go after people and not institutions; people hurt faster than institutions. (This is cruel, but very effective. Direct, personalized criticism and ridicule works.)”  Saul Alinsky. 

Enter Dan Casey’s contribution to the debate on the role and scope of the Federal Government. 

Virginia Attorney General Ken Cuccinelli is one of the leading lights of the 10th Amendment movement, or “The Tenthers,” a peculiar band of U.S. Constitution misreaders, dopes and ignoramuses whose asinine arguments are actually garnering some attention to these days.

That is quite an opening sentence.  I mean who would want to be seen as a constitution “misreader”, or a dope and an ignoramus?

Of course, I am taking the position that Dan is arguing a point that is so obviously wrong, that his only recourse is name calling and preseting half facts, or maybe quarter facts, and complete misrepresentations of the truth.  In the opening sentence we got the name calling out of the way so let’s break down the rest of his article, and see if he provides anything useful to the debate, or does his lack of evidence lead one to believe that maybe there is no evidence?

Tenthers point to the 10th Amendment to the Constitution in arguing the federal government has overreached in myriad ways. The government, Tenthers claim, lacks constitutional authority in areas of  food stamps, child labor, Medicare, Social Security and just about everything else you can think of, including the federal highway system.

This is a classic example of the “sacred cow” argument.  These people want to enslave your children and subject grandma to abject poverty by taking away her social security and Medicare!  This is a misrepresentation of the tenther movement.  People are not holding rallies to get rid of Social Security or Medicare or the federal highway system.  Are those programs something that should be handled at the federal level?  I don’t think they are, and the mismanagement of the Social Security funds and the abuses of the Medicare system are prime examples of why.  But those things are not what are motivating people to get involved in the debate.  Many of us involved with the Tenth Amendment Center got involved because of the Patriot Act, a blatant violation of the First and Fourth Amendments to the Constitution.  One of the current battles we are fighting is the notion that the Federal Government can force you to buy a product simply for being alive.

They also cite the Tenth Amendment as the justification to for suing to overturn the  the Affordable Care Act, aka ObamaCare — and Cuccinelli is leading the charge on those efforts.

Here is the entire text of the 10th Amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Technically we tenthers are for the States Nullifying the law, not suing, but you at least were able to cut and paste the correct words of the Tenth Amendment. 

Of course, this completely obscures actions by Tenthers of an earlier era, who used the 10th Amendment as the prime justification for the “States Rights” argument that itself was a smokescreen for the real cause of the Civil War — the South’s insistence on preserving slavery.

But apart from aligning themselves with slaveholders, there’s another more fundamental flaw in the whole modern Tenther argument. In a nutshell, it’s this: Their interpretation is based on a single sentence in the Constitution, rather than on the document as a whole.

Once again, the idea is to discredit the movement by aligning it with slavery and the civil war.  The facts are that Jefferson Davis was against the idea of Nullification, and the principles of 98 (Nullification) was cited by Wisconsin against the Fugitive Slave laws during the abolitionist movement.  I also refute the idea that our interpretation is based on a single sentence.

In fact, the larger document directly contradicts the Tenthers’ argument.  That’s right — words the founding fathers quite deliberately wrote into the Constitution clearly and effectively rebut the Tenthers’ faulty reasoning.

For example, consider the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The problem for the Tenthers here is that the First Amendment has nothing to do with what Congress can do. It’s all about what Congress can’t do.

 So Dan suggests that the entire document refutes the idea that the constitution grants specific powers to the federal government, and provides the First Amendment as an example.  The problem with his example is that the first ten Amendments also known as the Bill of Rights were written to forbid the Federal Government from doing certain things.  The first sentence of the Preamble to the Bill of Rights reads;

THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added:

This is why we believe that the Tenth Amendment is the proper tool for preventing or undoing laws that demonstrate a “Misconstruction or abuse of its powers”.  The federal mandate is a clear example of that.  While the First Amendment is about what congress can’t do, but does anyway with the Patriot Act being one example, the Constitution does grant specific powers to the Federal Government.  In fact, most of those powers are listed in Article One section eight.  The first sentence reads;

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;…

The Statesman Sentinel quotes our center in listing 30(up to 35 depending on how you count them) powers listed throughout the document here.  So Dan is either ignorant of the Document or is misleading his audience.

I won’t go to Tenther lengths with this line of reasoning, and mount an argument that because the founding fathers did not prohibit the government from requiring individuals to buy health insurance, that requiring them to buy it is constitutional. I’ll leave that one for the scholars and the courts,

You won’t?  What was the point of this article then?  If you want to see a scholarly view of the Constitution check out “The Original Constitution: What it Actually Said and Meant” by Robert G. Natelson.  Or you can base your view of the Constitution from only the First Amendment.

But it’s plainly obvious that the simple language of the First Amendment renders the Tenthers’ interpretation of the 10th Amendment completely bogus.

What’s really going on here is this: the  Tenther movement is led by a few smart and cynical people who find economic or political self-interest in Tenther logic. They have won over a much larger bunch of intellectual boobs who can’t be bothered to think for themselves.

And those latter folks are the ones making all the noise.

No Dan, it is plainly obvious your argument has no merit to anyone who does think for themselves.  You have presented no credible evidence for your side of the debate.  Alinsky tactics and ad hominem arguments will not carry the debate this time.  I’ll leave you all with one final shot, in our Constitional Republic the sovereign is listed very plainly in the first three words of the Constitution.  This debate may be influenced by the scholars, but the outcome of this debate will ultimatly be determined by “WE THE PEOPLE” in who we elect to represent us in the State Legislative bodies accrosss this great nation of ours.  That is what I believe the point of your article was, and that is the point of my rebuttal.

Feb 14, 2011 | Categories:News and Notes, Uncategorized | Tags: , , , , , , , , | Leave A Comment »

Part one of a Podcast interview from Change535

Last week, I did an interview on the Change535 podcast about the Tenth Amendment.  It was recorded last week, and it is interesting that we started off talking about the Patriot Act, and at the time I didn’t even realize it was coming up for a vote.  Stan and Steve Grant made me feel very comfortable, and the interview was a pleasure to record.  This is part one, and part two will be uploaded next week.  You can visit their page and listen to archives of other shows they have done at Change535.org.  I hope you enjoy it.

 

Feb 10, 2011 | Categories:Founding Principles, Interview | Tags: , , , , , , , , , , | 1 Comment »

Who Decides: part two

In Part One, I discussed the importance of “who decides” what is constitutional, and what is not.  Conventional wisdom says that the Supreme Court has long been recognized to have that power.  If you haven’t read part one, follow this link to read it here.

Now I will give my reasons for why that power does NOT reside solely with the Court created by the Constitution.

Let us begin with the preamble to the Bill Of Rights which begins;

“THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added”[Emphasis added]

This suggests that there was concern about a central government abusing its powers from a number of states.  In fact many people have heard of the “Federalist Papers” which were a series of essays written to sell the public on the idea of ratifying the constitution.  Many of the Articles were written to answer specific criticisms of the Constitution, such as those raised by Robert Yates and others dubiously named “Anti Federalists”.  Gary Galles from the Mises Institute wrote an article on the Anti-Federalist Papers where he writes;

The Antifederalists warned us that the cost Americans would bear in both liberty and resources for the government that would evolve under the Constitution would rise sharply. That is why their objections led to the Bill of Rights, to limit that tendency (though with far too little success that has survived to the present)…[Robert yates] argued that when constitutional grounds for making rulings were absent, the Court would create grounds “by their own decisions.” He thought that the power it would command would be so irresistible that the judiciary would use it to make law, manipulating the meanings of arguably vague clauses to justify it.

So when you read in the Federalist papers about the limitations of the constitution, it should be remembered that they were responding to critics like Yates.  This is why those of us who argue for ‘Original Intent’ or ‘intent of the makers’ will point to the Federalist Papers or ratification debates as evidence that we created a “limited government” with the Constitution.  So when Madison assured us of a double security for our liberties in Federalist papers #51;

“In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.”

Madison clearly answers the problem Robert Yates tried to warn people in #51, and there are other examples where Madison and Hamilton are even more specific.  I have listed a few here;

  • “It may safely be received as an axiom in our political system, that the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority.” Alexander Hamilton Federalist Papers #28
  • “The local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority than the general authority is subject to them, within its own sphere.” James Madison Federalist Papers # 39
  • “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” James Madison Federalist Papers #45
  •  “We may safely rely on the disposition of the state legislatures to erect barriers against the encroachments of the national authority.” Alexander Hamilton Federalist Papers #85

So when we read in the Preamble to the Bill of Rights “in order to prevent misconstruction or abuse of its powers” we understand not only what some of the fears were, but what the proponents claimed would be the remedy of those fears.  And while the Federalists Papers are not and never have been law ratified by the people, we do have the Tenth Amendment, ratified on December 15, 1791 that reads;

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

In case you are curious, you can find most of the “powers” that were “delegated to the United States by the Constitution” in Article One Section Eight, which include; “To coin Money, regulate the value thereof”, “To declare War, and grant letters of Marque and Reprisal” and “To establish Post Offices and Post Roads”.  And for powers the Constitution prohibited “to the States” go to Article One Section Ten and you find a list of powers the States do not have including; “No State shall enter into any Treaty, Alliance or Confederation” and “make any Thing but gold and silver Coin a Tender in Payment of Debts” .  This leaves a lot to the discretion of the States and to the people.

Then you had the “Alien and sedition Acts of 1798”, and our first real encounter with laws that people in opposition to the party in power claimed was unconstitutional.  While study of the history of these laws can be very interesting, I think the response is germane to this discussion.  Thanks to written history, we can go back and ask the leaders who opposed federal usurpations like “Alien and Sedition Acts” what we should do if the Federal Government passed a law that we felt was unconstitutional.

Thomas Jefferson:

“… whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: … that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers”  “Where powers are assumed [by the general government] which have not been delegated, a nullification of the act is the rightful remedy.”

James Madison:

“the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.”

Daniel Webster:

“The operation of measures thus unconstitutional and illegal ought to be prevented by a resort to other measures which are both constitutional and legal. It will be the solemn duty of the State governments to protect their own authority …, and to interpose between their citizens and arbitrary power. These are among the objects for which the State governments exist.”

 

To answer the question; WHO DECIDES?  The answer has always been the same, it is the people, and it has always been the people.  Even while we have remained silent, was that silence not consent?  While we were busy working for that house with the 2 car garage, entertaining ourselves with movies and sports, leaving the power over the Government up to others, was that not consent for the status quo?  While the stark usurpations of power from the last two presidents have stirred some instinct of freedom in us, can we be surprised at the indignation of the political class over our complaints?  No the derision expressed is both understandable and predictable to our movement as anyone who has personal experience with a loss of power and authority can attest to.   This is why we must remain steadfast in our resolve today.  We must stand for those generations who did not so that those who come after us will have the liberty our founding fathers sought to provide us, their posterity.

 

Feb 01, 2011 | Categories:Founding Principles | Tags: , , , , , , , | 2 Comments »

Who Decides: part one

The Denver post reported this morning that US District Judge Roger Vinson ruled the Health Care Reform law was unconstitutional.  Read the complete article here, but here are some excerpts I want to cover.

The judge’s ruling produced an even split in federal court decisions so far on the health care law, mirroring enduring divisions among the public. Two judges had previously upheld the law, both Democratic appointees. A Republican appointee in Virginia had ruled against it.

We have, it seems, turned the United States Constitution into a political football.  Where elections determine the interpretation of the constitution, and we are ruled by the whims of the electorate instead of by law.  The difference can simply be illustrated as a lynch mob vs. a jury trial.  The constitution ‘should’ protect us from power grabs from either party, including the Patriot Act and Real ID passed by Republicans, but we have allowed ourselves to be docile while we await the decision of our betters.

The Justice Department quickly announced it would appeal, and administration officials declared that for now the federal government and the states would proceed without interruption to carry out the law. It seemed evident that only the U.S. Supreme Court could deliver a final verdict on Obama’s historic expansion of health insurance coverage.

Let this paragraph be a warning, this decision was no victory for either conservatives, or the rule of law.  It is simply an illustration of the problem we face.  Who decides what is constitutional?  Let me give you an illustration of how important this question is.  Let’s say you and a friend decide to go into business together.  The two of you draw up a contract where you cover every conceivable point of contention, but you both realize you could not have covered everything.  Your friend comes up with an idea that his brother should have the final say on all disputes.  Can you imagine anyone actually agreeing with that?  Why? Because ‘the final say’ of any dispute is the ultimate power, while I understand this illustration is not analogous to the Constitution, it does demonstrate clearly the power implied by the question; WHO DECIDES?   

“The judge’s decision contradicts decades of Supreme Court precedent that support the considered judgment of the democratically elected branches of government that the act’s individual responsibility provision is necessary to prevent billions of dollars of cost-shifting every year by individuals without insurance who cannot pay for the health care they obtain,” White House adviser Stephanie Cutter wrote in an Internet posting. [Emphasis added]

Put another way, unless all American are put into the insurance pool, the big insurance companies cannot maintain profitability of “expanding” coverage.  That is why after the Senate version was announced, Howard Dean called it a “bailout for insurance companies”.  And according to Ms. Cutter from the White House, the Supreme Court has upheld this brand of corporatism for decades.  And while this takes Federal Power to a whole new level, she is correct, over the last 150 years, the Courts have a history of siding with Congress over the Constitution and the people.  And when you think about it logically, that is as predictable as your friends brother siding against you in the example I provided earlier.

Feb 01, 2011 | Categories:Founding Principles, News and Notes | Tags: , , , , , , | 1 Comment »