Restoring the Republic – Part III

In Part 1 of this series, I covered the Constitutional Changes that aided the downfall and how to fix them.  In Part 2 I covered restoring the balance of power between the citizens and the government. This post will address reining in the national government by restoring the meaning of a few key constitutional phrases. In the final part, I’ll tie it all together with some additional thoughts.

The overarching power of the national government in the US is a direct product of an impossibly broad reading of one phrase in the Constitution, the refusal of the courts to recognize the 9th and 10th Amendments and the courts turning a blind eye to the national government achieving by taxation or spending what it is prohibited from doing by law. Fix these three things, and even the 16th Amendment is not so dangerous (though if the money is available some politician somewhere will try to scheme to use it and disregard the Constitution in the process).

The first and most important of these is restoring the proper meaning of the “Interstate Commerce Clause”. It’s a simple phrase with a clear meaning, but the progressives, in order to force their unconstitutional programs on the country, warped it to mean something it clearly did not when it was passed and then use it to circumvent all of the checks and balances in the Constitution.  The US Constitution, in Article 1, Section 8 says, in part:

The Congress shall have Power…To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;

 In the most plain reading of the text, Congress is empowered to regulate trade BETWEEN states, just as it is between the US and foreign powers (and Indians tribes as well). In no way could ‘regulate trade with foreign nations’ be read to allow Congress to regulate trade WITHIN those nations, even if the ultimate destination of the good or service was the US. Until the good or service crosses the US border, the Congress has no power to regulate or control it. The Congress can’t regulate the sale of Italian Wine to German consumers. Even more so, it is absolutely certain that the Congress can not regulate trade between a Italian baker and  Italian consumer. Such a notion would be absurd. And it’s equally absurd to think Congress could then regulate trade between an Illinois wheat grower and an Illinois baker or an Illinois baker and an Illinois consumer. Yet, this is exactly what the national government claims it may do, and what the courts permit it to do.

Ever since Wickard v. Filburn, covered here in detail and referenced by yours truly many times, Congress has interfered with any and all activity, even activity that occurs completely within a state’s boundaries. The Framers in no way intended for this result, expecting the citizens of each state, through their legislatures, to regulate any economic activity as they saw fit, so long as it was consistent with the state and national constitutions. The notion that the national government could reach into a state and control the daily lives of the people was so frightening to all, Federalists and Anti-Federalists alike, that provisions were written into the Constitution to ensure that this did not happen. As we’ll cover below, some felt the limitations were not sufficient and so the Bill of Rights, containing a clear statement of the principle of state power, was added almost immediately after the Constitution was ratified (and in fact, ratification in some states was contingent on this).

As the federal government sees it, and the courts have permitted, any activity that might in any way affect interstate commerce is now the purview of the federal government. In the case of Wickard, it was growing corn for his own use. This offended the centralized control supporters who realized that if they couldn’t prevent private economic activity they would never be able to impose the kinds of controls they wished. Unfortunately, they got their way. Federal regulations now touch every part of your life and there is no escaping them. The centralized command and control structures continue to grow every year as “new” and “better” ways of regulating and controlling your life are implemented.

A small impediment was thrown in the way of the national government when the “Individual Mandate” of the Affordable Care Act was found to be unconstitutional as a regulatory requirement. That impediment was immediately removed by finding that Congress power to tax allowed it to create tax consequences for failing to buy insurance. While the Court did state that this was only permitted since the taxes were not high enough to be coercive, the public is at the mercy of a future Supreme Court deciding what the ‘coercive’ limit it. I suspect we’ll never hit that limit, since the Court will defer to Congress’ taxing power. In the end, this wasn’t even a speed-bump on the way to and end-run around the Constitution.

The thing is, even THIS wasn’t enough for those who wanted to see centralized planning and control. There were still things that were prohibited to them by the courts. The landmark case that both reinforced this and opened the floodgates to a torrent of federal rules and regulations that are not part of the constitutionally delegated powers of the national government was South Dakota v. Dole. This case upheld the national government’s right to control state policy by withholding already allocated funds. In other words, a bait and switch exercise if there ever was one. The states signed up for the interstate highway program (something that is arguably constitutional under the delegated federal power to create ‘post roads’). Later on, after the states were committed to the program (with the federal government sending fuel tax money back to the states), new rules were unilaterally imposed on the states by Washington, and continued receipt of highway funds to maintain the FEDERAL highways was made contingent on accepting these unrelated conditions. The 7-2 ruling put an end to any limits on federal power. From this point on,  the federal government used the purse strings of existing funding to implement new rules.

Although it created other problems, the rulings on the Affordable Care Act in National Federation of Independent Business v. Sabelius finally put some limits on this power, though not enough to roll-back any of the previous egregious power grabs. In this case, three Justices of the Supreme Court said that the Congress had overreached and that they could not reduce current funding for Medicaid for states that refused to implement Medicaid expansion. These three, together with the two that would have upheld the whole Act, and the four that found the entire Act unconstitutional, created a majority that allowed the Medicare expansion but denied the power to cut current funding. Given the fractured nature of the ruling, nobody can predict what might happen with future funding-cut threats. My guess is that they will be permitted, so long as the national government can convince the courts that the funds withheld are insufficient to be coercive (see SD v. Dole).

So, now, if it involves interstate commerce, federally funded projects or taxes, there are no limits on what the Congress and the President can do. The Courts have ignored the expressly stated limited powers delegated to the national government, so long as the government takes care to follow the rules laid out by the court. If a law would be unconstitutional, you simply either make it a condition for a state to follow to continue to receive funding, make it a tax or declare it to be related to interstate commerce. The courts then proceed to ignore every other limitation in the Constitution.

I mentioned before that the Framers, in an attempt to calm the fears of the Anti-Federalists, added the Bill of Rights that contained, along with eight others, the following:

Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X
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.

The Courts have routinely ignored these amendments and generally reject arguments based on them. They are, in effect, dead letters, quaint notions from a time before the “Living Constitution” foisted on us by the progressives in their never-ending quest to “do something” to improve our lives. The entire federal edifice erected by the progressives is a monument to their failure. It has not stopped war, solved poverty, equalized income, prevented economic dislocation, created jobs, improved education, prevented banking scandals, forestalled stock market crashes  nor any other thing. Remember, this is referring to the centralized power, not to local governments where we find many success stories.

That was the dream of the Framers—strong local and state governments that provided the services they community wanted and needed, according to the desires of the local community and on terms the local voters set. National power was to be severely limited to a small set of duties—protecting the borders, conducting foreign policy (trade, treaties, war), ensuring free trade among the states, running a postal service and a other clearly enumerated tasks.

The solutions are simple. Restore the proper meaning of the “Commerce Clause”, reject any conditions, regulations or policies that would be unconstitutional if passed into law directly (as opposed to using the taxing or spending power) and return the 9th and 10th Amendments to their rightful place. Doing this would put us on the road to restoring the Republic in a generation.

In Part 1 of this series, I covered the Constitutional Changes that aided the downfall and how to fix them. In Part 2 I covered restoring the balance of power between the people and the government.  In Part 4 I’ll tie it all together with some additional thoughts.

Restoring the Republic – Part II

In Part 1 of this series, I discussed restoring the Constitutional Balance between the States and the Federal Government. We now turn to restoring the balance between the people and the government at all levels, not just Federal. There are a couple of things that need to be done to to restore the power of the people and limit the power of the government. The Framers thought they had prevented a centralization of power by listing a clear set of limited, delegated powers for the national government. In an attempt to ensure that this was not misunderstood, the Bill of Rights makes the explicit statement that the ultimate source of government is the people and that they retain all rights and privileges except those delegated to the government explicitly.

The first necessity is electoral—our system of government requires as many competitive electoral districts as possible. With gerrymandering run amok, we have very few that actually are in any way competitive. A simple, straight-forward solution to this problem is to eliminate all forms of gerrymandering, whether by state governments, the Courts, the Department of Justice or any other group. Electoral districts should be drawn roughly rectangular, starting in the North West part of a state and drawn to encompass roughly the same number of voters. Districts like this and this (both from my home state of Illinois) should never be allowed under any circumstances. Fixing this would shake up the House of Representatives as well as State Legislatures. And that would be a good thing. All of a sudden, many, if not most districts would become competitive and that is good for a responsive government.

Having elected representatives that are accountable to the people is not enough. There needs to be a firewall to protect the people from egregious acts by the government. Judges are ill-suited to this, especially life-tenure Federal judges that are accountable to nobody. The true firewall, the very last line of defense for the citizen is the jury. That group of peers, drawn from the community where the crime was committed, is the only thing standing between the power of the state and the person sitting in the dock. Unfortunately, the jury system has been corrupted and co-opted by the state into a tool for prosecutors rather than a check on unfettered government power. Fixing this is actually easy, it simply means educating the populace about the true nature and function of the jury.

The nature and composition of the jury is critical. It must truly be randomly selected from the community with no way for anyone to interfere, except when a clear, demonstrable bias or clear need for exclusion of a juror is shown. There should be no peremptory challenges permitted by lawyers. These allow both prosecution and defense to exclude from the jury anyone they think might be unfavorable to their case without specifying any reason. This defeats the random selection and creates a jury that does not represent the community, but reflects the biases of the prosecutor and defense attorneys. Challenges for cause against a person serving on a jury must be specific and must be examined only in the light of the defendant obtaining a fair trial and the state receiving a fair hearing of the charges. For example, an exclusion of someone who knows the victim or the defendant (or their families) is perfectly acceptable as it would be impossible to ensure there was no bias involved. It would also be critical to make it very difficult to be excused from jury duty to ensure that self-selection does not create bias.

The true function of the jury is revealed in the steps they should take to determine the outcome of a particular case. First, did the government prove beyond a reasonable doubt that the individual did what they are accused of. Second, did the defendant know, or should they have known, that the act was criminal. Third, should the act, in fact, be a crime. Fourth, does the proposed punishment fit the crime. If the answer to ANY of these is “no” then the jury should acquit. I’m sure that some reader is now screaming “jury nullification” in a not so kind tone. I will refer you, gentle reader, to the case “United States v. Moylan” [417 F.2d 1002 (4th. Cir. 1969)] where the 4th Circuit Court of Appeals unanimously stated:

If the jury feels that the law under which the defendant is accused is unjust, or exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the right to acquit, and the courts must abide that decision.

Sadly, many judges will remove a juror that understands and knows this, as the government is quite intolerant of citizens who understand this right. That has to be fixed before this can be wholly effective. That said, education can help, so long as those who do understand the power of the jury and the right to acquit keep this to themselves in the courtroom and are careful about how they go about addressing the issues in the jury room. If you hang a jury, one of your fellow jurors might rat you out and this is cause for removal from the jury.

I suspect everyone knows, understands and agrees that the government must prove their case beyond a reasonable doubt in order to obtain a conviction. Reasonable doubt means that all things being equal, there exists no evidence nor theory that a reasonable person would accept. It does not mean perfection nor proof beyond any doubt. If the evidence is fairy examined by the jury, and both sides are able to freely present their theories and attempt to discredit the other side, and the prosecution presents convincing evidence, then step one is completed. If not, then an acquittal is to be returned.

Next, we turn to an extremely important concept called mens rea. No law should be enforced against someone who did not know, and had no reasonable way of knowing, that an act was illegal. An example of such is prosecution for packaging lobster taills in plastic rather than a cardboard box. There was no reasonable way for Ms. Huang to know that it was against Honduran law and applied to her because of the Lacey Act. This would not let a murderer or rapist “off the hook” by a claim that they didn’t know it was against the law. It would require the government to prove that any tax evasion or fraud was intentional for criminal charges to be proved.  A mistake should not be punished as a crime. So, when the jury reviews the case, they must make a determination that the defendant knew, or that a reasonable person would know, that the act was illegal. If so, then step two is completed. If not, then an acquittal is to be returned.

We move then to the most controversial of the steps, and one that has caused problems in the past-the notion that the jury may simply reject a conviction if the accusation is for an act that ought not be be illegal. I fully acknowledge that some number of people will go free when they should have been convicted, but the system is supposed to err on the side of acquittal not on the side of conviction. As Blackstone wrote “it is better that 10 guilty persons escape than that one innocent suffer“. In other words, we always err to finding the person “not guilty”. To protect against a single nullfiier (e.g. an anarchist who actually appears for jury duty and serves with the intent of acquitting anyone in the dock), this step would require only 2/3 vote by the jury. If 5 of the jurors rejected the law, then an acquittal is returned, otherwise this step is complete.

Finally, the last step is for the jury to decide if the proposed punishment fits the crime. With politicians enacting ever harsher penalties for misdemeanors and felonies punishments are often extreme compared to the damage done by the crime. To draw an example from the arts, I mean to prevent injustice such as the following:

Javert: Now bring me prisoner 24601. Your time is up snd your parole’s begun.You know what that means.
Valjean: Yes, it means I’m free.
Javert: No! It means you get your yellow ticket-of-leave. You are a thief.
Valjean: I stole a loaf of bread.
Javert: You robbed a house.
Valjean: I broke a window pane. My sister’s child was close to death and we were starving.
Javert: You will starve again unless you learn the meaning of the law.
Valjean: I know the meaning of those 19 years; A slave of the law
Javert: Five years for what you did; The rest because you tried to run

Yes, it’s fiction. But we have laws on the books that have equally inequitable punishment. The aforementioned Virginia law against wearing a mask in public is a Class 6 FELONY! That’s a sentence of 1 to 5 years in prison. For wearing a mask. With no criminal intent. No jury should ever convict anyone of this crime based on step 3 above, but even should they do so, the punishment does not fit the crime. And yes, before you ask, this law is enforced. Again, we’ll use the 2/3 standard. If 5 members of the jury feel the proposed punishment is unjust, and acquittal should be returned. Otherwise, assuming all previous steps were completed, a conviction should be returned. An alternative solution, and one I prefer, is to eliminate mandatory minimum sentences and have the jury return and advisory opinion to the judge as to the sentence.

Reformed juries, with the powers as described, act as a powerful check on the government. Political districts drawn in roughly similarly shaped and populated ways act as a strong check on the political parties and make politicians more accountable (since they are more vulnerable). These two important checks would go a long way to restoring the republic.

In Part 1 of this series, I covered the Constitutional Changes that aided the downfall and how to fix them. In Part 3 I’ll cover limiting the power of the national government (specifically the Interstate Commerce Clause) and in Part 4 I’ll tie it all together with some additional thoughts.

Restoring the Republic – Part I

As my long-term readers might remember, I was working on a series on the Death of the Republic. I’ve let that lapse, though I will likely return to it in the future. It’s hard to write at times about the rotten, stinking corpse of the Republic, seeing how far we have fallen. Even so, I keep wondering if it can be restored.

Firstly, we must address what it means to ‘restore’ the Republic and how a restored Republic would function. What I mean by this is a government that properly reflects the Founders’ vision of self-government where local and state governments are paramount and the national government limits itself to matters of foreign policy, foreign trade, fielding a military, immigration and customs. In other words, the things specifically delegated to the national government by the Constitution.

The Constitution created significant checks and balances, not just in the tripartite national government, but between the national and state government and between the state and the people as well. Foolish progressive experiments have pushed us away from a Republic and destroyed true checks and balances. Abuses by state and national prosecutors, aided and abetted by state and national judges, have destroyed the checks and balances of the jury system. Fixing some of these is simply a matter of will, fixing others requires restoring the Constitutional balances by repealing the failed progressive amendments, namely the 16th and 17th as well as rejecting a significant amount of case law that redefines the meaning of sections of the Constitution to be completely changed from the spirit and intent. This article will address the constitutional changes. Future articles will delve into other areas.

Although not at the top of the news—or the bottom, in most cases—the biggest Federal power grab from the states is through Unfunded Mandates. Unfunded Mandates are policies, procedures and regulations imposed on the states by the national government without funding being provided. Think “No Child Left Behind” and Medicaid. They force states to collect taxes to implement nationally imposed programs, allowing Washington politicians to take credit for programs while not having to fund them. In the system envisioned by the Founders, no such programs would ever have passed the Congress. None.

Why am I so sure of this? Because no Senator would ever have been reappointed by a state legislature if they agreed to an unfunded mandate. Progressives knew this, and knew they needed to destroy the power of states to resist the federal government. They accomplished this goal by passing the 17th Amendment. In one simple act, the power of the states was destroyed. Since the legislature no longer controlled the appointment of senators, senators were free to ignore the best interest of their state, free to ignore the wishes of the state legislature and were now subject to pressure from interests outside the state. Because of this, the US Senate has gone from being a place of serious debate and a protection for the states  to a populist body that seeks to increase federal power. Exactly the opposite of what the Framers intended.

You see, the House of Representatives was meant to be the raucous, wild, uncontrollably populist branch, elected every 2 years, en masse, to blow with popular opinion. The Senate, elected by the legislature in rotating groups of 1/3 every 2 years, was meant to be stable, unaffected by populist whim and provide a firewall against both federal encroachment and populist sentiment. The progressives willingly and intentionally destroyed it to move their agenda forward, caring not a bit for the checks and balances that blocked their attempts to remake the US into a centralized democracy.

Of course, empowering the government by disenfranchising the states was only half the battle. Somehow thees grandiose ideas had to be funded. The other shoe had already dropped—the 16th Amendment had granted the national government the right to tax individual citizens of the states. This provided a way for Washington to directly and powerfully control, direct and manage the lives of individual citizens—a notion that was foreign to the Framers. The Anti-Federalists predicted this development, but lost the argument. Even the Bill of Rights failed to prevent this kind of encroachment.

A further development, also pushed by the progressives, was to force the states to implement ‘democratic’ reforms (despite the Constitution requiring the federal government to guarantee ‘republican’ forms of state government) in the states. With the slogan “One person, one vote” they used the courts to force states to elect state Senators by population, rather than by county. This destroyed the balance of power in states between cities, suburbs, towns, villages and rural areas.  In Illinois, Chicago controls the entire state and despite the “One person, one vote” slogan used to create this situation, effectively disenfranchises anyone outside of the 6 county area (Cook, Du Page, Lake, Kane, Kendall, Will). Illinois is a disaster economically, politically and financially. 4 of the last 9 governors went to federal prison. The state is effectively bankrupt. There are no effective checks on the state government—not even federal prosecutors. California is similarly situated (though minus the imprisoned governors). Taxes are raised, even more money is spent and the states spiral into bankruptcy (though no provision of the US Bankruptcy code allows a state to actually go bankrupt).

Fixing this is fairly simple in theory, very difficult in practice. Repealing the 17th Amendment (and tweaking the original rules slightly) would be difficult at best. The rallying cry of “they want to take your vote away” would be hard to overcome, even though it is likely in the best interest of the majority of voters in each state to give up their vote for Senator. They would regain a measure of control of their lives and have an easier time effecting change since they would only need to replace their state legislature, something they are in complete control of (unlike the US Senate or House where they have little chance of effecting true change). The minor tweaks are that the State House of Representatives has 10 days to elect a new Senator after a vacancy, and up to 10 days before a term expires to elect a successor. If a vacancy is not filled in those periods, the governor appoints a Senator (and no consent is necessary from the legislature) to serve until the State House of Representatives acts. Upon their act, their elected Senator immediately takes office. This ensures timely action by the legislature to protect their prerogative. It ensures that the state will be represented by giving the governor the power to make an interim appointment until the legislature acts if they have not done so within the time-frame specified.

An outright repeal of the 16th Amendment would create an immediate, massive shortfall in federal funds. As such, it is pragmatically, economically and financially impractical. Too much of the current financial system relies on US government instruments, US government spending and too many people rely on transfer payments. Utter chaos would result. Some might argue that this is preferable, equivalent to ripping off a sticking plaster. I don’t agree—that “cure” would very likely result in dictatorship, war, famine and mass death.

Perhaps the best approach is to apply a gross receipts tax on all businesses with exceptions nor deductions and eliminate the personal income tax completely. A tax of 13% would raise in the neighborhood of $4 trillion (about what the US Budget was for 2012), assuming that US Gross Receipts are about $30 trillion (estimated by the US Census Bureau). Since we want to cut the federal government, set the rate at 7%. The government has to cover anything it wants to spend from this tax plus excise taxes and duties. That still leaves the Federal Government with $2 trillion to spend.

This about this-no personal income tax. No social security tax. No Medicare tax. Corporate taxes would be a simple one-page document stating income. The amount of time and money saved would be immense. The IRS would become a tiny shell simply processing monthly receipts and reports from business. I acknowledge that these taxes very probably would be passed on to consumers, but I think the end result would be a major benefit to the economy.

Finally, to prevent a repeat of courts interfering with republican forms of government, an amendment guaranteeing the states the right to draw districts for Senators based on, for example, counties. A statement that no state could be deprived of this right without the consent of its legislature would be needed as well (similar to the statement the no state can be deprived of equal representation in the US Senate without its consent).

These measures, repeal and/or modification of the 16th and 17th Amendments, as well as a return to prior methods of electing State Senators would go a long way to restoring the balance of power between the States and the national government.

In Part 2, I’ll discuss restoring the balance of power between the people and the government. In Part 3, we’ll cover restoring the meaning of the “interstate commerce clause”. Part 4 will tie it all together.

Marbury v. Madison – The Supreme Court Declares That it Has the Last Say (End of the Republic Series)

You will not find, anywhere in the Constitution, a statement that any branch of the Federal Government has supremacy over the others. In fact, you will find legislative, executive, and judicial powers jealously guarded, separated and balanced. The Supreme Court chose to seize power by judicial fiat in Marbury v. Madison.

In what should be quite familiar to modern readers, there was a change of party in the White House, and the outgoing administration attempted, on its last day in office, to “stack the deck” with its own appointees to certain federal offices and courts. The appointments were properly made by President John Adams and recorded by (acting) Secretary of State John Marshall but not delivered. Upon taking office, President Thomas Jefferson and Secretary of State James Madison refused to honor the appointments.  One of the appointees, William Marbury, sued to enforce his right to his office.

In a twist worthy of a Hollywood thriller, the aforementioned Marshall had been appointed by Adams to the Supreme Court and confirmed by the Senate. He had continued to act as Secretary of State due to the short time remaining in Adams’ term. Now, John Marshall, sitting as Chief Justice, was asked to review the actions of the opposition party in regard to actions taken by Adams and Marshall before the end of Adams’ term. Without question, Marshall should have recused himself. He had such a severe conflict of interest that he had no business ruling on the case. But rule he did. The decision was 4-0, and Marshall wrote it.

The outcome was not at all what Marbury wanted. The Court did say he was entitled to his commission, and had the right to have a court issue ‘mandamus‘ (an order to a member of the executive branch to do their job). But the court then went on to say that Congress could not extend the original jurisdiction of the Supreme Court (thus declaring the Judiciary Act of  1789 unconstitutional) and stating that the Supreme Court had no power to issue the writ of mandamus since it had no jurisdiction.

The Court got this wrong on a number of accounts. First, as mentioned above, Marshall should have recused himself. Next, the court did not have to look to the Judiciary Act of 1789 for jurisdiction (and thus should not have overturned it), since the Constitution clearly provides original jurisdiction for cases involving government ministers (which this most certainly did). They did not have any clear constitutional authority to overturn acts of Congress. And finally, if they decided they did not have jurisdiction, then they should not have stated anything at all about the merits of the case (i.e. should Marbury get his commission).

The questions are legion about this case. Given that Marshall should have recused himself, and that he had no need to even reach the question of the judiciary Act, and having reached that question, (improperly) determining that the Court had no jurisdiction, but still reaching the merits, what was Marshall up to? I’m not a mind reader, but it is my opinion that what Justice Marshall, a Federalist, wanted was the power to declare any acts done by the Jefferson Administration and new Republican Congress unconstitutional to block their ability to govern. In other words, it was crass partisan politics. The facts fit this characterization.

Unfortunately, this case has become the bedrock of American jurisprudence, and we have suffered with an imperial judiciary ever since. The branch that has  absolutely no way for the electorate to directly affect it now is the final arbiter of the law and the Constitution. Errors cannot be undone by voting someone out of office, since the justices have lifetime appointments. Most Presidents get to nominate two or three justices, and short of a criminal or ethical violation, Supreme Court justices usually leave office upon their death (or very shortly before).

Thomas Jefferson, writing to William Charles Jarvis in September of 1820 had this to say:

You seem…to consider the judges as the ultimate arbiters of all constitutional questions;  a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.  Our judges are as honest as other men, and not more so.  They have, with others, the same passions for party, for power, and the privilege of their corps.  Their maxim is “boni judicis est ampliare jurisdictionem,” and their power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control.  The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots.  It has more wisely made all the departments co-equal and co-sovereign within themselves.  If the legislature fails to pass laws for a census, for paying the judges and other officers of government, for establishing a militia, for naturalization as prescribed by the Constitution, or if they fail to meet in congress, the judges cannot issue their mandamus to them ;  if the President fails to supply the place of a judge, to appoint other civil or military officers, to issue requisite commissions, the judges cannot force him.  They can issue their mandamus or distringas to no executive or legislative officer to enforce the fulfilment of their official duties, any more than the President or legislature may issue orders to the judges or their officers.  Betrayed by English example, and unaware, as it should seem, of the control of our Constitution in this particular, they have at times overstepped their limit by undertaking to command executive officers in the discharge of their executive duties ;  but the Constitution, in keeping three departments distinct and independent, restrains the authority of the judges to judiciary organs, as it does the executive and legislative to executive and legislative organs.  The judges certainly have more frequent occasion to act on constitutional questions, because the laws of meum and tuum and of criminal action, forming the great mass of the system of law, constitute their particular department.  When the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity.  The exemption of the judges from that is quite dangerous enough.  I know no safe depository of the ultimate powers of the society but the people themselves ;  and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education.  This is the true corrective of abuses of constitutional power.

I really can’t say it any clearer than Mr. Jefferson did. Americans have, in effect, traded King for Court, and have no redress that cannot be undone unilaterally by the Court. Even Constitutional Amendment is not safe from the Court, for it has declared itself the final arbiter of what the Constitution says, and as such, could read an Amendment perversely, and the people would have no recourse. This has already happened and will continue to happen, until such time as the people reject the authority of the Supreme Court as the final arbiter.

Jefferson did propose a solution-found in, among other places, the Kentucky Resolutions. He writes:

 in cases of an abuse of the delegated powers, the members of the general government, being chosen by the people, a change by the people would be the constitutional remedy; but, where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact…to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them…

The States, either by their legislatures, or by the people directly, simply refuse to enforce or obey the law they deem unconstitutional. A small, limited federal government would not have the power to enforce the laws and the states, having the enforcement power, would be able to nullify laws simply by refusing to prosecute violations. Of course, a limited, circumscribed federal government as defined in the Constitution would rarely act in such a way as to violate the Constitution, as its purview would be quite limited.

Next up, McCulloch v. Maryland where the same Justice Marshall, having declared the Supreme Court as a final arbiter, turns the Constitution on its head by granting Congress  effectively unlimited power through the ‘Necessary and Proper’ clause and by rejecting the notion that the States that formed the Union have any power to control the Federal Government.

For all posts in this series, follow this link: End of the Republic

Stare Decisis – How the misuse of ‘precedent’ enshrines bad decisions (End of the Republic Series)

A brief excurses is necessary before I post on the key early Supreme Court cases….

Stare Decisis—Latin for “stand by the decision” is a concept that helps ensure stability and predictability in law. By giving significant weight to previous decisions, a consistent set of case law is developed from which the public can draw conclusions about how a court will decide a current or future case. If this were how it worked in practice, there would be far less problem. It doesn’t work that way in practice. In practice, rather than giving significant weight to previous decisions, it enshrines previous decisions and makes them ‘controlling’ rather than ‘influential’ on future decisions.

Why is this a problem? Because a single bad decision then becomes the controlling decision for future cases, ensuring that the bad decision propagates through the system. Take, for example, the infamous Wickard v. Filburn that we have discussed here before. That single bad decision (that growing wheat for your own personal use is “interstate trade” and can thus be regulated by the Federal Government) has led to more and more Federal influence on personal activities within a state. Crimes committed solely within a state, with no activity across state boundaries, or even intent to cross state boundaries, now are prosecuted as federal crimes (see Gonzales v. Raich, where the Supreme Court ruled that federal law applied even though a state law made the activity legal and the activity occurred wholly within that state).

Since Supreme Court decisions effectively amend the Constitution by declaring a thing is, or isn’t, permitted, and there is no resource except for the complicated process of passing an actual amendment, we allow unelected judges to make final, binding decisions that are nearly impossible to overturn and that cannot generally even be questioned by lower courts. What is the recourse for a citizen with an unpopular cause who has been denied his or her rights but he Supreme Court? Ask Dred Scott about that one. In perhaps the worst decision ever by the Supreme Court, blacks were ruled not to be citizens. The Civil War and the 13th and 14th Amendments changed that. But look past that for a moment—where was Dred Scott to turn now? His rights denied, even his citizenship denied, he had no recourse.

How should it work? Applied properly, stare decisis would give previous decisions significant influence, but not control the outcome. Judges would look at each case, review the previous decisions (as is done now) and rule on the instant case based on all factors, including similarity to previous decisions. And if the previous decisions were wrong, they have the opportunity to prevent propagation of that wrong decision. Courts at all levels would be able to exercise judgment. In most cases, most decisions would be controlled by precedent (stare decisis), but there would be enough ‘wiggle room’ that a judge could decide otherwise.

Now that we’ve laid a bit of foundation, it’s time to start looking at some early decisions by the Supreme Court: Marbury v. Madison and McCulloch v. Maryland.

For all posts in this series, follow this link: End of the Republic

‘Federal’ vs. ‘National’ Government (End of the Republic Series)

Justice Roberts, by his vote on the ‘Affordable Care Act’ has completed the transition from a ‘Federal’ government to a ‘National’ one. The distinction is quite important. And we’ve just completed our transition from the former to the latter.

In historical US political theory, a ‘federal’ system was one of a central government with limited delegated powers, with all other powers not delegated nor otherwise restricted from, belonging to the states (and the people thereof). The states are sovereign in most areas, and generally speaking, the central government may only rarely reach out into the lives of the citizens of the sovereign states. This notion of federalism brought us the phrase (heard often when I was young, but rarely now as there is no context for it) “Don’t make a federal case out of it.” That is, make the dispute so large that the central government had jurisdiction over it.

A national government, on the other hand, placed full power in the central government with states being, effectively, administrative divisions. Generally speaking, these administrative divisions are similar to counties in US States—they have some delegated power, but they can be trumped by the state government (assuming nothing in the state constitution stands in the way).

The Founders worked out a complex system of checks and balances that, in their view, would protect individual liberty and promote freedom. The three branches of the Federal system were meant to balance each other. The tripartite system balanced a popularly elected House, a Senate with members appointed by the State Legislature and a President elected by representatives appointed by the States (the ‘Electoral College’).  In addition to this arrangement the Constitution provided for a federal government with strictly limed powers delegated by the States and reserved all other powers to the states, or to the people (c.f 10th Amendment).

There have been lengthy publications on this topic, and it does not make sense to reprise everything here. I will suffice to use the words of Publius in the Federalist Papers to show what the proponents of the new Constitution meant by what they proposed.

Writing in Federalist 39, James Madison says (whilst discussing the character of the government under the proposed Constitution):

The idea of a national government involves in it, not only an authority over the individual citizens, but an indefinite supremacy over all persons and things, so far as they are objects of lawful government. Among a people consolidated into one nation, this supremacy is completely vested in the national legislature. Among communities united for particular purposes, it is vested partly in the general and partly in the municipal legislatures. In the former case, all local authorities are subordinate to the supreme; and may be controlled, directed, or abolished by it at pleasure. In the latter, 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. In this relation, then, the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.

He is arguing that while there are characteristics of a ‘national’ government in the proposed constitution, it is still properly federal, in that the power is centralized in the national legislature. In Federalist 51, Madison affirmed the separation of powers between the branches AND between the states:

 In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. 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. [emphasis added]

The two distinct governments that Madison refers to are the Federal and State governments.  And the Federal government was one of strictly limited, delegated powers. Madison writes in Federalist 45:

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. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States.

Sadly, when discussing these new powers just a few paragraphs later, Madison misread the character of the clause that would be a major factor in the undoing of limited federal power:

If the new Constitution be examined with accuracy and candor, it will be found that the change which it proposes consists much less in the addition of NEW POWERS to the Union, than in the invigoration of its ORIGINAL POWERS. The regulation of commerce, it is true, is a new power; but that seems to be an addition which few oppose, and from which no apprehensions are entertained. [emphasis in the original]

Oh that he had worried more about it and apprehensions had arisen. For as we shall see later in this series, this lowly phrase was the main undoing of personal liberty and limited government. Before we get to that, we need to examine  other events that occurred long before the Commerce Clause was abused…the first of which had Madison center stage.

NOTE: Some will argue that the ‘Medicare’ decision (7-2 stating that the Federal Government could not withhold existing funds to force expansion of the program) is a limitation on Federal power. It is, but it is so insignificant (only applying to existing, well-entrenched, costly programs) that in reality, the states are still not free of irresistible coercion by the Federal government. More on this later.

For all posts in this series, follow this link: End of the Republic

The End of the Republic

The concept of the United States as a voluntary union of independent, sovereign states, put forward by the Founders, died with the Civil War. No longer could the ‘several States’ go their own way. The States lost their final defense in the 17th Amendment, denying the State Legislature complete power over the choice of Senators, removed an important check on Federal power. Wickard v. Filburn ended the notion that private, individual activity was beyond the power of the Federal Government, changing forever the federal system into a national one, with few limitations. The final nail in the coffin for the Republic was in National Federation of Independent Business, et al., v. Sebelius (aka ‘Patient Protection and Affordable Care Act’, commonly known as ‘Obamacare’ to its critics), ruling that inactivity could be regulated (‘taxed’), thus removing any limits on the Federal government (As predicted in my post from last September on it being Illegal to Grow Your Own Food).

Briefly, and I will post in more detail on this, the Chief Justice, by using tortured language, changing meanings of words between sections of the opinion and ignoring the text and history of the Constitution, rules that the government could impose a tax on inactivity. Granted, he tried to limit the application of the Commerce Clause, and instead gave Congress effectively blanket authority to require any behavior by simply creating a tax. Now, rather than just the Commerce Clause, we have a second way for Congress to force individuals to act. In trying to ‘protect’ us from the Commerce Clause, Justice Roberts simply handed Congress a new hole through which to shove legislation.

There are a number of issues that need to be addressed here, and I will do this in separate posts (links will be added as I complete the posts).

  • What is the difference in character of a ‘Federal’ vs. a ‘National’ government? Where is the locus of power in each? What did the Founders say abut this?
  • Stare Decisis—How an important guiding principle enshrines bad decisions in the name of consistency and predictability. What if the Supreme Court gets it wrong?
  • What is the origin of the Supreme Court’s power to overturn acts of Congress? A review of Marbury v. Madison.
  • Where did it all start to go horribly wrong? A review of McCulloch v. Maryland 
  • The Civil War and the end of the States as sovereign, independent powers in a voluntary union
  • The 16th and 17th Amendments—recipes for massive federal growth and a reduction in state power
  • The end of the ‘Lochner‘ era and the growth of federal power. A review of Lochner and West Coast Hotel v. Parish.
  • The ‘Switch in Time that Saved Nine’ and the growth of the administrative state.
  • The ‘Commerce Clause’—state sovereignty on life support—From Wickard to Raich.
  • The gutting of Article V of the Constitution,  and the formation of a National Government and the death of the Republic—the power to tax anything, including inactivity.
  • End game—the Bill of Rights as the only theoretical limit on national power. What happened to the 9th and 10th Amendments?

It will take some time to write the above (though some of it is discussed in prior articles), and I won’t necessarily do it in the order above. In addition, I’ll add to my previous commentary on the Constitution. Please follow my RSS Feed, my Twitter Feed, Google+ or Facebook.

As a final note, please remember that the analysis is not about whether or not a system of national health care is a good idea or not, but rather about whether it is permitted under the Constitution. A debate about whether or not we should have such a thing is appropriate, but as will be seen from my analysis, once we allow the ends to justify the means, the Constitution becomes a worthless scrap of paper, interesting only to historians as a political curiosity.

Updated 2012-07-02 to fix minor formatting, punctuation and grammar errors.

For all posts in this series, follow this link: End of the Republic