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 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.

Proposition 8 and Standing – the People vs the Executive

Nuances in Supreme Court rulings are often missed by the public—things often turn on esoteric points of law, complicated logic or long-standing precedent that seems antiquated or out of date, or is at conflict with the ‘popular’ will. The recent Supreme Court ruling on Proposition 8 pretty much hits all of those, and leaves us with a question—when the executive authority of a state refuses to follow the will of the voters in the performance of his or her duties, what is the recourse?

Why this question? Because that’s what the Supreme Court actually decided. They did not rule on the judgment of the District Court. They said that the appeal was not properly filed and that therefore the Appeals Court ruling was invalid (and thus vacated) and that they, the Supreme Court, could not rule on the merits of the case. It was an opinion about standing, and nothing more. It did NOT address the issue of gay marriage. What really happened? Keep reading.

Firstly, lets look at how the process of challenging a law in court works. We’ll look at this from a simplified, layman’s viewpoint, and in broad generalities. Ask an attorney (I’m not one) if you want more detail or need legal advice! There are a number of hurdles that must be overcome before the case is actually heard by a court.

The first hurdle to be overcome is jurisdiction—does the court you are asking to intervene have jurisdiction over the subject matter and the persons involved. Not all courts have jurisdiction over all subjects and over all persons. For example, courts in a state that I do not reside nor have any relationship with do not usually have jurisdiction over me. If I don’t go to California, sell into California or otherwise create as ‘nexus’ with California, California Courts have no jurisdiction over me. If you sue me in California State Court, I can likely have the case dismissed for lack of personal jurisdiction. You would likely need to pursue your claim in the Illinois Courts or Federal Court.

Once the court accepts the case based on jurisdiction, there must be a ‘live controversy’ that requires judicial intervention. There must be two adversarial parties, each with a claim that cannot be reconciled. In the case of Proposition 8, the question was about the power of the people to Amend the California Constitution and whether the Amendment and the process violated the California or US Constitution or applicable Federal Law. Almost immediately upon passage of Proposition 8 legal challenges were filed by those who would be affected by the law. The ‘live controversy’ then was between the state (in the person of the Governor and/or Attorney General) and couples who wished to marry but were unable to do so because of Proposition 8.

This brings us to the final hurdle—standing. Do the parties to the suit have the right to challenge or defend the law (or, on appeal, the ruling of the lower court). In order to challenge a law, an individual or group must show particularized (i.e. direct, personal) harm. That is, it’s not possible to challenge the general effects of a law, but only those effects that can be demonstrated to have a direct impact on the person or group bringing the challenge before the court. In this case, the gay couples could show particularized harm (the law discriminates against us by refusing to allow us to marry) so they had standing. The defendants in this case were the Governor and/or Attorney General representing California. Standing for the state is pretty much automatic when defending or appealing a ruling about state law or the state Constitution.

Unless all of the above (and often more) issues are properly resolved, the case will be dismissed for lack of jurisdiction (you may have filed in the wrong court), lack of a live controversy (there is nothing for a court to decide) or lack of standing (you aren’t in a position to show personal harm). At this point, we have a potentially live case.

Another topic that will be important here is the exercise of discretionary authority by the executive branch. Put simply, the Governor, Attorney General, State’s Attorney’s, Public Prosecutor, Police and all other ‘executive branch’ agents exercise discretion every day in how they do their jobs. Not every criminal act is prosecuted, not every alleged crime is investigated, not every failure to pay taxes leads to fines or other punishment, etc. These decisions are left to the executive and discretion is often broad. That said, if we recall Marbury v. Madison, it is possible for a court to issue a Writ of Mandamus that orders an elected official to perform an official duty. Only certain actions will result in writs-they generally apply only to ministerial or legally compelled duties, not to political or discretionary decisions.

So, what happened at in Federal Court? After the Supreme Court of California found Proposition 8 to be properly executed and voted on and thus the California Constitution was properly amended, future same-sex marriage was outlawed in California (previous marriages were held to remain valid). The gay couples involved brought action in the US District Court. They had standing (still affected by Prop 8), the court had jurisdiction (for example, on the claim of equal protection under the 14th Amendment) and there was certainly a live controversy (the Court had a specific question before it). The District Court found that Proposition 8 violated the ‘due process’ clause on the grounds that there was no compelling state interest in refusing gay couples marriage licenses.

When this happens (a court overturns a statute or constitutional provision), it is the state that makes the appeal. Mind you, nothing requires them to do so. They may look at the case, decide they can’t win on appeal and simply allow the ruling to stand. Or, the executive officials may have changed and the new ones do not wish to see the law enforced. The thing is, they do not need to give a reason to the court for declining to appeal—they simply don’t file. That’s what happened in this case. The state of California decided no to pursue an appeal. This is a political decision and an exercise of discretion. That means that it’s very unlikely that the executive could be compelled by mandamus to appeal the decision. The Courts usually do not intervene in cases like this, leaving them to the political process.

At this point, several other groups (for example, Imperial County, CA and supporters of Prop 8) filed to intervene to press the appeal. The Appeals Court requested an opinion from the California Supreme Court as to whether these parties had standing to do so. The California Supreme Court ruled, that under California Law, they did. The Ninth Circuit accepted this ruling and then proceeded to uphold the District Court’s decision. An appeal was then filed with the US Supreme Court.

The US Supreme Court accepted the case and looked at the standing issue. The Court decided that the outside groups did not have standing to press the appeal, in accordance with long-held precedent. The parties could show no particular injury resulting from the District Court’s opinion, nor from the fact that Proposition 8 was not defended by the executive. In this case, the only party that COULD show particular interest was the State of California, and the State, through its governor and attorney general, declined to participate. Thus, there is no live controversy, and no case. The Supreme Court vacated the Appeals Court’s ruling (as was appropriate to do) and thus the ruling of the District Court that Proposition 8 was a violation of the US Constitution was the final judgment in the matter.

This leaves us with an important political question—how do the people enforce a validly enacted law, found to be so by the state Supreme Court, when the executive refuses to enforce it, or, in this case, defend it in court. There are numerous political options, depending on your state Constitution. These include impeachment, recall or replacement at the next election. It’s also possible for the legislature to pass a law requiring that the executive defend the law until final resolution.

To many, this sounds anti-democratic. I submit that not only is it anti-democratic, but that it is proper as well. We do not have (nor do I want) direct democracy. The Founders rejected such notions, looking to the history of populist movements as an argument against it. The Senate was specifically setup to not be a popularly elected branch, but this was foolishly changed by the 17th Amendment. We live in a Constitutional Republic where we delegate sets of powers and authority to the government. That delegation includes discretion and our recourse when we disagree is to replace the executive and/or legislature through political means.

The Constitution and Marriage

The US Constitution says nothing about marriage. Nothing at all. It is totally silent. Since it is silent, the Federal Government has no authority over marriage. Period. Why? Because the US Constitution is a document that delegates powers from the States and the People to a National government. Contrary to what many might believe (including, sadly, many current and past Justices of the Supreme Court), any power not delegated to the national government is retained by the states, or by the people. The Constitution says so:

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. [Amendment X]

The Founders and the several states added this amendment to make it absolutely crystal clear that the national government may only exercise those limited delegated powers and no more. Over the years the courts have effectively eliminated the Tenth Amendment from their jurisprudence, insisting that the “commerce clause”, “necessary and proper” clause and various other clauses control the cases, not the clear and explicit statement in the Tenth Amendment.

What does this mean? It means that the Federal government has absolutely no say in who may marry whom. It must rely on the judgment of the several states, through their elected officials, to determine what the criteria for marriage are. And it must accept the administrative acts that declare individuals married. Any benefits offered to ‘married’ persons must be offered based on the sole judgment of the state that issued the marriage certificate. Period. End of discussion.

As for the individual states, it is their constitution, legislature, courts and people who decide the criteria for marriage. They are the sole judge of who qualifies to be married and under what conditions. There is one major caveat-the constitution requires them to recognize all marriages performed by other states as well:

Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof. [Article IV, Section 1]

This is seen in the fact that you don’t need a driving license for every state, just one issued by the state where you are a resident. You don’t need a new marriage certificate when you move to another state. Your license plates are good in every state. And so on. The states may not pick and choose. Congress may declare how this is to operate, but what they may not do is single out individuals or groups—they may only make general laws (that is, laws that apply across the board). If some marriage certificates are accepted, then ALL marriage certificates are accepted, and Congress may not pick and choose.

Note that this applies even in the case of differing standards. For example, in about a third of the states, first cousins may marry without  restriction. In the rest, either restrictions are placed on the issuance of marriage licenses, or it is banned outright. The thing is, only Arizona and New Hampshire have laws on their books that declare cousin-marriage by residents of another state void (i.e. the state would not consider you married). I could find no evidence of prosecution of these laws in recent times, and I suspect the laws would be struck down on equal protection grounds without even reaching Article IV (since the courts don’t seem to like it much more than the Tenth Amendment). So, note well, states that ban certain marriages by their own citizens accept those approved by all other states.

Where does this leave our current situation with “gay” marriage? The same place every other legal act of a state leaves us—with Article IV requiring that all other states recognize ALL marriages approved by other states. And a federal government that is required by the Tenth Amendment to recognize ALL marriages approved by the states. It is really that simple. And it means a lesbian couple married in New York that moved to Texas would have to be treated by Texas as validly married, and afforded all the rights and privileges of a married couple. Of course, Texas could refrain from approving any same-sex marriages, if that is what their legislature and people decide.

Per the US Constitution, the ‘battle’ was over once the first state approved same-sex marriages. At that point, all other states have to recognize those marriages. Moral objections cannot override the Constitution. Distaste for someone’s choice of marriage partner cannot override the Constitution. Given that it takes 38 states to amend the Constitution and 13 have already approved gay marriage, and other states have permitted civil unions, it is very unlikely that 34 states (not to mention 2/3 of each the Senate and House) would be willing to sign-off on a Constitutional change to reverse this. The Founders would have offered secession as an option, but the Civil War pretty much put paid to that notion.

Is there a solution? Not one that will satisfy the American right. Those of us who value individual liberty and believe in limited government think that the best solution is to get the government out of the marriage business completely. Handle all personal relationships with contract law without any need for state approval. In other words, I assign via contract, declaration or other document certain rights and privileges to another person or persons, and the state honors them. Any personal agreement with another person to stay together would be governed by a contract we worked out (rather than one imposed by the state as is the case with marriage). And any ceremony that solemnized such an agreement could be conducted in the church, synagogue or mosque of your choice, of if not religious, by any public declaration you chose. Frankly, the State of Illinois’ approval of a marriage, mine or any other persons, is meaningless to me. They shouldn’t have a say. Period.

This post came about because of the convoluted cases about DOMA and California Proposition 8. The issues raised were odd (e.g. if a proposition is found unconstitutional in a state and the executive authority declines to appeal that ruling, are those who proposed the proposition entitled to appeal). The decision was odder still, being narrow in scope and with Justice Kennedy basically saying that those who object to the 5-4 ruling somehow hate the human race. A simple clear ruling based on what I wrote above would have left the issue in the hands of the people, where it belongs. Yes, their hands are tied somewhat by Article IV, Section 1, but they have the power to change that if they so desire. That said, the havoc that could be wreaked by a badly worded Amendment that tried to revise Article IV could be nightmarish, even to a conservative appalled at the next-door neighbor women married to each other.

Bottom line, the Constitution doesn’t give any wiggle room. From my perspective, this is a good thing.

Ensuring Your Right to Remain Silent

DISCLAIMER: I am not an attorney. What is written here is my opinion and how I would deal with the situations described. I am not able to provide legal advice. Consult your own attorney before implementing any of the personal strategies that I discuss. The use of specific pronouns is for clarity and communication only and does not imply advice being given. By reading this you agree that I am not providing legal advice.

The recent Supreme Court decision in Salinas v. Texas [no Wikipedia entry as yet] reminds us just how important it is to never speak to any government official unless you are compelled by law to do so. The gist of the case is that in certain circumstances, and these circumstances as somewhat unclear, your refusal to answer a question, or your behavior when refusing to answer a question, may be introduced as evidence. Generally speaking, under Miranda v. Arizona and Griffin v. California, you had a right to refuse to answer questions either in court or when arrested, and your refusal to answer those questions could not be used against you. Procedurally, this lead to the now famous (thanks to television) “Miranda rights” recitation: “You have the right to remain silent. If you give up your right to remain silent, any thing you say or do may be used against you in a court of law. You have the right to have an attorney present during questioning. If you cannot afford an attorney, one will be appointed for you by the court”—or words to that effect (the Supreme Court did not specify exact language).

The question answered in this particular case centered around the issue of what you have to do to claim protection under the 5th or 6th Amendments that protect you against self-incrimination, guarantee you a lawyer, etc. The Supreme Court, in a highly fractured ruling 3+2 to 4 (see the above links for details), said that you have to positively assert your right to keep it. While I don’t agree with the case, it doesn’t really affect me personally because I follow a simple rule—never speak to any government agent or employee unless you are otherwise compelled by law to do so. Make sure you have the necessary information to contact a lawyer, any lawyer, in the case you need to do so. Specialty, doesn’t matter. You just want representation. That initial lawyer will be able to assist you directly, or refer a colleague who is an expert on whatever the matter is (taxes, criminal arrest, etc).

Clearly, there are some instances when you do have to speak to a government agent or employee, such as applying for a driving license, license plates, etc. In those cases, confine your conversation to the exact details of the transaction and nothing more. Other cases include security checkpoints (e.g. TSA, entering a government building, etc), where you cannot pass without answering questions and refusing to answer questions might lead to your arrest. Your only option here is to avoid these checkpoints if at all possible. If you need to pass the checkpoint, you have no options. While I consider these mostly unconstitutional as they prevent my free movement, the Courts have not recognized these rights nor forced the Executive or Congress to remove them.

Let’s take the police first. Generally speaking, so long as you are not driving (we’ll cover that specific instance below), the only thing you are required to do is truthfully identify yourself. You aren’t required to present identification or discuss what you are doing. In such an encounter, it is critical that you remain polite, respectful and courteous at all times.  Keep your hands visible and at your sides at all times. Never make a move away from the officer until given leave to move.

Once you have identified yourself:

  1. Ask the officer if you are free to go. If the answer is yes, say “Thank you” and move away slowly but deliberately.
  2. Ask the officer if you are being arrested. If the answer is no, go back to step 1. Repeat this until you are given leave.
  3. If the answer is yes, state clearly “I assert my right to remain silent and my right to have an attorney present. I will not speak with you without an attorney present. I do not waive any rights.” Go peacefully with the officer. Do not resist. Do not argue. Speak with nobody except your attorney. Say NOTHING. Don’t even make smalltalk.
  4. While in police custody, do not answer any questions, continue to assert your right to remain silent and ask for an attorney any time they speak to you other than basic functional questions (e.g. do you need the bathroom, are you hurt, do you need food).

Note that incident to the arrest, they may search your person, including a wallet, purse, etc. You may also be asked at the time of booking to further identify yourself by providing your home address. I would provide only that information sufficient to properly identify myself and decline any other questions, including arrest history, where you work, relatives names, etc. They may take your picture and fingerprint you. They may also swab you for DNA, per Maryland v. King.

The bottom line is, offer basic cooperation with commands relating to booking and your incarceration, but say nothing without a lawyer present. Keep reminding them of this until you talk to your lawyer. At that point, follow his or her advice.

Traffic stops are a special case. Generally, you must provide your license, registration and proof of insurance. In addition, you may be required to submit to a ‘breathalyzer’ to check for alcohol in your system. In some jurisdictions, you may refuse and request a blood test instead. In most jurisdictions, refusal to take such a test (either by breath or by blood) will result in serious legal penalties. Your best bet is to cooperate, answer questions directly, clearly and provide no extra information. Your goal should not be to try to talk the officer out of the citation, but to finish the encounter as quickly as possible. If the citation is in error, show up for court and fight it. Arguing with the officer isn’t going to help you in any way, and might just escalate to your arrest, the very thing you want to avoid.

The officer making the stop is generally entitled to take steps necessary to ensure his safety, and that includes looking into your vehicle for any obvious threats or evidence of a crime. Some jurisdictions allow the search of mobile telephone handsets incident to traffic stops. I ensure that my device is in a closed area in the car (e.g. glove box) and not visible nor on my person. If asked if I have a cell phone, I would say “I’m not carrying one”, which is a truthful answer. Barring arrest or some visible evidence of a crime, they generally cannot search your vehicle. In the case of a traffic accident, the traffic stop rules generally apply. Beyond that, say nothing until you speak with your insurance agent and your attorney.

In the case of a police investigation where you might be a witness, decline to provide any information but offer a written statement once you have had a chance to consult your attorney on the matter. In certain cases, refusal to cooperate with a police investigation can lead to criminal charges. Make it clear to the office that you want to cooperate, but you want to consult your attorney first. I would make an exception for something like witnessing a kidnapping, since time is of the essence, but otherwise, I would run anything I was going to say by an attorney.

Dealing with other government officials is generally easier. For the most part, you are summoned to speak to them and are able to consult your attorney in advance. The most common federal agent you would speak to would be the IRS. In such an encounter you have the right to have a representative with you when you speak to the agency. You want to make sure that the person you take with you has expertise in the area you are dealing with, e.g. a CPA and/or Tax Lawyer. For other agencies, different rules apply, but in most cases, you may have an attorney with you. State and local governments may have cause to enter your home for inspections.

Dealing with the government agent at your door:

  1. Be polite, courteous and calm. Never do anything to alarm or frighten them. Keep your hands clearly visible at all times.
  2. When they arrive at the door, ask them to hold their identification to the window or peep-hole on the door. Do not open the door until satisfied that the person is legitimately who they say they are. In most cases, it’s possible to phone the office and verify that the individual is who they say they are and that they are there on official business. If you can’t confirm, tell them so and ask them to leave. Use your best judgment with uniformed personnel.
  3. Once you are satisfied with the identity of the person, step outside and close and lock the door behind you. Do not allow them to enter the house at this time.
  4. Write down all of the information from the ID they show you including name, office or department, rank, badge number, and any other relevant information.
  5. Ask the person the reason for their visit. If they cite a regulation, ordinance or law, ask for a copy and read it. Be sure to write down exactly what they tell you for a reason and keep a copy of the regulation.
  6. Be very careful about answering any questions and remember that you may assert your right against self-incrimination (well, except for the IRS!) or contact an attorney if you feel necessary.
  7. Deciding to let them in your house is a judgment call, but remember there may be serious consequences for not doing so (e.g. refusing a building inspector may lead to a declaration that your home is unfit to live in). Your goal is to keep them from entering, if at all possible, and if not, ensure they confine themselves to the specific purpose for which they are there.

Generally speaking, if you rent, your landlord may give permission to enter in a specific set of circumstances (e.g. inspections required by local ordinance for rental properties). There is little, if anything that can be done to prevent this kind of entry.

One critical agency to avoid at all costs is the Department of Children and Family Services (or your state equivalent). They often have broad powers to make instant rulings and decisions, so ANY cooperation with them should be done only under the supervision of a lawyer. Should they demand entry to your home demand a warrant and turn them away if they do not have one. Then call an attorney immediately.

This probably seems a bit over the top, but given that there are so many laws, regulations and ordinances that are serious offenses (e.g. result in large fines and/or jail time), it is critical that you ensure your right against self-incrimination and your right to remain silent. And given the ruling in Salinas v. Texas, the only way to do this is to never talk to the government unless compelled to do so by law.


Who Protects You?

If you ask people the following questions, you’ll most likely get the answers listed:

  • Q. Who is responsible for protecting you from criminal acts?  A. The Police
  • Q. Who is responsible for fighting fire at your home or providing emergency first aid? A. The Fire Department
  • Q. Who is responsible for defending you from foreign enemies? A. The Military

And those answers would be wrong. Completely wrong. I can easily rephrase them to make them correct:

  • Q. Who is responsible for protecting the community from criminal acts? A. The Police
  • Q. Who is responsible for fighting fires in the community or providing first response for emergencies? A. The Fire Department
  • Q. Who is responsible for defending the country from foreign enemies? A. The Military

Do you see the obvious difference? Neither the Police, Fire Department nor Military protect YOU, personally. They protect society as a whole. They have no legal requirement to protect any single individual and can’t be held liable for failing to protect them. Don’t believe me? The Supreme Court made it clear in Warren v. District of Columbia that police have no duty to protect you.

So who is responsible for protecting you? You are. You are free to enlist others to help you or to help others. But there is no legal obligation for anyone else to protect you. None.

Given the above, how can anyone argue that the 2nd Amendment does NOT guarantee the right to personal self defense? Do you really want to live in a society where you are prohibited from defending yourself and your society has no obligation to defend you? I don’t.

See these other posts on the 2nd Amendment:

Progressive Nonsense on 2nd Amendment Rights

Why They Are Coming For Your Guns


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