BOOK REVIEW

BOOK REVIEW: Jerry Keesee

Revolution: Get Out of Our House  by Tim Cox

   This book takes some real tenacity to wade through explanations of how the book came about.  The further you go, the more the GOOOH plan is revealed and explained.  The plan has a lot of areas about which you might have concerns regarding its ability “to be pulled off.”

   The author gives a complete (nearly) series of issues that point out America’s problems concerning government size, unbridled spending and lack of listening to the people versus various “special” groups and the politicians themselves.

   Cox’s Candidate Questionnaire lists 175 questions for politicians to answer concerning their problems.  You might find, as I did, that you have other areas of concern about the government and its performance that are not addressed or barely mentioned among the vast list of government failures or poor performance.  He outlines a plan that would replace all 435 members of the House of Representatives.  This plan is full of components that I question; how realistic and practicable are many of them?

   However, I found the book a worthwhile read and certainly recommend it for a basic review of where America is today, how we got here and a plan forward.

   Afterthought:  I found it ironic that the book was written and published in 2008 and this had to be before the Tea Party movement began.  It seems they fit together in many ways, but not all, while appearing not to be influenced by each other.

Thanks, Jerry.  I have picked it up and I'll first look at his 175-item for politicians.  I cannot imagine a candidate for office giving an exhaustive reply to a questionnaire that long.

Cordially,

Pam

The United States Federalism Post 2

   The Progressive Era and the New Deal very nearly did away with the constitutional constraints on the national government written into the Commerce Clause in 1789.  The ambitious people who hungered for centralized government and the concomitant power, power needed to solve all problems and redress injuries to the body politic, they said, turned the Commerce Clause on its head.  It did not constrain federal power, as originally intended by its writers, but it granted that government virtual complete power to regulate American activities in their own States.  The post-New Deal Supreme Courts felt the pressure of a new politics in the country; it appeared, at least as reported in the media and opinion-makers of the day, that the citizenry moved toward the Progressives during the Depression. Frightened and needy, reaching for FDR and the leftist ideologues around him, politicians turned away from the conservative and traditional understanding of the Great Republic and clambered onto the FDR bandwagon.  So did the judiciary branch.   The Supreme Court redefined “commerce” over a decade in a couple of decisions mentioned in last week’s Post --- “commerce” is all human activity; therefore, there is no human activity that the federal government cannot regulate.

   What does it mean for you?  Across the 19^th century, the federal government issued regulations touching 4 percent of the Gross Domestic Production (GDP). In 2010, the federal government regulated 27 percent of the GDP (Reclaiming the Constitution: Towards An Agenda for State Action, by Ted Cruz and Mario Loyola).  Our great grandparents had little to do with the national government, living out all civic matters with local and state elected officials.  Today’s national government has nearly everything to do with us.

   As if the Orwellian re-writing of the Commerce Clause by justices were not enough to mangle federalism, the “general Welfare” term became the Spending Clause in the 1930s and justices elaborated it over following decades, torturing the sentences of the Constitution into contradictory interpretations that propped up the centralizing federal power.  The power of the federal government to tax for any reason that Congress thought  could be called “public purpose” was elevated in 1936.  The first clause of Article I, Section 8 of the Constitution grants Congress “...Power To lay and collect Taxes…and provide for the common Defense and general Welfare of the United States….” James Madison and Alexander Hamilton argued about the meaning of this passage during ratification.  Madison thought that the Congress power to tax is limited to some public purpose that falls within one of the other enumerated powers of the federal government.  Hamilton thought that the power to tax is an independent power granted to the Congress, and it can be used for any public purpose. In U.S. v. Butler (1936) the Court took Hamilton’s idea, giving him the victory in the debate some 145 years after ratification---for the time being. This decision further expanded the power of the federal government, allowing it to act for the “general Welfare”, at the expense of the States’ sovereignty.

   Two years later the Court decided that it is Constitutional to give federal funds to States in order to encourage them to comply with federal policy goals. In Steward Machine Co. v. Davis (1938), the Court decided that it is permissible for “the Social Security Act to impose a tax on certain employers and provide a 90 percent credit if they contributed to their state’s unemployment fund.” (Reclaiming the Constitution:…)  The Court said that “encouraging” States with money is not economic coercion; economic coercion is wrong, even in most of today’s political discourse.

   Another spending case is South Dakota v. Dole (1987).  Because South Dakota refused to raise its drinking age to 21, the federal Department of
Transportation punished South Dakota by withholding five percent of federal highway funds.  The Court said that withholding five percent is not enough to be coercion, so a law like this is not bad and it is not unconstitutional.

   There are strongly written dissenting opinions in the cases mentioned above and give one some hope for justices to rise to the challenge of acting as a check on the power of Congress and a check on the executive branch; further, it gives one hope that the Court will act as the protector of the Constitution instead of acting as unelected policy/law makers.

   Another doctrine called “commandeering” centers on the Tenth Amendment.  If Congress passes a law and requires states to implement the law, Congress is commandeering state instrumentalities.  Fairly recent decisions give us hope that this commandeering and, perhaps, earlier overreaching actions/doctrines by Congress will be rolled back by a Court that respects the Constitution, including the Tenth Amendment.  In New York v. U.S.(1992) and in Printz v. U.S.(1997) the Court found that commandeering is an unconstitutional overreach of the federal government.  Justice Scalia wrote the majority opinion in Printz and it is a brilliant bolster of the power of the Tenth Amendment.  According to Reclaiming the Constitution:.., Michael Greve argues that Justice Scalia has elevated the Tenth Amendment to “intergovernmental immunity”, a principle located in the “structure” of the Constitution.  In his work Real Federalism: Why It Matters, How It Could Happen (1999), Greve writes:

First Justice Scalia explains that the Constitution establishes a System of “dual sovereignty,” wherein the States and the national government occupy separate “spheres.”  The Tenth Amendment is only one of the indicia of federalism so understood.  Second, Justice Scalia maintains that the congressional commandeering of state and local officers would undermine the federal executive: by dragooning state and local officers into federal law enforcement, Congress could subvert and circumvent the President’s constitutional authority to ensure the faithful execution of the law. Third, Justice Scalia argues that Congress lacked the constitutional authority to enact the background check requirements under, of all things, the Necessary and Proper Clause of the Constitution, which empowers Congress to “make all laws which be necessary and proper” to the enforcement of its delegated powers. A law that presses state and local officers into federal service, Justice Scalia maintains, cannot be “proper.”  Each of the three claims points beyond the seemingly limited holding in Printz.  Each implies a notion of federalism, not a mere protection of state immunity but as a direct constraint on the federal government.

…

By forcing state government to absorb the financial burden of implementing a federal regulatory program, Members of Congress can take credit for “solving” problems without having to ask their constituents to pay for the solutions with higher federal taxes.  And even when the States are not forced to absorb the costs of implanting a federal program, they are still put in the position of taking the blame for its burdensomeness and for its defects.

So, the Necessary and Proper Clause of the Constitution, the final clause of Article I, Section 8 of the Constitution, might contribute mightily to the struggle to save federalism.  “…a law that upsets the federalist structure of the Constitution by infringing on the ‘quasi-sovereign’ status of States might not be ‘proper.’” (Reclaiming the Constitution:…)

   Some of the other infringements on the Tenth Amendment noted by Reclaiming the Constitution… are the horrifying health care legislation, Obamacare , environmental regulations, and conditional federal grants to State treasuries:

·      Obamacare, formally entitled The Patient Protection and Affordable Care Act of 2010, is an unconstitutional federal overreach.  It violates the Tenth Amendment by mandating the purchase of health insurance by every individual.  This is the first time the federal government has forced an individual to buy health insurance---the national government is regulating inactivity under interstate commerce powers.  Besides the individual mandate, Obamacare commandeers State agencies and budgets to dramatically expand Medicaid programs.  The States have to “establish new health insurance markets to be regulated as utilities for the socialization of health care costs.” (The Patient Protection and Affordable Care Act of 2010)

·      The Environmental Protection Agency is frightening in its zeal for righteous, radical environmentalism, it is clearly anti-capitalism and it is a virulent threat to the foundation of this Republic.  In the words of Reclaiming…,

“Today, the Environmental Protection Agency and Department of Interior are using regulatory power to invalidate highly successful state programs that are entirely within the law; to accomplish climate-change policies that have been rejected by Congress; to create stifling regulatory uncertainty in those sectors of industry that compete with the goals of radical environmentalists, and to punish States that pursue a free-market, limited-government regulatory model.”

Texas is in the cross-hair, and the Obama branch is going around Congress and the will of the people, absolutely ignoring the Constitution, to destroy the vibrant economy and conservatism that makes Texas exceptionally successful.   EPA has chosen to regulate carbon dioxide and other greenhouse gases under the Clean Air Act as pollutants and they are “placing their boots on the neck” of Texas, as Ken Salazar, Sec. of Interior, said they would do to BP last year.  The EPA has invalidated legal, operating permit rules for refineries, large manufacturers, and power plants that have functioned and set the best model for clean air in the entire country for 16 years.  EPA could not find any transgression of or failure of keeping the air clean in this permit program, but it said the rules are not sufficiently detailed and quashed the system, leaving the large plants in limbo.  Their destructive approach to Texas is unconstitutional.  Determined to destroy domestic production of fossil fuel, the radical, self-righteous EPA environmentalists are successively initiating ozone standards based on false science that will strip States of authority and block economic growth in counties across the country.

·      Jumping onto the BP oil spill that has amounted to very minimal environmental damage, despite the breath-taking hyperbole issued by the White House and disseminated with absolutely no critical analysis by the media of the real effects of the spill, the Dept. of Interior has placed a moratorium on deepwater drilling.  With no study on the economic impact of the moratorium(s) and with no basis in the Oil Pollution Act, this administration has issued a moratorium in the face of three federal courts.  The courts have said that the moratorium is an illegal “arbitrary and capricious” exercise of regulatory power.  Three times this administration has ignored the courts and reissued a moratorium, making cosmetic changes to try to get by with the illegal actions.  At least 8,000 jobs are gone because of this and if this administration is not stopped, far more will follow.

·      Buying States’ compliance to federal policy priorities is the most effective method for gaining federal government tyranny.  “The practice of taxing citizens and returning the money to their States only on condition of state compliance with federal wishes subverts the structure of federalism by coercing States to give up their autonomy, and ignore the will of their citizens, under threat of an increasingly unbearable fiscal and economic penalty. (Reclaiming…)

   So, here we are.  How have we moved so far away from the intentions, values, beliefs and philosophies of 222 years ago?

   The Founders  imagined that the Constitution and government in the country would change over time as the country would change, but they did not expect for the principles to be lost.  For example, a State might change with time and circumstances, but the authority of the State in federalism could never be ignored.  Individual, natural liberties protected by State constitutions and the Bill of Rights would not change, and the State and U.S. constitutions were written, so that the principles remain available to the people and act as guides to the self-governing people.

   The Constitution is a negative governing document, carefully limiting and enumerating the powers of governments---local, state and federal.  The people created the government in the written Constitution and the people remain in control of the government so created so long as the principles embedded in the Constitution are followed.  As someone put it, the point of writing the Constitution was not to keep it in touch with the times but to keep the times in touch with the Constitution.

   Unfortunately, that has been painfully ignored by us, the people.  The 20^th century witnessed the judiciary usurp the power to govern---to legislate, to create policies, to control social relations and economic activities, while enabling the executive branch to arrogate ever more power to itself.  We know the Commerce Clause so well by now.  A doctrine dubbed “implied preemption” grew up during the second half of the 20^th century.  It means that unelected federal bureaucrats can and may run over state policies, laws and regulations, just as the EPA is doing, the way Obamacare will, and the way the Interior Dept., HHS, OSHA , SEC and FCC will do by dashing toward getting the damage done before the people stop Obama and the left wing Democrats.  Jurists created this doctrine.  We have seen the rise of government by judiciary.

   The notion that the Constitution is a “living” document is a doctrine.  Public schools have been teaching that to high school students for decades, and universities teach that the “living” constitution “adapts” to current, “political needs”, lending the Constitution to interpretation by jurists and politicians as the “political needs” come up.  When I studied the history of the Constitution I was directed to look at cases and politics and institutions, not at the principles embedded in the government created by the Constitution.  Things change, and in the words of “Progressives”, progress in social science in such things as Marxism, Darwinism and socialism have pushed the old Constitution out of fashion.  By the lights of Liberals and Progressives, Conservatives in academia are hopelessly out of touch with today’s sophisticated political class and they are seen as inferior to the more-than-a-little conceited intellectuals in our major universities.  The “living” Constitution is destroying the Great Republic, that is, the USA of the 18^th, 19^th and early part of the 20^th centuries.  Progressives/Liberals seem to cling to two separate themes in the discourse over the Constitution:

·      Chief Justice Charles Evan Hughes said that the Constitution is “what the judges say it is.”  Court decisions are the Constitution.

·      Their other theme is to comprehend the  evolution of the Constitution by knowing the difference between Darwinism and Newtonian physics.  They claim that the “real” Constitution is a creature that adapts to changes in its environments (Darwin), not a thing that balances institutions of government (Newton). (Eugene W. Hickok, “Why States? The Challenge of Federalism”, 2007)

   If Hughes were correct, the Constitution is what a few judges say, and that is our government.

   As provided for in the Constitution, the judges are arbiters of Constitutional disputes, but understandings and the implementation of guiding principles and interpretations of the meanings of passages in the document are commonly carried out by citizens outside of courtrooms as well as by judges on the Bench.  John C. Calhoun’s theory of nullification was not heard by a court; it took a civil war to settle the argument about the intergovernmental relations in federalism.  Lincoln’s habeas corpus writ (the absence of) decision had nothing to do with the judiciary, and there are many other times when discussing and cussing about the meaning in some Constitutional passage has been in the public square.

   Also, if the Constitution were what the judges say, then the judges must be infallible.  We do not accept some decision, interpretation and/or declamation from the SCOTUS as if it were the utterance of a Pope speaking ex cathedra.  A number of precedents have been proven to be in error by later judges; occasionally, a strong opinion voiced by a large majority of citizens guide the thinking of a sitting Court and precedents are overturned.

   The very idea that our Constitution is what the judges say completely ignores the fact that the written Constitution governs the judiciary just as it governs the other two branches.  A government by judiciary, making decisions that would “write” a Constitution, then change it, then change it again from the Bench means that we have no written Constitution.  The truth, though, is that we do have one, and our elected officials and appointed judges swear to uphold and protect that written Constitution.

   Federalism, the core of our Constitution, is seen by these “Progressives” as antique, just as Newtonian physics is antique in their imagined world.  These kinds of social scientists, historians and liberal arts profs, lawyers, and the elite chattering class are products of the Ivy League since 1900.  While very few of them comprehend Einstein’s Theory of Relativity, they imagine that Newtonian physics  is now meaningless and so is our Constitution.

   The way to save the Republic rests upon an informed, principled citizenry that values self-governance more than the nanny-state, more than the western European statism or Fabian socialism, more than communism in any of its flavors, such as black liberation theology, Maoism, or Marxism and more than fascism and more than anarchy.  Serious polls and studies of Americans’ politics show that 70% prefer self-governance, limited government and free enterprise to the ruling, centralized all-powerful government preferred by around 30% of the country.  For more than 150 years from its beginning, the country’s citizens paid attention to politics and governance.  That has not been part of our pop culture for at least three current generations.  The current Tea Party movement and the elections of November, 2010, gives me hope.  We have great resources; we can read, research, analyze, recall and synthesize the true history of this nation, the true effects of a variety of idealogues, their ideals and their ideas, positive and negative, and we must expend the effort that self-government requires.  On the internet we can go to the Texas Public Policy Foundation, www.TexasPolicy.com for papers on health care, energy policies, economic theories, federalism, water rights and on and on and on as well as their periodicals and news alerts, both in print and in electronic format. We can go to the Heritage Foundation, www.askheritage.org and have access to a great library for books written for the community educator/learner, as well as DVDs and their periodicals and news alerts, both in print and in electronic format.  There are far more.  My next posting shall be a bibliography giving a long list of resources, a list that I believe is growing monthly as is the number of outspoken conservatives in academia and in “think tanks”. The number of researchers, teachers and seekers for truth grows monthly.  Their work include research articles, essays, books, DVDs and a host of URLs.  The Internet is the new Gutenberg of this world.  Do not allow the power-lusting egomaniacs in federal agencies squash it.

   See you soon,

   Pam Fowler

The United States Constitution: The Tenth Amendment and Federalism Post 1

    The best study of the Tenth Amendment and Federalism and the substantial collapse of it over the past hundred years is being pursued by the Texas Public Policy Foundation (TPPF).  The TPPF Center for Tenth Amendment Studies published a study titled, Reclaiming the Constitution: Towards An Agenda for State Action in November, 2010. The authors are Ted Cruz and Mario Loyola.  The authors’ qualifications, which are exceptional, are at the end of this essay.  The best way to learn about the Tenth Amendment and Federalism is to read the study I’ve just listed, but I will try to summarize the most salient features here, leaning upon the source heavily.  You can find the TPPF at www.texaspolicy.com.

   The first case involving federalism is the famous Gibbons v. Ogden, 1824.  Chief Justice John Marshall wrote that the power spelled out for Congress in Article I, Section 8, Clause 3 applies to navigation and commerce that crosses state lines.  The Constitution says that Congress has the power to regulate commerce “among the several States, with foreign nations, and with the Indian tribes”.  This power is specific; all powers granted to Congress are specific and limited in Marshall’s understanding of the Constitution, just as Madison and Jefferson thought. Because the federal power is specific and limited, Marshall takes care to assert that in that narrowly defined area of activity, which was navigation and commerce across state lines, federal law prevails.  He underlines his own understanding that the states are self-governed and they are in charge of almost all of the writing of regulations of citizens’ activities.  The Court points out that if Congress had control of all commerce in the nation, including all internal as well as external commerce for all states, the phrase commerce “among the several states” would not have been used by the writers of the Constitution.  He continues:

“The genius and character of the whole government seems to be that its action is to be applied to all the external concerns of the Nation and to those internal concerns which affect the States generally; but not to those which are completely within a particular state, which do not affect other States, and with which is not necessary to interfere for the purpose of executing some of the general powers of the government.  The completely internal commerce of a state, then may be considered as reserved for the state itself.”

Furthermore, Marshall points out that there is an “immense mass of legislation” not surrendered to the federal government by the states.  The Constitution granted to the federal government a narrow, stringently constrained domain in which it had supremacy.  The majority of any citizen’s experiences throughout his or her life were subject to his or her state’s laws; very seldom would their daily lives be touched by the federal government.

   Things have changed.  The domain controlled by the federal government has been massively expanded through the years. The Civil War shook the very foundations of the Constitution, and amendments 13, 14 and 15 were made during Reconstruction.  The industrial revolution came of age in the U.S. and America became a Great Power.  Out of the Farmers’ Alliance in the 1870s, the Populist Party in the 1890’s and the Bull Moose Party of 1912, all attracted by socialism, came the Progressive Movement.  Amendment 16 permits the federal income tax and Amendment 17 calls for the direct election of U.S. Senators; both were passed in 1913.

   In 1916 the Supreme Court widened the interpretation of the Commerce Clause in the Shreveport Cases.  The Court ruled that the federal government could regulate the fees charged by a railway between Dallas and Marshall, Texas.  Federal mandates had run afoul of regulations of the Texas Railroad Commission.  If one of the purely intrastate carriers complied with the federal mandates, they would have to pay penalties to the Texas Railroad Commission.  The Supreme Court said that the feds take sovereignty over the state regulations when interstate and intrastate regulations are mingled.  When mingled, the activity falls within the commerce power, and that is because of their “close and substantial relation.”

   The New Deal delivered a crushing blow against the Supreme Court’s opposition to Franklin Delano Roosevelt’s overreaching in 1937.  FDR threatened the destruction of any chance of non-partisan protection of the Constitution on the Supreme Court by promising to increase the number of justices and to pack the Court with pro-New Deal men when done.  The Court quailed and acquiesced to FDR’s New Deal legislation, allowing the destruction of restriction on the power of the federal government to regulate commerce. 

   NLRB v. Jones & Laughlin Steel Corp. came before the Supreme Court in 1937, shortly after FDR’s threat that it would become a meaningless independent branch of the federal government if it continued to block his agenda.  It held that Congress can regulate activities that “have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions” in state law.  The same Court had ruled two years earlier that a federal regulation of labor in a purely intrastate business was unconstitutional. The federal government argued that it had the right to regulate intrastate businesses that have “indirect” relation to interstate commerce.  The Court said that if the feds were to regulate intrastate business activities that bear an “indirect” relation to interstate commerce “ there would be virtually no limit to the federal power and for all practical purposes we should have a completely centralized government.”  The 180-degree turn by the Court in two years’ time did not bode well for the vitality of federalism.

   In 1942, Wickard v. Filburn virtually completed the elimination of constraints on the federal government under the Commerce Clause.  In it, the Supreme Court held that a farmer who grows wheat strictly for personal use is engaged in interstate commerce.  If other farmers across the Nation did the same thing, the Court said, there could be an aggregated, therefore, substantive effect on commerce, and that places that activity under the power of the federal government to regulate commerce “among the several states.”

   So, over the first half of the 20^th century, the “evolution” of the Commerce Clause acted as a malignant cancer on federalism.  As written in Reclaiming the Constitution:…:

The doctrine that anything with a ‘direct effect’ on interstate commerce could be regulated under the federal commerce power was replaced by a rule allowing regulation of anything with a “substantial effect” on commerce (even if indirect).  Then came the doctrine that anything which, if ‘aggregated’ across the Nation, had a “substantial effect’ on interstate commerce, was properly within the federal commerce power.

Anything done by anyone engaging in “commerce” anywhere, anytime in the Nation could be identified as something “aggregated” across the Nation and could have a “substantial effect” on interstate commerce.  What is there not to be regulated?  According to the Reclaiming the Constitution:…, “the federal government has grown from a 19^th century average of 4 percent of GDP to a peacetime peak of 27 percent in 2010.”

   The Republic is suffering, but not yet deceased.  In 1995 the Rehnquist Court held that there are limits to the commerce power.  Chief Justice William Rehnquist wrote the decision in U.S. v. Lopez.  His dogged determination to remain within the precedents set before him a daunting challenge.  In the decision he is confident that limits exist, but he is vague about them.  Justice Clarence Thomas wrote a concurring opinion in which he returns to Gibbons and the Court of 1824.  He makes the point that the precedents have made the enumerated powers (surrendered to the federal government by the states) superfluous.  The overreaching interpretations mean that the writers of the Constitution wrote meaningless sentences.  Referring to Wickard, he writes, “Congress can regulate whole categories of activities that are not themselves either ‘interstate’ or ‘commerce’…The aggregation principle is clever, but it has no stopping point.”

    Chief Justice Rehnquist wrote the decision in U.S. v. Morrison in 2000, a case in which the Court struck down a federal law named the Violence Against Women Act.  He concluded that “the Constitution requires a distinction between what is truly national and what is truly local.  In recognizing this fact we preserve one of the few principles that have been consistent since the (Commerce) Clause was adopted.”

   According to Reclaiming the Constitution:…

   Five years later, however, in Gonzales v. Raich (2005) the Supreme Court seemed to retreat from its reinvigoration of the Commerce Clause, and it has not revisited the issue since then.

As the crisis of 1937 shows it is difficult for the Supreme Court to uphold constitutional constraints against federal power when the President, Congress, and popular opinion are all against it.  The Supreme Court is not supposed to be a political branch but its perceived legitimacy is vital to the rule of law, and that legitimacy depends on political consensus.  In other words, in our democratic republic, even the Supreme Court ultimately derives its power from the people.  The other side of the coin is that the better Americans understand the vital importance of a federalist framework in the Constitution, the more strongly they yearn for a return to the Constitution’s founding principles, and the easier it will be for the Supreme Court to reassert its role as guardian of enumerated powers constraints.

Disentangling nearly 100 years of Commerce Clause precedent is a tall order, but Gibbons v. Ogden might offer a way forward.  Chief Justice Marshall’s opinion in Gibbons has been often quoted for the proposition that the federal government’s power is supreme and complete within its enumerated powers.  This observation was entirely predicated on Marshall’s basic understanding of federalism, in particular the stringent constraints on federal power, which restricted its scope to just a few areas of regulation, and left the “great mass” of legislation to the States.  A more complete reading of Gibbons could help guide the Supreme Court back to the original understanding of the commerce power.  Defining the Commerce Clause should not be just a matter of defining the scope of “interstate commerce” from the point of view of federal power; equally important is the other side, the great mass of regulation that is not interstate commerce and was meant to be left to the States.  The Supreme Court has had trouble devising a precise definition for what interstate commerce is partly because it stopped focusing on what it isn’t-namely those things that were meant to be left to the States.  As Michael Greve (part of the American Enterprise Institute) argues, the Court must reclaim its role as guardian of constitutional constrains on federal power.  It can take its cue from the people, and their desire to return to a more decentralized and responsive system.  This desire underpins the promise of a constitutional renaissance now sweeping the Nation.

   The next post on the matter of Federalism and the Tenth Amendment will consider spending---how federal funds can be used to bend the will of states to the federal government’s wishes, overcoming the Tenth Amendment for the federal government and how the federal government might “commandeer” state instrumentalities, which is to force States and locals do the work of the feds in executing laws.

Pamela Fowler

  

Source:

  One of the two authors of Reclaiming the Constitution: Towards An Agenda for State Action is Ted Cruz.  He was the Texas Solicitor General from 2003 to 2008, wrote 80+ briefs and made 8 arguments to the U.S. Supreme Court out of 38 oral arguments he has made.  He has been lauded in several of the most influential law magazines and journals in the country, especially celebrated for so many achievements early in his life.  A talented minority, he graduated from Princeton and Harvard Law School; served as law clerk to Chief Justice William H. Rehnquist on the U.S. Supreme Court; was Domestic Policy Advisor to President George W. Bush on the 2000 Bush-Cheney Campaign; and he served as Associate Deputy Attorney General at the U.S Department of Justice.  An adjunct professor of law at the University of Texas Law School from 2004-2009, he taught U.S. Supreme Court Litigation. He is now a Senior Fellow at the TPPF, serving as the leader of the Center for Tenth Amendment Studies.

   Mario Loyola is the other author of the “Reclaiming the Constitution: Towards An Agenda for State Action”.  He specialized in corporate finance law when he began practicing law, then he moved into public policy in 2003, researching and writing at policy institutes at times, employed by the government at other times.  At the Pentagon he served as a special assistant to the Under Secretary of Defense for Policy and then served as counsel for foreign and defense affairs to the U.S. Senate Republican Policy Committee.  Also, he was a state advisor to Senator Kay Bailey Hutchison.

    He has been published in the National Review, the Weekly Standard and op-eds in The Wall Street Journal and has been on the Glenn Beck Show, CNN International, BBC Television, Radio America, and more.

The United States Constitution Post 2: The Bill of Rights

   When the Constitutional Convention closed, the signers of the new Constitution returned to their states and began campaigning for the acceptance of a new, stronger, more centralized government.  The active supporters for the new constitution came to be called Federalists.  Three of them, John Jay, Alexander Hamilton and James Madison, published articles in local newspapers across the thirteen states; the essays carefully arguing for a new federal government were later called the Federalist papers.

   Opposition was very strong.  The Americans had fought through the long revolution, lived through the painful recovering from a destructive war and were building a new economy; they did not want a strong, centralized government because they embraced self-government and hated dictatorial kings and tyrannical parliaments.

   The Federalists had to persuade the Americans that the new government would not diminish the sovereignty of the states and civil liberty would be fully protected.  In each of the state conventions called to ratify or not to ratify the new Constitution, supporters promised a bill of rights added to the new constitution.

   New York was the required 11^th state to ratify the Constitution in July of 1788 and national elections were held in January of 1789.  The new congress wrote the ten promised amendments to the Constitution in the same year.

   The original delegates had thought deeply about protecting civil liberties and had written fundamentals into the original body of the Constitution.  They believed in natural rights, those called “unalienable Rights” granted to mankind by the Creator as stated in the Declaration of Independence (as elaborated by John Locke at an earlier time).  The “the rights of Englishmen” are to be found in English law since the Magna Carta had been promulgated in 1215.  This blocking of absolute rule was part of the very fabric of the delegates’ beings.

   The unwritten English constitution, the common law and the forbidding of absolutism in central government had come to these shores with the colonists from the beginning.  The formal establishment of “the rights of Englishmen” in the colonies had occurred with the creation of the Virginia House of Burgesses in 1619, continuing their protection against tyranny.  More than anything else, their self-governance had set them apart from their Spanish and French neighboring colonists.  By the time of the Revolution, the English colonists had outstripped all of their neighbors in population and wealth. Even so, some of the revolutionist generation were not confident that there were sufficient protections against tyranny in the Constitution, and the Bill of Rights was the consequence.

   Echoes of the Magna Carta and the “rights of Englishmen” over time are in the First Amendment, guaranteeing the freedom of religion, speech, the press and peaceable assembly and the right to petition.  Reflections of relatively recent events to the founding generation can be seen in the Second Amendment.  It guarantees the right to self-defense, the population keenly aware of the English government’s establishment of a permanent army and the occupying army’s mission to take arms, the freed Americans would never allow any government to disarm them.  The Fifth Amendment protects the individual’s right to property.  The next three amendments are concerned with due process of law, as is the Fifth---the right to know what you are charged with, jury trials where you can answer charges, reasonable bail and protection from cruel and unusual punishments.

   The Ninth Amendment repeats and underlines the consensus that our rights are NOT limited to those protected by the Constitution; rights that are not written about or unnamed in the Constitution remain as real and as important as any of them mentioned or named in the Constitution.

   The Tenth Amendment, then, repeats, underlines and clearly restates the fact that powers not delegated to the United States nor prohibited to the states are reserved to the states or to the people.   “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”  The Tenth Amendment is Federalism; it is our final hope to save the American Republic.

   Federalism means that an individual lives under two systems of laws and two governmental structures.  Each of us is a citizen of a state and of the United States.  In federal, that is, in matters that are beyond intrastate matters, like interstate commerce and national defense and foreign trade and foreign treaties, federal law will prevail.  Otherwise, intrastate laws govern our daily lives, as in the original Constitution.  The founders of the Republic, including the majority of colonists who accepted this Constitution, took it granted that the Constitution limits government power and the local, that is, the states, would retain more governmental power than the created federal government had or would have.  The Bill of Rights was intended to reassure the people that they and their states will not lose their freedom to the stronger, nationalized government created by this Constitution.

   In Federalist #45, James Madison, the “father of the Constitution”, writes this:

“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.”

His purpose in #45 is to explain that “(t)he State government will have the advantage (over) the Federal government.”  Unfortunately, the states’ advantage over the Feds has been eroded through ceaseless overreaching by the central government for the last hundred years, and we are at the crisis point.

   I want to look at the encroaching on our self-governance and civil liberties over the past hundred years in Constitution Post 3 that I will try to post tomorrow.  I will draw on a resource available at the website for The Texas Public Policy Foundation, www.texaspolicy.com, a think tank that I strongly urge you to support.

Pam Fowler

The United States Constitution: Post 1

The Constitutional Convention came together on May 25, 1787.  After electing George Washington as chairman, adopting the rules of procedures and agreeing that a simple majority would carry all questions put before the convention, Edmund Randolph, a Virginian planter, presented James Madison’s “Virginia Plan”.  It was the architecture of a new government, not a set of amendments to the Articles of Confederation.  A large majority of the delegates favored the idea that the convention should create a new government.

   They had arrived at Philadelphia with shared Enlightenment ideals:  the constitution and laws must be written and available to all citizens; the American government should continue to be a republic, laws passed by elected representatives; the states would continue and maintain a republican form of government.  There would be a separation of  powers between the central government and the states, and there would be separation of powers among the branches of governments, whether central or state governments.

   The Virginia Plan called for a strong central government with power to tax, to regulate foreign and domestic commerce and a national system of courts to apply the law.  It began with the way to separate and provide checks on those powers.  The new government would consist of three branches: an executive, a judiciary and a bicameral legislature.  The lower house of the bicameral legislature would be popularly elected.  The upper house, the Senate, would be elected by state legislatures.  The number of seats that a state held in either house would be determined by the state’s population.

   While this plan upheld Madison’s republican principle of popular election, delegates from states with small populations objected.  The compromise was that the Senate would represent the states while the lower house, called the House of Representatives, would represent the people, meaning individual voters.

   The question of representation was not settled, though.  Northerners worried about the most populous states, the South, winning and maintaining a large majority in Congress forever.  The South states were most populous because a large portion of their economy rested upon slave labor, the number of slaves continually increasing.  The Northerners suggested that slaves be identified as property instead of as people.  Southerners said “no” to that idea, aware that southern states’ census counts depended on slaves; if only the planters and other freemen were counted, the northern states would hold onto much larger populations and have huge majorities in Congress.  The compromise was that five slaves would be counted as three persons when congressional seats were assigned and when the federal government levied taxes.

   When it came to electing the head of the executive branch, the delegates settled upon the leader’s title, the President, and agreed to a novel way to elect the President, the electoral college.  While Lockean principles involving individualism and popular election of representatives had been incorporated into the plan for the new government, Locke’s distrust of pure democracy was alive and healthy, too.  The convention provided for indirect election of the President: each state would choose Presidential electors as it chose to do so and send its electors to the electoral college; the college would elect the President in a simple majority election.  If the college had a tie it cannot break, the matter would go to the lower house of Congress; each state would have one vote and the President would be elected by a simple majority.  The convention settled on four-year terms, providing no limit on the number of terms.

   Another compromise involved the opposing economic interests of the North and the South.  The Northerners brought up a protective tariff for American manufactures.  They wanted a high tax on imported manufactured items to drive them out of the market and enrich American manufacturing, centered in the north.  Southerners were consumers of manufactured products, not manufacturers, and the prices they had to pay would be much higher.  Northerners offered to include a provision in the Constitution that would guarantee the slave trade for twenty years; only South Carolina and Georgia were self-interested in importing slaves.  Several other southern states were phasing out slavery, maintaining a supply of slavery through natural procreation.  Slavery proved itself to be uneconomic.  Many agriculturalists realized that they would be better off economically to hire day laborers for wages than to maintain slaves.  However, threats of walking out of the convention by South Carolina and Georgia delegations plus the offer that the new Constitution would forbid taxing on farm exports by any government persuaded a majority of the delegates to pass this compromise.  Southerners would live to regret that decision.

   The finished product was accepted by the convention on September 16, 1787.  The following is this blog’s examination of the U.S. Constitution, which is the purpose of this blog.

   FEDERALISM: The Genius of this Republic

   Federalism is a compromise between a national and a local system of government.  It is a kind of separation of powers. The American revolutionaries were not at all interested in giving up the principles of Locke and the philosophies of Montesquieu and Smith and gamble on tyranny for a new and improved central government.

   There are five categories of governmental powers in federalism: 1) powers delegated to the federal government; 2) powers denied to the federal government; 3) powers retained by the states; 4) powers denied to the states; 5) concurrent powers held in common by the states and the federal governments.

1) The powers delegated to the national government are

·      coin money

·      regulate interstate and foreign trade

·      conduct relations with foreign countries

·      establish post offices

·      govern territories and admit new states

·      grant patents and copyrights

·      maintain the armed forces

·      declare war and make peace

·      establish immigration and naturalization laws

·      fix standards of weights and measures

·      make all laws necessary and proper for carrying out the delegated powers

2) The powers denied to the national government:

·      tax articles exported by the states

·      give preference to the trade of one state over another

3) The powers retained by the state governments:

·      provide for local governments

·      conduct elections

·      make laws about contracts, wills, and domestic relations

·      provide for and supervise schools

·      regulate commerce within the states

·      ratify constitutional  amendments

·      assume power not granted to the United States nor prohibited to the states

4) The powers denied to the state governments:

·      negotiate or sign separate treaties with other nations

·      coin money

·      impair the obligation of contracts

·      tax imports or exports without the consent of Congress

·      maintain troops or warships without the consent of Congress

5) Concurrent powers:

·      tax

·      borrow money

·      charter banks

·      pass bankruptcy laws

·      establish courts

·      build roads

·      promote agriculture, industry, and science

·      take property for public purposes

·      pay debts

SEPARATION OF POWERS: THREE BRANCHES

The separation of powers is at the heart of this constitution.  Corollary to it are the checks on powers held by each branch, providing a balance of power.

EXECUTIVE BRANCH: ENFORCES LAW

1)   These executive powers check the power of the legislative branch:

·      can veto law

·      influences public opinion (the bully pulpit)

·      calls special sessions of Congress

·      controls how vigorously laws are enforced

2)   These executive powers check the power of the judiciary:

·      appoints judges

·      controls how vigorously court orders are enforced

·      can pardon people convicted of federal crimes

LEGISLATIVE BRANCH: Passes laws

1)   These legislative powers check the power of the executive branch:

·      the House of Representatives can impeach (indict) the President and other high officials

·      the Senate conducts trials of impeached Presidents

·      the Senate approves presidential appointments

·      Congress can overturn President’s vetoes

·      Congress controls President’s programs through the “power of the purse”

2)   These legislative powers check the power of the judicial branch:

·      the House can impeach judges

·      the Senate conducts trials of impeached judges

·      the Senate approves appointments of judges

·      the Congress establishes number of Justices on the Supreme Court

·      the Congress can propose amendments  to the Constitution to overturn Supreme Court decisions

JUDICIAL BRANCH: Interprets laws

1)   These judicial powers check the power of the legislative branch:

·      decides on the meaning of laws

·      can rule that laws are unconstitutional

2)   These judicial powers check the power of the executive branch:

·      once appointed, judges are free from President’s control

·      can declare President’s actions unconstitutional

PROTECTION OF CIVIL LIBERTIES

(Locke, Montesqeuie and Smith in it from the beginning)

1)   A citizen arrested but not formally charged with a crime has the right to a writ of habeas corpus; the writ demands that the prisoner be immediately released unless the government can produce concrete evidence against him or her of a specific crime.

2)   Congress is forbidden from passing a bill of attainder.  A bill of attainder is a law wherein a legislature finds a person guilty of a crime.

3)   Congress is forbidden from passing ex post facto laws.  That kind of law penalizes people for doing something that is legal when it was done, but the new law makes the action done illegal.

4)   Treason against the United States shall “consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.”  It takes two witnesses to testify that they saw the deed committed, or it takes the accused one’s confession in open court, to convict a person of treason.

However, these provisions in the Constitution were not sufficient to the passionate opposition to tyranny held by Americans of the 1780s and 1790s.   It was the precious Bill of Rights that finally persuaded a majority of Americans to approve of the new government in 1789.  That is the next subject for this blog.