— Federalism —

September 29, 2012

U.S. Grant and the Left-Right Lines

Justin Katz

Two lines of debate in the battle of Left versus Right cross frequently.

One is the question of whether history has an inexorable pull toward which it progresses, making it possible for there to be a "right side" of history that one can predict beforehand for a given issue.  The other is whether one's side on the issues of the day offers a direct parallel to the sides that one would have taken having born at another period in history.

Continue reading on the Ocean State Current...

September 21, 2012

Founding Philosophy on a Friday

Marc Comtois

From Matthew Continetti's review of The Founders' Key: The Divine and Natural Connection Between the Declaration and the Constitution and What We Risk by Losing It, by Larry P. Arnn:

An observer of contemporary American politics would assume that we have rights to just about everything—not only to those freedoms mentioned specifically in the Declaration, but also to an abortion, to marry a member of the same sex, and to food, housing, health insurance, transportation, and all the other accoutrements of a full and "equal" life. When most Americans talk about rights today, they are following the lead of our 32nd president, who told the Commonwealth Club in September 1932, "The task of statesmanship has always been the redefinition of these rights in terms of a changing and growing social order."

For the men who wrote the Declaration and Constitution, however, the rights we possess are antecedent to society. Our right to property begins with our bodily selves. We exist, and therefore have a right to life. We speak, and therefore have a right to speech. We think, and therefore have a right to conscience. We have hands that can work, and therefore have a right to the fruit of that labor.

Government does not redefine rights as history runs its course. The teaching of the Declaration and the Constitution is that human beings institute government to protect the rights they already possess by virtue of being. We do not have rights to goods that exist only in society, such as health insurance, college loans, and pensions, since the provision and redistribution of these material benefits can take place only after government is established, and would require the government to infringe on our natural, pre-social, corporal rights.

January 14, 2012

The Appropriate Response to Totalitarians

Justin Katz

The aggressive and heated response to Jessica Ahlquist, upon her success in leveraging the power of the federal government to impose her religious preferences on her community's public high school, is ignorant, unproductive, and completely at odds with the message of the prayer banner that the federal judge ordered removed and the broader faith espoused by those who wish it to remain. For all that, the impulse behind the excessive behavior is not a defense of religion, but of liberty.

Unfortunately, Ms. Ahlquist has made herself — with the assistance of her father and the Rhode Island ACLU — the focal point for her community's reaction to the ongoing project of eliminating Americans' right to self governance. It's easy to ascribe the objectionable statements and actions of students and adults, alike, to intolerance, but it's also simplistic. The depth and breadth of the emotions being expressed would be more productively attributed to the federal government's imposition of a small minority's worldview on every public entity in the nation, no matter how local and no matter how benign the transgression.

The appropriate response, therefore, is not personal, against the student, but political, against the structure and philosophy that has given special interests the power to govern above the heads of the governed by way of a small number of unelected judges. If Ahliquist v. the City of Cranston has pushed the secularist envelope, as many of us believe it has, then push it back the other way.

Reproduce the banner on t-shirts and posters. Wear the former to school and public meetings. Display the latter on any bulletin board open to the public or any area designated for students' self expression (lockers and such). Those who are so inclined could make a point of reciting the prayer before or during events and assemblies (taking care to be minimally disruptive, of course).

Our system of government is designed (or at least it used to be designed) to direct deep differences of opinion toward such activities on the local scale, rather than toward sectarian violence. The way to fight back against those who are not content with the slow process of changing minds is not to revert to barbarism, but to faithfully and doggedly model the power of civility in the public square.

August 3, 2011

Some Possible Balanced Budget Amendments

Carroll Andrew Morse

In the Federal debt-ceiling deal passed yesterday, as an alternative in phase II to a specific program cuts projected to cut spending by 1.2 trillion dollars, the debt-ceiling can be raised by 1.5 trillion dollars if Congress sends a balanced budget amendment to the US Constitution to the states for ratification. This raises the question of what a reasonable balanced budget might look like.

Here is a version of a balanced budget amendment that was reported out of a House Committee earlier this year…

Section 1. Total outlays for any fiscal year shall not exceed total receipts for that fiscal year, unless three-fifths of the whole number of each House of Congress shall by law for a specific excess of outlays over receipts by a rollcall vote.

Section 2. Total outlays for any fiscal year shall not exceed 18 percent of economic output of the United States, unless two-thirds of each House of Congress shall provide for a specific increase of outlays above this amount.

Section 3. The limit on the debt of the United States held by the public shall not be increased unless three-fifths of the whole number of each House shall provide by law for such an increase by a rollcall vote.

Section 4. Prior to each fiscal year, the President shall transmit to the Congress a proposed budget for the United States Government for that fiscal year in which total outlays do not exceed total receipts.

Section 5. A bill to increase revenue shall not become law unless two-thirds of the whole number of each House shall provide by law for such an increase by a rollcall vote.

Section 6. The Congress may waive the provisions of this article for any fiscal year in which a declaration of war is in effect. The provisions of this article may be waived for any fiscal year in which the United States is engaged in military conflict which causes an imminent and serious military threat to national security and is so declared by a joint resolution, adopted by a majority of the whole number of each House, which becomes law.

Section 7. The Congress shall enforce and implement this article by appropriate legislation, which may rely on estimates of outlays and receipts.

Section 8. Total receipts shall include all receipts of the United States Government except those derived from borrowing. Total outlays shall include all outlays of the United States Government except for those for repayment of debt principal.

Section 9. This article shall take effect beginning with the later of the second fiscal year beginning after its ratification or the first fiscal year beginning after December 31, 2016.

Balanced budget amdenments have been introduced to Congress, on a regular basis, for the past 30 years. This is the text of balanced budget amendment passed by the US Senate in 1982...
Section 1. Prior to each fiscal year, the Congress shall adopt a statement of receipts and outlays for that year in which total outlays are no greater than total receipts. The Congress may amend such statement provided revised outlays are no greater than revised receipts. Whenever three-fifths of the whole number of both Houses shall deem it necessary, Congress in such statement may provide for a specific excess of outlays over receipts by a vote directed solely to that subject. The Congress and the President shall, pursuant to legislation or through exercise of their powers under the first and second articles, ensure that actual outlays do not exceed the outlays set forth in such statement.

Section 2. Total receipts for any fiscal year set forth in the statement adopted pursuant to this article shall not increase by a rate greater than the rate of increase in national income in the year or years ending not less than six months nor more than twelve months before such fiscal year, unless a majority of the whole number of both Houses of Congress shall have passed a bill directed solely to approving specific additional receipts and such bill has become law.

Section 3. The Congress may waive the provisions of this article for any fiscal year in which a declaration of war is in effect.

Section 4. Total receipts shall include all receipts of the United States except those derived from borrowing and total outlays shall include all outlays of the United States except those for repayment of debt principal.

Section 5. The Congress shall enforce and implement this article by appropriate legislation.

Section 6. On and after the date this article takes effect, the amount of Federal public debt limit as of such date shall become permanent and there shall be no increase in such amount unless three-fifths of the whole number of both Houses of Congress shall have passed a bill approving such increase and such bill has become law.

Section 7. This article shall take effect for the second fiscal year beginning after its ratification.

And although it’s never been formally introduced in Congress as far as I know, Georgetown University Law Professor Randy Barnett has proposed a Constitutional amendment that takes an intriguing approach to the balanced budget problem…
Section 1. The budget of the United States shall be deemed unbalanced whenever the total amount of the public debt of the United States at the close of any fiscal year is greater than the total amount of such debt at the close of the preceding fiscal year.

Section 2. Whenever the budget of the United States is unbalanced, the President may, during the next annual session of Congress, separately approve, reduce or disapprove any monetary amounts in any legislation that appropriates or authorizes the appropriation of any money drawn from the Treasury, other than money for the operation of the Congress and judiciary of the United States.

Section 3. Any legislation that the President approves with changes pursuant to the second section of this Article shall become law as modified. The President shall return with objections those portions of the legislation containing reduced or disapproved monetary amounts to the House where such legislation originated, which may then, in the manner prescribed in the seventh section of the first Article of this Constitution, separately reconsider each reduced or disapproved monetary amount.

Section 4. The Congress shall have power to implement this Article by appropriate legislation; and this Article shall take effect on the first day of the next annual session of Congress following its ratification.

More to come from Anchor Rising and, rest assured, elsewhere.

March 3, 2011

The Shape of the Governor's Solutions

Justin Katz

Governor Chafee isn't giving many clues as to the decisions that he's making as he builds his budget proposal, but some statements that he has been willing to make are telling with regard to his approach, to say the least:

Chafee did describe some specific priorities. He supports proposed federal legislation that would help the states to recoup taxes on sales over the Internet, he said.

As he has since he was mayor of Warwick, Chafee called for the federal government to reimburse state and local jurisdictions for the cost of such mandatory programs as special education.

The governor acknowledged that he’s had "limited success" since the 1990s in seeking federal financing of the federally required school programs. But Chafee said he will keep asking for the money. "I'm going to be like a terrier with a bone," he said.

How apt the dog analogy is. Apart from begging for table scraps from the federal government, raising taxes is a bit like sneaking up and snatching sandwiches from unsuspecting children's hands, a maneuver that many a domestic canine has mastered.

I'd love to be proven wrong, but one suspects that there will be no difficult decisions made by this governor. He'll govern under the same principles of short-sighted budgeting, irresponsible spending, reliance on hand-outs, quick fixes, and illusions that have brought Rhode Island to its current state.

November 9, 2010

Correcting Federalism

Justin Katz

In an essay that is, unfortunately, behind a subscription firewall, Ramesh Ponnuru takes a mildly contrarian position on federalism:

Yet this may not be an auspicious time for a campaign to empower the states, since their own mismanagement has been in the headlines for several years. California and Illinois are the most familiar basket cases, but even Utah, the best-ranked state in Forbes's survey of state-government debt, has unfunded pension obligations that amount to $7,000 per resident. At a time when states have been asking the federal government for bailouts, is it really a good idea to entrust them with more responsibilities? Will the public think so?

If political constraints end up blocking devolution, it might be a good thing, because the bigger problem with the conservative defense of the states is that it rests on mistaken premises. The decline of American federalism has not been a story of the federal government growing and state governments shrinking. It has been a story of governments at all levels growing at once, and collusively.

I say "mildly," because to some extent the second paragraph answers the first, and Ponnuru surely knows it. Giving the states more responsibility and more autonomy will force them to behave more responsibly. The prerequisite, of course, is that the particular "autonomy" given is of the sink-or-swim kind, not of the adolescent bender kind. Ponnuru's list of suggestions follows this line of thinking:

  1. Stop giving the states [federal] money.
  2. Cap the state- and local-tax deduction.
  3. Defend the Supreme Court when it limits states' adventurism.
  4. Where federalism is in good working order, leave it alone.
  5. Stop creating new opportunities to sue state governments in federal court.
  6. Fix Medicaid.
  7. End McCarran-Fergusun [which enabled state-by-state regulation of health insurance.

September 29, 2010

The Straight Line Crosses Political Groupings

Justin Katz

Timothy Sandefur's edifying review of the shift in legal thought on the Supreme Court during the era of President Franklin Roosevelt's progressive revolution points, among other things, to the way in which political groupings do not draw straight lines across history, such that a conservative or progressive today would have agreed with their supposed forerunners:

For a legislature to exert power in this way — for the personal benefit of the lawmaker or his allies — would be to act arbitrarily; to exert its mere will. But the due-process-of-law clause allows states to act only pursuant to law — that is, general rules serving the public good. In 1874, less than a decade after the Fourteenth Amendment added a new "due process of law" clause to the Constitution, the Court held that states could not take property from some citizens to benefit others because such legislation was not "law," but "a decree under legislative forms." Legislation restricting freedom only to enrich a particular faction, or lacking any basis other than legislative say-so, abridges liberty without due process of law.

Progressive-era lawyers recognized that this legal doctrine was among the most serious obstacles to redistributive legislation. They therefore formulated a theory that the due-process clause required only fair procedures, and that the constitutional prohibition on legislative arbitrariness — which they derisively labeled "substantive due process" — had been concocted by "activist" judges who merely enforced their individual political views from the bench. The judges of a previous generation would have been stunned by this accusation, but by the 1930s, it had become common in the legal academy and among younger lawyers. The clash between the two interpretations of the due-process clause would form one of the central dramas of the New Deal decade.

As it happens, I agree with the progressives, as described in the above. Within the boundaries of the Constitution, states ought to be able to be given maximal leash, with residents never deprived of the right to work to change policies or to leave, and the expectation that state governments that choose poorly will watch productive residents leave and take the health of the local society with them. The problem is that federalism turned out to be an argument of convenience for factions outside of the judicial majority.

The insight of the progressives in the text that I've just quoted was that there exist rules laid out in the law concocted by people in a system of self government and that the people could therefore change them. Experiment. In terms of government, there isn't some abstract, pure Law to which legislatures and jurists must hew, because that abstraction turns out to be suspiciously similar to the opinions of the ruling class. But once they gained the majority, the progressives set about undermining the rules that made possible the very notion of due process:

... the Constitution explicitly bars states from "impairing the obligation of contracts," a prohibition adopted in response to uprisings like the 1786 Shays's Rebellion, in which farmers mobbed foreclosure sales, closed courts, and demanded "debtor stay laws" like that enacted in Minnesota. Laws limiting lenders' ability to recover from defaulting borrowers dry up credit and stifle economic expansion, which is why James Madison described them as "wicked" and "contrary to the first principles of the social compact." Even law professor William Prosser, who helped Minnesota legislators write the law, confessed in 1934 that the contracts clause "was inserted in the Constitution for the purpose of preventing precisely [this] type of legislation."

When a bank foreclosed on the Blaisdell family's boarding house, they sought to extend the redemption period. The judge refused, finding the law unconstitutional, but the Blaisdells appealed, and the Supreme Court upheld the law in a 5–4 decision. Admitting it could not be reconciled with the Constitution, Chief Justice Charles Evans Hughes nevertheless held that the law was justified by the economic "emergency." It was "no answer," he claimed, "to insist that what the provision of the Constitution meant to the vision of that day it must mean to the vision of our time." To say "that the great clauses of the Constitution must be confined to the interpretation which the framers, with the conditions and outlook of their time, would have placed upon them" simply "carrie[d] its own refutation."

With legislatures thus freed to to do anything, provided it coincided with the ideologies and opinions of a majority of Supreme Court justices, the deterioration of the American experiment began in earnest. In our day, the federal government has stepped up its own involvement — from minimum wages to, now, healthcare — making real due process — the ability to organize and work for change in response to unjust laws — that much more difficult, and the decision of our rulers that much more arbitrary.

August 28, 2010

Robert Healey on the Tenth Amendment

Carroll Andrew Morse

At the Tenth Amendment rally at the Rhode Island statehouse a week ago Saturday, I asked Robert Healey, who has litigated Ninth and Tenth Amendment issues before the courts, about the current legal interpretation of the Tenth Amendment, and whether he believes the goal of Tenth Amendment activists should be to hold the Federal Government to the existing interpretation or to reverse the current precedents. He went through a brief history of the history that has shaped the modern interpretation of the Tenth Amendment, which anyone who is interested in this issue needs to be aware of...

"...Everybody, including the Supreme Court, understood the value of the Tenth Amendment...all during the antebellum period. Once we had the Civil War, that's where it became kind of interesting...During the period of Reconstruction, the South came back into the union but realized, hey, legally why can't we utilize this Tenth Amendment kind of concept to do what we wanted to do anyway." Audio: 45 sec

"Obviously, there were some issues there and it fell into disrepute, because eventually what had to happen in order to being the South back into the unification picture was pretty much a squashing of that Tenth Amendment argument that the Southern states had frequently used based on their own concept of sovereignty, and it became discredited because it was used in that manner..." Audio: 53 sec

"What happens after that is that was we had a period where you could then impose income taxes, we had the constitutional Amendment passed...and once you put that piece to the puzzle, you realize that when the Federal [Government] has the power to tax, it has the power to control. And if it's power is the strongest power in terms of taxation, it's the strongest power in terms of control..." Audio: 44 sec

"The Federal Government has, in essence, gone around the Tenth Amendment by saying to people, hey, you want transportation funds, you've got to honor our concepts, not your own state concepts..." Audio: 47 sec

"You had FDR imposing programs on a Federal level, because states were unable to balance budgets, and the Federal Government could print money and could tax -- they could do both -- therefore it became a disaster. Since the 1930s it's gone it that direction generally, as I see it." Audio: 20 sec

"...I think that what has to happen is that the people have to assert their Tenth Amendment rights and make it known to the Federal Government that this is going to be it..." Audio: 55 sec

"...there is a strong argument, that's the one I brought to the Supreme Court, that the Ninth Amendment also applies. The citizen is the sovereign. The citizen gives the power to the state. The citizen gives the power and defines power for the Federal government. The citizen can take it back..." Audio: 48 sec

"There are plenty of legal plays that are going to have to happen, far out into the future, but unless you can get support and unless you can get it started with things like this, a Tenth Amendment rally, it's never going to happen."Audio: 13 sec

July 10, 2010

Congress Lacks a Constitutionally Granted Power to Define Marriage, † Œ Ø ¿

Justin Katz

Andrew's #5 makes me wonder whether he isn't too enamored of the opportunity to oppose lefitsts in the course of supporting a liberal judicial ruling. I'll admit that I, too, find it very interesting that my reasons for disagreeing with Judge Tauro's rulings (as I understand them) ought to ally me with a variety of left-wingers. They dislike federalism that subverts their statist aims; I dislike federalism that collects taxes that will transfer to states with no federal definition of terms required.

I'd note, for one obvious instance, that it is accepted practice that it is left to sovereign states to regulate abortion, as long as women have the right thereto (per Roe v. Wade et al.) according to some basic requirements. How would Tauro's reasoning not invalidate such legislation as the Hyde Amendment, preventing federal funding of abortions? If a state determines that abortion should be among the procedures covered by public healthcare programs,then it would seem that Tauro has left the federal government no recourse but to supply money to the state without defining the limits of acceptable procedures.

More to the point, though, I'm not persuaded that Andrew's #2 actually answers my objection (and Brassband's). Note, especially, the first sentence:

Attorney General Coakley's argument, which Judge Tauro agreed with, is that when the Federal government creates its own definition of marriage, it requires states to keep track of different types of marriages, even if the states don't recognize the Federal distinctions in their own laws.

In the case (essentially) of contractual requirements for the issuance of federal dollars, "marriage" is a definable term, not unlike "eligible participant" or "owner" or "the company" or "applicable service." Given the complexities of our layers of government and their many overlapping programs, the fact that "marriage" means something different for the purpose of federal contracts than for state contracts hardly creates an undue burden.

Under such an approach, it would be impossible for the federal government to do anything without exceeding its powers, in some way. Recall that the Constitution leaves authority not just to the states, but also to the people. According to the reasoning that Andrew describes, he could just as well say that the federal government, in creating any job or office, should not be able to set requirements because "it is not enough to say the [applicant] can opt-out of this requirement by not participating."

I write all this, of course, from within the belief that the federal government should not be as big and all-spending as it is. Wishing for a less powerful national government, however, should not lead us to accept a government that's small in control of taxpayer dollars but just as big in handing them out.

Congress Lacks a Constitutionally Granted Power to Define Marriage III

Carroll Andrew Morse

What started out as a comment in response to Justin's post here has expanded to size of a full-blown post of its own...

  1. I'm actually not a big fan of the "Bongiorno" test, which seems to me to be yet another example of the basis of the Federal government being shifted away from the idea of enumerated powers and towards the idea that the Federal government has the power to do anything it wants, save for what is expressly forbidden to it by the Constitution and -- even worse -- forbidden to it by limits placed by Federal judges who will, of course, be the ones to decide what areas of state sovereignty are inviolate. There is no basis for the idea that the Tenth Amendment involves two separate classes of powers not delegated to the Federal Government, those that are fundamental to the state, and those that are not. If a power in some area is not delegated to the Federal Government, then the Federal Government doesn't have the power to act in that area, no other test necessary.

  2. Attorney General Coakley's argument, which Judge Tauro agreed with, is that when the Federal government creates its own definition of marriage, it requires states to keep track of different types of marriages, even if the states don't recognize the Federal distinctions in their own laws. In a true Federal system, where the states are sovereign, it is not enough to say the states can opt-out of this requirement by not participating in particular Federal programs; an enumerated power has to exist, if the the Federal government is going to require a state to act in a certain manner, even as part of a Federal program.

  3. However, Judge Tauro obfuscated the above issue by tap-dancing around the basic question of whether Congress does or does not have an enumerated power allowing it to regulate marriage. He never seriously answered that question, but instead decided that since the Fifth Amendment prohibits the Federal government from not allowing same-sex marriage on equal protection grounds (by his own reasoning in Gill V. OPM), Section 3 of DOMA could not be consistent with the powers delegated to a Congress that is required to act Constitutionally when exercising its enumerated powers, unless there exists a specific, constitutional-level exception, which there obviously isn't in this case. Ultimately left unanswered was whether the "Spending Clause" of the Constitution would be enough to give Congress the power to create its own definition of marriage, if that definition was consistent with the rules he created in Gill.

  4. I'll differ with the first sentence of Justin's concluding paragraph...
    The most immediate reason conservatives should be wary is that it means that Americans no longer possess a substantive say in the application of their taxdollars, when those dollars are given to the states. The secondary reason, which will perhaps prove more insidious, is that it opens up a new area in which the federal judiciary has authority to determine when taxpayers retain that right and when they don't.
    ...by noting that Federal action is limited only in areas where there is no enumerated power of the Federal government. And with regards to the second sentence, I'll note that the ruling in Gill may give the judiciary an expansive authority to limit public say in the spending of public dollars, regardless of the enumerated powers and Tenth Amendment issues raised in Mass. v. HHS.

  5. Finally, from the department of you-shall-know-them-by-their-enemies, I'll make note of liberal law professor Jack Balkin's reaction to the Massachusetts v. HHS decision, quoted in the New York Times...
    Professor Balkin, who supports the right to same-sex marriage, said the opinions ignored the federal government’s longstanding involvement in marriage issues in areas like welfare, tax policy, health care, Social Security and more.

    The arguments concerning the 10th Amendment and the spending clause, if upheld, would “take down a wide swath of programs -- you can’t even list the number of programs that would be affected,” he said.

Re: Congress Lacks a Constitutionally Granted Power to Define Marriage

Justin Katz

As Andrew's post on Judge Tauro's ruling concerning the Defense of Marriage Act (DOMA) proves, conservatives will find a great deal of intellectual meat in the development — setting principles of federalism against a traditional understanding of marriage. I'll have more to say on the issue in days to come, but for the moment, discussion in the comment section is definitely worth a look. Commenter Brassband offers an objection:

I haven't had a chance to go through these opinions with any care, but based on what I've seen I don't get the 10th amendment argument.

There's nothing that compels a state to participate in Medicaid -- or in a range of other federal programs.

For a state that is offended by DOMA's application to Medicaid recipients within its borders, the solution is to reject Medicaid and provide all of the funding for that type of program from State funds, and give the benefits to whomever the State likes.

Doesn't seem like a very well reasoned 10th amendment decision, from everything I've seen.

To which Andrew responds:

On the technical side, Judge Tauro's Tenth Amendment ruling is based on a First-Circuit precedent...
In United States v. Bongiorno, the First Circuit held that "a Tenth Amendment attack on a federal statute cannot succeed without three ingredients: (1) the statute must regulate the States as States, (2) it must concern attributes of state sovereignty, and (3) it must be of such a nature that compliance with it would impair a state’s ability to structure integral operations in areas of traditional governmental functions."

More broadly, the ruling basically says that if the states have never given away their authority in an area of governance (and, according to Bongiorno, the area is integral to the state), then the 10th Amendment makes clear that the states remain sovereign, and the Federal government cannot make its own set of rules in that area. I know that's not usually how the 10th Amendment has been interpreted (on the few occasions that it has been), but it seems to be closer to its original meaning than is the idea that the Federal government has a broad authority to do anything it decides for itself promotes the "general welfare", with states being allowed to opt-out of programs that are not based on more specifically enumerated powers.

It seems to me that Andrew's explanation (and, I take it, Tauro's) doesn't address Brassband's objection. The key is number 3 in the internal blockquote, which requires that a challenge on Tenth Amendment grounds involve a regulation:

... of such a nature that compliance with it would impair a state’s ability to structure integral operations in areas of traditional governmental functions.

DOMA doesn't regulate a state's activities as a sovereign entity. It regulates them as a dependent entity. That is, the state need only comply with the regulation to the extent that it (for example) chooses to rely on federal funds for Medicaid.

I've written before that I think that the spending mechanism for federal imposition of policy is corrupting of states' sovereignty, but circumstances are much worse if the federal government is seen as merely a source of nationwide taxpayer dollars for individual states. Where conservatives typically decry the strings that come with federal dollars, it's directly related to the regulation. This occurs, for example, when the feds offer aid for education and then dictate how individual school districts must construct their programs (or their faculties or student bodies).

In this case, even that isn't happening. The government isn't saying that states can only receive Medicaid funds if they define marriage along federal guidelines; it's saying that the funds can only be distributed in ways that accord with the federal government's understanding of marriage. Applying this to the Bongiorno rules for a Tenth Amendment challenge, one would have to argue that (again, for example) refusing Medicaid "would impair a state’s ability to structure integral operations in areas of traditional governmental functions." That's undoubtedly true, in a practical sense, but codifying it into law isn't a turn of events that ought to encourage conservatives (and libertarians, much less).

The most immediate reason conservatives should be wary is that it means that Americans no longer possess a substantive say in the application of their taxdollars, when those dollars are given to the states. The secondary reason, which will perhaps prove more insidious, is that it opens up a new area in which the federal judiciary has authority to determine when taxpayers retain that right and when they don't.

July 9, 2010

Massachusetts District Court Says that Congress Lacks a Constitutionally Granted Power to Define Marriage

Carroll Andrew Morse

In a decision issued yesterday, the Federal District Court for Massachusetts overturned a portion of the Federal Defense of Marriage Act (DOMA) for reasons including the violation of the Tenth Amendment and Congress lacking an enumerated basis for defining marriage, in the case of Massachusetts v. Department of Health and Human Services.

Section 3 of DOMA prohibited any definition of marriage other than that of a union of one man and one woman from being used by the Federal government, including eligibility rules for Federal benefits. Massachusetts Attorney General Martha Coakley challenged the law last year arguing, amongst other points, that...

Congress lacks the authority under Article I of the United States Constitution to regulate the field of domestic relations, including marriage [and that] Section 3 of DOMA violates the Tenth Amendment, exceeds Congress’s Article I powers, and runs afoul of the Constitution’s principles of federalism by creating an extensive federal regulatory scheme that interferes with and undermines the Commonwealth’s sovereign authority to define marriage and to regulate the marital status of its citizens.
In other words, Congress lacked the power to define marriage, even for Federal law, because a power to involve itself in regulating domestic relations had never been delegated to Congress. And in deciding the case, District Court Judge Joseph Tauro agreed that Federalist arguments have to be taken seriously in this and in any other area...
It is a fundamental principle underlying our federalist system of government that "[e]very law enacted by Congress must be based on one or more of its powers enumerated in the Constitution." And, correspondingly, the Tenth Amendment provides that "[t]he 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 division between state and federal powers delineated by the Constitution is not merely “formalistic." Rather, the Tenth Amendment “leaves to the several States a residuary and inviolable sovereignty." This reflects a founding principle of governance in this country, that "[s]tates are not mere political subdivision of the United States," but rather sovereigns unto themselves.
In its defense, the Federal Government argued that an enumerated power allowing Congress to define marriage can be found in the "Spending Clause" of the US Constitution (Article I section 8)...
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States
...which has been interpreted to allow Congress to set conditions on how Federal monies are spent, in pursuit of the promotion of the general welfare. But Judge Tauro rejected this justification as a basis for DOMA, on the grounds that...
  1. The courts have previously held that the broad grant of power in Spending Clause cannot be used to justify Congressional actions that violate more sharply defined section of the Constitution, and
  2. Section 3 of DOMA "violated the equal protection principles embodied in the Fifth Amendment to the United States Constitution" (decided in Gill vs. Office of Personnel Management, the companion case to Massachusetts v. HHS, and decided by Judge Tauro on the same day).
Judge Tauro's ruling also made note that the scope of Section 3 of DOMA extended beyond just "spending"...
It is...worth noting that DOMA’s reach is not limited to provisions relating to federal spending. The broad sweep of DOMA, potentially affecting the application of 1,138 federal statutory provisions in the United States Code in which marital status is a factor, impacts, among other things, copyright protections, provisions relating to leave to care for a spouse under the Family and Medical Leave Act, and testimonial privileges.
...suggesting that the Spending Clause might not have been an adequate justification for Section 3 of DOMA, even if it had been decided that there was no conflict with the rest of the Constitution. Given that the opinion makes no further mention of whether the impacts of DOMA outside of spending or monetary benefits can be justified by the Spending Clause, I believe the implication is that there is no way that DOMA could have met Constitutional requirements in any non-spending area of the law, if it was unable to meet Constitutional requirements directly related to spending.

The rationale offered by Judge Tauro with regard to the Tenth Amendment was more direct. He found that Section 3 of DOMA violated it, without dependence on any other Constitutional provisions...

That DOMA plainly intrudes on a core area of state sovereignty -- the ability to define the marital status of its citizens -- also convinces this court that the statute violates the Tenth Amendment...

This court has determined that it is clearly within the authority of the Commonwealth to recognize same-sex marriages among its residents, and to afford those individuals in same-sex marriages any benefits, rights, and privileges to which they are entitled by virtue of their marital status. The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment. For that reason, the statute is invalid.

However, while this part of the opinion directly invokes the Tenth Amendment, it does so in a manner more limited than the plain wording of the Amendment would suggest. Judge Tauro's opinion, drawing from established circuit-level precedent, stresses that the Tenth Amendment applies to areas which, in addition to not being delegated to the Federal Government, must also be areas which clearly belong to the state governments. This adds an extra condition on Tenth Amendment protections, not found in the Amendment's text, which makes no reference to a subset of non-delegated state powers being the special ones that are protected.

So while I can applaud Judge Tauro's general principle of taking the idea of enumerated powers and Tenth Amendment seriously, the specifics of his ruling highlight a substantial gap that currently exists in our nation's Federalism-related jurisprudence. While the Federal government cannot intrude into an area that is fundamental to the sovereignty of a state, and cannot use the "Spending Clause" to justify actions that conflict with other parts of the Constitution, there is still a large range of possible Federal actions whose Constitutionality is not clearly defined by the courts, i.e. actions that courts do not declare to be essential to state sovereignty, and that are not in conflict with the Constitution but that are not expressly delegated to the Federal Government.

May 24, 2010

The Constitution and Contracts

Carroll Andrew Morse

One of the places that my quest for the sources of receivership law in Rhode Island has led me to is the Federal Constitution, Article I, section 10...

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
But wait; just because the Constitution says that "states shall pass no law impairing the obligation of contracts", doesn't mean that the United States Supreme Court thinks that states shall pass no law impairing the obligation of contracts. The Court, in its 1934 majority decision in Home Building and Loan Association v. Blaisdell authored by Chief Justice Charles Evans Hughes, substantially depreciated the plain meaning of the contract clause...
These put it beyond question that the [contract clause] prohibition is not an absolute one, and is not to be read with literal exactness, like a mathematical formula...

Not only is the constitutional provision qualified by the measure of control which the State retains over remedial processes, but the State also continues to possess authority to safeguard the vital interests of its people. It does not matter that legislation appropriate to that end "has the result of modifying or abrogating contracts already in effect." Not only are existing laws read into contracts in order to fix obligations as between the parties, but the reservation of essential attributes of sovereign power is also read into contracts as a postulate of the legal order. The policy of protecting contracts against impairment presupposes the maintenance of a government by virtue of which contractual relations are worthwhile -- a government which retains adequate authority to secure the peace and good order of society.

In other words, a state cannot impair a contract, unless a state decides that it really needs to -- for the good of the state of course.

I would like to suggest this as an opportunity for reflection on the part of individuals who think they have no stake in the conservative and Tea Party emphasis on respecting Constitutional limitations on government. As the evolution of contract law illustrates, once the only recognized governing principle becomes that government has the power to do whatever government decides is good and necessary, then everything becomes subject to the whim of the ruling class of the moment -- even in areas of the law where the rules seem to have been spelled out in unequivocal terms. And once you accede that government has the right to do anything it decides is important, it is not reasonable to expect that it will always and forever use its unlimited grant of power to only to do the stuff that you like.

Finally, as a historical footnote, readers may be interested in knowing that majority opinion undermining contracts was joined by the justices regarded as enlightened progressives of their era, while the four justices remembered today largely for their repeated opposition to various aspects of the New Deal all dissented.

April 7, 2010

Does the Concept of Enumerated Federal Powers Matter? Democratic Attorney General Candidates Say Sometimes it Does, Sometimes it Doesn’t

Carroll Andrew Morse

Do not believe that they mean it, when local Democrats tell you that the Tenth Amendment has no meaning, or at least no meaning relevant to modern government, or that the Constitution means only that the Federal government cannot do anything expressly forbidden to it. The actions of a couple of statewide Democratic office seekers who have the full support of the progressive wing of the Democratic party definitively say otherwise.

As Anchor Rising reported (in typical ahead-of-the-curve fashion) last July, Massachusetts Attorney General Martha Coakley has filed suit against the Federal Government, attempting to have the Federal Defense of Marriage Act declared unconstitutional as applied in Massachusetts, on the grounds that no enumerated power of Congress comes close to allowing the Federal government to define marriage, and therefore the 10th Amendment reserves the power to define marriage within a state to the government of a state…

81. The Tenth Amendment to the United States Constitution expressly reserves to the states all powers except those limited powers granted to the federal government…

83. The Tenth Amendment preserves for the states the authority to regulate and define marriage for their citizens.

84. Congress lacks the authority under Article I of the United States Constitution to regulate the field of domestic relations, including marriage.

85. Section 3 of DOMA violates the Tenth Amendment, exceeds Congress’s Article I powers, and runs afoul of the Constitution’s principles of federalism by creating an extensive federal regulatory scheme that interferes with and undermines the Commonwealth’s sovereign authority to define marriage and to regulate the marital status of its citizens.

Joseph Fernandez, a Democratic candidate for Rhode Island Attorney General, has told the website Defend the Law -dot- org that he is all-in with the Massachusetts lawsuit…
"Joe will be ready to provide enthusiastic support for Attorney General Martha Coakley’s Massachusetts lawsuit in any way she asks."
However, when Projo political columnist Edward Fitzpatrick asked Mr. Fernandez last week if he would consider any kind of Constitutional challenge to the new Federal healthcare law, his awareness of limitations on Federal power entirely vanished…
Joseph M. Fernandez, a Providence Democrat, said, “The charge that the [healthcare] law is unconstitutional is a politically motivated ploy.”
By supporting a Tenth Amendment/enumerated powers challenge to Federal law when he supports a policy outcome, but refusing even to consider the legal arguments when he opposes the policy outcome -- before the arguments have fully been made -- Joseph Fernandez has disqualified himself from being considered fit to hold the post of Attorney General, on any grounds other than “I might be able to put together the raw political muscle to get elected”.

Democratic Attorney General candidate Steven Archambault takes a similar pair of contradictory positions. Of the Coakley lawsuit, his campaign told the Defend the Law blog…

"Steve Archambault will support Martha Coakley’s efforts through either joining the lawsuit, submitting an amicus brief or providing some other appropriate assistance."
But when the subject was a challenge to the healthcare law, Mr. Archambault told Edward Fitzpatrick…
“The health-care law stands on sound constitutional footing. The Supreme Court has consistently upheld Congress’ right to regulate interstate commerce and to tax. While I would certainly examine the legal arguments advanced by the attorneys general, their position seems more political in nature than based on legal reasoning.”
By supporting a Constitutional challenge when he supports the policy outcome, but deriding a lawsuit as politically motivated when he doesn’t -- again, before the legal arguments have been made -- Steven Archambault has disqualified himself from being considered fit to hold the post of Attorney General, on any grounds other than “I might be able to put together the raw political muscle to get elected”.

Assessing the constitutionality of laws requires more than comparing the desired outcomes of legislation to personal policy preferences or to policy preferences of political allies. This critical aspect of the rule-of-law seems to have escaped both Mr. Archambault and Mr. Fernandez.

According to Fitzpatrick's column, Democratic AG candidate Peter Kilmartin also opposes a challenge to the healthcare law in terms as strong as Mr. Fernandez's. However, Rep. Kilmartin hasn’t expressed an opinion on the Massachusetts lawsuit that I can find (though I haven't seen a report on whether he expounded on his positions at last night's Democratic AG debate at Roger Williams University), so he has not placed himself directly into the disqualifying contradiction that Fernandez and Archambault have. Perhaps Rep. Kilmartin doesn’t see protecting the rights of Rhode Islanders from encroachment by the Federal Government as a top priority for an Attorney General.

Moderate Party AG candidate Christopher Little didn’t rule out a future challenge to the healthcare law in his response to Fitzpatrick, but wants to see what the impact is, before deciding whether to join a lawsuit on its legality. Whether that represents the proper ordering of priorities for the state's top law enforcement officer is a question that merits serious discussion.

Amongst the Democratic candidates for AG, only Robert Rainville wants to hear the details of any suit against the Federal Government regarding the healthcare law, before deciding whether to join. He told Fitzpatrick that...

"There are possible constitutional challenges. You can make arguments on both sides, so it’s premature to say"...

He said he’d look at its constitutionality and cost, and “wouldn’t rule out” a suit.

At least prior to last night's RWU debate, Rainville hadn't expressed a public position on the Massachusetts lawsuit.

Finally, Republican AG candidate Erik Wallin does support a challenge to the healthcare law on Constitutional grounds…

“Never has the federal government attempted to force individual citizens to buy a good or service simply on the basis that they are Americans....Nowhere in the U.S. Constitution does it state that the federal government can require an American to buy a commodity"
…and has not taken an official position on the Defense of Marriage Act lawsuit, based on the fact that the the suit has no direct legal impact in RI, because the complaint filed by the Massachusetts AG directly states that it "does not address the application of DOMA in states that do not recognize marriages between same-sex couples" and Rhode Island does not recognize same-sex marriages.

Imagine that: Attorney General candidates who take campaign positions as if the job of Attorney General was to enforce the laws of Rhode Island and protect the rights of all Rhode Island citizens, rather than to implement the favored policies of the progressive wing of the Democratic party!

March 29, 2010

The 10th Amendment Rally: Mark Zaccaria and Robert Healey

Carroll Andrew Morse

At this past Saturday’s 10th Amendment rally in Providence, I had a chance to ask some quick questions to the statewide and semi-statewide candidates who attended.

I asked Mark Zaccaria, Republican candidate for Congress in Rhode Island’s Second District, about the difference between running two years ago, when people were saying American capitalism was dead, and running this year, when people are holding 10th Amendment rallies at the Rhode Island Statehouse...

And I asked Robert Healey, candidate for Lieutenant Governor, to expound about the distinction between the 9th and 10th Amendments which he had spoken about during his time at the podium…

I also had the chance to ask both gentleman some more directly political questions (Zaccaria on Rep. Langevin's healthcare vote, Healey on "is this the year?", which I will post shortly...

March 28, 2010

The 10th Amendment Rally, the Limits of Government, and the Bounds of Discussion in the Public Square

Carroll Andrew Morse

I was late to yesterday's 10th Amendment rally held on the front steps of the Rhode Island Statehouse because – I kid you not – I had to finish putting my income tax information together for a meeting later in the day, so the samples of audio linked below represent targets of opportunity I was able to record, more than anything else.

Be warned, depending on your sensibilities, you may be shocked by what you hear.

I will confess to not knowing enough details about the macroeconomics and political economy of the Federal Reserve to be able to offer an opinion of the kinds of good and bad outcomes that would be likely to result from its wholesale elimination. And I am not an advocate of repealing the Seventeenth Amendment for one simple reason: I live in Rhode Island, and don't see better Senators resulting from Rhode Island General Assembly appointments than from popular votes.

But the fact that these issues don't have slam dunk answers, even amongst the conservative/libertarian side of the American political axis, doesn't mean that it's out of bounds to ask IN PUBLIC questions about whether every modification to, and every end-run of, the U.S. Constitution that has increased the scope of Federal power has been for the better.

So with that perspective in mind, let's boil what it is that's going on right now with the Tea Parties and other related protests down to its essentials. On one side, there is a growing movement of Americans saying there needs to be limits on government that are agreed upon, codified, and most importantly respected. On the other side, there are a number of Americans saying that all this dissent and discussion on limitations on government is becoming dangerous, so let's not do so much of it in public, and just agree that the Federal government has the power to do anything that it wants to that is not expressly forbidden by the Constitution.

Which side will you choose to take?

March 27, 2010

The Constitutionality Proof Is Worse than the Pudding

Justin Katz

Ed Fitzpatrick's column, yesterday, suggests that the healthcare law, including the individual mandate, is constitutional, but one needn't be as far right as Anchor Rising to be very concerned about the reason:

The Supreme Court has held that Congress "can tax for any legitimate reason, and certainly providing health care for all Americans is a legitimate reason," Goldstein said. "It was imposed based on Congress' reasonable conclusion that when some people don't have health insurance, it hurts them and shifts a lot of costs onto the rest of us. The tax is little different than taxes Congress imposes on companies that pollute, which are similarly based on the conclusion that pollution hurts everyone and could be deterred through a tax."

Also, the high court has upheld Congress' power to regulate "economic activity that substantially affects interstate commerce," Goldstein said. "And there is no question health care and health insurance affects interstate commerce."

So, not taking care of your own health is like large factories' polluting the air and your health-related habits also affect interstate commerce, making them a legitimate target for regulation and taxation. I took up this topic in a Rhode Island Catholic column a few months ago. The question arises: under such reasoning, what doesn't Congress have the authority to regulate?

Statists already would have answered "nothing," but shouldn't we find it frightening to stare down this dark slope? Now, not only is the authority asserted, but the federal government has a massive new entitlement to bolster and defend by making the American behave in particular ways.

March 18, 2010

Are We Entering the Re-education Zone?

Justin Katz

Perhaps it's too easy to be the naysayer in a place like Rhode Island, but something about this good news:

Legislation approved by the General Assembly on Tuesday and signed by Gov. Donald L. Carcieri later in the day raised the limit on charter schools in Rhode Island from 20 to 35, a key part of the state’s $126.6 million Race to the Top application.

Combined with this show of enthusiasm:

Governor Carcieri, Education Commissioner Deborah A. Gist and Providence Supt. Tom Brady are leading a five-member team that will present the state's Race to the Top application to a panel of judges at 1:30 p.m. Wednesday. ...

Joining the team are a dozen supporters, ranging from mayors to teacher union representatives to Senate President M. Teresa Paiva Weed and House Speaker Gordon D. Fox.

A spirit of cooperation and goodwill between the Democratic-controlled House and Senate and the Republican governor dominated a rally at the State House Tuesday afternoon to see the group off. Just an hour later, lawmakers passed a bill to expand the cap on charter schools from 20 to 35, a boon to the state's application.

Makes me think of this:

Yesterday, I warned of the dangers of federalized standards and textbooks. We also shouldn't let this tidbit escape our notice:

"We're going to have to push for change to S3050 [the state's tax cap legislation]," Gist told hard deadlines, acknowledging that some communities, like Portsmouth, were at cap, had aggressively managed per-pupil costs, and would not be able to sustain the proposed cuts. "It's not just 3050," she said, adding that changes would be needed to the whole funding system. To hear the Commissioner say that RIDE would line up behind changing the tax cap — with the BEP as leverage — was probably the best news that has come out of the last few days of school funding drama.

Many of us have been relieved to see somebody standing up to the teachers' unions, but the fact is that our fundamental problem has been that we're less powerful than they are. With our elected representatives lining up, to a person, to claim federal largess, increasing the number of charter schools, the amount of federal money, and the stringency of standards in key subjects could come at a higher cost than we know.

March 17, 2010

How Centralized Education Could Turn Ugly

Justin Katz

Right now, public education is such an expensive catastrophe that top-down imposition of standards and reasonable organizational principles is an attractive option. But there's a very dark side to the impulse, hints of which can be found here:

Governors and education leaders on Wednesday proposed sweeping new school standards that could lead to students across the country using the same math and English textbooks and taking the same tests, replacing a patchwork of state and local systems in an attempt to raise student achievement nationwide. ...

The stakes could be high. President Barack Obama told the nation's governors last month that he wants to make money from Title I - the federal government's biggest school aid program - contingent on adoption of college- and career-ready reading and math standards.

We tend to think of textbooks and standards as sort of pure and objective vessels for knowledge, but they do a lot of cultural work. Perhaps you recall the overt political correctness of word problems in math. In English, the studied texts inherently use the tools of language to construct arguments and convey sensibilities. Controlling textbooks, in other words, brings with it an opportunity to define common understanding, to associate political ideology with "clear thinking," or at least "good writing."

And students of history will surely see the probability that standards will not long be left with the single mandate of educating Americans. A review of the book The Science on Women and Science — which is a collection of essays on the application of Title IX equity rules to scientific education — brings home the point. Title IX has wreaked havoc in athletics and transferred to classroom curricula, the movement could leverage standards in pursuit of equal representation, in a field, as opposed to academic excellence.

As with all consolidations of power, the justifications have their appeal, and the people acquiesce with the understanding that there's consensus about the proper focus and scope of that power's usage. Once it's pooled, though, power attracts a different sort of animal (or allows those present to shed their disguises).

January 16, 2010

The Federal Strings That Bind

Justin Katz

In my December column for the Rhode Island Catholic, I included federal spending among the mechanisms whereby we're losing local — and therefore overall — control of the shape of our government. Neil Downing points out just such a deal with the Devil with respect to unemployment insurance:

Rhode Island has a chance to obtain a cash infusion of up to $23.5 million from the federal government to boost the unemployment trust fund, which pays benefits to out-of-work Rhode Islanders.

But to receive the money, Rhode Island first must liberalize the rules for the unemployment program, including changes that would make more people eligible for benefits.

It certainly makes for a difficult political proposition to refuse millions of dollars that could be siphoned directly to constituents, but consider:

The federal cash infusion is intended to cover the cost of changes to a state's unemployment insurance system, at least in the early years, Vroman said. Employers eventually would have to pick up the cost of broadening a state's unemployment program — through higher state unemployment taxes, he said.

The money, that is, comes as start-up costs for a program that is meant to be permanent. Just as I've pledged to myself that I will never again live beyond my means (if I'm fortunate enough to dig out of debt before I die), state governments should resolve not to fritter away their sovereignty in the name of immediate handouts.

December 31, 2009

A Racial Lever for the Federal Government

Justin Katz

There's certainly room for derision against the attitude that Abigail Thernstrom highlights here:

In 1996, [current Attorney General Eric] Holder told the Washington Post that he always carried a favorite quotation in his wallet. A black man's "race defines him more particularly than anything else," it ran. Said Holder: "I am not the tall U.S. Attorney, I am not the thin U.S. Attorney. I am the black U.S. Attorney.... There's a common cause that bonds the black U.S. Attorney with the black criminal or the black doctor with the black homeless person." All blacks share a "common cause," and thus, methods of election that give them proportional legislative power are a moral imperative.

The "wow" paragraph, however, has quite a bit broader an application than just Mr. Holder:

For more than two decades, the drawing of race-conscious single-member districts has been the standard means of achieving that proportionality when the level of minority officeholding has been found to be unacceptably low. But, in the best of circumstances, race-driven maps "waste" black votes. Inevitably, many black voters end up in majority-white districts and find themselves represented by a white--which is to say without representation, by the Guinier and Holder definition.

The three systems to which the Justice Department has recently agreed are assumed to be much more likely to guarantee true proportionality. They have involved school-district elections in Euclid, Ohio; town-commissioner elections in Lake Park, Fla.; and trustee elections in Port Chester, N.Y. These were towns in which, despite a significant minority population, no blacks or Hispanics had been elected to public office. The Justice Department had filed suit, and, given the absence of elected minority representatives, there was no chance the towns could successfully defend their methods of election.

Look what's been done in the name of racial sensitivity: The federal government is dictating election results to lower governments. Based on physical racial attributes, a distant government is telling small, local communities that their democratic outcomes are not acceptable. What's not acceptable is a governing system what makes use of such levers.

One can't help but wonder whether the rapidly declining value of the race card plays some role in the desperate search for other justifications for expanding power, such as nationalized healthcare and environmentalism.

December 19, 2009

A Federalist Christmas

Justin Katz

My monthly column in the current Rhode Island Catholic reviews the Commerce Clause, government spending, and the Fourteenth Amendment as contributors to trends that are transforming Christmas into a private affair:

The underlying assumption that an atheist should feel as at home as an orthodox Roman Catholic in any corner of the nation is at odds with the brilliant experiment that the Founders initiated. True civic freedom — truly representative government — must include the right to construct a community that reflects its members' unique values. Furthermore, a dynamic society requires that its citizens be able to escape from communities with uncongenial values to others that are substantively different, without disclaiming their national identity.

Americans who want their towns to resemble a Norman Rockwell vision of the Christmas season have no right to threaten or disenfranchise the skeptics and gadflies in their midst. The gadflies, in turn, should have no recourse to the swamps of Washington, D.C., for a Grinch's veto.

A resident of any town, state, or nation should have recourse to due process should he or she feel that the government is not adequately representing him or her. Secularists wish to make their "due process" a quick run through the courts to align the government with their beliefs, while disallowing their religious neighbors any due process less dramatic than a constitutional amendment at the national level.

November 16, 2009

A Tapestry of Issues for the Tenth Amendment

Justin Katz

The Tenth Amendment, for those who need reminding, reads as follows:

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

It's conceivable that a partial explanation for the states' permitting the erosion of this protection may be found in the ideological diversity of the nation. Massachusetts may not have much interest in protecting Texan sodomy laws that it finds extreme, and South Dakota would have no direct interest in protecting Rhode Island's shoreline rights.

Travis Kavulla's National Review article on Montana's enthusiasm for the Second Amendment, however, makes me wonder whether it would be possible to knit together a Tenth Amendment revival on a patchwork of issues:

LONG has Montana been enthusiastic on the subject of guns, but the Montana Firearms Freedom Act takes the cake.

Passed this spring by the state legislature, a group of folks who meet for 90 days every other year, the law declares that any weapon or round of ammunition made in Montana and remaining within state borders "is not subject to federal law or federal regulation, including registration, under the authority of Congress to regulate interstate commerce." This bold declaration of independence became law October 1, though even before then the Bureau of Alcohol, Tobacco, and Firearms had sent out a memorandum to gun dealers, the summary of which was: Don't even think about it. A lawsuit is pending.

A nearly identical piece of legislation had been defeated in the 2005 and 2007 sessions of the legislature, but this year a groundswell of public anxiety about federal regulation of guns led to votes that were not even close. The act won passage 85-14 in the house and 29-21 in the senate, with many Democrats--most of them town-dwelling folk--lining up behind their country brothers and voting "yea."

The commerce clause is one of the chief mechanisms whereby the federal government has expanded its power over the states, and one needn't believe as heartily in the right to bear arms as the typical Montanan to be able to find some local issue that piques one's anger. A concerted movement might be able to find an issue in each of the fifty states that could spur similar legislation.

May 2, 2009

Poll: Gun Rights Pulls Almost even with Gun Control

Monique Chartier

NewsBuster's Noel Sheppard points to the results of a Pew Research survey released Thursday.

For the first time in a Pew Research survey, nearly as many people believe it is more important to protect the right of Americans to own guns (45%) than to control gun ownership (49%). As recently as a year ago, 58% said it was more important to control gun ownership while 37% said it was more important to protect the right to own guns.

My own unofficial survey, gathered from unsolicited - "Did you hear ...?!" - remarks among friends and work associates during the last four months, attributes this shift directly to the various proposals by candidate/President Obama and members of his administration to constrict legal gun ownership, including the suggestion (rumor?) that bullets should be stamped with serial numbers. That last would be a form of sneaky, indirect gun control as it would apparently make bullets exhorbitantly expensive.

Wide-spread perpetuation by gun-control advocates in Congress and the media of the flat-out false "90% of all guns in Mexico came from the U.S." story - only 17% did so - did nothing to assuage the concerns of supporters of the Second Amendment. While I have never been particularly interested in the Second Amendment, I can understand their concern, especially on that last point. It is unacceptable that public policy be formulated or public opinion manipulated on the basis of a gross fib.

January 10, 2009

Nonsense Opposition to DOMA

Justin Katz

One doesn't have to follow the same-sex marriage debate for long to recognize a strain of human tendencies with which I became familiar as an ideological minority in the college classroom.

As I duked it out with the professor, most of the students would rush to take his or her side (silence from others being an indicator that they may have feared to take mine), and any excuse to affirm their position would spark a declaration of the form, "See! That's conclusive." Sometimes the catalyst was a reasonable (but not decisive) point, but just as often it was a wholly inadequate analogy or even just a superficial semantic twisting of my own arguments.

Such is the Providence Journal's seconding of former U.S. Congressman and former Libertarian presidential candidate Bob Barr's recent op-ed arguing for repeal of the Defense of Marriage Act (DOMA). Barr's key point is utterly nonsensical:

In effect, DOMA's language reflects one-way federalism: It protects only those states that don't want to accept a same-sex marriage granted by another state.

The Full Faith and Credit clause of the U.S. Constitution doesn't need to be guided in two directions on this matter. It simply isn't plausible to suggest that states that want to recognize same-sex marriage might be forced not to because another state does not.

There are only two actual reasons to support the repeal of DOMA. The first is to curry political favor with the homosexual movement and those who like to feel as if they can play the Right Side of History game on their behalf. The second is to enable the judiciary to force a radical change in the definition of marriage from coast to coast, thus enabling elected officials to allow their proclaimed personal view of marriage to be subverted in a way that leaves their hands clean.

In the process, mounds of verbiage are being piled up to excuse the imposition of a policy preference based on emotion, not reason, and to obscure the implication that supporters, while they may believe democracy to be a nifty principle, are much more interested in crafting the laws to suit their own tastes than supporting their fellow Americans' right to shape their own civil society.

November 28, 2008

Mass Transit Takes a Number: The Line at the Dole Continues to Lengthen

Monique Chartier

Stung by heavy termination fees (arising out of some sort of fixed asset sale/lease back arrangement that sounds suspiciously similar to what has been proposed to solve Rhode Island's public pension problem) resulting from the collapse of AIG, mass transit authorities around the country have asked Uncle Sam for help with the resulting operating shortfalls. From a Tax Foundation November 19 press release.

City transit agencies are on Capitol Hill this week, lobbying for a bailout as they face huge termination penalties from overseas banks due to the collapse of AIG and the unraveling of "Sale In Lease Out" (SILO) deals they entered into from 1988 to 2003.

Last Friday, the Washington, D.C. Metropolitan Area Transit Authority (WMATA) settled with a KBC Group, a Belgian bank that demanded $43 million in termination fee. In Tax Foundation Fiscal Fact No. 153, "Transit Agencies in Bind Due to SILO Deals and AIG Collapse," Tax Foundation Tax Counsel Joseph Henchman explains that the situation is a result of a series of leaseback transactions these agencies conducted. Federal policy first encouraged and then discouraged these SILO deals, and when AIG collapsed, heavy termination penalties kicked in for approximately 30 transit agencies nationwide. These agencies may now face serious financial shortfalls absent the U.S. Treasury Department becoming a guarantor.

Within the framework of the logic of any bailout, a case could be made to include the mass transit systems as secondary victims of the fiscal collapse, as opposed to, say, the American auto industry, which finds itself in a bind of its own making. But with bailouts now totaling trillions, not to mention the price tag of proposed new spending initiatives, it is clear that the fetters are off and Washington now feels no constraints of any nature about spending astonishing amounts of other people's money with questionable efficacy to accomplish dubious ends. The source of this newly-found freedom - the nose under the tent - was the original concept of the bailout. Oh, the rush of that initial seven hundred billion.

Cancel all bailouts. No to the mass transits. No to everyone. Were it even shown to be an effective approach, Washington has proven itself incapable of administering such a program responsibly or with any amount of prudence.

August 21, 2006

Rhode Island's Weird Prostitution Law, and Why the ACLU Doesn't Want it Changed

Carroll Andrew Morse

Many Rhode Islanders have been surprised to learn, as reported by Amanda Milkovits in the Projo, that "prostitution isn't illegal in Rhode Island as long as it occurs indoors". The issue was brought to light by a Federal law-enforcement multi-state raid against a thriving network of spa-brothels that included at least one site in Providence.

A previous article by Ms. Milkovits from last year described how legalized prostitution in Rhode Island evolved out of change in state law and an unexpected court decision...

There are clusters of massage parlors, which the police say are actually brothels, operating throughout the state. The police raid them, but charges of prostitution don't stick because of a [26]-year-old loophole in the law.

The state's law criminalizing prostitution was changed then after a group of female prostitutes sued in federal court with claims that the Providence police were discriminating against women in their arrests.

The law at the time made prostitution a felony. The General Assembly amended the law to the current version of loitering for indecent purposes, a misdemeanor. The law targets the streetwalkers, their pimps, and customers who solicit them from their vehicles. But there is no provision for prostitutes working for escort services and brothels.

Up until [3] 1/2 years ago, the Providence police were charging women for prostitution inside massage parlors. They stopped after Warwick lawyer Michael J. Kiselica persuaded District Court judges to dismiss the cases based on the wording of the current law.

(The bracketed numerals indicate where I've advanced the relative dates by one year, since the above excerpt is now about one year old).

Last year, legislators proposed outlawing prostitution in a straightforward way, while still keeping it as a misdemeanor. The new law would have read...

A person is guilty of prostitution when such person engages or agrees or offers to engage in sexual conduct with another person in return for a fee. Any person found guilty under this section shall be deemed guilty of a misdemeanor...
The above language would have superseded the existing section 11-34-8 of Rhode Island's General Laws, the section judged not to apply to indoor prostitution...
It shall be unlawful for any person to stand or wander in or near any public highway or street, or any public or private place, and attempt to engage passersby in conversation, or stop or attempt to stop motor vehicles, for the purpose of prostitution or other indecent act, or to patronize, induce, or otherwise secure a person to commit any indecent act. Any person found guilty under this section shall be deemed guilty of a misdemeanor...
Other sections of existing state law already outlaw pimping and human trafficking in Rhode Island in all circumstances, indoors or out.

The proposed change would not have set Rhode Island onto an uncharted path regarding prostitution law, but simply have brought Rhode Island into line with the 48 other states that make prostitution illegal. Still, progressive lobbyists objected to changing the law arguing, as is their habit, that a law that functions smoothly in 48 other states would create untenable conditions if passed in Rhode Island. Leading the charge, the Rhode Island chapter of the ACLU cited two issues. One was the original argument that the law could be used to punish women who might themselves be victims. The second objection was more indirect: enforcing a law against indoor prostitution might create local police contact with illegal immigrants, thus leading local police towards working with Federal authorities...

There is yet another reason to oppose what has happened here and that involves the inappropriate collaboration between the local police and federal immigration agents to address a local community crime issue....

However, if local law enforcement officers become, for all intents and purposes, INS agents in the minds of the immigrant community, any trust that currently exists will be shattered. Victims of crimes, witnesses, and others in tight-knit immigrant communities will refuse to cooperate with police for fear that they, or close friends and family members, could face deportation due to their interaction with police. It is of little solace that the women who were the victims of these raids may have been violating the criminal law. Once the police department believes that it can use federal immigration officials as a shortcut for local criminal law enforcement, the bonds of trust are inevitably weakened.

The ACLU, apparently, opposes communication between different law enforcement authorities. Blinded by their institutional hostility towards law enforcement, the ACLU has reached the erroneous and destructive conclusion that trust can be built between a community and its police officers when police officers are required to stand helpless in the face of the violation of basic, decent community norms (i.e. that prostitution should be illegal). I've been critical of Providence Mayor David Cicilline on other issues, but he's right to pursue this change in the law, even if changing the law involves taking the "drastic" step of allowing different branches of law enforcement to work together.

Finally, to finish up on a mostly inappropriate note in Bill Reynolds-style: There's no truth to the rumor that Senate President Joseph Montalbano will argue that his unreported business with the town of West Warwick did not violate current state law because all of the agreements were made indoors.

April 5, 2006

Concealed Weapons and Federalism

Marc Comtois

I don't think that there have been many posts on gun issues hereabouts, but Michael Barone--commenting on David Kopel's analysis of the spread of concealed carry laws--remarks that the spread of such laws is a good sign for federalism. Nebraska recently became the 40th state to approve a concealed carry ("shall-issue") law. According to Barone:

Nebraska's action means that 40 of the 50 states have shall-issue (or even less restrictive) laws on gun possession. This is a great example of federalism: Reforms that could never have passed Congress have swept across the country, as people in some states have learned from the experience of others. While centralized elites have concentrated on restricting gun ownership, with little practical effect, decentralized non-elites in the states have promoted legal gun ownership, with results that seem benign.
Kopel's analysis and description of the typical process that has occurred in each state that has eventually approved of a shall carry law is instructive. He also explains that, while Rhode Island technically has a shall-issue law, it is not followed. Here's why:
Rhode Island actually has a Shall Issue law (for issuance by local law enforcement) and a Capricious Issue law (for issue by the Attorney General). The Attorney General has succeeded, at least temporarily, in stifling the local Shall Issue system, but a decision (PDF) of the Rhode Island Supreme Court suggests that this state of affairs is untenable. [Though the Brady Campaign has a different interpretation. - MAC] All that is necessary to implement Shall Issue in Rhode Island is a new Attorney General with a different attitude, or the proper legal challenge. Rhode Island too seems a likely candidate to become a Shall Issue state.
Kopel bases his evaluation of shall-issue in Rhode Island on his own research (PDF, p.20-30 in the file. It is taken from the Albany Law Review).

UPDATE: Meanwhile, David Gelernter believes that a new turn toward federalism can be useful as a way to tamp down the polarization that has arisen in contemporary America. He believes reining in the power of the Supreme Court would be the key. It's worth a read. (via Ramesh Ponnuru at The Corner)

February 6, 2006

The Coercive Role of Government

D. W. MacKenzie wrote in the October 2002 issue of The Freeman: Ideas on Liberty, the monthly publication of the Foundation for Economic Education, about the coercive role of government:

I am government...

Coercion is both my vocation and my avocation; it is in my very nature to compel others to do that which they otherwise would not do. My nature should then be of great concern to you as I impinge on your liberty. My nature affects your life profoundly. Indeed, there is little in your life that escapes my grasp. I am also a mystery to many. Some see me as benevolent, though I murdered 119 million people in the twentieth century. Some see me as omniscient, though I face an insurmountable knowledge problem in trying to comprehend the society I seek to control. Some see me as an absolute necessity, though people have lived in societies without me. But those whom I use seldom recognize any of this. These naive convictions grant me an unwarranted place in society. These misconceptions have imposed great hardships on ordinary people, though they have served an elite of rulers well...

I benefit few at the expense of the many. Small groups organize easily, and large ones do not. Hence if I serve any interests other than those of actual rulers, I serve narrow interests. I grant monopoly privileges to influential industrialists and trade associations. I do this with tariffs and import restrictions that hobble foreign competitors. I do this with regulations that place burdens on new businesses. I do this with licensing laws that restrict access to professions. Of course, these interests pay me to get what they want. Sometimes they pay me simply to leave them alone.

My form is difficult to comprehend as well. I am vast and complex. No one can fathom me in all my complexity. I comprise a gargantuan array of agencies, statutes and regulations, and discretionary policies. No one would have the time or the intellectual capacity to know me fully even if he were to try. There is little point in trying anyway. One person can do nothing to me. No significant election has ever turned on a single vote, so voters have no obvious incentive to learn about me...

I am responsible for all the worst unnatural tragedies and unnecessary burdens that mankind has endured. Yet it seems that no one knows how to stop me. How can this be? My true nature is not easy to discern. When tragedy strikes, I am called into action. If I raise taxes to fund the effort to deal with crises, all can see my costs clearly. If I instead expand my authority to conscript resources, I hide my true costs, thus causing many to overestimate the net benefit of my actions. This instills unduly favorable beliefs about me in many minds.

...There have been successful efforts to restrain me for extended periods of time...In such places, people have prospered. But I have often succeeded in making strong comebacks. Some seek to limit my power with constitutional rules. However, there are strong reasons to doubt the efficacy of these rules. Persons who have power to enforce constitutional rules also have the power to flout them.

Why then do I ever fail?...There must be an answer, because I do sometimes falter...my failures are relatively uncommon. As difficult as the issues here are, they are vitally important to you because the continued success of free societies hinges on them. What is more important to you than that?

And here is why America's Founding was different, even though we have lost our way in recent decades.

January 27, 2006

Laffey Endorses Shadegg in House Leadership Race

Carroll Andrew Morse

OK, I was wrong. Rhode Island Republicans do have a voice in the upcoming Republican leadership election in the House of Representatives. In today's National Review Online, Republican Senatorial Candidate Steve Laffey has endorsed Congressman John Shadegg of Arizona in the race for House Majority Leader ...

All three contestants have issued numerous promises to fight the special interests, but promises are not enough. John Shadegg has the clearest record of standing up to the corrupt practices and the outrageous pork spending that has become so prevalent in recent years. For example, Representative Shadegg cosponsored a bill to reform the earmark process last spring, long before it became the "in" thing to do, and he was one of only eight Representatives to vote against the pork-heavy Transportation bill.
Laffey then plugs his own campaign, and offers some criticism of his challenger...
John Shadegg and I have something in common: We are both appalled by the spending gluttony in Washington, and we have dedicated our careers to saving taxpayers money. That is why I am running for the United States Senate in Rhode Island. The incumbent Republican senator, Lincoln Chafee, has not demonstrated the desire or the ability to stand up to the Washington political bosses and fight for the Republican values of fiscal responsibility and restraint. His career has been marked by timidity and an affinity for the status quo, and that is not good enough.

January 18, 2006

The Race for Republican Majority Leader

Carroll Andrew Morse

There is an important, upcoming political decision where Rhode Islanders will have no voice. It is the election of a new Majority Leader in the House of Representatives. The outcome of the this election will significantly impact Republican prospects for maintaining their national governing majority. If the new leader cannot convince the public that Republicans are serious about bringing spending under control, Republicans may lose control of Congress to the Democrats within the next two or three election cycles.

Two of the three leading contenders for the Majority Leader position published op-eds on the OpininonJournal.com website this week. Both sounded at least one common theme the Republican party must reduce pork spending if it is to stay true to its principles and maintain the credibility it needs to govern effectively. (By the way, is anyone still arguing that reducing pork-spending is not a viable political issue?)

Congressman John Boehner of Ohio, considered one of the two frontrunners for Majority Leader, devoted an extensive part of his op-ed to discussing specific pork-spending reforms

To rebuild trust in the [House of Representatives] and our commitment to governing, we need to recognize that most of the current ethical problems arise from one basic fact: Government is too big and controls too much money. If you want to dismantle the culture that produced an Abramoff or a Scanlon, you need to reform how Congress exerts power.

We must start by addressing the growing practice of unauthorized earmarks--language in spending bills that directs federal dollars to private entities for projects that are not tied to an existing federal program or purpose. The public knows the practice better by a different name--pork-barreling. Unauthorized earmarks squander taxpayer dollars and lack transparency. They feed public cynicism. They've been a driving force in the ongoing growth of our already gargantuan federal government, and a major factor in government's increasing detachment from the priorities of individual Americans.

Many pork-barrel provisions are inserted into legislation at the last minute to ensure passage, and relatively few members get a chance to see them before actually voting. My Republican colleague, Jeff Flake of Arizona, has bold ideas to solve this problem. He proposes that the earmarking process be transparent: All earmarks should be included in the actual text of legislation, so members can see them before they vote.

We need to establish some clear standards by which worthy projects can be distinguished from worthless pork, so that pork projects can be halted in their tracks as soon as they are identified. For example, earmarks should meet the specific purpose of the authorizing statute. They should not give a private entity a competitive edge unless it is in the immediate national security interest of the country. They should not be a substitute for state and local fiscal responsibility. They should be used sparingly, and ideally, they should be a one-time appropriation for a specific national need.

Congressman John Shadegg of Arizona, considered a dark-horse candidate, approves of Boehners proposals. As proof of his committment, he points out that he has already sponsored legislation that would have implemented them

Yesterday John Boehner wrote on this page about a proposal to reform the earmark process offered by Rep. Jeff Flake. While Mr. Boehner is suddenly talking about this idea, I was one of the first co-sponsors when it was introduced last spring.

We need sunshine in the earmark process, and an end to secret, backroom deals. According to Citizens Against Government Waste, the total number of earmarks in 2005 was nearly 14,000--compared with only 1,439 in 1995. Earmarked money is often spent without the oversight and consideration in the regular appropriations process, so waste, abuse or even fraud is more likely. Congress should base decisions on what is good for America, not what is good for the lobbyist friends of a few.

Every year Congress adopts a budget, and every year we exceed it. Cheats and dodges--supplemental spending without offsets, "off budget" spending--hide this expenditure, but it is added to our national debt, a legacy of irresponsibility to burden future generations. We are still using a budget process that dates from 1974, when Democrats ruled the House and the government was a fraction of its current size. We need reforms in our budget rules to force Congress to stay within the budget it adopts.

The third candidate, Congressman Roy Blunt of Missouri, has not, as far as I know, taken a definitive stand on pork-reform.

Alas, as Rhode Island has no Republican Representatives in Congress, Rhode Island will have no vote in this matter. However, the mood for reform does provide a more-interesting-than-usual opening for Republican candidates interested in running in Rhode Islands 2006 Congressional elections. There is an opportunity for an up-and-coming Republican politician to discuss his-or-her partys principled stand on a popular and relevant issue and attach him-or-herself to the national party in a positive way. Anybody in the party interested in keeping our incumbent Representatives honest and building some statewide name recognition, all while doing the right thing?

UPDATE: (January 19, 2006)

As Marc points out in the comments, Congressman Roy Blunt of Missouri, the current Majority Whip and the other frontrunner in the election, makes his case for becomming Majority Leader at OpinionJournal.com today. It includes a section on pork-reform...

We must also reform the earmark and federal grant-making processes. Specifically, earmarks should be identified with the member who is requesting them, and accompanied by a justification for how the expenditure serves a public purpose. Grants made by federal agencies should be open to more scrutiny with the creation of a public database of all those receiving grants, along with a justification for how the grant serves the public interest.

November 22, 2005

Sheldon Whitehouse and the Appearance of Corruption

Carroll Andrew Morse

As Rhode Islands Attorney General, Sheldon Whitehouse joined an amicus brief in support of upholding campaign finance reform laws. The reason? According to the brief, it was essential to the health of our national democracy to attack the causes of cynicism and distrust that undermine our political discourse.

Sometime between joining that brief and now, Whitehouse appears to have changed his mind. His response to Guy Dufault's personal attack on Governor Don Carcieri shows a decided lack of concern about cyncism and distrust undermining political discourse. According to Mondays Political Scene column in the Projo

Former Attorney General Sheldon Whitehouse does not intend to return the more recent $2,000 Dufault contributed to his Senate campaign. Why?

This response from Whitehouse spokesman Michael Guilfoyle: "Sheldon does not condone what Guy said and he doesn't believe there is any room in the political dialogue for the politics of personal destruction....It was a terrible mistake, and Guy is paying a considerable price."

But "this is between Guy Dufault and Don Carcieri," Guilfoyle said.

One side works in the public interest while another side uses the politics of personal destruction to pursue special interests. And Sheldon Whitehouse views it as a personal conflict and cant choose between the two.

Courts approved campaign finance limitations on political activity because they found a compelling government interest in preventing the appearance of corruption. Does Sheldon Whitehouse really believe that taking big money from a lobbyist prepared to use rumor and innuendo to advance his interests is unrelated to the appearance of corruption? If Whitehouse is still interested in preventing the appearance of corruption, he should exhibit some personal responsibility in this matter and give Dufault's money back.

Apparently, leadership to Whitehouse doesn't mean taking responsibility yourself; it just means placing limits on other people.

Political Scene reports that Whiltehouses primary Matt Brown has returned recent campaign contributions from Dufault, as has lieutenant governor and gubernatorial candidate Charles Fogarty.

January 6, 2005

Chafee and McKay Oppose Electoral College

Marc Comtois
Senator Lincoln Chafee has decided to join California Sen. Diane Feinstein in calling for the abolishment of the Electoral College.
"Under the current system, the only states that get any candidate visits are the battleground states," said Chafee. "As a Rhode Islander . . . I'd like to see the presidential candidates make an investment in Rhode Island. The last election came down to just Ohio and Florida."

What is more, Chafee said, is that a tie in the Electoral College in a presidential election would push the decision into the House of Representatives, where each state would get one vote. That, Chafee said, would not be a representative system.
Apparently, the journalist who penned the piece also opposes the Electoral College. I assume this from the immediately detectable amount of editorialization in Scott McKay's "news" story. In describing how the Electoral College was formulated, McKay wrote
It is an irony of the 21st century that presidential elections in an era of the Internet and international jet travel are decided by the Electoral College, a system established by men -- no women were allowed to vote -- who communicated by quill pen and horseback mail and traveled by clipper ship.

The system was erected by the men who founded the United States in 1789 because they did not trust average citizens. Voting was restricted to white males who owned property. And they only allowed those voters to select one segment of the U.S. government -- the federal House of Representatives.

U.S. senators were chosen by legislatures until 1913, when popular election of senators was established. The founders established the Electoral College -- which in those days was made up of community and political leaders -- to pick the president.
As one familiar with the debate, and perhaps I'll post substantively on that in the future, it is easy for me to detect the anti-Electoral College "talking points" within McKay's prose. The allusion to modern items like the internet and jetplanes provided to accentuate the implied archaic nature of the Electoral College; the true but gratuitous line that "the Electoral College, a system established by men -- no women were allowed to vote"; that it was "erected" because the Founders didn't "trust" the average citizen, which is true but leaves a lot of the context out; and the tiresome recitation of how only white male property owners voted and how this small and exclusive group chose the President.

Now, perhaps McKay intended to convey that it was Chafee and Feinstein's argument that he was presenting. If so, he did a poor job of making that point clear. However, that he started a paragraph with the declarative "It is an irony that..." indicates to me that Mr. McKay has taken it upon himself to editorialize against the Electoral College within a news story. As such, I would urge him to confine his personal sentiments to the editorial pages where they belong.

December 26, 2004

Our Declaration of Independence

This posting relates to a previous posting on the American Founding and also relates to Liberal Fundamentalism and The Naked Public Square Revisited, Parts I, II, and III.

Thanks to Power Line for referring to a 1926 speech by Calvin Coolidge on the 150th anniversary of the Declaration of Independence. If you ever have any doubt that certain apostles of liberal fundamentalism are actively attempting to rewrite our country's history, read the entire speech. In the meantime, here are some powerful excerpts:

There is something beyond the establishment of a new nation, great as that event would be, in the Declaration of Independence which has ever since caused it to be regarded as one of the great charters that not only was to liberate America but was everywhere to ennoble humanity.

It was not because it proposed to establish a new nation, but because it was proposed to establish a nation on new principles, that July 4, 1776, has come to be regarded as one of the greatest days in history...

...Three very definite propositions were set out in [the Declaration's] preamble regarding the nature of mankind and therefore of government. These were the doctrine that all men are created equal, that they are endowed with certain inalienable rights, and that therefore the source of the just powers of government must be derived from the consent of the governed...

While these principles were not altogether new in political action, and were very far from new in political speculation, they had never been assembled before and declared in such a combination...

It was the fact that our Declaration of Independence containing these immortal truths was the political action of a duly authorized and constituted representative public body in its sovereign capacity, supported by the force of general opinion and by the armies of Washington already in the field, which makes it the most important civil document in the world...

...when we come to a contemplation of the immediate conception of the principles of human relationship which went into the Declaration of Independence we are not required to extend our search beyond our own shores. They are found in the texts, the sermons, and the writings of the early colonial clergy who were earnestly undertaking to instruct their congregations in the great mystery of how to live...

In its main features the Declaration of Independence is a great spiritual document. It is a declaration not of material but of spiritual conceptions. Equality, liberty, popular sovereignity, the rights of man - these are not elements which we can see and touch. They are ideals. They have their source and their roots in religious convictions...Unless the faith of the American people in these religious convictions is to endure, the principles of our Declaration will perish...

About the Declaration there is a finality that is exceedingly restful. It is often asserted that the world has made a great deal of progress since 1776..that we may therefore very well discard their conclusions for something more modern. But that reasoning can not be applied to this great charter. If all men are created equal, that is final. If they are endowed with inalienable rights, that is final. If governments derive their just powers from the consent of the governed, that is final...If anyone wishes to deny their truth or their soundness, the only direction in which he can proceed historically is not forward, but backward toward the time when there was no equality, no rights of the individual, no rule of the people...

In all the essentials we have achieved an equality which was never possessed by any other people...The rights of the individual are held sacred and protected by constitutional guarantees, which even the government itself is bound not to violate. If there is any one thing among us that is established beyond question, it is self-government -- the right of the people to rule. If there is any failure in respect to any of these principles, it is because there is a failure on the part of individuals to observe them. We hold that the duly authorized expression of the will of the people has a divine sanction...The ultimate sanction of law rests on the righteous authority of the Almighty...

...We live in an age of science and of abounding accumulation of material things. These did not create our Declaration. Our Declaration created them. The things of the spirit come first. Unless we cling to that, all of our material prosperity, overwhelming though it may appear, will turn to a barren sceptre in our grasp. If we are to maintain the great heritage which has been bequeathed us, we must be like-minded as the fathers who created it...We must cultivate the reverence which they had for the things that are holy. We must follow the spiritual and moral leadership which they showed...

The speech connects to an excerpt from another Power Line posting:

Knowledge of American history holds the key to much of the current discussion of political issues, such as the ongoing liberal attack on Christian belief and on arguments premised on belief in God...Absent knowledge of American history, one would never know that the United States is founded on the basis of a creed, rather than on tribal or blood lines, in which God plays a prominent part. Absent knowledge of history generally, one would never know that this fact makes America unique.

What is the American creed?...The American creed is expressed with inspired concision in the words of the Declaration of Independence...

But does the Declaration have any legal status such that these words can be truly deemed to state the American creed? It does, although virtually no one seems to know it. In 1878 Congress enacted a revised version of the United States Code that included a new first section entitled "The Organic Laws of the United States."

The Code is Congress's official compilation of federal law; the organic laws of the United States are America's founding laws. First and foremost of the four organic laws of the United States is the Declaration of Independence...

Professor Jaffa [of the Claremont Institute] teaches us that the Declaration contains four distinct references to God: He is the author of the "laws of...God"; the "Creator" who "endowed" us with our inalienable rights; "the Supreme Judge of the world"; and "Divine Providence." Americans declared their independence, "appealing to the Supreme Judge of the world for the rectitude of our intentions."

The Declaration states the American creed, the creed that recognizes the source (Nature and Nature's God) of our rights.

December 10, 2004

The Bricker Amendment

Carroll Andrew Morse

An NRO article by Andrew C. McCarthy on the subject of international law got me thinking about a Neil Boortz column I read a few months ago. About 50 years ago, a U.S. Senator named John Bricker also worried about the nature international law. Senator Bricker proposed a Constitutional amendment which read...

Section 1. A provision of a treaty which conflicts with this Constitution shall not be of any force or effect.
Section 2. A treaty shall become effective as internal law in the United States only through legislation which would be valid in the absence of treaty.
Section 3. Congress shall have power to regulate all executive and other agreements with any foreign power or international organization. All such agreements shall be subject to the limitations imposed on treaties by this article.
Section 4. The congress shall have power to enforce this article by appropriate legislation.
I have the same question Boortz does. Is there any reason not to support adding the above amendment to our Constitution?

November 24, 2004

Thanksgiving and Separation of Church and State

Marc Comtois
Since Thanksgiving is upon us, I thought I'd provide an excerpt from Paul Johnson's A History of the American People that puts the Separation of Church and State, and Thanksgiving, in their proper historical context.
'Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.' This guarantee has been widely, almost willfully, misunderstood in recent years, and interpreted as meaning that the federal government is forbidden by the Constitution to countenance or subsidize even indirectly the practice of religion. That would have astonished and angered the Founding Fathers. What the guarantee means is that Congress may not set up a state religion on the lines of the Church of England, as by law established. It was an anti-establishment clause. The second half of the guarantee means that Congress may not interfere with the practice of any religion, and it could be argued that recent interpretations of the First Amendment run directly contrary to the plain and obvious meaning of this guarantee, and that for a court to forbid people to hold prayers in public schools is a flagrant breach of the Constitution. In effect, the First Amendment forbade Congress to favor one church, or religious sect, over another. It certainly did not inhibit Congress from identifying itself with the religious impulse as such or from authorizing religious practices where all could agree on their desirability. The House of Representatives passed the First Amendment on September 24, 1789. The next day it passed, by a two-to-one majority, a resolution calling for a day of national prayer and thanksgiving [emphasis mine].

It is worth pausing a second to look at the details of this gesture, which may be regarded as the Houses opinion of how the First Amendment should be understood. The resolution reads: We acknowledge with grateful hearts the many signal favors of Almighty God, especially by affording them an opportunity peacefully to establish a constitutional government for their safety and happiness. President Washington was then asked to designate the day of prayer and thanksgiving, thus inaugurating a public holiday, Thanksgiving, which Americans still universally enjoy. He replied: It is the duty of all nations to acknowledge the providence of 144 Almighty God, to obey His will, to be grateful for His mercy, to implore His protection and favor ... That great and glorious Being who is the beneficent author of all the good that was, that is, or that ever will be, that we may then unite in rendering unto Him our sincere and humble thanks for His kind care and protection of the people.

There were, to be sure, powerful non- or even anti-religious forces at work among Americans at this time, as a result of the teachings of Hume, Voltaire, Rousseau, and, above all, Tom Paine. Paine did not see himself as anti-religious, needless to say. He professed his faith in One god and no more. This was the religion of humanity. The doctrine he formulated in The Age of Reason (1794-5) was My country is the world and my religion is to do good. This work was widely read at the time, in many of the colleges, alongside Jeffersons translation of Volneys skeptical Ruines ou Meditations sur les revolutions des empires (1791), and similar works by Elihu Palmer, John Fitch, John Fellows, and Ethan Allen. The Age of Reason was even read by some farmers, artisans, and shopkeepers, as well as students. As one Massachusetts lawyer observed, it was highly thought of by many who knew neither what the age they lived in, nor reason, was. With characteristic hyperbole and venom, John Adams wrote of Paine: I do not know whether any man in the world has had more influence on its inhabitants or affairs for the last thirty years than Tom Paine. There can be no severer satire on the age. For such a mongrel between pig and puppy, begotten by a wild boar on a bitch wolf, never before in any age of the world was suffered by the poltroonery of mankind, to run through such a career of mischief. Call it then The Age of Paine.

As it happened, by the time Adams wrote this (1805), Paines day was done. His age had been the 1780s and the early 1790s. Then the reaction set in. When Paine returned to America in 1802 after his disastrous experiences in Revolutionary France, he noticed the difference. The religious tide was returning fast. People found him an irritating, repetitive figure from the past, a bore. Even Jefferson, once his friend, now president, gave him the brush-off. And Jefferson, as president, gave his final gloss on the First Amendment to a Presbyterian clergyman, who asked him why, unlike Washington and Adams (and later Madison), he did not issue a Thanksgiving proclamation. Religion, said Jefferson, was a matter for the states: I consider the government of the United States as interdicted from intermeddling with religious institutions, their doctrines, disciplines, or exercises. This results from the provision that no law shall be made respecting the establishment of religion, or the free exercise thereof, but also from that which reserves to the states the powers not delegated to the United States. Certainly no power over religious discipline has been delegated to the general government. It must thus rest with the states as far as it can be in any human authority. The wall of separation between church and state, then, if it existed at all, was not between government and the public, but between the federal government and the states. And the states, after the First Amendment, continued to make religious provision when they thought fit, as they always had done. [Paul Johnson, A History of the American People, p. 144-45]
To be sure, many of the founders were not what we today would consider conventional Christians (rather, they were deists), but most recognized the importance of organized religion in society. (For more on the deism of the Founders, refer to p.141-44 of Johnson's History).

With that, I wish you all a Happy Thanksgiving. (I may be around some time this weekend, but I have a tour of southern New England scheduled, so free time, much less blogging time, will be at a premium).

ADDENDUM: I'd also recommend Ken Masugi's piece, which touches on the same theme and points to the Thanksgiving Proclamations of Presidents George Washington and Abraham Lincoln.

November 10, 2004

Bush v. California

Justin Katz

Froma Harrop walks a strange line between liberal and conservative principles in a recent column about economic differences between the Red States and the Blue States, and the tax-cut implications thereof. It's a thick topic, even when it isn't encumbered by an underlying theme of pinning something undesirable to President Bush's back. Consequently, I'm not inclined to take it up, just now.

However, something that protrudes from the column almost as a tangential distraction strikes me as telling, and in a way that's relevant to the rest of the piece:

California seems poised to profit from both Bush's tax cuts and his moral disapproval of embryonic-stem-cell research. We speak of California's vote Tuesday to spend $300 million a year on this promising field. The sum makes a mockery of the measly $25 million Bush doled out last year -- and only for work on existing stem-cell lines.

This investment will make California the stem-cell champ of America, if not the world. Biotech centers in other regions now fear a brain drain to California. And economists say the program could bring the state a bonanza in jobs and patent royalties worth hundreds of millions.

What, precisely, is Harrop's understanding of federalism? Ethics aside, is it the federal government's role to invest heavily enough in lucrative research so as to prevent any given state from dominating the market? Moreover, is it the government's role to put ethics aside so as to give states a fair share of the profit from endeavors of which their citizens want no part?

I'd be surprised to learn that there's a subindustry of Tupelo biotech companies now fearing the loss of faculty because Cali has become the place to do immoral research. And as far as I know, California's decision to fund the research isn't the result of some loophole that's not available to other states. Red-State Americans can invest in ESCR by way of their governments, just as they can invest in it individually. That's another distinction that Harrop loses:

No one has made a connection between the Bush tax cuts and the research, but someone should. The tax cuts have made California $51 billion richer. So Californians can think of the $3 billion they will spend over the next 10 years as found money.

Correction: the tax cuts have made Californians that much richer. That's not the same thing. If the citizens of the Golden State choose to process their research-funding dollars through a corrupt bureaucracy, that is their right. At least the poorer citizens of fly-over country aren't being forced to devote their hard-earned money on Blue-Staters' hot-flash quest for immortality.