Tag: unconstitutional

Two (or more) Wrongs Don’t Make a Right

Post author By David
Post date March 20, 2009
No Comments on Two (or more) Wrongs Don’t Make a Right

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I was listening to Peter Schiff’s Wall Street Unspun for this week and he said something that cemented a change of perspective I had been considering regarding the AIG bonuses. I had been thinking about this idea of taxing the bonuses at 100% and relizing that it amounted to an ex post facto law – which is specifically forbidden in the Constitution. What Peter said was that Congress was wrong to bail AIG out in the first place and that if they hadn’t AIG would not be able to pay these bonuses now. Secondly, he said that if they had wanted to stop the bonuses they should have done so up front by making it a condition of receiving their bailout money. (He also accurately pointed out that the excuse that these bonuses should not be necessary to reatain AIG employees in this economy – few people would leave their jobs in a climate of rapidly rising unemployment and smart companies should be avoiding the employees from the division that crippled a company the size of AIG.)

Between the Constitution and the logic of Peter Schiff I realized that as much as I dislike the fact that these bonuses are being paid I cannot support Congressional action to tax them back after the bonuses have been paid and after the bailouts have been given. Simply stated, Congress is acting immorally anytime they try to change the rules after making their promises – it’s solid proof that they should not have made those promises in the first place.

Tags bailout, change congress, money, taxes, unconstitutional

National

FOCA

Post author By David
Post date January 16, 2009
No Comments on FOCA

My sister-in-law suggested that her generally apolitical blog was not the place to engage in a debate on abortion. She’s probably right, but such a debate fits just fine here. In many ways the debate on abortion is settled. An absolute ban on abortion is not likely to ever be a reality in this nation and truly unrestricted access to abortion is also a very low probability. Despite heated rhetoric, the fact is that both sides are entrenched and committed to making incremental gains related tot his ever simmering topic. Camille’s post was specifically about fighting the Freedom of Choice Act (FOCA) which Obama told Planned Parenthood he would sign as his first act as President. I think we can be very confident that it will not be his first act (because the economy is his first priority now) but that is no consolation to those who oppose this bill.

As always, I like to start with the actual legislation in question whenever possible. The claim by opponents is that this would eliminate all state and local statutes against any abortion. The text of the bill states:

Congress finds the following:

. . .

(4) The Roe v. Wade decision carefully balanced the rights of women to make important reproductive decisions with the state’s interest in potential life. Under Roe v. Wade and Doe v. Bolton, a woman’s right to choose to terminate her pregnancy is absolute only prior to fetal viability, with the state permitted to ban abortion after fetal viability except when necessary to protect the life or health of a woman.

. . .

SEC. 4. INTERFERENCE WITH REPRODUCTIVE HEALTH PROHIBITED.

(a) STATEMENT OF POLICY- It is the policy of the United States that every woman has the fundamental right to choose to bear a child, to terminate a pregnancy prior to fetal viability, or to terminate a pregnancy after fetal viability when necessary to protect the life or health of the woman.

(b) PROHIBITION OF INTERFERENCE- A government may not–

(1) deny or interfere with a woman’s right to choose–

(A) to bear a child;
(B) to terminate a pregnancy prior to viability; or
(C) to terminate a pregnancy after viability where termination is necessary to protect the life or health of the woman;

(emphasis added)

Sounds like the claim by the bills opponents is a bit overstated.

Those who support the bill obviously believe that this would remove some state and local restrictions on abortion that are unconstitutional. The problem here is that the Constitution has no position on the issue of abortion. The only restrictions on abortion related legislation are rooted in supreme court opinions. All those state and local regulations that push the boundaries are challenged in court. The language of this bill is so vague that it only reinforces the message that is supposedly set by existing rulings. In other words, all the laws that they expect to remove can already be challenged, and any that would be upheld still could be upheld when challenged.

What this bill really accomplishes is to place in a statute what has already been placed in precedent. Perhaps this is an admission by abortion proponents that the ruling in Roe v Wade is a lousy ruling that amounts to an opinion not grounded in law. Anyone who has actually read Roe can see that it’s a huge logical leap from any law then existing.

My position is that FOCA is meaningless at best and reinforces the most illegal Supreme Court ruling I have ever read at worst. After having actually read the text of FOCA (it’s not very long) if you still want to sign the petition that Camille linked to, please do. I did.

Tags connections, issues, laws, Obama, Supreme Court, unconstitutional

National State

Federalist No. 45

I wish we had a constitutionally limited federal government such as the one that Madison is promoting/defending in Federalist No. 45.

the next question to be considered is, whether the whole mass of {the powers transferred to the federal government} will be dangerous to the portion of authority left in the several States.

Madison argues that there is little danger from the federal government to the authority of the states. Perhaps we can forgive him as his frame of reference was that:

history does not inform us that either {the Achaean league or the Lycian Confederacy} ever degenerated, or tended to degenerate, into one consolidated government. On the contrary, we know that the ruin of one of them proceeded from the incapacity of the federal authority to prevent the dissensions, and finally the disunion, of the subordinate authorities.

With the advantage of hindsight we can see where we diverged in practice from the foundations laid for oureffective but limited government.

The State governments may be regarded as constituent and essential parts of the federal government; whilst the latter is nowise essential to the operation or organization of the former. Without the intervention of the State legislatures, the President of the United States cannot be elected at all. They must in all cases have a great share in his appointment, and will, perhaps, in most cases, of themselves determine it. The Senate will be elected absolutely and exclusively by the State legislatures. Even the House of Representatives, though drawn immediately from the people, will be chosen very much under the influence of that class of men, whose influence over the people obtains for themselves an election into the State legislatures.

Today it would be much more accurate to say that state governments may be regarded as constituent, but in no way essential, parts of the federal government while the federal government is absolutely essential to the operation and organization of the state governments (financial dependence will do that to you every time). State governments now play a token role (if any role at all) in the election of the President, the senate is no longer elected in any way by the state legislature, and the fact that the members of the house of representatives is drawn from the ranks of those who would also be chosen into the state legislatures is no form of protection for our liberties.

The number of individuals employed under the Constitution of the United States will be much smaller than the number employed under the particular States. There will consequently be less of personal influence on the side of the former than of the latter. The members of the legislative, executive, and judiciary departments of thirteen and more States, the justices of peace, officers of militia, ministerial officers of justice, with all the county, corporation, and town officers, for three millions and more of people, intermixed, and having particular acquaintance with every class and circle of people, must exceed, beyond all proportion, both in number and influence, those of every description who will be employed in the administration of the federal system.

The number of people employed by the federal government and its many agencies is enormous and while it may not have been true in the 1880’s, today more people can name their representative and senators at the federal level than can do so for their state representatives (admittedly, many people can not name any of their representatives). This discrepancy illustrates that the influence of the federal officers exceeds the influence of the local officers even at the local level (despite the fact that the local officers have more direct impact on the lives of citizens).

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

While the powers granted to the state governments are still indefinite today, the definer of those powers in practice has been the Federal government. And while the powers delegated tot he federal government are defined, the federal government has felt no obligation to limit their exercise of authority to those defined powers. Also, as the federal government has exercised increased authority, they have generally done so over "internal objects" which concern the lives, liberties etc. of the citizens in their ordinary course of affairs – directly infringing upon those areas of authority which were to be within the purview of the state government.

It should be noted that most of these changes in our society and political structure are a direct result of ill-advised changes in the Constitution. Those which are not a result of changes in the Constitution are a result of the Constitution being trampled and ignored.

Tags documents, federalist, history, unconstitutional

National State

Federalist No. 44

Although it is not the central point of Federalist No. 44, I found it very interesting to read the fervent distrust of paper money that the defenders of the Constitution had based on their experience – especially considering our present circumstances of economic uncertainty that are largely due to the instability of paper currency (which we manipulate, and experience steady inflation and erratic deflation).

I also found another example of an assumption of our founders which has since been rendered false – this one relates to the checks and balances to be found between state and federal authority.

as every such act of the {federal government} (to violate their Constitutional authority) will be an invasion of the rights of the {state governments}, these will be ever ready to mark the innovation, to sound the alarm to the people, and to exert their local influence in effecting a change of federal representatives. There being no such intermediate body between the State legislatures and the people interested in watching the conduct of the former, violations of the State constitutions are more likely to remain unnoticed and unredressed.

If our states today were truly guarding their constitutional autrity with the jealousy that the founders envisioned I doubt that we the federal behemoth that we are carrying around today which, due to its sheer size, has convinced a large portion of our society that it is capable of solving all our perceived woes. The unfortunate truth is that our states today hardly even whimper at any violation of Constitutional authority by the federal government. There are rare exceptions – such as the backlash against the Real ID Act – but those cases are often nothing more than a plea for full funding when they are asked to implement a federal program that exceeds the Constitutional authority of the government. The states no longer guard their authority – they simply guard their balance sheets.

At the same time, the statement that there are no intermediaries watching the state governments and calling the people to action reamins as true as it was presented in 1788. One might expect that job to be handled by an independent and free press, but the press has done no better at that task than the state governments have done on their level.

Tags documents, federalist, history, media, money, unconstitutional

National State

Pursue a Real Solution

I have been staunchly opposed to this expansion of the House of Representatives to grant D.C. a voting representative. The political compromise of giving a balancing seat to the Republicans (for Utah) until the next census doesn’t make the move any more legal. Despite what some people may believe I am not opposed to D.C. having a voting representative, but I am opposed to giving D.C. special treatment. As the House of Representatives was intended to represent the people of the United States it would make sense to amend the Constitution to state that:

The House of Representatives shall be composed of members chosen every second year by the people of the several states, districts, and territories of the United States. (changes in bold)

To that ammendment I would add (perhaps as a separate section) the stipulation that:

The size of the House of Representatives shall be determined by the decennial census and the number of Representatives shall not exceed one for every thirty thousand nor fall below one for every two hundred thousand, but each state shall have at least one Representative; (changes in bold)

Such an amendment would provide a legal remedy to the non-voting status of D.C. but would also fix the same issue faces by other U.S. territories. At the same time it would reverse the arbitrary limit on the size of the House of Representatives that was enacted in 1911. This would all be done without resorting to political deal-making in which the deal makers (like our beloved Senator Hatch) feel free to ignore the law of the land in the name of whatever they deem as good.

I have already talked about Thirty-Thousand.org but I was surprised to learn of other groups that oppose Public Law 62-5 (as that bill is known). There was even a good article about it in the Daily Kos back in 2006 (which is where I picked the upper bound at 200,000). Back then the Republicans were in control of both houses of Congress, now that Democrats are in control I doubt that the Daily Kos would be very supportive of such a change since it’s their party that is holding the concentrated reins of power now.

I would like to see all those who are interested in returning to population based representation start working with DC Vote to encourage them to push for a full and legal solution to their issue rather than sadling us with the illegal, “politically expedient” half measure they have been pursuing. Perhaps reminding them that they would be able to get three or four voting members of Congress might pursuade them to take up the banner.

Tags amendments, change congress, Constitution, electoral college, unconstitutional

National

Capitulation Day

Obi wan nailed the truth in his reaction to Democratic Capitulation on FISA and the rule of law. In fact, he nailed it and so did his readers in the comments section:

rmwarnick said…

They all took an oath of office to support and defend the Constitution. Every one of them.

Obi wan liberali said…

They obviously took that oath seriously now did they.

Tags government, parties, unconstitutional