Saturday, August 13, 2011
Friday, August 12, 2011
11th Circuit Court Of Appeals Rules That Obamacare's Individual Mandate Is Unconstitutional
President Barack Obama's healthcare law suffered a setback Friday when a U.S. appeals court ruled that it was unconstitutional to require all Americans to buy insurance or face a penalty.The opinion of the 11th Circuit Court of Appeals concludes:The Appeals Court for the 11th Circuit, based in Atlanta, found that Congress exceeded its authority by requiring Americans to buy coverage, but also reversed a lower court decision that threw out the entire healthcare law...
A divided three-judge panel of the appeals court found that it did not pass muster under that clause or under the Congress' power to tax. The administration has said the penalty for not buying healthcare coverage is akin to a tax.
"This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives," the majority said in its opinion.
That opinion was jointly written by Judges Joel Dubina, who was appointed to the appeals court by Republican President George H.W. Bush, and by Frank Hull, who was appointed by President Bill Clinton, a Democrat.
We first conclude that the Act’s Medicaid expansion is constitutional. Existing Supreme Court precedent does not establish that Congress’s inducements are unconstitutionally coercive, especially when the federal government will bear nearly all the costs of the program’s amplified enrollments.
Next, the individual mandate was enacted as a regulatory penalty, not a revenue-raising tax, and cannot be sustained as an exercise of Congress’s power under the Taxing and Spending Clause. The mandate is denominated as a penalty in the Act itself, and the legislative history and relevant case law confirm this reading of its function.
Further, the individual mandate exceeds Congress’s enumerated commerce power and is unconstitutional. This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives. We have not found any generally applicable, judicially enforceable limiting principle that would permit us to uphold the mandate without obliterating the boundaries inherent in the system of enumerated congressional powers. “Uniqueness” is not a constitutional principle in any antecedent Supreme Court decision. The individual mandate also finds no refuge in the aggregation doctrine, for decisions to abstain from the purchase of a product or service, whatever their cumulative effect, lack a sufficient nexus to commerce.
The individual mandate, however, can be severed from the remainder of the Act’s myriad reforms. The presumption of severability is rooted in notions of judicial restraint and respect for the separation of powers in our constitutional system. The Act’s other provisions remain legally operative after the mandate’s excision, and the high burden needed under Supreme Court precedent to rebut the presumption of severability has not been met.
Accordingly, we affirm in part and reverse in part the judgment of the district court.
George Mason Law Professor Ilya Somin writes, "Significantly, Judge Frank Hull, a Clinton appointee has now become the first Democratic-appointed judge to vote to strike down the mandate, balancing Republican Sixth Circuit Judge Jeffrey Sutton who voted to uphold it. The decision further undermines claims that the individual mandate suit is a sure loser that goes against a supposed expert consensus that the mandate is clearly constitutional. It is now extremely likely that the Supreme Court will end up hearing the case, as the Court cannot allow a situation where the mandate is valid in some parts of the country but not in others. I recently opined on the case’s prospects in the Supreme Court here."
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Thursday, August 11, 2011
The Anti-Federalists Were Right: How The Opponents Of The Constitution Predicted The Most "Arbitrary Government" From The Supreme Court
The Anti-Federalists were those that opposed the ratification of the United States Constitution by their respective State Ratifying Conventions. "Federal Farmer," whose identity is unknown, though scholars have put forward Richard Henry Lee and Melancton Smith as possibilities, wrote essays that were among the more important documents of the constitutional ratification debate. He warned in 1788 in Federal Farmer No. 15 that because "particular circumstances exist at this time to increase our inattention to limiting properly the judicial powers, we may fairly conclude, we are more in danger of sowing the seeds of arbitrary government in this department [of the federal government] than in any other." He was right.
In order to understand how the Anti-Federalists have been proven correct, it is important to examine the representations of the Federalists, or those who supported the proposed Constitution, regarding the new federal judiciary and its Supreme Court. Only then can one understand not only where the Federalists and Anti-Federalists disagreed, but where the Anti-Federalists were proven right. Article III, Section 2, of the U.S. Constitution declares that "The judicial power shall extend to all cases, in law and equity, arising under this Constitution and the laws of the United States" (emphasis added). This clause and others surrounding the judiciary were hotly debated.
What was the function of the Supreme Court in deciding cases "arising under this Constitution"? Anti-Federalist "Brutus" wrote the most extensively and directly in 1788 on the new federal judiciary envisioned by the Constitution. For that reason his arguments shall be the focus here. Brutus is believed by many scholars to be the penname of Judge Robert Yates. The "Brutus" essays appeared in New York during the ratification debates in that State, just as the Federalist Papers were published there at the time. This series of 16 essays published in New York most nearly paralleled and confronted the Federalist Papers. They are therefore of immense significance to understanding the debates over the ratification, and therefore by extension the original meaning of the Constitution. It is against the backdrop of Anti-Federalist arguments like those of Brutus, that the Federalist arguments can be viewed in the context of the debate that was raging and therefore be provided with meaning. Brutus No. 11 stated that "[t]he cases arising under the constitution must include such, as bring into question its meaning, and will require an explanation of the nature and extent of the powers of the different departments under it. This article, therefore, vests the judicial with a power to resolve all questions that may arise on any case on the construction of the constitution, either in law or in equity... They are authorised to determine all questions that may arise upon the meaning of the constitution in law. This article vests the courts with authority to give the constitution a legal construction, or to explain it according to the rules laid down for construing a law. "
Did the Federalists agree that the federal courts would possess the power of judicial review of legislation to determine its constitutionality? Though judicial review can still be disputed, on this point, the evidence indicates that there was no disagreement from the most respected and distinguished voices among the Federalist forces. Federalist James Wilson told the Pennsylvania Ratifying Convention in 1787 that "[i]f a law should be made inconsistent with those powers vested by this instrument in Congress, the judges, as a consequence of their independence, and the particular powers of government being defined, will declare such law to be null and void; for the power of the Constitution predominates. Any thing, therefore, that shall be enacted by Congress contrary thereto, will not have the force of law." Federalist Oliver Ellsworth told the Connecticut Ratifying Convention in 1788 that "[i]f the general [federal] legislature should at any time overleap their limits, the judicial department is a constitutional check. If the United States go beyond their powers, if they make a law which the Constitution does not authorize, it is void; and the judicial power, the national judges, who to secure their impartiality, are to be made independent, will declare it to be void." Alexander Hamilton wrote in Federalist No. 78 in 1788 that the courts were to serve as “bulwarks of a limited Constitution against legislative encroachments.” The Federalists made clear that the very purpose of the Supreme Court's authority under this clause was to man the boundaries of government power and to make sure that should the federal government attempt to increase its own powers outside the scope allotted to it by the Constitution, the Supreme Court would declare such laws and acts void so that government could never exceed the grants of power provided to it by the Constitution. John Marshall, who would later become the Supreme Court's most famous Chief Justice who formally declared the role of judicial review in Marbury v. Madison (1803), earlier declared in the Virginia Ratifying Convention in 1788, "Has the Government of the United States power to make laws on every subject?...Can they make laws affecting the mode of transferring property, or contracts, or claims between citizens of the same State? Can they go beyond the delegated powers? If they were to make a law not warranted by any of the powers enumerated, it would be considered by the Judges as an infringement of the Constitution which they are to guard:--They would not consider such a law as coming under their jurisdiction.--They would declare it void."
But how was the Supreme Court to decide the question of whether a law represents a usurpation of government power? In Federalist No. 78 Alexander Hamilton wrote that "[i]t can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature... The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body." What then is the difference between "will" and "judgment"? How can a judge know if he is imposing his own predilections on the people, or doing his duty to judge faithfully in accord with the Constitution? Thomas Jefferson explained in a letter to William Johnson in 1823, "On every question of construction, let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed." James Madison, the primary architect of the Constitution, made clear in a letter to Andrew Stevenson in 1826, "I cannot but highly approve the industry with which you have searched for a key to the sense of the Constitution, where alone the true one can be found; in the proceedings of the Convention, the contemporary expositions, and above all in the ratifying Conventions of the States. If the instrument [Constitution] be interpreted by criticisms which lose sight of the intentions of the parties to it, in the fascinating pursuit of objects of public advantage or conveniency, the purest motives can be no security against innovations materially changing the features of the Government." These are but only a few of many quotes from the ratification debates, and afterward from important Founding Fathers, that illustrate the intended role of the judiciary in making Constitutional determinations.
Instead, the modern Supreme Court upholds laws they should not, and overturns laws they should. They pay no heed to the original meaning of the Constitution, and incompetently disguise personal policy preferences by pretending the voice of five Justices truly represents the Constitution. Instead of looking to the original meaning of the Constitution, the Supreme Court has looked to "penumbras, formed by emanations." Instead of following the rules of construction of the Constitution as set forth in the Ninth and Tenth Amendments, the Supreme Court arrogantly declared in 2003 that "[a]s the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom." The reason this line is so anathema to the Constitution is that properly translated, Justice Anthony Kennedy should actually be read as declaring, "As the Constitution deteriorates, judges in every generation can twist its principles in their own search for imposing their policy preferences." The fallacious notion of a "living Constitution" perversely pervades the legal academy and most of the federal bench. It now stands boldly in a case that serves as Supreme Court precedent. The majority of the Supreme Court today ignores Justice Clarence Thomas who says almost alone that "[w]hen faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution’s original meaning.”
Brutus No. 11 predicted, despite the affirmations of the Federalists regarding the intended role of the judiciary, that the federal courts "will give the sense of every article of the constitution, that may from time to time come before them. And in their decisions they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution... [T]he constitution is not to receive an explanation strictly according to its letter; but more power is implied than is expressed." Brutus No. 11 specifically and presciently states as examples that the general welfare clause and the necessary and proper clause of Article I, Section 8 would be interpreted to provide Congress the "liberty, to do everything, which in their judgment is best." He argues that even if he were to accept the Federalist arguments regarding the limited nature of various clauses not amounting to unlimited grants of power to Congress, "the constitution justify the courts in inclining to this mode of explaining it, but they will be interested in using this latitude of interpretation. Every body of men invested with office are tenacious of power; they feel interested, and hence it has become a kind of maxim, to hand down their offices, with all its rights and privileges, unimpaired to their successors. The same principle will influence them to extend their power, and increase their rights; this of itself will operate strongly upon the courts to give such a meaning to the constitution in all cases where it can possibly be done, as will enlarge the sphere of their own authority." This is precisely the case with the modern Supreme Court. The commerce clause is "interpreted" with great "latitude" to extend to almost any possible regulation, the general welfare clause has been interpreted to allow the federal government to tax and spend for whatever they deem "best," the necessary and proper clause is seen as broadening the enumerated powers by providing Congress with limitless "means" to accomplish the grants of powers which are themselves interpreted to be limitless. Brutus No. 11 correctly notes that "[t]his power in the judicial, will enable them to mould the government, into any shape they please... [T]hey are authorised to construe its meaning, and are not under any control."
Brutus No. 14 further predicts exactly how the Supreme Court will abuse its power. He prognosticates that "in their adjudication they may establish certain principles, which being received by the legislature will enlarge the sphere of their power beyond all bounds... In determining these questions, the court must and will assume certain principles, from which they will reason, in forming their decisions. These principles, whatever they may be, when they become fixed by a course of decisions, will be adopted by the legislature, and will be the rule by which they will explain their own powers." He predicted that "a number of clauses in the constitution, which, if explained in an equitable manner, would extend the powers of the government to every case, and reduce the state legislatures to nothing." That federal power continues to grow with the unconstitutional blessings of the federal judiciary, as the sovereignty of the states is continuously invaded, is a current proven reality. "One searches the [Supreme] Court’s opinion in vain for any hint of what aspect of American life is reserved to the States," Justice Thomas declared in a dissenting opinion in 2005. As Justice Lewis Powell correctly commented in a 1985 dissent, "the Court's view of federalism appears to relegate the States to precisely the trivial role that opponents of the Constitution feared they would occupy."
Brutus No. 14 argues that the Supreme Court "would be authorised to explain the constitution, not only according to its letter, but according to its spirit and intention; and having this power, they would strongly incline to give it such a construction as to extend the powers of the general [federal] government, as much as possible, to the diminution, and finally to the destruction, of that of the respective states." In doing so the federal judiciary will "not to confine themselves to its [Constitution's] letter... [T]hey will be authorized to give the constitution a construction according to its spirit and reason, and not to confine themselves to its letter... What the principles are, which the courts will adopt, it is impossible for us to say. But taking up the powers...they may, and probably will, be very liberal ones [rather than a more strict construction]." A Supreme Court majority opinion literally looked to "liberty of the person both in its spatial and more transcendent dimensions" and "[f]reedom" that "extends beyond spatial bounds" in 2003 to render a ruling. There can be no better example of what Brutus assumed would take place with the Supreme Court, making a mockery of the judicial role by looking to the perceived "spirit" of the Constitution over the "letter" of the Constitution.
Supreme Court Justice Stephen Breyer today embodies this in his book on Constitutional interpretation where he nonsensically argues on behalf of the "living Constitutional" wing of the Supreme Court that his job as a Supreme Court Justice is to "search for permanent values underlying particular constitutional phrases" and to apply "those values to complex contemporary circumstances." Taking Breyer at his word that this is actually what he does as a Justice, this search for broad and generalized values is still precisely nothing more than what Brutus described as acting in accord with what Breyer as a judge believes or pretends is the "spirit" of the Constitution, rather than following the Constitution according its "letter." Breyer further writes, "In carrying out this basic interpretive task, the Court must thoughtfully employ a set of traditional legal tools in service of a pragmatic approach to interpreting the law... I argue that the Court should interpret written words, whether in the Constitution or a statute, using traditional legal tools, such as text, history, tradition, precedent, and, particularly, purposes and related consequences, to help make the law effective." He claims to take "pragmatic approaches to interpreting the law."
The problem is that this so-called "pragmatism" is nothing more than his own predilections and only a manifestation of his personal policy preferences. Breyer blatantly admits placing "purposes and related consequences" above text, history, and tradition. The arguments of the Federalists about the limited role of the judiciary were therefore meaningless, because Supreme Court Justices today believe it is Constitutional "purpose" as the judge sees it, and achieving the desired "consequence" or outcome, that are of significance. The Constitution is certainly not the clear demarcation of federal power that the Federalists promised the judges will stand to protect, but rather now represents nothing more or less than the "values" or "spirit" that Breyer has chosen to read into various Constitutional phrases. Breyer states"judges should decide all legal cases pragmatically. But I also suggest that by understanding that its actions have real-world consequences and taking those consequences into account." But "real-world consequences" is tantamount to bestowing upon himself the power of imposing his policy preferences above that of the legislature and the Constitution. In the words of Hamilton, this is pure "will" rather than "judgment." For if Breyer would prefer a certain "real-world consequence," the Constitution will demand it. If he does not, it certainly will not require it. We are then living under the rule of whim, the rule of Breyer, rather than the rule of law. What an abandonment of Federalist No. 78 where Hamilton assured the Constitution's foes that the federal judiciary "may truly be said to have neither FORCE nor WILL, but merely judgment"! Yet Brutus saw during the debates surrounding whether the Constitution should be ratified that this was exactly what would take place.
Aside from the predicted refusal of the courts to apply the Constitution faithfully, Brutus understood this would result because of the unchecked power that resides with the Supreme Court. Brutus No. 15 warned, "I have said that the judges under this system will be independent in the strict sense of the word... [T]here is no power above them that can control their decisions, or correct their errors... [I]n many cases their power is superior to that of the legislature." He said that "[t]he supreme court under this constitution would be exalted above all other power in the government, and subject to no control." The response of Hamilton in Federalist No. 81 was that the Anti-Federalists were not giving proper "consideration" to "the important constitutional check...of instituting impeachments" and the power it "would give to that body [Congress] upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body entrusted with it, while this body was possessed of the means of punishing their presumption by degrading them from their stations." How pathetic do these words now sound! How hollow do they ring! The power to impeach federal judges for "deliberate usurpation" was quickly abandoned by interpretation as the power of impeachment was said to apply only to criminal activity on the part of the Justices, not realizing that the highest crime is to usurp power not granted under the Constitution. Not only that, but our modern Congress consists of Constitutional ignoramuses that can hardly be trusted to utilize this impeachment power competently, let alone properly. The primary checks on the Supreme Court today are the Court seeing the error of its own ways and reversing a prior decision, or else the people responding to a ruling with a Constitutional Amendment which was intentionally made far more difficult to achieve than a ruling by a mere five Justices on the highest court. The Supreme Court now sits as a standing Constitutional Convention amending the Constitution at will with little way to oppose her power. Thomas Jefferson understood and opposed this when he wrote in 1819, "The Constitution...is a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they may please." Brutus was undeniably correct that there is no higher power than the Supreme Court, and therefore no way today to stop it from its all too evident usurpation by unconstitutional decision making. As Supreme Court Justice Robert Jackson accurately and famously wrote, "We are not final because we are infallible, we are infallible because we are final." As Brutus predicted, the Supreme Court is indeed far from infallible on matters of Constitutional interpretation, yet unfortunately still nonetheless remains final.
Felix Frankfurter, who himself became a Supreme Court Justice, was correct when writing to FDR in 1937 saying, "People have been taught to believe that when the Supreme Court speaks it is not they who speak but the Constitution, whereas, of course, in so many vital cases, it is they who speak and not the Constitution. And I verily believe that that is what the country needs most to understand." Brutus No. 14 predicted this precise phenomenon when he said that the Supreme Court "will be able to extend the limits of the general government gradually, and by insensible degrees, and to accommodate themselves to the temper of the people... [A] series of determinations will probably take place before even the people will be informed of them. In the meantime all the art and address of those who wish for the change will be employed to make converts to their opinion." Brutus's fears can be seen in the expression of current Supreme Court Justices as well. Justice Antonin Scalia has said in dissent that our constitutional "system is destroyed" as "the smug assurances of each age are removed from the democratic process and written into the Constitution... [T]his most illiberal Court...has embarked on a course of inscribing one after another of the current preferences of the society (and in some cases only the counter majoritarian preferences of the society's law trained elite) into our Basic Law. " Justice Scalia wrote in another opinion, "Day by day, case by case, [the Court] is busy designing a Constitution for a country I do not recognize." Brutus' words are alive and well in modern day America, though Brutus would not be surprised because to him this was the easily foreseeable outcome of an unchecked federal judiciary endowed with the awesome power of interpreting our Basic Law.
Brutus No. 14's criticism of the Constitution's judiciary serves as a prophetic conclusion to his arguments. He wrote: "They will be able to extend the limits of the general [federal] government gradually, and by insensible degrees, and to accommodate themselves to the temper of the people... One adjudication will form a precedent to the next, and this to a following one... In this situation, the general [federal] legislature might pass one law after another, extending the general [federal] and abridging the state jurisdictions, and to sanction their proceedings would have a course of decisions of the judicial to whom the constitution has committed the power of explaining the constitution. If the states remonstrated, the constitutional mode of deciding upon the validity of the law is with the supreme court; and neither people, nor state legislatures, nor the general [federal] legislature can remove them or reverse their decrees... [W]hen this power is lodged in the hands of men independent of the people, and of their representatives, and who are not constitutionally accountable for their opinions, no way is left to control them but with a high hand and an outstretched arm. " Given the foreshadowing of the modern Supreme Court by Brutus, it is not hard to see why Federal Farmer No. 3 decries, "I confess in the constitution of this supreme court, as left by the constitution, I do not see a spark of freedom."
Our task is not to despair, but for the American people to loudly demand a return to the principles of the Federalists and restore the federal judiciary to its intended role, to have our modern day Supreme Court act in a manner that proves the Federalists were right about the judiciary, rather than serve as an example of the presaging powers of the Anti-Federalists.
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Michael Medved: "NY Times Vindicating Bush Cuts"
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In an August 8th editorial entitled “The Truth About Taxes” the New York Times finally (if unwittingly) acknowledged Bush reforms weren’t just “tax cuts for the rich.” America’s “Journal of Record” wrote: “Letting all of the cuts expire at the end of 2012 would save $3.8 trillion over the next decade. Letting the tax cuts expire for those making more than $250,000 would save $700 billion.” In other words, 82 percent—82 percent!—of Bush tax relief goes to households earning below $250,000, benefiting the middle class, and poor families who got dropped from tax rolls altogether.
It’s a gigantic lie that Bush tax rates favor only “millionaires and billionaires” as the president regularly suggests. The Times numbers reveal that targeting only wealthy taxpayers would make scarcely a dent in overall debt—reducing it at most by 5 percent.
Newt Gingrich Launches Tenth Amendment Restoration Project As Part Of New "Contract With America"
GOP presidential candidate Newt Gingrich launched a new campaign Tuesday to solicit ideas from the public for a law strictly enforcing the Tenth Amendment and rolling back federal regulations.
The project is called Team 10, a “crowd-sourced, participatory effort” to “develop ideas for enforcing the 10th Amendment and returning power back home.” The project will also be part of a new “Contract with America” by Gingrich, the campaign said in a statement.
The Tenth Amendment states that “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.”
In other words, all authority not granted to the federal government by the Constitution is reserved to the states in what are called unenumerated rights. States have often invoked the Tenth Amendment to resist expansive federal laws, such as Obama’s health care reform and cap-and-trade legislation.
“Since the 1930s the president and Congress have steadily ignored the Tenth Amendment,” Gingrich said in a conference call today. “Back then, there was a general assumption that life was mostly lived in your local neighborhood. But then you suddenly had a huge increase in government, followed by what Lyndon Johnson called the ‘great society,’ — although I would call it bureaucratic socialism.”
“What you’ve seen is an extraordinary increase in government power,” Gingrich continued.
The idea behind a Tenth Amendment enforcement act, Gingrich said, would be to kick federal regulations — and the resulting paperwork — back to the states, something he said could save money on both the state and federal side.
Some of the ideas being floated on the Team 10 Facebook page right now include “keeping gun control at the state level” and “annulment by judicial review” – a process that would allow states to reject acts of Congress.
“It is really important that we develop a coherent, rational approach to the Tenth Amendment,” Gingrich said in a conference call today. “If we do, it could have huge impact on reducing the deficit and recentering government.”
Gingrich said the project plans to roll out a proposed bill six to eight months in the future. He said he also hopes to garner support from congressional candidates in the upcoming elections.
“We want to write a real bill,” Gingrich said. “This isn’t an exercise in public relations.”
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Wednesday, August 10, 2011
A Gun Activist Files Claim Against Federal Regulatory Power Over Local Instrastate Gun Sales Based On 10th Amendment And Scope Of The Commerce Clause
The Wall Street Journal reports:
With a homemade .22-caliber rifle he calls the Montana Buckaroo, Gary Marbut dreams of taking down the federal regulatory state.
He's not planning to fire his gun. Instead, he wants to sell it, free from federal laws requiring him to record transactions, pay license fees and open his business to government inspectors.
For years, Mr. Marbut argued that a wide range of federal laws, not just gun regulations, should be invalid because they were based on an erroneous interpretation of Congress's constitutional power to regulate interstate commerce. In his corner were a handful of conservative lawyers and academics. Now, with the rise of the tea-party movement, the self-employed shooting-range supplier finds himself leading a movement.
Eight states have adopted his Firearms Freedom Act, which Mr. Marbut conceived as a vehicle to undermine federal authority over commerce.
Ten state attorneys general, dozens of elected officials and an array of conservative groups are backing the legal challenge he engineered to get his constitutional theory before the Supreme Court. A federal appeals court in San Francisco is now considering his case.
Mr. Marbut isn't basing his pro-gun effort on the Second Amendment, the one that talks about a right to bear arms, but on the 10th, which discusses the limits of federal power.
"This is really about states' rights and federal power rather than gun control," Mr. Marbut says. There is "an emerging awareness by the people of America that the federal government has gone too far," he maintains, "and it's dependent on a really weird interpretation."
He is talking about the 1942 Supreme Court case of Wickard v. Filburn, which looms for him the way the Dred Scott decision denying rights to blacks did to antebellum abolitionists.
The narrow question in 1942 was whether the federal government could regulate wheat a farmer grew for use on his own farm. But the constitutional issue concerned how far Congress's authority to oversee interstate commerce stretched.
The court ruled Congress could regulate almost any activity that might interfere with national policy. That set the legal basis for a panoply of federal laws...
Utah Attorney General Mark Shurtleff, who filed a brief representing 10 states in support of Mr. Marbut's case, says it will be tough to get the Wickard decision overturned outright.
But he believes today's Supreme Court could be persuaded to narrow Congress's commerce-regulation authority.
In recent years, the court's conservative majority has overturned precedents to strike down laws restricting handguns and regulating corporate political spending.
"Clearly, since Wickard, the federal government has gone way beyond" its authority, Mr. Shurtleff says. "We would like to see that rolled back."
Mr. Marbut wants the court to declare that the Wickard case "was wrongly decided, and the whole trail of cases that rely on it were wrongly decided."
Mark Meckler, national coordinator of the Tea Party Patriots, says Mr. Marbut has engineered "a wonderful legal approach to doing" what he considers "the fundamental issue of our time…putting government back in the box."
Mr. Marbut says he doesn't belong to a tea-party group, though "I get along with them, philosophically."
The Montana Firearms Freedom Act, which he drafted and pushed through his state's legislature, declares that guns made in Montana, stamped "Made in Montana" and staying in-state aren't subject to federal regulations.
After the state enacted it, he announced plans to manufacture the Buckaroo, a miniature rifle that is based on an 1899 Winchester model and intended for children between ages five and 10. Orders, at $200 apiece, poured in. Some came from lawmakers.
"I have four grandkids on the ground, two more on the way, and my youngest gets married on June 12th, so I expect results from him by mid-winter," Republican State Rep. Krayton Kerns told Mr. Marbut by email last year. "Put me down for seven with the option to purchase more."
The federal Bureau of Alcohol, Tobacco, Firearms and Explosives was less enthusiastic. It wrote to Mr. Marbut saying: "Federal law supersedes the [Montana Firearms Freedom] Act, and all provisions of the Gun Control Act and the National Firearms Act" remain in force.
Mr. Marbut went to court. The "Constitution confers no power on Congress to regulate the special rights and activities contemplated by the MFFA," his petition argued, while the Ninth and 10th Amendments assign "all regulatory authority of all such activities within Montana's political borders" to "the sole discretion of the State of Montana."
The Wickard case involved a challenge to a 1938 law that sought to keep farmers from going bankrupt. It said if the size of a year's wheat crop was projected to exceed the norm by 35%, the Agriculture Department could prop prices by setting a cap on wheat acreage. A farmer who ignored it had to surrender his excess production or pay a penalty.
Ohio farmer Roscoe Filburn, who had planted double his allotted 11.1 acres, preferred to do neither. Saying he planned to use the excess wheat himself, he argued that it fell beyond federal regulation by never entering the stream of commerce.
The Supreme Court disagreed, in a unanimous opinion by Justice Robert Jackson.
He invoked an 1824 case in which Chief Justice John Marshall said federal interstate-commerce power doesn't stop at state boundaries but reaches any activity that "may affect other States." Thus, even local, noncommercial activity "may still…be reached by Congress if it exerts a substantial economic effect on interstate commerce," he wrote.
The idea was that every bushel Mr. Filburn grew was one less he needed to buy, reducing demand; if every farmer did the same, the price pressure would be "far from trivial," the court said.
Coming at the end of a string of similar rulings, the decision wasn't controversial at the time, says Jackson scholar John Barrett, a law professor at St. John's University in New York. It was seen as reflecting the framers intent to create a powerful federal government.
In drafting the Constitution, "there really was an interest in creation of a national market and an empowering of the government to oversee a national market," he says.
Some conservatives never accepted the reasoning; a 1988 Reagan Justice Department document said it stretched "the power of Congress to regulate pursuant to the Commerce Clause to the breaking point."
A 2005 suit contended the commerce power shouldn't permit federal authorities to prosecute someone for growing marijuana if his state's law let him do so for personal medical use. Invoking the Wickard reasoning, the Supreme Court held otherwise, 6-3.
Until Mr. Marbut, few imagined overturning it. He quotes science-fiction author Robert A. Heinlein: "When it's time to railroad, people start railroading."
He might seem an unlikely candidate to lead a constitutional counterrevolution. Mr. Marbut, 65, lives alone outside Missoula, in a solar-powered geodesic dome he built from a kit, on the remnant of a cattle ranch his family once owned. He started college but didn't finish. After Army service, he knocked around Alaska before coming home to devote himself to guns, his passion.
After a dispute with others in the state's National Rifle Association affiliate in the late 1980s, Mr. Marbut set up his own lobbying organization, the Montana Shooting Sports Association.
He teaches gun-safety classes, has self-published a book on Montana gun laws and manufactures targets for sale to shooting ranges. The NRA didn't respond to requests for comment.
Though he lost a bid for the Montana Legislature, he became the state's pre-eminent firearms advocate because of his singular focus. He organizes shooting matches to raise money for pro-gun politicians. He writes legislation for the lawmakers he helps elect. Montana lawmakers have enacted dozens of his bills, most of which relax gun regulations.
But Montana couldn't alter federal law. That led Mr. Marbut to the source of congressional authority over guns in the state, the Wickard case.
He concluded the Supreme Court had twisted the words of the commerce clause, which grants Congress authority to "regulate Commerce with foreign Nations, and among the several States."
Last year, in an essay that incorrectly attributed Justice Jackson's opinion to Justice Owen Roberts, he wrote: "It's time for the [Chief Justice John] Roberts of 2010 to trump the squishy [Owen] Roberts of 1942."
He conceived of the Firearms Freedom Act as a way to get it reconsidered. He says he focused on the commerce clause, rather than Second Amendment theories popular with firearms enthusiasts, to prompt a broad ruling that would rein in federal power.
The bill failed twice but passed in 2009, after Republicans won statehouse majorities. The Legislature's nonpartisan legal adviser said it would probably be found unconstitutional.
Gary Marbut is absolutely correct in the claims underpinning his filed lawsuit. He understands the Constitution far better than the federal courts that will unfortunately most likely rule wrongly on the issue. I do not have the necessary confidence in the federal courts to believe they will suddenly discover and affirm Marbut's common sense and historically accurate view of the Constitution. But you have to give Mr. Marbut credit for fighting the good fight.
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Tuesday, August 9, 2011
Philidelphia Mayor Talks Tough To Black Teens After Latest Violent Flash Mob: "You Have Damaged Your Own Race”
Mayor Michael A. Nutter, telling marauding black youths “you have damaged your own race,” imposed a tougher curfew Monday in response to the latest “flash mob” — spontaneous groups of teens who attack people at random on the streets of the city’s tourist and fashionable shopping districts.Tweet
“Take those God-darn hoodies down, especially in the summer,” Mr. Nutter, the city’s third black mayor, said in an angry lecture aimed at black teens. “Pull your pants up and buy a belt ‘cause no one wants to see your underwear or the crack of your butt.”
“If you walk into somebody’s office with your hair uncombed and a pick in the back, and your shoes untied, and your pants half down, tattoos up and down your arms and on your neck, and you wonder why somebody won’t hire you? They don’t hire you ‘cause you look like you’re crazy,” the mayor said. “You have damaged your own race.”
Mr. Nutter announced that he was beefing up police patrols in certain neighborhoods, enlisting volunteers to monitor the streets and moving up the weekend curfew for minors to 9 p.m.
Parents will face increased fines for each time their child is caught violating the curfew.
The head of Philadelphia’s chapter of the National Association for the Advancement of Colored People, J. Whyatt Mondesire, said it “took courage” for Mr. Nutter to deliver the message.
“These are majority African-American youths and they need to be called on it,” Mr. Mondesire said.
Leading UCLA Political Science Professor Provides "Scientific Proof" Of Liberal Media Bias And Its "Distortion Of The American Mind"
Visit http://www.timgroseclose.com/media/dP20110808_Hr_3_Sg_AB_INT_Tim_Groseclose.mp3 to listen to Dennis Prager's interview with Professor Tim Groseclose.
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Wall Street Journal: Irrational Praise Regarding How Smart Obama Is
TweetThree decades before Mr. Obama told his people “We are the ones we’ve been waiting for,” Times columnist Tom Wicker wrote that “Mr. Carter seems to have made the restoration of the people’s faith in themselves his primary campaign strategy.”
Anthony Lewis noted how listeners come away “struck most of all by how smart Carter is,” and he found the Georgian’s bid for the presidency “a little reminiscent of John Kennedy’s emergence in 1960.” Picking up the theme, R.W. Apple likened Mr. Carter to JFK in the way he persuaded skeptics that his faith was no threat to the separation of church and state. After interviewing the candidate “who saw it as his purpose to save America,” Norman Mailer told readers of the Times magazine “the wonder of it was that he was believable.”
Then there’s realist theologian Reinhold Niebuhr. During the 2008 campaign, Mr. Obama proved his intellectual chops when, in response to a question about Niebuhr from a New York Times columnist, he replied, “I love him. He’s one of my favorite philosophers.” The column went on to describe Mr. Obama’s campaign as “an attempt to thread the Niebuhrian needle.”
Alas, even here Jimmy Carter got there first. The frontispiece of his campaign biography “Why Not the Best” features one of his favorite quotations from Niebuhr: “The sad duty of politics is to establish justice in a sinful world.” Scotty Reston duly noted Mr. Carter’s admiration for Niebuhr in a Times column written when the future President Obama was just 14 years old.
In other words, it’s not just the way President Obama’s policies have not worked out that invites the Jimmy Carter parallel. It’s also the over-the-top praise each received before entering office. In both 1976 and 2008, each Democrat was presented as the kind of smart, cool, new politico who was going to—fill in the cliché—”transcend politics as we know it,” “appeal across traditional lines,” “bring America together,” etc.
Donald Rumsfeld Faces Another Torture Lawsuit
The Wall Street Journal Law Blog reports:
Probably to his chagrin, the past week has launched Donald Rumsfeld back into the media spotlight amidst allegations of torture and harsh interrogation techniques.TweetThe Seventh Circuit Court of Appeals in Chicago ruled Monday that two American men can move forward with a civil lawsuit against the former Defense Secretary regarding allegations of torture by the U.S. military in Iraq. (Read full reports here and here.)
Last week, a district judge in Washington let a similar torture allegations case – involving an American translator who worked for the Marines in Iraq – proceed against Rumsfeld, as reported here by the Law Blog.
Saudi Arabia Removes Ambassador From Syria, American Ambassador Outrageously Still Staying Despite Human Rights Violations
Even the Saudis recalled their ambassador from Syria:
Saudi Arabia has said it is recalling its ambassador from Damascus in protest against Syria’s deadly crackdown on anti-government demonstrators.
A statement from King Abdullah said the violence was “unacceptable” and called for it to stop before it was too late.
It came hours after the Arab League issued its first official statement, strongly condemning the violence.
On Sunday, more than 80 people died as the army launched assaults in eastern and central Syria, activists said.
Meanwhile, the American ambassador remains in Syria to "witness" the brutality, as if there are not enough Syrians to do that, as if it is not more important for the United States to send a diplomatic message of ostracizing by removing our ambassador:
TweetThe State Department welcomes the announcement by Saudi Arabia that it is recalling its ambassador from Syria, but the U.S. has no plans to do so. “This is a choice by any sovereign nation whether to recall its ambassador. It clearly sends a message to the government,” said Toner. “For our part, we’ve talked about this last week and continue to believe that Ambassador Ford is playing an important role on the ground, bearing witness to what’s going on in Syria.”
Monday, August 8, 2011
Wall Street Journal: "The Road To A Downgrade A Short History Of The Entitlement State"
Before the downgrade by S&P, the Wall Street Journal predicted the coming downgrade and explained exactly why it would come. WSJ wrote that "President Obama will deserve much of the blame for the spending blowout of his first two years... But the origins of this downgrade go back decades, and so this is a good time to review the policies that brought us to this sad chapter and $14.3 trillion of debt. " Read this very important article and see the full history at http://online.wsj.com/article/SB10001424053111903999904576470551476951590.html
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Obama In Denial: "“We’ve Always Been, And Always Will Be, A AAA Country”
Uh, no Mr. President. We have always been, and under your presidency will no longer be, a AAA country.
Visit msnbc.com for breaking news, world news, and news about the economy
TweetUCLA Law Professor Eugene Volokh On Constitutionality Of The Deficit Reduction Committee
Eugene Volokh has a post on Volokh Conspiracy debunking claims of the unconstitutionality of the Deficit Reduction Committee established by the recent debt ceiling act.
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Federal Judge Allows Suit Against Rumsfeld For Torture
The AP reports that U.S. District Judge James Gwin has allowed an Army veteran who says he was abducted and tortured by U.S. forces in Iraq to move forward with a suit against former Defense Secretary Donald Rumsfeld.
The judge wrote:
The court finds no convincing reason that United States citizens in Iraq should or must lose previously declared substantive due process protections during prolonged detention in a conflict zone abroad. ... The stakes in holding detainees at Camp Cropper may have been high, but one purpose of the constitutional limitations on interrogation techniques and conditions of confinement even domestically is to strike a balance between government objectives and individual rights even when the stakes are high.
The Obama Administration argued that Rumsfeld cannot be sued personally for his official conduct. The Supreme Court's standard regarding immunity of such officials from suit, says the AP article, "requir[es] that they be tied directly to a violation of constitutional rights and must have clearly understood their actions crossed that line."
TweetThe Rule Of Men, Not Law: It Started With The Blizzard Of Arbitrary Obamacare Waivers, Now "Waivers" Spread To Department Of Education
Secretary of Education Arne Duncan has announced that he will unilaterally override the centerpiece requirement of the No Child Left Behind school accountability law, that 100 percent of students be proficient in math and reading by 2014.
Mr. Duncan told reporters that he was acting because Congress had failed to rewrite the Bush-era law, which he called a “slow-motion train wreck.” He is waiving the law’s proficiency requirements for states that have adopted their own testing and accountability programs and are making other strides toward better schools, he said.
The administration’s plan amounts to the most sweeping use of executive authority to rewrite federal education law since Washington expanded its involvement in education in the 1960s.
In a republic that adhered to Constitutional principles, the President would seek to have the legislature repeal the provision of the law that is now found to be impractical or against public policy, rather than outrightly usurp legislative authority and unilaterally declare the provision "waived." It becomes more evident with each passing day, that we now live under the rule of whim, and not the Constitutionally intended rule of law. Tweet
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