Friday, August 26, 2011
British Chief Rabbi Jonathan Sacks: "Reversing The Decay Of London Undone"
A wonderful article by Britain's chief rabbi in the Wall Street Journal on the moral disintegration since the 1960s and how to rebuild: http://online.wsj.com/article/SB10001424053111903639404576516252066723110.html Tweet
Thursday, August 25, 2011
The Slippery Slope: Absurd Polygamy Constitutional Challenge, Yet Why Recent Supreme Court Precedent Means Polygamy Shouldn't Be Criminalized
The Salt Lake Tribune reported in July that an "attorney for a reality-show family files a lawsuit that could send the state’s ban on plural marriage to the U.S. Supreme Court. Nationally-known constitutional law professor Jonathan Turley said the lawsuit to be filed in U.S. District Court in Salt Lake City will not call for plural marriages to be recognized by the state. Instead, it asks for polygamy between consenting adults like his clients, former Utahn Kody Brown and his wives, to no longer be considered a crime." Turley however makes clear that he is not going to argue before a federal district court that marriage certificates must be in accord with the Constitution provided by States to a second or third spouse, or however many the case may be, but only that laws that criminalize polygamy must be abandoned. "We are only challenging the right of the state to prosecute people for their private relations and demanding equal treatment with other citizens in living their lives according to their own beliefs," Turley said in a press release. His clients star in the TLC network show "Sister Wives" and have been the subject of investigations by the State of Utah regarding possible polygamy charges. No charges have yet been filed.
How is he possibly going to argue that the Constitution demands decriminalization of polygamous marital relationships? The challenge is at its core based on the Fourteenth Amendment. The simple fact, however, is that the original meaning of the Fourteenth Amendment as understood by those who drafted and ratified its provision in no way can lead to such an absurd result in any of its clauses. The Fourteenth Amendment was ratified in 1868. In 1854 the Republican party termed polygamy and slavery the "twin relics of barbarism." The Fourteenth Amendment was introduced and drafted by Congressional Republicans. When looking to the history before and after the Fourteenth Amendment was ratified as seen in Congressional legislation, it becomes obvious that no one thought that the Fourteenth Amendment said anything at all about polygamy. A few decades before the Fourteenth Amendment polygamy had been against the law. As but one example, polygamy was made illegal in the state of Illinois during the era when several top Mormon leaders, including Joseph Smith, Brigham Young and Heber C. Kimball, took plural wives. The Fourteenth Amendment was plainly not meant to overturn this. Looking to federal statutes passed by Congress as examples around the same time as the Fourteenth Amendment was ratified in 1868 one finds The Morrill Anti-Bigamy Act of 1862, the Poland Act of 1874, Edmunds Act of 1882, and the Edmunds–Tucker Act of 1887, all are clear indications of the anti-polygamy views and attitudes as expressed in actual legislation of the era in which the Fourteenth Amendment became part of our Constitution. The practice of polygamy continues to be illegal in all 50 states.
Reynolds v. United States (1878) was a Supreme Court decision that dealt with a challenge to the Constitutionality of certain federal anti-polygamy laws, in large part based on the argument that polygamy was a deeply held religious belief of those engaged in it and therefore the legal restrictions and punishments imposed violated the First Amendment's guarantee of "free exercise" of religion. The Supreme Court famously upheld anti-polygamy laws in its ruling, stating in what still stands as binding precedent:
Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship; would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband; would it be beyond the power of the civil government to prevent her carrying her belief into practice? So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and, in effect, to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.Neither the clause of the Fourteenth Amendment which demands States provide "due process of laws," "equal protection of laws," or the "privileges or immunities of citizenship" are in any way violated by the criminalization of polygamy.
If there is no actual Constitutional basis for the challenge, what possibly can Turley's argument be based upon? The New York Times reported that "the lawsuit builds on a 2003 United States Supreme Court decision, Lawrence v. Texas, which struck down state sodomy laws as unconstitutional intrusions on the 'intimate conduct' of consenting adults. It will ask the federal courts to tell states that they cannot punish polygamists for their own 'intimate conduct' so long as they are not breaking other laws, like those regarding child abuse, incest or seeking multiple marriage licenses." Thus the entirety of the challenge is based upon an unconstitutional and specious ruling from the Supreme Court in 2003. Justice Antonin Scalia persuasively pointed out in his dissent in Lawrence v. Texas (2003) in regards to the original meaning of the Fourteenth Amendment, that “sodomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights. In 1868, when the Fourteenth Amendment was ratified, all but 5 of the 37 States in the Union had criminal sodomy laws. In fact, until 1961, all 50 States outlawed sodomy, and today [as Lawrence is being handed down], 24 States and the District of Columbia continue to provide criminal penalties for sodomy performed in private and between consenting adults.” The idea that the original meaning in 1868 of the Due Process Clause or the Privileges or Immunities Clause was to anyone that sodomy or like laws must be overturned is nonsensical and simply not historical. It is an utter abuse of the original meaning.
However, such is the road paved by the "living Constitution." One baseless Supreme Court precedent serves as an argument for the next baseless precedent. Often in debates or discussions regarding homosexual marriage, arguments are discounted as being unfathomable and unrealistic "slippery slopes." What Turley's lawsuit proves is what should already have been obvious. This sort of dismissal is a demonstration of the inability to distinguish between legal and policy arguments. In the context of policy arguments, the slippery slope argument may not always be the best of arguments if one can simply counter the slippery slope is unlikely or outlandish. That might alone be enough quell the concern as a policy matter. Further, legislation by its very nature addresses only those facts that fall within the legislation, and no more. People don't seem to realize that the "slippery slope" is actually a critical argument in application of or announcing new legal principles. It is actually essential because, as Judge James Graham wrote in his dissent to the Sixth Circuit Court of Appeals ruling upholding the Obamacare individual mandate (unlike the 11th Circuit), "one exercise of power becomes precedent for the next contemplated exercise." The Supreme Court will eventually announce a rule, and that rule will not be limited to just the facts of that particular case. It will be applied to others. Hence, by definition, in the context of legal justification for law the slippery slope argument is actually very relevant. It forces the person making the justification or crafting this new rule to either admit there is no limit to the reach of the new principle (which is often an admission of having been refuted), or else actually find some reasonable distinguishing element to include within the rule. I have seen this silly dismissal of arguments because they are "slippery slope" made in other contexts as well (e.g., most commonly in discussing gay marriage court rulings), and in many there seems to be the inability to grasp the basic point that it is of course expected and justified to challenge the prospective announcement of a new legal principle by asking about other scenarios that a new rule would in principle apply to. The built-in consequence of court rulings is that PRECEDENT should be established and the ruling should apply to many other hypothetical cases. The slippery slope is therefore key to legal argument. If a rule cannot be crafted that can address the slippery slope, then it should become clear that either the new rule is unjustified and therefore the answer is easy (i.e., Obamacare mandate unconstitutional) or that the issue is outside judicial scope and must be left with the legislature which can clearly limit the legislation to particular scenarios (i.e., definition of marriage is a state legislature issue). A legal precedent simply does not do what legislation does, which is take into account the slippery slope and address only that which it addresses, and hence investigating the underlying legal principle by means of slippery slope is actually essential.
The fact is that Turley has a strong argument based on that unsound Supreme Court precedent that is Lawrence v. Texas . The Supreme Court actually cited "freedom" that "extends beyond spatial bounds" and "liberty...in its spatial and more transcendent dimensions" to strike down the Texas sodomy law in 2003. Justice Anthony Kennedy declared that, "Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct." The Supreme Court said that "[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring." Overturning its own precedent that was only 17 years old in Bowers v. Hardwick (1986) upholding State sodomy laws, the Supreme Court instead decided to arrogantly state that the original meaning of the Fourteenth Amendment was irrelevant, because "those who drew and ratified the Due Process Clauses of...the Fourteenth Amendment" apparently "knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress." Of course, Justice Kennedy left unexplained why the one unelected branch that is the Supreme Court is to be the one tasked with making this determination as to what is or is not "oppressive" rather than the elected branches or the people themselves when the Constitution's provisions as intended are not truly at issue. Of course, there is no "Oppressive Clause" in the Constitution, which is yet another vagary so malleable that it means only what five Justices of the high court want it to mean. There is only the text of the Constitution which is nowhere violated in Lawrence v. Texas. But with this precedent already in place, the polygamists should very credibly now be able to argue that polygamy must be decriminalized because it is a matter of autonomy of self, a matter of personal freedom and liberty, and all sorts of other vague concepts announced in a Supreme Court opinion that was far more about reaching an intended result than it was about adhering to Constitutional principles. The polygamists should be able to argue that these polygamy laws were a product of the blinded backward times in which they came from, and now only serve to oppress. Any distinction will be utterly disingenuous, a further proof that the Supreme Court all too often reasons backwards, finding its result first and then comes up with its reasoning afterwards. There is absolutely no reason the Lawrence v. Texas precedent, if taken seriously, should not result in the decriminalization of polygamy.
While Turley disclaims any intent to force the several States to provide plural marriages with certificates and all the benefits therewith, it is of course the ultimate result that could emerge if the federal judiciary were to rule his way in his case, just as Judge Vaughn Walker absurdly ruled the Fourteenth Amendment demands that every State provide gay couples with marriage licenses. Federal district court Judge Vaughn Walker can be seen relying in large part on Supreme Court precedents like Lawrence v. Texas which was limited in theory only to decriminalizing sodomy. In fact, Justice Antonin Scalia predicted in dissent in Lawrence, "State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding." Scalia was clearly correct, as the laws against polygamy are currently being called into question in a federal court case on the basis of that decision from which he so vigorously dissented.
Of course, Turley's conceding that the Constitution does not disallow a State to restrict marriage to monogamous couples, or at least unwillingness to argue that the Constitution demands polygamous marriage certificates be provided by the States, itself shows the weakness of his argument. Following his line of thinking, there is no right to be "married" to more than one spouse with a certificate. But then there is simply no Constitutional right to be "married" to more than one person. This should therefore apply whether or not each and every person within that relationship gets a license from the State (which of course cannot happen because that is, for now, against the law). If marriage can be defined, violating those laws defining marriage openly can be criminalized by engaging in a "married" relationship with more than one person against the definition of marriage.
The most important point is that there is now new precedent on the books with the 2003 case of Lawrence v. Texas. Without that case, this challenge of Turley on behalf of polygamous reality TV stars would be a sure loser. There is little doubt about that. With that one sodomy law case if it were to actually be honestly applied, it would seem like Turley has an easy winner. What is also beyond doubt is that this polygamy lawsuit has therefore got to have those engaged in the federal lawsuit falsely claiming that the Fourteenth Amendment demands gay marriage nationwide, and who in that battle refuse to acknowledge the possibility of a new judicially created legal principle creating a slippery slope, quite annoyed. Tweet
One More Reason Never To Vote For Ron Paul: He Ignored The Iranian Nuclear Threat At Republican Primary Debates
Congressman Allen West put it fairly succinctly recently when he said: “When I was looking at the debate Thursday night [a week ago], and a certain candidate for president [Ron Paul] stood there and said he didn’t see any problem with Iran getting a nuclear device because everybody has one, I’ve got to tell you, that’s not the kind of guy you need to have sitting at 1600 Pennsylvania Avenue.”
The problem with the view of Ron Paul and his supporters is that avoiding another war is their top priority, when making sure Iran does not obtain a nuclear weapon should be the top priority. Nobody wants to have to bomb another country, but even more than that nobody should want to see Iran armed with the world's most deadly weapon. Nobody wants to use military force, but there is no reason to a priori take options off the table. It simply is far too dangerous to gamble on allowing an avowed enemy of the United States obtain a nuclear weapon when that country is the world's top sponsor of suicidal Islamoterror, providing support for the Taliban, Al Qaeda, Hamas, Hezbollah, has sworn to wipe Israel off the map, to bring about the downfall of America, and is run by fanatical fundamentalist Muslims. Ron Paul simply does not take the threat seriously because he is so committed to his isolationist ideology that he simply does not care whether Iran gets the bomb at all and thinks the biggest problem is not a foreign threat like an Iranian bomb but rather American foreign policy itself. In his mind he thinks he can make our country into Fortress America, but that is foolhardy to the extreme. Iran is a member of the Nuclear Non-Proliferation Treaty and has already been found in non-compliance.
Here is but one example from only the last month that ought to alert people and actually make it quite obvious, despite the fact that it is not comprehensible to Ron Paul, why Iran cannot be allowed under any circumstances to become a nuclear State: http://blogs.abcnews.com/t
We have no guarantee that a fundamentalist Islamic rogue regime as radical as Iran will utilize or not utilize its nuclear weapon as has China, Russia, or the other members of the nuclear club. There is no basis to believe they will behave like those other nations, and there is no rational reason to gamble on that being the case. What we do for sure know is their record, and it's far more than just words alone which happen to be quite plain about their intentions, but to know the terrorist acts this government is behind and groups this regime supports is to realize the danger. The one link from a recent story I provided shows that.
I'm also not sure that US boots would even need to be on the ground in the same way as in Iraq if the mission were to be elimination of a nuclear weapons program rather than regime change. Avoiding war is certainly a worthy goal, but not avoiding it at all or any cost. And Ron Paul is even worse than that. He does not even recognize that Iran presents a threat and significant issue for global and American security at all. He is so caught up in his ideology that he has blinders on to seeing any foreign policy threat that cannot in his head be responded to by simply ignoring it and having America becoming an isolationist nation. It's naive in the extreme, it's wrongheaded, and it is far too dangerous a mindset for anyone that wants to be the Commander in Chief of the United States of America.
Ron Paul and his supporters pretend as if Iran's only interest is being feared or acting in self-defense from outside nations, as if their support for Al Qaeda, the Taliban, Hamas, Hezbollah, all stems from a desire to be protected from the big bad U.S.A. Give me a break, the jihadists and their backers are only worried about being "feared" or defending themselves from America? That's utterly ridiculous. And other countries in the region like Pakistan are not currently ruled by Islamic radicals like the Mullahs in Iran, and yes, it would be a huge threat if Pakistan were to fall into the total control of those elements. A Ron Paul, however, would probably say that it is none of our business too. Iran is already controlled by the nutters, by backers and believers in suicidal Islamic terrorism, Iran being the chief sponsor and supporter of suicidal Islamic terrorism. Not seeing that country standing above others as a threat if it were to obtain nuclear weapons is patently absurd.
Iran is the most pressing and obvious example of the reason not to ever vote for Ron Paul. But Ron Paul's "views," his ideological blinders to foreign threats from his extreme "non-interventionism," manifests itself in other ways as well that are troubling. But the fact is that Iran's involvement with, funding of, close ties with, Al Qaeda, and countless other jihadist groups, some of whom Iran controls outright, is unchanged. I truly don't understand how a supporters of Ron Paul can look at Iran's record and not see the obvious threat that the Iranian regime armed with nuclear weapons represents.
Iran is engaged in a nuclear program. The objective of eliminating a nuclear program militarily need not be the same as the objective of regime change, should it come to that. I don't think we can suddenly become a Fortress America and overnight or even with time all our enemies, and particular this enemy, would disappear. That's nonsense, and does not understand the extent of the ideology and threat. They came to our shores and attacked New York City, lest that be forgotten. He would be an awful president because he would have the power of a Commander in Chief. And the fact is that we already are involved militarily at this point, and once you are in you cannot trust a Paul to just "end involvement" overnight without disastrous consequences for the countries we are in and for the U.S. It is Chamberlinian to think that if only we were more friendly with Iran and her terrorist allies and if only our policies were different then we would have "peace in our time" with this form of religious extremism. The problem with Paul is you can't take the chance of his failures, whether resulting from his unwillingness to virtually ever consider necessary action, or willingness to end action already engaged in without contemplating the consequences, because they would be too great and too dangerous.
Does Ron Paul not want to end all involvement abroad overnight? I believe he has essentially said that. Did he not say he could not care less if Iran gets nukes? I believe he clearly said that at the last debate. Is his response to any threat abroad that it is of our making and if only we withdraw and do not intervene all will become well? That's what I understand him to be saying constantly. Overall, even though he does not use the phrase, he has a mindset that we can be a fortress America and retreat to the point that nobody will bother us anymore. It's naivete, and I think it's a result of ideological purity that would leave us all less safe. The idea that we should not get involved in wars haphazardly is rather obvious, but he goes well beyond that and to pretend he does not is rather silly. If you feel differently, I think you are listening to a different Ron Paul than I do.
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Iranian President Mahmoud Ahmadinejad: Iran Is Determined To Eradicate Israel
Ha'aretz reports:
Iranian President Mahmoud Ahmadinejad said that Iran was determined to eradicate Israel, ISNA news agency reported Thursday.
"Iran believes that whoever is for humanity should also be for eradicating the Zionist regime (Israel) as symbol of suppression and discrimination," Ahmadinejad said in an interview with a Lebanese television network, carried by ISNA.
"Iran follows this issue (the eradication of Israel) with determination and decisiveness and will never ever withdraw from this standpoint and policy," the Iranian president added in the interview with the Al-Manar network.
The remarks by Ahmadinejad came one day before the annual anti-Israeli rallies named Qods (Jerusalem) Day, which are held nationwide in Iran on the last Friday of the fasting month of Ramadan.
Ahmadinejad on Monday said that Iranians and Muslim nations worldwide should hold Qods rallies and show their willingness to dispose of this "infectious tumor and this regime full of rascality."
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Wednesday, August 24, 2011
Tuesday, August 23, 2011
Response To 11th Circuit Court Of Appeals Obamacare Mandate Dissent: The Real Meaning Of "Judicial Activism"
The 11th Circuit Court of Appeals ruled on August 12, 2011 that "[t]his 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' [of the health care market] 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 of Obamacare was therefore declared unconstitutional and not within the scope of the enumerated power that is the Commerce Clause (Article I, Section 8, Clause 3). This decision represents nothing more than simple common sense, one example of a court standing at the edge of the Constitutional cliff fulfilling its duty by willing to push back ever so slightly lest the other branches of government let the already critically wounded Constitutionalism of our country be pushed over and land upon the jagged edges of unlimited federal power. If the Supreme Court disagrees, the idea federalism will have taken its final gasp of air. And when the autopsy is done on the corpse that was our Constitution, it will be all too easy to discover that it was poisoned by the federal judiciary.
Liberal experts and scholars of Supreme Court precedent like Erwin Chemerinsky and others did not even take the Constitutional challenge seriously and initially asserted there were no merits to the arguments against the mandate. Chemerinsky even predicted that all the Courts of Appeals would rule in favor of the government because he saw it as such a closed case. He has already been proven wrong, and every American must hope the Supreme Court takes a page out of the decision of the 11th Circuit and proves them all wrong once again.
The majority decision has been described by the Washington Post's E.J. Dionne Jr. as "rampant conservative judicial activism... It is yet another case of judges, at the behest of conservatives, doing the very thing conservatives claim to abominate: making their own law and ignoring the judgments of branches of government elected democratically by the voters." What the left is doing is co-opting language used to legitimately criticize the federal judiciary and redefining it. This ruling in no way represents "judicial activism" of any sort. It is an absolutely asinine description of "judicial activism" to assume that it merely means judicial overturning of a statute. This completely misunderstands the intended role of the federal judiciary.
If a statute is truly unconstitutional, as the Obamacare mandate is for it stands outside the original meaning of the Commerce Clause, then it is fidelity to the Constitution which is our most fundamental law to strike that statute down, not "activism." Judicial activism is the overturning of laws that do not violate the original meaning of the Constitution, and upholding those that do. It is the policy preferences and personal predilections of judges standing over and above our Basic Law.
James Madison wrote to Spencer Roane in 1819 that true judicial activism was found in the "the high sanction given to a latitude in expounding the Constitution which seems to break down the landmarks intended by a specification of the Powers of Congress." Judicial activism was, according to the "Father of the Constitution" writing in 1821, the practice of the Court "of mingling with their judgments pronounced, comments & reasonings of a scope beyond them; and that there is often an apparent disposition to amplify the authorities of the Union at the expence of those of the States. It is of great importance as well as of indispensable obligation, that the constitutional boundary between them should be impartially maintained. Every deviation from it in practice detracts from the superiority of a Chartered [Constitutional Govt] over a traditional Govt." Departing from this indispensable obligation is the very essence of judicial activism. Failing to impartially man Constitutional boundaries of federal power is at the heart of true judicial activism, not this new absurd contention from liberal writers that it is merely the overturning of a statute even if the original meaning of the Constitution demands it. Refusing to do that is nothing more than an example of a judiciary abrogating its sworn and self-appointed duty of judicial review. When Jame Madison wrote to Thomas Jefferson in 1823 saying "I am not unaware that the Judiciary career has not corresponded with what was anticipated," this did not simplistically and rather ignorantly refer to judges striking down any law voted and signed by the elected branches. It specifically referred to when "the Judges perverted the Bench of Justice into a rostrum for partizan harangues" and when the Supreme Court "by extrajudicial reasonings & dicta, has manifested a propensity to enlarge the general [federal] authority in derogation of the local, and to amplify its own jurisdiction, which has justly incurred the public censure." Judge Stanley Marcus and his fellow corrupters of the Constitution aptly fall within this description.
Judge Stanley Marcus dissented from the 11th Circuit ruling. Judge Marcus falls in line with with the liberal legal non-thinkers assault of "judicial activism" now to be levied against judges that dare apply the Constitution. He declares in dissent that the "approach taken by the majority" is to disregard "the powerful admonitions that acts of Congress are to be examined with a heavy presumption of constitutionality, that the task at hand must be approached with caution, restraint, and great humility, and that we may not lightly conclude that an act of Congress exceeds its enumerated powers." But where does this "admonition" come from? From faulty Supreme Court rulings that failed to previously faithfully apply the Constitution according to its terms and original fixed meaning. This runs counter to what Alexander Hamilton called in Federalist No. 81 "the general theory of a limited constitution" where "the constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the constitution." Real judicial restraint and humility only comes from an honest application of the original meaning of the Constitution. Judicial activism can therefore equally be demonstrated by refusing to restrain the federal government when it leaps outside the bounds of the Constitution. As James Wilson promised the Pennsylvania Ratifying Convention in 1788, "I say, under this Constitution, the legislature may be restrained, and kept within its prescribed bounds, by the interposition of the judicial department... [F]or it is possible that the legislature, when acting in that capacity, may transgress the bounds assigned to it, and an act may pass, in the usual mode, notwithstanding that transgression; but when it comes to be discussed before the judges,--when they consider its principles, and find it to be incompatible with the superior power of the Constitution,--it is their duty to pronounce it void" (emphasis in original). The baseless "presumption of Constitutionality" must be abandoned, for it is a presumption that runs counter to the very purpose of the Constitution. "We ought always to presume...the real intention [of the Constitution] which is alone consistent with the Constitution," wrote Thomas Jefferson to Albert Gallatin in 1802. Following the original intention of the Constitution should be the only presumption. Doing so is certainly the farthest thing from judicial activism, for it means only that judges are taking their task of judicial review seriously and performing this duty as intended.
Dione Jr. called Judge Marcus's opinion a "brilliant" and "powerful" dissent. What it actually represents is the most bold and unabashed declaration of "living Constitutionalism" yet seen. It is one of the worst opinions ever written, and analyzing a few key arguments should suffice to prove this. The dissent states that "[i]n the process of striking down the mandate, the majority has ignored many years of Commerce Clause doctrine developed by the Supreme Court." Notice right away that the judge make no appeal to the Constitution itself, only to deviant "doctrines" the judiciary has itself "developed." The judge continues saying, "It has ignored the broad power of Congress, in the words of Chief Justice Marshall [in Gibbons v. Ogden (1824)], 'to prescribe the rule by which commerce is to be governed.'" But even Gibbons v. Ogden clearly declares that there is an "immense mass of legislation which embraces everything within the territory of a State not surrendered to the General [Federal] Government; all which can be most advantageously exercised by the States themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c., are component parts of this mass. No direct general power over these objects is granted to Congress, and, consequently, they remain subject to State legislation" (emphasis added). Chief Justice Marshall himself considered it obvious that "health laws of every description" are not subject to federal legislation under the Commerce Clause. To sanctimoniously cite John Marshall as if his famous Commerce Clause precedent would allow for the federal government to force an individual in his State to purchase a privately sold product such as health insurance is simply incredulous.
The dissent continues stating that the majority "has ignored the undeniable fact that Congress’ commerce power has grown exponentially over the past two centuries, and is now generally accepted as having afforded Congress the authority to create rules regulating large areas of our national economy. It has ignored the Supreme Court’s expansive reading of the Commerce Clause that has provided the very foundation on which Congress already extensively regulates both health insurance and health care services" (emphasis added). There is no appeal to the promises made by the ratifiers of the Constitution concerning the enumeration of powers. Instead this judge smugly chides his colleagues for ignoring what are admittedly "expansive readings" invented out of whole cloth by the Supreme Court itself. Marcus admits that it is only "now," to exclusion of this being the case in our past, that these powers have been expansively interpreted, never thinking to return to the original more limited meaning of the Commerce Clause. The judge shamelessly speaks of the "commerce power" having "grown exponentially over the past two centuries," an arrogant and boldfaced admission that the current "interpretation" of that power has only veered farther from the original Constitution over time and that his dissent is in no way rooted in it. One usurpation is no excuse for the next, an initial power-grab does not justify another, just as stealing the first time does not allow for a second larceny. No Constitutionally enumerated power "exponentially grows" with time, the very purpose of the Constitution was to fix the boundaries of federal power. To speak of a power granted to the federal government growing over time at an exponential rate is to abandon what Thomas Jefferson described in 1798 were "the chains of the Constitution" that were intended to shackle government. "Living Constitutionalism" is all that is pompously appealed to. Gone is even lip-service to the Framers of the Constitution! Just appealing to the drafters and ratifiers of Constitutional provisions to seek legitimacy, even if disingenuously, is no longer necessary.
Charles Pinckney told the South Carolina Ratifying Convention in 1788 that "[w]e are to reflect that this Constitution is not framed to answer temporary purposes. We hope it will last for ages--that it will be the perpetual protector of our rights and properties." Of course the grants of power have fixed meanings, for if the "the distribution or modification of the constitutional powers be in any particular wrong," George Washington declared in his Farewell Address in 1796, "let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation. For though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed." Judge Stanley Marcus has admitted that the judiciary has engaged in change by usurpation for far too long. It is the judiciary which feels it has the right to utilize this customary weapon to kill the Constitution. George Washington made clear that the entire "basis of our political systems is the right of the people to make and to alter their constitutions of government. But the Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all." That includes federal judges. The Constitution cannot be changed by them alone, but only by the people through a Constitutional Amendment. Supreme Court Justice Joseph Story wrote in 1833 in his Commentaries on the Constitution, that the Constitution has "a fixed, uniform, and permanent construction. It should be...not dependent upon the passions or parties of particular times, but the same yesterday, to-day, and forever." We have departed from this so far that a judge will actually self-righteously rebuke fellow jurists for not accepting as gospel the current view that the Constitution's meaning is not fixed but subject to the whims of the federal judiciary. As Story said, "Let us never forget, that our constitutions of government are solemn instruments, addressed to the common sense of the people and designed to fix, and perpetuate their rights and their liberties. They are not to be frittered away to please the demagogues of the day. They are not to be violated to gratify the ambition of political leaders. They are to speak in the same voice now, and for ever. They are of no man's private interpretation. They are ordained by the will of the people; and can be changed only by the sovereign command of the people.” Judge Marcus, and too many people in positions of influence and power, have already forgotten.
Judicial activism is demonstrated by the fact, in the words of Madison in 1819, that "it was anticipated...by few if any of the friends of the Constitution, that a rule of construction would be introduced as broad & as pliant" as emerges from the federal judiciary. In fact, Madison maintains, "still more those who shared in what passed in the State Conventions, thro' which the people ratified the Constitution, with respect to the extent of the powers vested in Congress, cannot easily be persuaded that the avowal of such a rule would not have prevented its ratification." Today the judicial construction of the Commerce Clause faces not only continuing as it has for decades to be egregiously "broad & pliant" in a fashion that would have meant the Constitution would have never been ratified. If the Obamacare mandate is to be upheld and the Supreme Court is to issue an opinion that is anything similar to that of Judge Marcus, it would mean the Commerce Clause had been stretched to the breaking point of the entire Constitution.
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3,000 People Crowd Into The Caesarea Amphitheater Sunday To Hear Glenn Beck Launch His “Restoring Courage” Tour In Israel
Glenn Beck met with Israel's Ashkenazi Chief Rabbi before the event:
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Obama Set To Beat Bush Debt-Aggregation Record In One Term
CBS News reports:
The latest posting by the Treasury Department shows the national debt has now increased $4 trillion on President Obama’s watch.
The debt was $10.626 trillion on the day Mr. Obama took office. The latest calculation from Treasury shows the debt has now hit $14.639 trillion.
It’s the most rapid increase in the debt under any U.S. president.
The national debt increased $4.9 trillion during the eight-year presidency of George W. Bush. The debt now is rising at a pace to surpass that amount during Mr. Obama’s four-year term.
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Libyan Draft Constitution: Sharia Is "Principal Source Of Legislation"
The inescapable clause lies right in Part 1, Article 1: “Islam is the Religion of the State, and the principal source of legislation is Islamic Jurisprudence (Sharia).” Under this constitution, in other words, Islam is law. That makes other phrases such as “there shall be no crime or penalty except by virtue of the law” and “Judges shall be independent, subject to no other authority but law and conscience” a bit more ominous. Libya Draft Constitutional Charter for the Transitional Stage Tweet
Monday, August 22, 2011
Sunday, August 21, 2011
What America Today Could Learn From James Madison's Last Official Act As President: The Father Of The Constitution's Bonus Bill Veto Message
Speaker of the House Henry Clay and Foreign Affairs Committee Chairman John C. Calhoun pushed legislation known as the Bonus Bill through the House of Representatives. On December 23, 1816 Calhoun introduced the bill to set apart funds for "internal improvements," spending money on roads, canals, or what today would be commonly referred to as infrastructure. The bill had set apart and pledged federal funds "for constructing roads and canals, and improving the navigation of water courses, in order to facilitate, promote, and give security to internal commerce among the several States, and to render more easy and less expensive the means and provisions for the common defense."
Congress in 1816 therefore had good reason to believe it would have Madison's full support and would easily gain his signature on the Bonus Bill. However, they had neglected one important caveat that Madison had himself stipulated in 1815. Madison had said that "it is a happy reflection that any defect of constitutional authority which may be encountered can be supplied in a mode which the Constitution itself has providently pointed out." President James Madison in his last act as President vetoed the bill on March 3, 1817 on the grounds that it was unconstitutional. An explanation was provided by Madison in a veto message, what amounted to a full elaboration as to what he had meant in 1815 when speaking of a "defect of constitutional authority" that such a bill would represent. This veto message from the "Father of the Constitution" continues to contain invaluable messages and lessons that go all but forgotten by Americans today. It is high time to remind the American people of the true meaning of the Constitution rather than the false representations of it that emanate from the media, legal academia, and the federal judiciary, falsehoods and faulty assumptions that today go virtually unquestioned and not discussed.
Madison began by telling the House of Representatives that "I am constrained by the insuperable difficulty I feel in reconciling the bill with the Constitution of the United States to return it with that objection to the House of Representatives, in which it originated." Why would Madison feel such an infrastructure bill violated the United States Constitution? He went on to explain that "[t]he legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution, and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers, or that it falls by any just interpretation with the power to make laws necessary and proper for carrying into execution those or other powers vested by the Constitution in the Government of the United States." In other words, Congress's powers are limited only to those listed in Article I, Section 8 of the Constitution. Simply put, because "internal improvements" is not on that list, such a bill is unconstitutional. Furthermore, it was not "necessary and proper" (Article I, Section 8, Clause 18) to any enumerated power because it could not be considered an incidental means to achieving any of those listed or constitutionally enumerated ends.
Many today would find this utterly perplexing. The immediate reaction would be to wonder why the Commerce Clause (Article I, Section 8, Clause 3) would not suffice to allow Congress to pass an infrastructure bill. The Commerce Clause provides Congress with "The power to regulate commerce among the several States." It is indisputable that according to faulty modern Supreme Court misinterpretations and perversions of the Constitution such a bill would be deemed by the federal judiciary to be clearly constitutional. The Supreme Court infamously declared in Wickard v. Filburn (1942) that any activity that "exerts a substantial economic effect on interstate commerce" is within Congress's power. The Supreme court has approved of Congress having virtually limitless powers under this single provision of the Constitution. As Justice Clarence Thomas stated in his concurrence in Lopez v. United States (1995), "Such a formulation of federal power is no test at all: it is a blank check." The fact is that President James Madison clearly stated that the Commerce Clause can not even "include a power to construct roads and canals, and to improve the navigation of water courses in order to facilitate, promote, and secure such commerce" because that would require "a latitude of construction departing from the ordinary import of the terms strengthened by the known inconveniences which doubtless led to the grant of this remedial power to Congress." In other words, the purpose of the Commerce Clause was to not have trade barriers between States, and it was that "inconvenience" that led to Congress having a "remedial" power to remove such barriers should they arise. To compare Madison's veto message to current Supreme Court jurisprudence and to federal statutes is to understand how drastically far away from the original Constitution our country has drifted.
Yet when the Commerce Clause fails, the Congress, with the approval of the Supreme Court, always moves to the General Welfare Clause (Article I, Section 8, Clause 1) to justify any bill it wishes to pass. The Clause allows Congress to tax "to provide for the common defense and general welfare." This is viewed as a limitless power because in the case of United States v. Butler (1936) the Supreme Court perversely ruled that the General Welfare Clause "confers a power separate and distinct from those later enumerated, is not restricted in meaning by the grant of them, and Congress consequently has a substantive power to tax and to appropriate, limited only by the requirement that it shall be exercised to provide for the general welfare of the United States. … It results that the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution." In other words, the power of Congress to tax and spend is not limited to the list of specifically enumerated powers, but Congress can tax and spend as it pleases. The only limit on Congress is gaining the votes to pass any bill, because no Congress would ever claim to pass any bill for the specific detriment of the nation. However, the architect of the Constitution James Madison specifically rebutted this view in his 1817 veto message saying it "would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow the clause nugatory and improper. Such a view of the Constitution would have the effect of giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them, the terms 'common defense and general welfare' embracing every object and act within the purview of a legislative trust. It would have the effect of subjecting both the Constitution and laws of the several States in all cases not specifically exempted to be superseded by laws of Congress, it being expressly declared [in Article VI] 'that the Constitution of the United States and laws made in pursuance thereof shall be the supreme law of the land, and the judges of every state shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.'" By twisting the Constitution Congress would now have the force of its laws that are actually not within the grants of powers as provided in the Constitution being "supreme" above the more Constitutionally legitimate laws of the several States. It would render the idea of federalism enshrined in the Constitution meaningless, and completely undermine our entire Constitution itself. Further, this is not some newer or updated view of Madison in 1817 for political purposes, but more importantly this was what Madison had promised the opponents of the Constitution during the ratification debates in 1788. In Federalist No. 41 Madison specifically described the idea of the opponents of the Constitution that the General Welfare Clause "amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare" as "stooping to such a misconstruction... But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon?... For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter." The Supreme Court would do well to fulfill its duty to uphold the Constitution by reading Federalist 41, a representation of James Madison during the actual ratification debates, rather than relying on United States v. Butler. In a letter Madison wrote in 1792 to Edmund Pendleton he declared that "[i]f Congress can do whatever in their discretion can be done by money, and will promote the general welfare, the Government is no longer a limited one possessing enumerated powers, but an indefinite one subject to particular exceptions. It is to be remarked that the phrase out of which this doctrine is elaborated, is copied from the old articles of Confederation, where it was always understood as nothing more than a general caption to the specified powers, and it is a fact that it was preferred in the new instrument for that very reason as less liable than any other to misconstruction." Yet this "misconstruction" is precisely what stands as legitimate Supreme Court precedent today. Madison made clear that the General Welfare Clause could not be used even for "internal improvements" such as providing funding for building public roads, let alone the plethora of behemoth social and welfare programs, the profligate and limitless spending, that the Clause according to the Supreme Court justifies today.
Madison continued in his veto message expounding on the original view of the Constitution saying, "Such a view of the Constitution, finally, would have the effect of excluding the judicial authority of the United States from its participation in guarding the boundary between the legislative powers of the General and the State Governments, inasmuch as questions relating to the general welfare, being questions of policy and expediency, are unsusceptible of judicial cognizance and decision." In other words, the federal judiciary is tasked with making sure the federal government does not expand endlessly beyond its granted powers and invade the reserved powers of the people and the states (as per the Ninth and Tenth Amendments). As Justice Clarence Thomas stated in his dissent in Gonazalez v. Raich (2005), "One searches the [Supreme] Court’s opinion in vain for any hint of what aspect of American life is reserved to the States." This misinterpretation of the Constitution puts the question of virtually all Congressional legislation out of the reach of any meaningful review by the federal judiciary. It creates, in the actual yet twisted parlance of the modern Supreme Court, a "presumption of Constitutionality" when it comes to adjudicating whether an act of Congress falls within the enumerated powers. As Madison clearly stated in his Bonus Bill veto message, "A restriction of the power 'to provide for the common defense and general welfare' to cases which are to be provided for by the expenditure of money would still leave within the legislative power of Congress all the great and most important measures of Government, money being the ordinary and necessary means of carrying them into execution." In other words, if such wrongheaded Constitutional interpretations were to be accepted as they are today, the federal government could in no way still be the limited government of enumerated powers it was intended to be by the framers and ratifiers of the Constitution.
What then could the nation do if it felt it was prudent as a matter of public policy to allow for internal improvements? To Madison, the answer was provided only in Article V of the Constitution. The Constitution would have to be amended to allow for a measure that Madison himself as a matter of public policy actually supported. This may seem perplexing to some, because as Supreme Court Justice Hugo Black famously said, "The layman's constitutional view is that what he likes is constitutional and that which he doesn't like is unconstitutional." I would add that Supreme Court Justices all too often fall prey to this constitutional view as well. But matters of public policy and matters of Constitutionality are not one and the same and cannot be confounded. Regardless of whether a policy is considered needed or unnecessary, we must always independently ask whether the Constitution permits it. Madison even stated, "I am not unaware of the great importance of roads and canals and the improved navigation of water courses, and that a power in the National Legislature to provide for them might be exercised with signal advantage to the general prosperity." As a matter of the merits of the bill without taking Constitutional issues into account, he vocally supported the measure. But issues of Constitutionality cannot be confused with issues of wise or unwise policy. As Justice Potter Stewart correctly and famously wrote in his dissent in Griswold v. Connecticut (1965), the Supreme Court is not asked "to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States Constitution." Should a seemingly wise piece of legislation not fall within the powers of Congress, the Constitution had to be amended or else the Constitution itself would be as worthless as the paper it was written on. It would be making a mockery of the rule of law, our nation's Basic Law, and of the very reason the Constitution was written in the first place, that being to delineate the power of the federal government. "But seeing that such a power is not expressly given by the Constitution," Madison continued in his veto message, "and believing that it can not be deduced from any part of it without an inadmissible latitude of construction and reliance on insufficient precedents; believing also that the permanent success of the Constitution depends on a definite partition of powers between the General and the State Governments, and that no adequate landmarks would be left by the constructive extension of the powers of Congress as proposed in the bill, I have no option but to withhold my signature from it, and to cherishing the hope that its beneficial objects may be attained by a resort for the necessary powers to the same wisdom and virtue in the nation which established the Constitution in its actual form and providently marked out in the instrument itself a safe and practicable mode of improving it as experience might suggest [i.e., the Amendment process of Article V]."
The Bonus Bill veto message should be required reading in every American classroom. Its brevity and simplicity in teaching basic Constitutional principles makes its lessons easily comprehensible to all. Yet what many would learn would make any sensible person understand that much of the federal government's acts are based on Constitutionally dubious, incoherent, and sometimes deliberately misleading grounds. Madison's message further exposes the modern Supreme Court as having abandoned its role of faithfully applying the Constitution. It specifically shows in clear terms that the two most looked to provisions today to justify practically all Congressional legislation, the Commerce Clause and General Welfare Clause, actually have much narrower meanings that could not even encompass federal spending on infrastructure without a Constitutional Amendment, let alone the array of domestic programs, departments, regulations, and pieces of legislation, that are a product of the modern federal government. The Father of the Constitution left a message for posterity to his nation stating that the Constitution cannot simply be "interpreted" to meet a current policy preference or need, but the provisions must be looked to as originally understood. Even if legislation represents sound policy, even if a bill has support, it must be seriously Constitutionally vetted, and this means more than looking to faulty Supreme Court precedent or reliance on federal courts. And conversely, if legislation is unpopular or even stupid, it cannot be overturned by the Courts unless it falls outside the powers of government.
What is most fascinating and pertinent about this veto message is that "internal improvements" could be replaced with countless examples of modern Congressional legislation, and Madison's responses in his veto message would still be virtually unchanged. It is our duty to make sure that they do not continue to go unheeded.
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