Securing Liberty

Posted on 2009-08-11 by David
Statue of Liberty
photo credit: Brian Wilson Photography

I got a complaint on facebook over a statement I made that later amendments take legal precedence over earlier ones where both conflictingly address the same point of law. Here was the complaint:

I have a problem with the rationalization . . . that a later amendment takes precedence over an earlier one- That takes away all security in the freedoms that our constitution grants.

I don’t know how it is possible to fight common sense. If the city code states that housing density may not exceed 2 houses per acre and then a later city council passes an ordinance stating that housing density may not exceed 5 houses per acre it would be absurd to try stopping a developer who wanted to build a subdivision filled with 1/4 acre lots (at least it would be absurd to do so using the original density code to back up your complaint). The same principle holds true at every level of legal authority – including at the Constitutional level. The guarantees of freedoms in the Constitution are only binding from one time to the next if they are not challenged at that level of law. If the people of succeeding generations challenge and remove the liberties currently in the Constitution through new amendments there is no way today to prevent them from doing so. Continue reading →

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Constitutional Amendment 18

Posted on 2009-08-07 by David

The Eighteenth Amendment is a great example of constitutional law.

After one year from the ratification of this article, the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

I know that many people will argue that it is a bad amendment (generally citing the fact that it was later repealed as evidence of their claim) but I would like to explain why I argue that it is such a good example.

Congress (and the majority of states at the time) wanted to restrict the use of alcohol for recreational purposes. They had no constitutional authority to do anything like that. The proper fix for this is to pass a Constitutional amendment rather than trying to ignore or get around the Constitution and use some easier means of doing what Congress wants to do. In this case, Congress followed the correct path – perhaps they had too many senators and representatives still in Congress since the 17th amendment was passed who remembered how the government was supposed to be limited according to the Constitution.

The question of whether this was a good law is a separate matter. Should Congress decide whether people should ever be allowed to consume alcohol? No. But at least in making this bad law they followed the proper procedure to give themselves the authority to take the action they wanted to take – and to successfully pass a Constitutional amendment requires a very broad base of support. If the people choose to prohibit consumption of alcohol that’s much better than having Congress prohibit its consumption because of the influence of a vocal lobbying group.

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The Trick to Choosing Elected Officials

Posted on 2009-08-06 by David

In a letter to the Salt Lake Tribune Jeff Hammond offered this profound bit of insight:

As some politicians age, they grow into statesmen, like Barry Goldwater; others shrivel into petty party hacks. Sens. Hatch and Bob Bennett aren’t growing.

He’s right about Hatch and Bennett which is why it’s time to replace them. He’s also right about politicians who grow and shrink which is why we have to be very careful about who we replace them with. So far I am not confident that any one of the challengers for Bennett’s seat (Bridgewater, Eagar, Granato, Shurtleff, or Williams so far) will grow into a statesman. Some I have ruled out already as potential senators, others I am still considering. It’s an important decision that we must not make lightly. (I’ll bet that nobody can guess which ones I have ruled out even if I were to include Bennett in the mix and even if I said how many were already out.)

I hope that I will yet discover, either among the current challengers or among some as-yet-unannounced challenger, a real diamond in the making who will live up to the promise of every aspiring politician – to be a true statesman.

Posted in State | Tagged , , , , , , , , , | 8 Comments

The American’s Creed

Posted on 2009-08-05 by David

I believe in the United States of America as a government of the people, by the people, for the people; whose just powers are derived from the consent of the governed, a democracy in a republic, a sovereign Nation of many sovereign States; a perfect union, one and inseparable; established upon those principles of freedom, equality, justice, and humanity for which American patriots sacrificed their lives and fortunes.

I therefore believe it is my duty to my country to love it, to support its Constitution, to obey its laws, to respect its flag, and to defend it against all enemies.

I should be able to support The American’s Creed wholeheartedly, but I am finding it difficult on some levels because while this creed supports the ideal vision of what the Constitutional Government of  the United States should look like I fear that the creed needs an asterisk next to it explaining that our current government does not live up to anything like that ideal and must be brought back into line with the ideal through the diligent efforts of those who truly love their country.

Here is a summary of where I think the ideal of the American’s Creed and the Constitution differ from the realities of our government today:

  • This government has become more of a government over the people rather than a government of the people.
  • While the just powers of government are derived from the consent of the governed, the governed have allowed the government to derive unjust powers from themselves and through judicial rulings, international law, and executive orders.
  • The states of which the nation is comprised are no longer sovereign in any meaningful way. (Often they are not even sovereign from each other.)
  • While the government was established upon principles of freedom, equality, justice, and humanity it has not been perpetuated upon those same principles – especially in the last few decades.

As a result of these deficiencies my duty is not only to love my country, support its Constitution, and obey its laws, but also to correct its deficiencies in a way that does not violate the very principles upon which the nation was founded.

Unlike the Pledge of Allegiance, I thought it important to say something about the author of the American’s Creed, William Tyler Page. His story of public service is a textbook example of the American’s Creed in action. The day after he died it was said of him that:

He believed that the Constitution of the United States was next to the word of God: the most spiritually illuminated and divinely inspiring political document of modern times. So he sat here, a philosopher, a friend, a Christian gentleman, and we sat at his feet and received from him new strength, new courage, new understanding.

Like Page, I believe that the Constitution is “the most spiritually illuminated and divinely inspiring political document of modern times” and it does stand adjacent to the canon of Holy Scripture in the library of my heart. Unlike scripture I am free with the Constitution to disagree with parts of it (like the 16th and 17th amendments) and to seek to have those parts altered or abolished by following the procedures outlined in the Constitution. There is no such procedure in the scriptures nor do I consider myself an equal to the Author of scripture – unlike the authors of the Constitution. (I consider myself the equal of the founding fathers in that they were men who loved their country and wanted to secure her liberty for their peers and their posterity, as do I.)

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Bad Year for Liberty

Posted on 2009-08-04 by David
1913
photo credit: Leo Reynolds

I consider 1913 to be a very bad year for liberty because in that year the 16th and 17th amendments were both passed. Each of these amendments is a lever that loosened the moorings that had limited the power of the federal government for 126 years to that point. It’s true that before either of those amendments were passed the actions they authorized were already in use but by codifying the legality of an unlimited income tax and the direct election of senators removing even the appearance of states as sovereign political entities it became nearly impossible to lend any credence to the notion of limited national government held in check by the interests of state and local governments as well as the prevailing interests of the body of voters.

There are many conservative pundits calling for a scaling back of government. From what I have observed most of them seem to want to go back 30 or 50 years. Some may even be bold enough to suggest going back 80 years before the New Deal and the great depression. Very few understand that to truly have a limited government again we must go back at least 96 years to rest the two levers that were thrown in 1913.

Continue reading →

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Constitutional Amendment 17

Posted on 2009-08-03 by David

Following close on the heels of the sixteenth amendment (both in terms of time and impact) comes what may well be the second most fundamental alteration to the public perception and operation of our government through the Seventeenth Amendment.

The Senate of the United States shall be composed of two senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature.

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

This amendment might look fairly innocuous on the surface but it fosters a fundamental shift in the way that the people perceive the structure and function of the representation within the federal government.

I have written about this amendment before and I understand from the comments that some real problems had developed with the original setup of having state legislatures choose the senators. We cannot underestimate however the fundamental shift encoded in this amendment. In my state government I need to pay attention to one senator and one representative in the state government representing me. Before this amendment those two individuals were held responsible for how the state was represented in the United States Senate and then I would pay attention to my representative in the House of Representatives (replacing them if I felt poorly represented). Now the common perception (and the true fact sadly) is that the senators from each state are to represent the people of the state (so I have three people to keep my eye on in the federal level legislative branch besides the two I track in the state legislature) rather than representing the interests of the state as a sovereign political entity and being held accountable by the government of the state directly.

It is no wonder, with this amendment, that people today do not recognize that our structure of government was intended to be a representative republic – with the interests of the people balanced against the interests of each of the states – rather than a democracy.

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Constitutional Amendment 16

Posted on 2009-07-31 by David

The longer I live and the more I study, the more convinced I become that the sixteenth amendment is the greatest assault on liberty in our Constitution.

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

The amendment was passed as a benign revision to the Constitution, amending Article I Section 9 which had specifically prohibited Congress from laying any direct tax. Without this amendment the government could never have sufficient funds to substantially exceed their constitutional authority.

This amendment was passed in order to make it possible to levy income taxes – the most sinister aspect of income taxes being that government now holds first claim on the income of its citizens. If I don’t wish to support what the government is doing my only legal way to not support it is to have no income (or at least, less income than they are interested in taxing). While it will never happen in my lifetime (and probably will never happen period) the fact that the government has first claim on my income means that Congress could claim everything I produce and take it as income tax. So much for the right to property because my property (and yours) is now a gift or loan from the government.

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Government Can’t Do Charity

Posted on 2009-07-30 by David
by HowardLake

by HowardLake

Those pushing the need for health care reform spend a lot of time talking about the uninsured and the many unfortunate people who cannot or will not afford to pay for health care. (Mostly they talk about the “cannot pay” people except when they are proposing to have individual mandates, then they start talking about “freeloaders” who don’t get insurance even though they can afford it.) These people claim that health care is a right and (although they don’t use the word) they are proposing that the government can and should provide charity care for those in the “cannot pay” camp. The only problem is that government has been trying to do that for a long time through medicaid and medicare. The fact is that government cannot provide charity care – government can only take from those it chooses to burden and give to those it chooses to help. This warps the system even when it is meant to level the playing field.

Continue reading →

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All Things to All People

Posted on 2009-07-29 by David

In a classic case of Federal-sightedness, President Obama is stepping in to mediate an altercation between a black professor and a white police officer. Normally I would be disappointed that the President had nothing better to do but lately I have had more of a mindset where this makes me happy – in fact, I almost wish that we would have more incidents like this to keep Obama too busy to keep prodding Congress to rush through an ill-conceived health care boondoggle (or “blob of legislative goo” if you prefer).

For the sake of variety we might throw in cases of black police officers having altercations with white professors, or inserting other “oppressed” minority groups into the formula so that the President can meet with people from a wide variety of backgrounds – especially those who don’t live in Washington D.C.

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The Pledge of Allegiance

Posted on 2009-07-28 by David

The Pledge of Allegiance may well be the most widely memorized bit of prose in the United States. In fact it is so widely known that I wonder how many people have ever stopped to consider where it came from or what it means (few I suspect). It was first written in 1892 but it’s final form did not come until 1954. Those who object to the reference to God are following in the footsteps of the daughter of the man who wrote the original version.

I pledge allegiance to the flag of the United States of America and to the republic for which it stands, one nation under God, indivisible, with liberty and justice for all.

I think it is instructive that we do not pledge allegiance to the United States or its government, but to the flag and the government ideal that it represents. We are pledging allegiance to the republic that the founders established in order to protect the freedoms of all the citizens of the nation. A nation which is meant to be under God and indivisible and which should be devoted without exception to protecting liberty and promoting justice for all.

That is the kind of nation that I can cheerfully and wholeheartedly support. We must ask ourselves how close that image aligns with the realities of our nation today. Those who truly pledge their allegiance to the flag and the national ideal of good government that it represents are pledging themselves to pursue those policies in government and society which will bring us closer to the ideal represented by the flag, the one where there are 50 sovereign states which, together with the sovereign citizens of the nation, work together to promote liberty and justice for all.

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