The first farmer was the first man. All historic nobility rests on the possession and use of land. Ralph Waldo Emerson

29 May 2010

In Our Youths, Our Hearts Were Touched With Fire...

This weekend our nation pauses to honor the memories of the thousands who have bled and died on battlefields foreign and domestic. While the holiday is commemorated with parades and barbeques, we would do well to remember the true meaning of Memorial Day and how it all got started.

The first Memorial Day was officially proclaimed by General John Logan, national commander of the Grand Army of the Republic on 5 May 1868. Logan arranged for flowers to be placed on the graves of Union and Confederate soldiers who were buried at Arlington National Cemetery. New York was the first state to officially recognize Memorial Day in 1873 and by the 1890's nearly all of the Northern states were celebrating the holiday. The Southern states refused to recognize the holiday until after the completion of World War I, when the act of honoring war dead became truly a national holiday.

One of the most famous Memorial Day addresses is one by Oliver Wendell Holmes Jr, given in Keene, New Hampshire on 30 May 1884. Holmes, who would later become a Supreme Court justice, was a veteran of the Civil War. He fought in the Wilderness Campaign and was wounded at Ball's Bluff, Antietam, and Fredericksburg. His remarks resonate with us today as he remembered the many young men in the prime of their lives who fell on the battlefields of The Civil War some twenty years earlier:

"I see them now, more than I can number, as once I saw them on this earth. They are the same bright figures, or their counterparts, that come also before your eyes; and when I speak of those who were my brothers, the same words describe yours.
I see a fair-haired lad, a lieutenant, and a captain on whom life had begun somewhat to tell, but still young, sitting by the long mess-table in camp before the regiment left the State, and wondering how many of those who gathered in our tent could hope to see the end of what was then beginning. For neither of them was that destiny reserved. I remember, as I awoke from my first long stupor in the hospital after the battle of Ball's Bluff, I heard the doctor say, 'He was a beautiful boy'.
I see another quiet figure, of virtuous life and quiet ways, not much heard of until our left was turned at Petersburg. He was in command of the regiment as he saw our comrades driven in. He threw back our left wing, and the advancing tide of defeat was shattered against his iron wall. He saved an army corps from disaster, and then a round shot ended all for him.
But, nevertheless, the generation that carried on the war has been set apart by its experience. Through our great good fortune, in our youths our hearts were touched with fire. It was given to us to learn at the outset that life is a profound and passionate thing."

We can never repay the brave men and women who have given their lives over the past two and a half centuries so that we may enjoy this great land of liberty. No, we can never repay them. But we can honor and remember them--those whose youths were touched with fire.

26 May 2010

A Guest Blogger...And My Response

First, a bit of full disclosure: as is clear to all who may regularly read my blog, it is probably pretty clear that I have a conservative world view. Second, some additional disclosure: I have three sons, and my oldest holds views that are...well, let's just say that his world view is to the left of mine.

He recently sent me an unsolicited opinion paper on the libertarians' response to the growing disaster in the Gulf of Mexico: the BP Oil Spill. He asked me if I would publish it on my blog. I told him I would, provided I had permission to offer specific responses. So here, without further adieu, our version of Point-Counterpoint:

The BP Oil Spill:  A lesson in Libertarianism

Rand Paul has made some significant headlines this week.  For everything said, let me commend him on his public honesty, a rare breed in American politics.  For the media, those honest opinions are like a fresh Whopper for the contestants on “The Biggest Loser” in a room with no cameras.  Beyond making a pundit's job to create attention-catching sound bites a piece of cake, Paul’s comments have opened Pandora’s Box to the true views of the ever-elusive Libertarian ideology.  

Let’s leave the Civil Rights barn burner out of the debate and focus in on an interesting Paul opinion regarding the BP Oil Spill.  

“What I don’t like from the president’s administration is this sort of, ‘I’ll put my boot heel on the throat of BP,’ ” Paul said in an interview with ABC’s “Good Morning America.” “I think that sounds really un-American in his criticism of business.”

Congratulations Rand. In just 2 sentences, you drew a line in the sand between left and right.  Effective, no debate there.  Pragmatic, can’t criticize for that either.  Honest, without a doubt.  Those are all desirable qualities, and I can’t blame your supporters for finding you appealing for the same reasons.  

However, there are also those hippy, bell bottom-wearing, green-dreaming (and smoking, don’t forget), Prius driving, flaming liberals, who for all of those same traits we admire, just can’t get past the principles.

One would be hard pressed to find a lot of fans of Wall Street nowadays.  However, after listening in to the grilling of Lloyd Blankstein on Capitol hill, I will admit something: Wall Street did not get it wrong.  They simply played within the rules of the game.  Their role in that game is to search for profits.  They found profits in mortgage-backed securities, which few argue should be abolished, lucrative derivatives markets, which even the business-hating Obama administration supports through their lack of support for the Lincoln Amendment, and credit-default swaps, which are still being actively traded to mitigate risk.  What was the problem on Wall Street then you may ask?  That they played within the rules of the game.

When in doubt, revert to sports for an example.  There is no actor more criticized in sports than the Zebra.  Everyone, the coach, the fan on the couch, the cheerleaders, the mascot, the hot dog vendor, the girlfriend who doesn’t know where the ball is, is a better ref than THE ref.  And yet, how many sports fans would support removing the ref from the game?  I would venture to say that only a minute few would truly support taking the ref out of the game.  Some may say that they want less active refs, some more active refs, some more intelligent refs,some refs with better eyesight, some may even say that they want to see more women refs, but most would say that the ref is a vital part of ensuring the competitiveness of the game, keeping order to what could otherwise turn into an unscripted Saturday night of Professional Wrestling.  

Libertarians--and, judging from recent primary results, an ever-increasing portion of Republicans--believe that there should be no ref, or if there is a ref, that he have no flags to throw. What are the consequences of this, beyond the 10% unemployment that the United States currently faces?  Let us dissect the BP Spill as a microcosm for the absence of, or weak, regulation.

Where were the regulators?  According to the Libertarians like Paul, the spill is somehow evidence that regulation doesn’t work, shouldn’t be funded, and is downright “un-American.”  Certainly lax regulation, like that identified by Interior Secretary Salazar, and legislation requiring that deepwater drilling permits be granted within only 30 days, not allowing sufficient time to properly assess new well projects, are in part to blame for the spill.  Yet I somehow doubt that the removal of the referee would encourage the market to implement the necessary safety measures to avoid such an accident.  

After all, the risk of such an event is really assumed mostly by the environment, fishing and tourism industries, and the US taxpayer.  Analysts at Barclays Capital estimate the maximum total cost of the clean-up, plus compensation, legal bills and lost revenue could be $22.6 billion, just a hair over the $75 million cap set by Congress, effectively limiting an oil company’s risk.  (I will spare the “Drill Baby Drill” community from the tales of Sea Turtles, Pelicans, or a picturesque sunset on a white sand beach free of tar balls.)

What is so “un-American” about defending the tourism industry, the beach front property owners, and a vast fishing industry from bearing the risk of a single corporation’s lack of safety controls?  Libertarian beliefs in lack of regulation are basically an implicit endorsement of corporate business over small business.  

How did that work for us on Wall Street from 2005-2008?  It is not un-American to look for profits, innovate, compete…and win.  It is un-American to do so by breaking the rules, or doing so at the expense of others.  

And if Paul had his way?  If there were no rules?  I wonder if Paul’s ideal vacation is sipping on a cold PiƱa Colada, overlooking the tar stained beaches of South Florida, as the sole resident in an otherwise vacant condo building.  Just a little piece of Libertarian American Pie. 

Your humble blogger's response: First, congratulations to my son. Well done. Effectively argued. Some very good points. And, as usual, WRONG. (That was a lame attempt at humor.) Actually, I find several of his points compelling. And in an effort to respond crisply and concisely, I am going to break down his arguments into two basic premises: 1) Libertarians such as Rand Paul--as well as many Conservatives--believe that the government is too big and that its regulatory authority is too far-reaching; their solution would be to eliminate or at least significantly reduce the regulatory oversight of the federal government. And the resulting impact would be catastrophic. As proof, witness the brooding disaster in the Gulf--and that even with a regulatory apparatus that Libertarians already see as onerous; 2) We need even more regulatory oversight to protect us against the evils of Wall Street, whose barons played within the rules as they were established by Congress--and still managed to invest in wildly-speculative financial instruments that served to inflate a huge global bubble that burst in September 2008 and plunged the US economy into The Great Recession, from which we still have not emerged some 20 months later.
If I have accurately summarized my son's arguments, here are my responses to each of his main points:
1) There is no doubt that the BP Oil Spill is a disaster of still unmeasurable magnitude. As I write, something like 70,000 gallons of crude are spilling into the Gulf each day. The damage to the pristine beaches of Louisiana, Mississippi, Alabama, and Florida will be sullied by this disaster for decades. (A small aside: last year, my youngest son, who is a student at the University of California at Santa Barbara, found tar balls on the beach--some 41 years after the infamous Santa Barbara oil spill which served as the genesis for the environmental movement in this country.)
Whether you're a liberal, a conservative, a libertarian, or a socialist, we can all agree that what's happening in the Gulf is terrible--and it's worth getting angry about. The economy--and, more personally, the very livelihoods of fishermen, hotel owners, restaurateurs, and many others--will be affected by this disaster for decades to come. The most exasperating part of this situation is that no one knows when the oil will finally quit gushing into the Gulf, meaning the severity of the problem only grows worse and worse with each passing hour.
Since we all agree that this is a disaster and that it's worth getting angry about, let's look at my guest blogger's specific critique: that Rand Paul and other Libertarians think there's already too much government regulation and that--to prove him wrong--we need only look at the soiled beaches and dead wildlife (not to mention the untold thousands of sea creatures) to know that we need more regulatory oversight, not less.
If that's the basic argument, let's look a little deeper at the problem. 
First, let's all agree that accidents happen--no matter how careful we are to try to prevent them. After all, we're human, and therefore prone to error. Yes, we should always try to minimize our mistakes. But mistakes can happen and will happen and do happen, regardless of how hard we try to prevent them.
Second, let's all agree that--given America's insatiable thirst for oil and the federal government's woeful lack of a national energy policy (through both Republican and Democratic administrations)--we must continue to drill domestically until we can develop technologies that will wean us off of the use of fossil fuels and away from the terrible tendency to continue to transfer billions of dollars in wealth from the USA to exporting countries such as Iran, Venezuela, and many other sworn enemies of our country. 
Third, one must ask why it has been so difficult to plug the gaping hole in the bottom of the ocean. After all, that hole is some 5,000 feet beneath the ocean's surface. The fact is that the EPA and the Department of the Interior--as well as many coastline states--have required that oil drilling cannot occur within three miles of the coastlines of those states. Nobody wants to look out upon a pristine coastline and see oil rigs on the horizon, but Washington's aversion to drilling closer to shore has forced the very sort of deep water drilling that is now at the heart of the problem in the Gulf. If a rig had exploded in 500 feet of water instead of 5,000, it's a fair bet that the gusher would have been plugged weeks ago. And while I'll admit that this is pure speculation, even the most hardened advocate on the other side of the debate has to admit that the government is partly to blame for what is happening now.
2) My guest blogger maintains that we need more federal oversight to prevent the kind of gross mismanagement that took place by Wall Street investors (and, for that matter, high roller investors around the world in London, Hong Kong, and many other money centers) prior to the meltdown in the fall of 2008. I will, once again, implore us to look deeper into the genesis of the problem.
In October 2005, Senator Christopher Dodd and Congressman Barney Frank--both liberal Democrats from the Northeast--pushed through bills to "reform" Fannie Mae and Freddie Mac. Even at the time, the Wall Street Journal opined: "Every Congressional session can be counted on to produce its share of bad bills, even dreadful ones. But the 'reform' bill for Fannie Mae and Freddie Mac--due to hit the House floor tomorrow--is in a class by itself." What the "reform" did was to broadly liberalize Fannie Mae's and Freddie Mac's ability to back questionable loans made by private banks to new homeowners whose credit quality was marginal to poor. And when those quasi-government institutions backed those loans, guess who was really on the hook--the American taxpayer.
My guest blogger is correct: the banks and financial institutions played within the rules, and that is indeed the heart of the problem. What he fails to point out is that those rules were created in the middle of the last decade and sowed the seeds of our destruction three years later.
As President Reagan famously declared in his First Inaugural Address on 20 January 1981, "The economic ills we suffer have come upon us over several decades. They will not go away in days, weeks, or months--but they will go away. They will go away because we as Americans have the capacity now, as we have had in the past, to do whatever needs to be done to preserve this last and greatest bastion of freedom. In this present crisis, government is not the solution to our problem; government is the problem." Reagan pushed through the largest tax cuts in the history of our country--and unleashed the longest period of economic growth the nation had ever seen, extending from 1982 through to the end of the 20th century.
Point. Counterpoint.

25 May 2010

The Primacy Of The Constitution

"Liberty may be endangered by the abuse of liberty, but also by the abuse of power."  James Madison

In my two previous posts, I provided some history on the magnificent document we call The Constitution. The ideas contained in it had only been espoused as ideals by European philosophers like Locke and Montesquieu, but never actually attempted by a free people. Until, that is, the summer of 1787. As I've established, the greatest concern of the Founding Fathers was the great tendency for the reach of government to become centralized, more powerful, and--if not properly checked by the people--tyrannical. This was what those same Founding Fathers had fought against--the tyranny of King George.

I also wrote of how the Constitution was elevated by many of the early Amendments, so that the freedoms established in the Constitution were extended to all Americans--not just in principle, but in fact. It's hard to imagine today a nation where only white men who owned property were allowed to vote, but that was the case in the first 75 years after the Constitution was ratified.

The beginning, however, of the era of Big Government has its genesis in the ratification of the 16th Amendment, which allowed for a national income tax. This differed from the taxation allowed in the original document, which amounted to a form of property tax. When the 16th Amendment was passed, the tax was a flat 3% of annual income. Would that it were so today. But--as is the case with virtually all taxes levied by an over-reaching government, tax rates would never come down. The Law of Gravity does not apply to taxes.

As the federal government's ability to tax its people increased, the money flowing into Washington also allowed for the unbridled growth of government. This process began during the Wilson Administration, gained great speed and footing during FDR's Administration, and saw its apex in the Great Society of Lyndon Johnson's Administration. Of late, the growth of the federal government expanded significantly under George W. Bush and has exploded under President Obama.

What is particularly grievous, however, is not the growth of government in and of itself, but the way in which the federal government has grown. In the last forty years, the American people have seen the creations of huge bureaucracies like the Environmental Protection Agency, the Department of Education, the Department of Homeland Security, and many others which are charged with interpreting laws passed by Congress and enforcing those laws. When some have challenged the constitutionality of those laws, they've often been rejected by Supreme Court justices who no longer actually reference the Constitution in their rulings, but see fit to interpret the law through the prism of their own "experiences".

Need some examples? Try these:

  • In the case of Grutter v. Bollinger in 2003, the Supreme Court--in a narrow 5-4 vote--ruled that diversity in university admissions would provide "educational benefits that flow from a diverse student body". This ruling, which directly contradicts the 14th Amendment's provision of equal rights for all citizens regardless of race, is a classic example of the Court choosing to make law rather than interpret law. Some argue that diversity is necessary for the further integration of our society, and that members of certain race and backgrounds may have had fundamental societal disadvantages which beg the need for such diversity in our universities. Fair enough. Even if we accept that premise, my simple objection is this: write a new Constitutional Amendment to uphold diversity, get it approved by two-thirds of both houses of Congress, and have it ratified by three-quarters of the states as provided for in Article V of the Constitution.
  • In the famous case of Roe v. Wade in 1973, the Supreme Court affirmed the right of a woman to have an abortion. Nowhere in the Constitution is this right provided for nor even implied. Indeed, the dilemma faced by the Court boils down to this: whose right to life prevails over the other? Is it the quality of the life of the mother, who finds a pregnancy inconvenient at best and possibly life-threatening at worst? Or is the very life of her developing child, who will not even have the chance at life if the pregnancy is ended? The Court, as we know, chose in favor of the mother. Once again, even if we accept the premise, the fact is that the Court created a new law out of whole cloth. No one would argue that the Court interpreted any section of the Constitution which could possibly have provided for abortion rights.
  • In the notorious case of Kelo v. New London of 2005, the Court ruled that eminent domain applies in the transfer of private property from one private owner to another private owner, if the intended use of that property will benefit the greater good. This ruling represents a fundamental expansion of the "Takings Clause" of the Fifth Amendment, which specifically cites that private property shall not be taken for public use without just compensation. The City of New London, Connecticut intended to revitalize a depressed section of its waterfront with a mixed-use development of shops, residences, and restaurants. Is this "public use"? Never in the previous 218 years of Constitutional law had anything like this remotely resembled the proper use of eminent domain. The Kelo ruling trampled on the rights provided in the Fifth Amendment, expanded the power of local governments over private property owners, and all of it was done without the passage of a Constitutional Amendment.
How far have we fallen from the days when the Constitution was revered and respected as the true law of the land? Consider Mr. Phil Hare, a Democratic Congressman from Illinois, who was asked during a town hall meeting in the midst of the national debate on healthcare reform: "Where does it say in the Constitution that you have to buy healthcare insurance?" Hare's rather incredulous response? "In this case, I don't care about the Constitution...we in this country have the right to Life, Liberty, and the Pursuit of Happiness". When a citizen pointed out that that clause resides in the Declaration of Independence and not the Constitution, he further responded "it doesn't matter to me".

When a U.S. Congressman, who has sworn to "preserve, protect, and defend the Constitution of the United States" shows such little regard for that very Constitution, our country is on a slippery slope of making laws which seem either convenient or politically expedient. There was a reason that the Founding Fathers made the Amendment process so difficult. It was done to limit the power of the federal government, as was the structure of the three branches of government under the principle of the Separation of Powers. We, the People, must reclaim our political heritage by rejecting politicians who make un-Constitutional laws and judges who make law rather than interpreting it.

18 May 2010

How The Constitution Was Elevated

In my last post, I provided a brief history of the making of the Constitution--why it was necessary, how it was debated and drafted, and the clear intent of the Founding Fathers to create a government which--as President Lincoln would famously affirm in The Gettysburg Address--would be of, by, and for the people of the United States. The founders knew that all governments will tend toward consolidation of power, and so they installed a series of checks and balances known as the Separation of Powers to limit the broad reach of government into the lives of everyday Americans.

Over time, the Constitution has changed. Many of those changes have been made within the purview of the Constitution through the Amendment process called for under Article V. Some, particularly in the late 20th and early 21st centuries, have not.

This post will review the positive changes made to the Constitution through the amendment process.

The first series of changes came through what is now known as The Bill Of Rights, which encompass the first ten amendments. In the Bill Of Rights, Americans are guaranteed their "inalienable rights" of free speech, freedom of religion, a free press, the freedom to assemble, and the freedom to petition. The Bill Of Rights ensures the right to bear arms, protection against unreasonable search and seizure, the right of due process and a speedy trial by a jury of one's peers, and the definition of eminent domain. And the Bill Of Rights defines and limits the reach of the federal government by enumerating the rights of the individual states.

Beginning in 1865--after the nation had emerged from the crucible of the Civil War--the states ratified the 13th Amendment, which abolished slavery and involuntary servitude. (Remarkably, slavery was allowed under the original text of the Constitution as a political calculation to gain the votes and approval of the Southern states.) Months later, the 14th Amendment was sent to the states for ratification, providing full citizenship to all people born in the United States, regardless of race, and accompanying rights of due process and equal protection under the law. The 14th Amendment effectively overruled the notorious Dred Scott decision of the Supreme Court, which had held that neither slaves nor their descendants were citizens and held no Constitutional rights. The 14th Amendment corrected this egregious ruling of the Court.

In 1869, the 15th Amendment followed on the heels its two predecessors in prohibiting denial of suffrage rights based on race or color.

Finally, in 1920, the 19th Amendment gave women the right to vote for the very first time. (It's remarkable to think that it took the country nearly 150 years to correct this issue.)

Collectively, the Bill Of Rights, followed by the 13th, 14th, 15th, and 19th Amendments served to elevate our Constitution to truly reflect the ringing rhetoric of Thomas Jefferson in the Declaration of Independence: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed."

Before those amendments were adopted and ratified, America's full freedom extended only to male property owners--a far cry from the lofty phrases that still resonate with us.

But along with the great gains made by these Amendments, dark clouds also loomed--clouds of a more centralized and far-reaching federal government. More on that in the next post...

16 May 2010

Why America Needed The Constitution (A Brief History Lesson)

Nearly 250 years ago, beginning in the 1760's, American colonists experienced the first signs of monarchical power exerted against them with King George III's Proclamation of 1763. The king's proclamation stipulated that American settlers who had established land claims west of the Appalachians were not only violating English law, but would have to return to the eastern side of the mountain range or risk arrest. This law was followed in short order by a series of increasingly oppressive acts of Parliament, including the following:

  • The Sugar Act of 1764, enacted as a substantial increase in the duty on the importation by England of sugar, coffee, wine, textiles, and indigo, as well as outlawing altogether the importation of rum and French wines. The Sugar Act was intended as a way of raising revenue to help offset the costs of the recently concluded Seven Years' War with France, otherwise known as the French & Indian War in colonial America;
  • The Stamp Act of 1765, which is the first tax targeted directly at America by her mother country, taxing nearly all printed materials from newspapers to contracts.
  • The Quartering Act of 1765, which required Americans to provide food and lodging to British troops who were being sent to occupy what the Parliament and the king felt were intransigent colonies--particularly the Massachusetts Bay colony and its largest city of Boston.
  • The Declatory Act of 1766 which states that only the British government has the power to enact laws governing the American colonies.
  • The Townshend Acts of 1767, which imposed taxes on paper, glass, lead--and tea. This last tax would be formally affirmed by the Tea Act of 1773.
As the king and the Parliament exerted increasing pressure to impose the will of the British government on the people of American colonies, the people reacted with increasing indignation. James Otis in 1764 was the first to utter the famous objection that these acts were inherently unfair because they represented "taxation without representation". Later, Samuel Adams--a cousin of John Adams--led the Sons of Liberty in rallies and public meetings to protest the increasing weight of oppression on the people of Massachusetts and her sister colonies.

Now skip ahead to a period some twenty years later. The Colonials have defeated the British Crown in the Revolutionary War and have gained their freedom. But it's one thing to win one's freedom; it is quite another to actually form a stable government that serves the people. America's first attempt, in fact, was acknowledged as an abject failure. The Articles of Confederation, enacted in 1781, established a weak central government that was soon recognized to be wholly inadequate to serve the young nation. And so, during the miraculous summer of 1787 in Philadelphia, a Constitutional Convention was called and was convened on 25 May 1787. 

During that hot summer, nearly all of the giants of the colonial era--including Washington, Madison, Hamilton, Adams, and Franklin (Thomas Jefferson would undoubtedly have been there except that he was serving as America's emissary to France at the time)--joined with other icons of the Revolutionary era to propose, debate, study, and ultimately forge what Gladstone would call "the most wonderful work ever struck by the brain and purpose of man".

With a crippling war in their rear view mirror--and with fresh memories of what oppression felt like when the British government levied taxes and enacted laws which increasingly restricted their individual freedoms--the Framers of the Constitution began by boldly claiming that the Constitution represented "the people of the United States", and that the people would form a republican government based on representative democracy. The Founders framed the new government with a series of checks and balances, designed to limit power in any one branch so that the pursuits of life, liberty and happiness would be less likely to be breached by a strong and overbearing central power such as they had seen embodied in King George. How were these checks and balances established?

Consider the following:
  • The executive branch could propose--but could not enact--laws to govern the people. The passage of laws rested solely in the legislative branch. That said, the new law only became official when it was signed by the President. If the executive branch (embodied in the President) felt that a law had been passed too rashly, the executive had the power to veto a bill passed by the legislature and send it back to the legislative branch for reconsideration. The legislative branch could either revise the law so that it was palatable to the President and enable him to sign it, or it could override the President's veto--but only by a two-thirds supermajority of both houses of the legislature.
  • The legislative branch itself was imbued with a series of checks and balances. Contrary to the original government established under the Articles of Confederation, the Congress consisted of two legislative bodies--the House of Representatives which were elected every two years and the Senate, whose members were elected every six years. These two bodies would by design also serve to check each other. The House (what is commonly referred to today as "Congress") was designed to be closer to the will of the people because it was subject to re-election much more often; the Senate, on the other hand, was designed to be more deliberative, less subject to hot issues which might die down over time. Only the House had (and has) the power to originate bills for raising revenue. Only the Senate has the power to confirm senior members of the executive branch (such as cabinet members) or nominees to the judicial branch (otherwise known as the Supreme Court and the federal court system). Only the House can vote articles of impeachment against a President; only the Senate can actually take testimony and try to President to determine if the President is convicted of those articles voted by the House and is therefore removed from office. The Senate also has the power to ratify treaties. Importantly, the legislative branch (both houses) has the power (not the President) to declare war on a foreign power.
  • The judicial branch does not have the power to make laws, which power expressly resides--as stated above--in the legislative branch. The judicial branch does not have the power to raise revenue, declare war, ratify treaties, or any of the other duties of the legislative branch. Its purpose is to determine whether laws passed by the Congress and signed by the President conform to the Constitution. 
  • But what about laws which might be written a century or two or three later which the Constitution might not expressly speak to? Or what if the Constitution needed to be changed to more accurately reflect the values of the people of a modern nation? The Founders provided for that, too--in the form of the Amendment process. This rigorous process requires that two-thirds of both houses of Congress--followed by the ratification of three-quarters of the states--can amend the Constitution. To affirm how difficult this is to do, consider that it's only been done 27 times since 1788--and the first ten of those in the form of the Bill Of Rights were passed in 1789 and ratified in 1791.
The clear intent of the Founding Fathers--and their collective brilliance--is seen in the Separation of Powers, designed solely to limit the size, scope, reach, and--ultimately--the power of the federal government. Many of the men who debated the Constitution during the summer of 1787 had fought against the oppression of British king. All of them had sacrificed their livelihoods, their treasure, and risked their lives for the liberties so eloquently proclaimed in the Declaration of Independence. When the Constitution was adopted on 17 September 1787, the Founders believed they had bequeathed to the young nation a structure designed to elevate liberty for its people, and for generations of Americans to come.

In the years to come (as we shall see), those liberties seemed only to increase in the form of Amendments to the Constitution. In the next post, we'll review the ways liberty increased during the 19th century. In a later post, we'll see how freedom was chipped away beginning in the early part of the 20th century, and how this phenomenon has gained great momentum in the past forty years or so.

12 May 2010

The Ninth Circuit's Newest Nominee

There are eleven US Circuit Courts in the United States. Of those, the largest and the most controversial is the Ninth Circuit Court, headquartered in San Francisco. The Ninth Circuit Court's jurisdiction is huge, covering nine Western states, Guam, and the Marianas.

But it's not the Court's size which makes headlines; it's the extreme, sometimes bordering on ideologically radical, rulings handed down that gets peoples' attention. The fact that the Court is packed with a high percentage of liberals appointed by Democratic Presidents is not in itself objectionable. What is a matter of concern is the Court's atrocious record in adequately and accurately interpreting Constitutional law in its rulings. In 2009, for example, laws set by the Ninth Circuit were overturned in 15 of the 16 cases reviewed by the U.S. Supreme Court, which is hardly a bastion of conservatism.

Now President Obama has nominated a liberal, Goodwin Liu, who--if confirmed by the Senate--will accomplish the near-impossible feat of shifting the Ninth Circuit even further to the left. Liu, a University of California Berkeley law professor, is a committed left-wing idealogue. As we will soon witness with the confirmation hearings of Obama's newest Supreme Court nominee, Elena Kagan, it is customary for Senators to review a judge's past rulings, writings, opinions, speeches, even letters to the editor to try to divine how a judge will rule once he or she has a seat on the court to which they've been nominated.

But in Liu's case, he is asking the Senate to suspend disbelief by making this rather remarkable statement: "As scholars, we are paid, in a sense, to question the boundaries of the law, to raise new theories, to be provocative...but the role of a judge is to faithfully follow the law. Whatever I may have written would have no bearing on my role as a judge." And yet Liu, in his past writings and speeches, has advocated that the courts create constitutional rights to education, shelter, subsistence, and health care and to rule based on "how a judicial decision may help forge or frustrate a social consensus". He has advocated reparations for slavery, racial quotas in hiring, and the use of foreign statutes to discover the meaning of American laws. In short, Mr. Liu thinks that the U.S. Constitution means whatever he wants it to mean.

In their collective wisdom, the Founding Fathers knew that the Constitution would need to be changed over time to reflect the values and sensibilities of a modern nation. They provided an avenue for that change to occur in the form of Amendments. But they also placed an extremely high and difficult bar for change to occur: an amendment must be approved by two-thirds of both houses of Congress, followed by ratification of three-quarters of the state legislatures (all states except Nebraska have bicameral legislatures, meaning both houses of those states must also approve an amendment).

The Founding Fathers explicitly and deliberately did not provide for new law to be made from the bench of any court, including the Supreme Court and certainly not the Circuit Courts of Appeal. According to the Constitution, laws were and are to be made by the legislative branch and interpreted as consistent (or not) with the Constitution by the courts.

Goodwin Liu (and, for that matter, President Obama who has sworn to "preserve, protect, and defend the Constitution of the United States") would do well to re-read the Constitution.

01 May 2010

On This Day...

A lifetime ago today, on May 1, 1945, a German reporter announced this shocking news to his fellow countrymen: "The Fuhrer has fallen at his command post at the Reich Chancellery fighting to the last breath against Bolshevism and for the homeland of Germany".

Six days later, on May 7, General Jodl signed the act of unconditional surrender which officially ended the Second World War in the European Theatre (Japan would not finally surrender until some three months later). World War II remains the signal event of the 20th century, and its effects are still felt today, 65 years after it ended.

How? There are many reasons, but consider these:

  • The five permanent members of the United Nations Security Council represent the victors of the Second World War: Russia, China, Great Britain, France, and the United States. Germany and Japan, arguably more powerful and influential than Britain or France, are conspicuously not permanent members.
  • Some twenty years after the Berlin Wall fell, post-World War II tensions still exist between Russia and former members of the old Soviet Union. Georgia and Ukraine figure most prominently in the headlines.
  • In recent years, the lunatic leader of Iran, President Ahmadinejab, has declared that the Holocaust is a historical lie foisted on the world by Israel and the United States.
  • The North Atlantic Treaty Organization--NATO--which was formed in the immediate aftermath of the war to allow the USA to help protect its European allies from Soviet adventurism, still exists today--having substantially expanded its membership to include many former Soviet states and satellites, including Albania, Bulgaria, Croatia, the Czech Republic, Slovakia, and Slovenia among others. Importantly, NATO also includes the nation of Turkey, the largest Muslim nation in the world.
One of the United States' most enduring historical triumphs was the Marshall Plan. A total of $13 billion--in addition to the $12 billion the United States had offered to the war-torn countries of Europe prior to the Marshall Plan's creation--was poured into Europe to assist the crippled nations of our former enemies rebuild their towns and cities and, ultimately, their pride and their livelihoods. The program's irrefutable success is measured today in the fact that Germany is one of America's closest allies--and a champion of human rights, including its recognition of the nation of Israel.