A More Perfect Union

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Some claim that the U.S. Constitution is a grant of power to govern directly from the people to the national government. They claim that the phrase “we the people” reveals this intent in the framers. There are many reasons this is wrong, including the historical development behind the U.S. Constitution, particularly the Declaration of Independence and its proclamation that the states are of right independent entities. There is also the process by which the Constitution was ratified. It was ratified at state conventions or by state legislatures. It was not ratified by popular vote of all people in the nation.


There is an additional reason found in the very words of the preamble for understanding the Constitution as providing for an entity which serves the free and independent states. The reason is in the word “Union.” A reader must ask, “a union of what?” Is it possible that the preamble means a union of individuals? That idea is quite bizarre. The problem which brought the delegates from various states to a convention was the need for the states to work more closely together, a situation that the Articles of Confederation was powerless to accomplish. So it is in the words of the preamble that the “States” are “United,” not individuals.

Many will reply that in the union of the States there was a giving up their independent authority to the federal government. Is that what “union” means? When I married my wife and became united to her in the covenant of marriage, did I relinquish my identity? Did she? Certainly, we have to work together for each other’s good. Sometimes one of us will give up his or her rights for the good of the other. We do so for the other individual, not because we are a collective whole. A union only exists for the joining of distinct beings in a mutually beneficial relationship.

The states have for many years ignored their role in forming “a more perfect Union.” The federal government for decades has usurped the authority of the states and actually worked against this union for the goal of merging all things into it. This is not a union. The states in the years to come must engage together and work together to reestablish this more perfect Union.

From the Hon. Ed Emery: Wise Words

“Any society that would give up a little liberty to gain a little security will deserve neither and lose both.” Benjamin Franklin


New TSA airport security rules have been frequently in the news. Perspectives vary from demands for increased security to concerns over invasion of privacy and assaults on modesty. The Christmas travel season plus my own recent venture to Washington DC make it timely to comment on the appropriateness and effectiveness of this latest government intrusion. I was also asked by a close friend to offer some comments. First, let me say that in my trip to DC, I didn’t set off any metal detectors so I was not forced to endure a pat-down or digital disrobing. Nevertheless, that this preposterous policy would be conceived in America, much less tolerated by Americans is a testimony to several cultural phenomena:

One-size-fits-all security – As Americans abandon independence and personal accountability, travelers have fallen to depending on for protection. Government might seem the appropriate institution except that fundamental principles of security are being ignored. Name a successful law enforcement agency or security company that does not profile for likely suspects. They rely on highly trained profiling experts to aid in protecting the innocent and apprehending the guilty. It works! I guarantee you that if airlines were in charge of security instead of our infamous Homeland Security Dept., profiling would be vital, not criminal. No intelligent person would choose random selection as the answer to airport security – only the federal government. Rejecting the truth makes one prey for foolishness.

Motivated by fear over reason – “Don’t panic” is the notable advice in every emergency. Panic may motivate lots of activity but seldom effective resolution. Panic makes us open to unreasonable and even harmful ideas that reason would reject. What thoughtful person really expects an airline to be hijacked with a 1 ½ inch fingernail file? A delegated function of our government is to make and enforce rules for the common good. A measure of its power over its citizens is the amount of absurd and futile rules we will endure. Panic empowers government, not people.

Panacea of a harmless society – Americans have been brainwashed that with enough power, government can produce a harmless environment. If that were true, there would be no crime or injury in China, Iran, or Illinois. Justice anticipates offense and provides for a response. For a free people to remain free, that society must accept that offenses will come and be prepared with just responses that range from fines to jail to the electric chair to stealth bombers.

Neglect of our national identity – Liberty will always be opposed by those who demand submission. America is the central planner’s worst nightmare because we prove daily that influence, prosperity, success, and fulfillment come from individual freedom, not central government control. Our commitment to personal freedom is both substance and proof of American Exceptionalism. America is anathema to elitists and dictators. But the abandonment of our rich national identity hinders our response to terrorist acts because we fail to treat acts that target citizens (instead of armies) as national offenses. President Reagan’s targeted bombing of Libya is a case in point of how to deal with terrorists. It has changed world politics and protected Americans for decades.

Part of American exceptionalism is that we have the government we chose (some would say we deserve). Walt Kelly, cartoonist, in his “Pogo” comic strip coined the phrase “we have met the enemy and he is us.” If we don’t like the path our government is choosing, we can change it, and it doesn’t take a revolution – it takes an election. The 2010 election proves we can still take charge, and it was another testimony to American exceptionalism. But is America falling victim to a thousand cuts, and are new TSA regulations one of those cuts? I think so. The question is not so much what will I do the next time I fly, but what will I do in 2012 when I vote.

A More Perfect Union

Peter Leithart writes in his Intro to The Four: Survey of the Gospels: "To get it right, we need to distinguish between person and nature, know the difference between substance and subsistence, know that there can be union without mixture and distinction without seperation, and believe the Word is en-hypostatically related to an anhypostatice human nature." What a great beginning.

Socialism is Theft

It is time to change the word “socialist” to “thief.” In recent days, after President Obama came forward with an agreement in principle to extend the so called “Bush Tax Cuts,” there has been no end to the harangue about the rich being “benefitted” at the expense of the poor. Have we really fallen so far as a nation that anyone would accept this characterization? Have we really fallen so far that any would accept the concept that money by its very nature is the government’s to be distributed at its sole discretion? Money belongs to people, not to governments.

The Declaration of Independence sets forth the core principles of this nation. In part, it states as follows:

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, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

In today’s world, the words “pursuit of happiness” have lost their meaning. For John Locke, the word was “property.” In the words of the Virginia Declaration of Rights adopted in 1776, the entire phrase was “the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.” For Witherspoon, the words “pursuit of happiness” meant the “pursuit of public righteousness.” The founders understood that a people could not be truly free unless they were secure in their property. It is for this reason that the various taxes imposed by King George became the pivotal point around which the war for independence began. “No King but King Jesus” was spoken on the very same lips as the phrase “No taxation without representation.”

We now have a significant portion of our society that implicitly thinks that all property, including money, belongs to the federal government. Why else could anyone possibly imagine that a tax cut is a “benefit” to anyone? If it is the people’s money, a tax cut is simply reducing a confiscation of that property.

Let’s be clear: Socialism is not an economic theory. Socialism is theft. Capitalism is inherent in creation. Before the establishment of governmental structures, what economic structure was there? There was bartering. Bartering is capitalism. A free exchange of goods and services for the mutual benefit is the way that man naturally transacts with his fellow man. When nations deal, how do they deal? Even in the most socialistic of times, socialist nations barter as capitalists. China buys American debt for its own self interest. It does not do so for the sake of other nations. Unfettered capitalism is guaranteed in our founding documents in the protection of our property. Unfettered capitalism is the best and most effective way for assuring liberty and providing for economic growth.

Socialism is a top down imposition of governmental power for the taking of money from some for distribution to others. It is in its most basic identity theft. Frederic Bastiat, in his treatise “The Law” called it “legal plunder.” “Legal plunder” distorts the sensitivities of the public so that they are unable to discern justice any more. And if a culture is unable to discern justice, it is unlikely that it is able to discern mercy. Calling tax cuts “benefits” to the rich is the final conclusion to the corruption or our capability to discern justice and mercy.

Therefore, I propose that conservatives adopt the terminology that any tax over 10 percent of a person’s income be called theft. Scripture makes clear that taxation above 10 percent makes a people slaves. We, as a nation, need to radically rethink and talk our culture back to the way it was at its founding. We need to reclaim our liberty. Our constitutional system of government was designed for a moral and religious people according to John Adams. We must realign our thinking so that we can once again rightly discern justice and mercy. Words have meaning. Let us label confiscation of our property at the hands of the federal tyrant as what it is, theft.

Repeal Amendment Yes, Con Con No

On November 29, Patrick Tuohey wrote in support of “The Repeal Amendment” in the Missouri Record. http://missourirecord.com/news/index.asp?article=10204. I applaud and support Patrick’s proposal of the repeal amendment. While Patrick distinguishes the repeal amendment from nullification, in actuality, the repeal amendment would explicitly insert the concept of nullification within the very terms of the U.S. Constitution itself. As quoted by Patrick, the repeal amendment would state as follows:

Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.

While I believe the right of nullification inherently resides within the sovereignty of the states, Patrick would make that right explicit within the Constitution. This would significantly clarify the situation.

There is one aspect of Patrick’s proposal that does give me great pause, however. The significant question that remains unanswered is how the amendment should be accomplished. The U.S. Constitution provides for two ways of amending it. As Patrick points out, the states may either ratify an amendment proposed by Congress or call for a constitutional convention. Many in the past have proposed that the states should call a Constitutional Convention (or a “Con Con”). Patrick implicitly supports the effort of calling for a Con Con in that he cites state action in this regard. While there is great potential benefit in adopting the repeal amendment, I believe there is greater potential risk in calling a Con Con.

Let us look at what we have. Patrick rightly points out that our Constitution is a marvelous document. The flaw in our culture today is not in the document itself but in the people who are the caretakers of the powers delegated by the document. The simplest of solutions is to find people who will be faithful to the trust that they have been given.

The real risk of a Con Con is that the Convention would be free to propose amendments to the Constitution. Presumably the Convention could propose as many changes as it wanted to the Constitution, including a complete rewrite of the Constitution itself. After all, such is the origin of our original Constitution, proposed in a convention called to amend the Articles of Confederation.

With this possibility at hand, I am forced to ask the question, would I prefer to live under a document written by the statesmen of the past or the politicians of today. Let us compare the two. Our founders, for the most part were classically trained men who read Cicero, Locke, and Blackstone. According to Patrick Henry, “It cannot be emphasized too strongly or too often that this great nation was founded, not by religionists, but by Christians, not on religions, but on the gospel of Jesus Christ!” This means that they believed in certain absolutes, among these was the certainty of the law. According to Sir William Blackstone, the great legal commentator of the time, “This law of nature, being coeval with mankind and dictated by God himself, is of course superior in obligation to any other-It is binding over all the globe in all countries, and at all times; no human laws are of any validity, if contrary to this: and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original.” Blackstone went on to recognize the source of all law as the Bible. “This has given manifold occasion for the benign interposition of divine providence; which, in compassion to the frailty, the imperfection, and the blindness of human reason, has been pleased, at sundry times and in diverse manners, to discover and enforce its laws by an immediate and direct revelation. The doctrines thus delivered we call the revealed or divine law, and they are to be found only in the holy scriptures.” What is significant is that our founders understood that what God gives man cannot take away. They were driven by a vision of liberty for all.

Our present generation of politicians does not understand even these most basic of concepts. Consider now that our culture's most recent fad principle is “Hope and Change.” Our leaders for the past two years have been guided by the proposition of spreading the wealth around, i.e. legislated theft. Have our leaders ever read Blackstone? Do they understand the moral underpinnings of liberty as John Adams did, Adams who said, “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” To post modern culture truth is relative. Political correctness is the overriding principle today. I would not chance the rewrite of our great national charter to times such as these.

However, there is a way to achieve the adoption of the repeal amendment with greatly reduced risk to our national charter: have Congress propose it. If as Patrick states, one can hope that it will gain traction with liberals as well as conservatives, it should be proposed in Congress. If Congress proposes the amendment, the states can ratify that one amendment and no others. One might also suggest an ancillary amendment to the constitution and that is to permit the states to propose specific amendments for consideration by the other states and the Congress. Such a dialogue among the states would be healthy.

How to Identify Legal Plunder

But how is this legal plunder to be identified? Quite simply.
See if the law takes from some persons what belongs to them,
and gives it to other persons to whom it does not belong. See if
the law benefits one citizen at the expense of another by doing
what the citizen himself cannot do without committing a crime.

Then abolish this law without delay, for it is not only an evil
itself, but also it is a fertile source for further evils because it
invites reprisals. If such a law—which may be an isolated case—
is not abolished immediately, it will spread, multiply, and
develop into a system.

The person who profits from this law will complain bitterly,
defending his acquired rights. He will claim that the state is
obligated to protect and encourage his particular industry; that
this procedure enriches the state because the protected industry
is thus able to spend more and to pay higher wages to the poor
workingmen.

Do not listen to this sophistry by vested interests. The
acceptance of these arguments will build legal plunder into a whole system. In fact, this has already occurred. The presentday
delusion is an attempt to enrich everyone at the expense of
everyone else; to make plunder universal under the pretense of
organizing it.

Frederic Bastiat, The Law

The Purpose of the Law

When, then, does plunder stop? It stops when it becomes more painful and more dangerous than labor. It is evident, then, that the proper purpose of law is to use the power of its collective force to stop this fatal tendency to plunder instead of to work. All the measures of the law should protect property and punish plunder.

Frederic Bastiat, The Law

The Law Perverted

The law perverted! And the police powers of the state perverted along with it! The law, I say, not only turned from its proper purpose but made to follow an entirely contrary purpose! The law becom the weapon of every kind of greed! Instead of checking crime, the law itself guilty of the evils it is supposed to punish!

If this is true, it is a serious fact, and moral duty requires me to call the attention of my fellow-citizens to it.

Frederic Bastiat, The Law

Lukewarm (Truths About the Middle) by the Honorable Ed Emery

The following is from Representative Ed Emery, and, as usual, he nails it:

I am sure we will be talking about the 2010 election for decades, but one phenomenon being misunderstood is the diminishing of “the middle” in both major parties. The electorate began to pay attention when they saw freedom - the core of American exceptionalism - being replaced by the failed model of czarism. This quickened attentiveness, inspired thought, and provoked citizen-action (not something big-government liberals welcome).

The 2010 election was not so much about party or even policy as it was about character. The voter was looking for someone he/she could trust, someone who would tell them the truth about Washington, D.C. and about America. The Tea Party embodied that sentiment, and career politicians were its antithesis. American voters questioned the country’s direction, and determined to do something about it; this may have been the first election the bulk of average Americans have taken seriously in decades.

There will be a different look to Congress and to the Missouri legislature in 2011. Candidates who won may be working for meaningful reform as their top priority instead looking first to their next position, election, or fundraiser. However, the statesman must be willing to swim upstream because the indoctrination of “majority” will have already begun both in Jeff City and in DC. They may be told that their priorities are first to win re-election in 2012, second to get other party members elected to ensure the majority, and finally, in the process appease their constituency. Newest members will be addressed as “Honorable” and be treated by special interests as kings and queens – intoxicating.

The good news is that more real people are paying attention, so the next election may become even more significant than 2010 because the next election will prove if voters were just angry or were actually awakened. Will we monitor those we elected, encourage their statesmanship, and be willing to vote them out if we discover we were wrong about their character and that they do not deserve out trust. Primary elections may again become instruments of reform if voters take their responsibility seriously. We can never again forget or neglect that in America we get the government we choose (elect).

I reject the notion that “moderates” lost because people weren’t thinking. Moderates lost because voters woke up to the truth that lukewarm does not protect personal liberties; it compromises them. Lukewarm protects the status quo, not constituents and the Constitution. Even the Bible confirms that lukewarm is nauseating. Notice that successful candidates are more reflective of party platforms after the 2010 election. The democrats are more liberal and the republicans more conservative because that is what the platforms say and the voters chose. Losing the middle is not the tragedy the news media claims, on the contrary it signals that voters largely rejected compromise-above-character or politics-above-principle. Voters want to trust their elected officials not serve them.

The Sacrament of Nullification

“The conservatives took control of the House of Representatives, now what?” Whether you believe the statement to be true or not, this is the question that is consuming everyone with an interest in politics. What will the President do? Will he change direction? Will he moderate? What will Congress do? Will the Republicans compromise? These are all questions that the political pundits and private citizens are asking. All eyes are on Washington, D.C. to see what shift will occur as a result of the electoral sea change was produced on November 2.

The next step does not belong to the federal government in Washington, D.C. The next step belongs to the states. In a previous article “Nullification v. Revolution,” I suggested that the Declaration of Independence was the model and guide for the states in responding to the federal tyrant if it did not change its course. Now it appears that there is a possibility that there may be a change in course due to the election of November 2.

However, the change appears to be only in seed form. While there was a vast change in the makeup of the House of Representatives, those who orchestrated the reign of tyranny from the White House and U.S. Senate for the past two years are still ensconced on their thrones. The states also should remember that simply being controlled by Republican does not mean that the House will move the federal government to be faithful to its covenant obligations found in the U.S. Constitution. Lest we forget, the Republicans had much more control during the period from 1994 to 2004 and the Republicans failed to change the course of the federal tyrant. In fact, they fostered it.

If the Declaration of Independence is the model and guide on how the states should respond to tyranny, the U.S. Constitution is the guide on how the states should live together. The word “federal” in the phrase “federal government,” is defined in the 1828 Webster’s Dictionary as “Pertaining to a league or contract; derived from an agreement or covenant between parties, particularly between nations.” This is a significant and glorious meaning that most of our politicians have lost with their loss of the status of statesmen. A covenant has to do with a compact or trust between separate entities. The covenant of the states is the U.S. Constitution.

The key to understanding the U.S. Constitution at this point in our covenantal history is the Tenth Amendment. The Tenth Amendment is the only provision that attempts to set forth the manner in which the Constitution is to be interpreted. It clearly states that, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The federal government is a government of limited powers. The U.S. Constitution must be read with this understanding in mind.

The federal government has clearly lost its way in constraining itself within the limits of the delegation of authority granted by the states. It taxes and spends money on frivolous projects. It places our children in debt for the sake of benefits to particular individuals. It fails to secure our boarders, one of its primary functions. There is little evidence that it can begin to do so unless an outside force is exerted on it. That source is the very entities that established it in the first place: the states.

If one studies ancient near east covenants, one finds that covenants incorporated a covenantal sign and seal. The sign was often a ritual meal. For the ancient Hebrew nation, there were at least three such covenants with covenantal signs: the rainbow, circumcision and the Sabbath. When exercised or recognized, these covenantal signs (we now call them sacraments) brought the covenant members long life and health, for they impressed a remembrance of the covenantal relationship on the people and encouraged them to be faithful to the covenant.

It is high time that the states adopt a sacrament in their covenantal lives with the federal government, a symbol to encourage the federal government to remain faithful to its covenantal obligation, and that sacrament is found in the Tenth Amendment. The states must remind the federal government of the limits of its authority. It can only do so by nullifying those laws which they find beyond the enumerated powers delegated to it.

Ed Lazarus has decried the use of nullification:

But nullification is a deeply pernicious idea. It strikes at the core of the constitutional bargain that was struck after the Revolution when the Articles of Confederation failed – the working principle that we are all in this together and that the purpose of the federal government, a government in which every state is represented, is to calibrate the shared sacrifices that all of us will have to bear to preserve the country's economic vitality and help it prosper.

See http://writ.news.findlaw.com/lazarus/20090312.html. This is no way to describe the healthy relationship created by the U.S. Constitution: “to calibrate the shared sacrifices” that the federal tyrant will impose from on high, the sacrifices of liberty that burdening taxes impose on the citizens of these great fifty states and their children. A healthy relationship includes a give and take and a healthy rebuke from time to time and a consistent reminder to be faithful to the relationship.

In 2009, in addition to the Missouri Healthcare Freedom Act, the Missouri Legislature debated a resolution to instruct the Missouri Congressional delegation to vote against the cap and trade bill. One of the opposing arguments was that such debate was a waste of time. The resolution would not be worth the paper that it was written on. Should anyone be able to make such a statement about a communication made in a healthy relationship? The very argument emphasizes that the relationship the states created among themselves is terribly sick and must be cured.

There are good signs of change from the electorate of a healthy shift in their perception of the federal government. The states must now foster and support that change. New patriots in Congress will need that support to make the change due to tyrannical advisories and due to their own human weaknesses.

Change is in the offing, but we are still very sick as a nation. There is a cure to this national tyranny. The national relationship of the states, the national covenant, must be resurrected and respected. The cure is found in the development of a strong relationship among the states as expressed in the Tenth Amendment to the U.S. Constitution. The states must exercise that relationship by the consistent and faithful act of nullification.

The Morning After

Cal Thomas writes in Townhall.com in a piece called “The Morning After”:

Republicans should begin with school choice. Every poor person in every city should be able to withdraw his or her children from failing public schools and place them either in charter or private schools with taxpayer money. More than any welfare program, school choice will free a generation of youngsters from repeating the cycle of poverty. Republicans should re-authorize the D.C. Scholarship Fund, which Democrats allowed to die, despite its popularity and success.

Cal should know better than this. The tea parties have been railing for more than a year now to stop the federal spending. However, it is apparently very easy for even conservatives to be seduced by the power of the federal government. I agree that it would be wonderful to help the poor in the inner city to have a good education, but the ends do not justify the means. We are putting our children’s children in debt for benefits to select groups of people chosen by our federal government. Cal in his proposal is doing exactly the same thing, just with a different chosen benefactor. Injustice in the form of socialism is injustice whether you are confiscating money from taxpayers for the benefit of Wall Street tycoons or any other group. While I may prefer this form of socialism, it is still socialism and unjust.

In addition, it is the power of the federal government that has made our citizens dependent on the power of the federal government. Making our children’s education dependent upon the federal dole continues that spiral into dependency. It is time for the Republicans to break that spiral of dependency.

Finally, Cal’s proposal is unconstitutional. The tea parties have been vocal on this point as well. The U.S. Constitution is silent on the federal government’s role in education. The federal government may only exercise such powers as are specifically listed in the Constitution. Therefore, Congress has no authority to tax its citizens in order to engineer a social outcome through education.

Cal should recognize that the primary source of education is the family and the church of Jesus Christ. If the Republicans are to be consistent with their own rhetoric, they should seek to encourage those two parts of society to reengage in the field of education. If they must act, at least do it in a manner which encourages private giving. If they must do it through a tax or incentive, a tax credit for any voluntary contribution to a private institution for educational purposes would be a far superior tactic.

A Response to Stephen Broden

The Blaze (http://www.theblaze.com/) has reported that Texas Republican congressional candidate Stephen Broden renewed an observation that he has made in the past that a violent overthrow of the government is a viable option if America continues down its current path. According to the Blaze,

In 2009, Broden said that there is a solution to tyranny: “We have a constitutional remedy. And the Framers say if that don’t work, revolution.”

It was in response to a question regarding that statement that he said revolution is a viable option: “Our nation was founded on violence; the option is on the table. I don’t think that we should ever remove anything from the table as it relates to our liberties and our freedoms. However, it is not the first option.”

“If the government is not producing the results or has become destructive to the ends of our liberties, we have a right to get rid of that government and to get rid of it by any means necessary,” Broden added.

While violence is always a possibility, it is not true that our nation was founded on violence. The Framers did not say, “If that don’t work, revolution.” That was the course of the French revolution. What the American Framers did say was, pursue a legal dissolution of the ties that bind the states to Great Britain. What the Framers did say is if violence comes from the tyrant, so be it.

The Declaration of Independence is a wonderfully crafted legal document, initiating a covenantal law suit against the crown in Great Britain. It begins by declaring the rights of the states to their sovereignty under God. It then sets forth a lengthy list of the rights of Englishmen which King George had violated. It concludes with the following declaration:

That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. — And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.

Violence did come, but the violence was initiated by the English tyrant, not the states. Yes, the states did defend themselves as was their right, but their defense was a response to an invasion by the English tyrant.

We are facing unprecedented times in these United States, times in which the tyranny of the federal government approaches, and may have even surpassed that of King George. Broden has rightly assessed the times, but he has not rightly assessed the proper response. The states retain their authority to this day to dissolve the legal ties that bind them to the federal government. That is the proper next step in responding to the federal tyrant.

Many argue that the states gave up their authority with the adoption of the U.S. Constitution. This is a fact that the Civil War confirmed. Nothing could be more patently absurd. If my friends and I resolve to start a business and create a corporation to conduct our business, there is nothing in the creation of that corporation that denies us the right to liquidate that business. Further, if anything, the Civil War confirmed that the states retain the authority to dissolve the relationship with the federal government. War by its very nature is recognition of competing sovereign authorities. One power being unable to achieve its goals with another power by legal means in this world may resort to violence to achieve its goals. We call it a war because it is a violent conflict between two sovereign powers.

If the November midterm elections change the course of our federal government, that is all well and good. If the November midterm elections do not change the tyrannical course of our federal government, the proper next steps belong to the states. The states must remain faithful to the U.S. Constitution if the federal tyrant will not. The states should consistently and faithfully declare in law where the federal tyrant exceeds it authority. They must nullify unconstitutional edicts.

The right of nullification is a muscle the states must exercise. The muscles of the states have atrophied after many years of lack of use. Federal mandates and incentives have induced the states to grow weak in their responsibilities to guard the freedoms of their people. Exercising their muscles will be hard at first. Bribes from the federal government will not be easy to withstand, but they must be.

To some extent, the states have already taken the first steps in their response to the federal tyrant. Various states have declared certain federal edicts null. Missouri exercised its God given authority to nullify the federal healthcare slavery with the adoption of the Missouri Healthcare Freedom Act. Other states are doing likewise. But they must do more. Only by regular and consistent exercise of the right to nullify federal tyranny will the states become strong again.

This is the proper next step. Consistent and faithful state action denying the federal tyrant its usurpation of power will bring the states in conflict with the federal tyrant. Such conflict may eventually lead to secession. Violence may come at the hands of the federal tyrant, but the violence should not be initiated by the states.

Vote Yes on Proposition B, Or Not

Proposition B on the November 2nd ballot, the Puppy Mill Cruelty Prevention Act, strikes me as a good idea. State law does provide that a person is guilty of animal abuse when a person:

(1) Intentionally or purposely kills an animal in any manner not allowed by or expressly [exempted by other statutes];
(2) Purposely or intentionally causes injury or suffering to an animal; or
(3) Having ownership or custody of an animal knowingly fails to provide adequate care or adequate control.

However, this simple law does not appear to go far enough. There are so many things left out. Consider the precise detail with which this new crime is crafted:

[A]ny person having custody or ownership of more than ten female covered dogs for the purpose of breeding those animals and selling any offspring for use as a pet shall provide each covered dog:
(1) Sufficient food and clean water;
(2) Necessary veterinary care;
(3) Sufficient housing, including protection from the elements;
(4) Sufficient space to turn and stretch freely, lie down, and fully extend his or her limbs;
(5) Regular exercise; and
(6) Adequate rest between breeding cycles.

It is very precise on how the crime is committed and by whom. This crime can only be committed by a puppy mill which meets certain specifications. The new law will not apply to pet stores, animal shelters, hobby or show breeders who have no more than ten female breeding dogs, and dog owners who do not breed their pets. It is helpful to understand in each instance how a crime is committed and by what means. The next step no doubt should be to enact the Pet Story Cruelty Prevention Act and the Animal Shelter Cruelty Prevention Act. After that, the next step will be the Hobby and Show Breeder Cruelty Prevention Act. Certainly, there needs to be a Dairy Cattle Cruelty Prevention Act. Each set of circumstances has its own critical considerations. The law must be able to adjust to the factors that drive each business. Only this way will the state be able to manage how each animal is treated.

As our society evolves, these standards can be reviewed and refined. My Shetland Sheepdog Frodo comes from a breeder that sets an excellent example. I now draft the next generation of the Dog Breeder Cruelty Prevention Act based on his example:

Any person having custody or ownership of more than ten female covered dogs for the purpose of breeding those animals and selling any offspring for use as a pet shall be guilty of the crime of dog breeder cruelty unless the person:
(1) complies with the Puppy Mill Cruelty Prevention Act;
(2) has a current knowledge of all illnesses impacting the particular breed;
(3) is competent in grooming the best of the particular breed;
(4) makes a site visit to the home of each prospective buyer; and
(5) at least annually, invites each buyer to a meeting of all owners of the particular breed in order to socialize the animals.

But the serpent said to the woman, "You will not surely die. For God knows that when you eat of it your eyes will be opened, and you will be like God, knowing good and evil." So when the woman saw that the tree was good for food, and that it was a delight to the eyes, and that the tree was to be desired to make one wise, she took of its fruit and ate, and she also gave some to her husband who was with her, and he ate. Then the eyes of both were opened, and they knew that they were naked. And they sewed fig leaves together and made themselves loincloths.

I thank State Rep. Ed Emery for his insights into this proposition.

Tom Bombadil and the Narcissism of the Federal Judiciary

Have you ever been on a journey and lost your way in the forest, thinking you were going in one direction but finding eventually that you had gone in the wrong direction? As I read the Order of the Hon. George Caram Steeh in Thomas More Law Center v. Barack Hussein Obama, I could not help but think of Frodo Baggins in the classic Tolkien tale The Fellowship of the Ring and his companions Sam, Merry and Pippin lost in the Barrow-Downs. If you know the story, you know that Frodo and company head off from the Shire, running from the danger of dark riders, to the safe haven of Rivendell and the elves. On their journey they receive the help and blessing of the ancient and wise Tom Bombadil. After being refreshed by Tom’s hospitality, Tom set the Hobbits on a high place from whence they could see a great deal of the journey before them. Unfortunately, during their decent they come to the Barrow-Downs where a fog overtakes them and they lose their way. It is only after Tom Bombadil hears their cries and rescues for a second time that they are set right on their path again.

The analogy here is not to the order of the judge. The order is a classic example of constitutional jurisprudence. The order identifies the key components of the arguments of the parties and the key elements of the law that is being challenged. It then summarizes and explains the Supreme Court precedence on the issue at hand and applies the law to the facts. The order concludes that the Health Care Reform Act is constitutional. The plaintiff Thomas More Law Center claimed that the Individual Mandate, which provides that individual citizens must obtain a minimum coverage of health insurance or be subject to a penalty, is unconstitutional because it regulates a person’s mere existence or in the alternative his inactivity. Plaintiff claimed that this is not within the purview of the Commerce Clause of the U.S. Constitution. In the order, the court, consistent with Supreme Court precedent, sets forth the three alternative tests for determining whether the activity is within the realm of Congress’ scope of authority for regulating interstate commerce. The court determined that it is the third alternative that is at issue in this case, “those [local] activities that substantially affect interstate commerce.” After almost four pages of discourse on the limits the Supreme Court places on congress regarding how substantial the affect must be for the local activity to give Congress the authority to regulate it, the Court concludes that the failure to purchase medical insurance has a significant impact on interstate commerce. It does so for two reasons: first, the economic decisions that the Act regulates have direct and substantial impact on the interstate health care market and, second, the minimum coverage requirement is essential to the larger regulation of the interstate business of health insurance.

The analogy is to the state of our constitutional jurisprudence. In this twenty page order, an order which addresses the constitutionality of a massive federal takeover of the healthcare industry and subjugation of all citizens to the obligation of the Individual Mandate, the U.S. Constitution is not quoted once. Our constitutional jurisprudence has become so encrusted with court created irrelevancies that it has lost track of the real questions. The simple question, does the U.S. Congress have authority to regulate has become a narcissistic preoccupation which has distracted the court from fulfilling its real purpose. The court has become lost in the fog at Barrow-Downs.

Every law student learns from the case of Marbury v. Madison that the Supreme Court is the final arbiter of the meaning of the U.S. Constitution. The Court, true to this teaching, observed that, “The Supreme Court has expanded the reach of the Commerce Clause to reach purely local, non-commercial activity, simply because it is an integral part of a broader statutory scheme that permissibly regulates interstate commerce.” The focus has now become what the Supreme Court now permits and not what the Constitution provides. Every lower court looks to the high court and to itself to determine now what they permit. The fog of narcissism grows. If this order is permitted to stand, the fog will continue to grow.

It is time for a Tom Bombadil to disburse this narcissistic fog. The U.S. Constitution was and is a compact of the states. This compact created the federal government to serve the states. It did not recognize the federal government as the supreme arbiter. Rather, in the Declaration of Independence, a foundational precursor to the Constitution, the states recognized God as the supreme arbiter. Marbury v. Madison must be placed within this context. Marbury addressed a dispute regarding the internal operations of the federal government, whether a federal magistrate would be seated according to the appointment of the President. The court simply recognized the practical reality that in its position as the declarer of rights in the federal system it must be the final arbiter within that system. It did not address the extent to which the federal government may restrict the liberties of or impose obligations on the states or the people. The federal servant has no capability to judge its delegated authority.

If we are to disburse this narcissistic fog enveloping the nation, we must reevaluate the purposes of the U.S. Constitution. Jesus said, "Woe to you, scribes and Pharisees, hypocrites! For you tithe mint and dill and cumin, and have neglected the weightier matters of the law: justice and mercy and faithfulness. These you ought to have done, without neglecting the others.” The courts must take their eyes off of themselves and their tediousness in figuring out the riddles of what fact patterns meet what test in the Supreme Court’s criteria de jure for expanding the reach of the Commerce Clause and the federal government. They must look to the purpose of the U.S. Constitution:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

The federal government and particularly the jurisdiction of the federal court system exist to insure domestic Tranquility, to provide for the common defense, and to secure the Blessing of Liberty to ourselves and our Posterity. And, no, promoting the general welfare cannot be taken out of the context of these other purposes. Promoting the general welfare must be consistent with our liberty, tranquility and defense, not a justification for burdening the liberty, i.e. the taxing, of some for the benefit of others.

Where does Missouri go from here? The citizens of Missouri have spoken on the law of this state as it relates to the federal health care tyranny. The law of the state is that there shall be no Individual Mandate. The challenge for the Missouri judiciary is to cast off the narcissism of the federal judiciary. The challenge for the Missouri judiciary is to give the Tenth Amendment of the U.S. Constitution its rightful place again in the compact the states have made with each other and to secure the liberty of its citizens. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Perhaps the Missouri judiciary will fill the role of Tom Bombadil.

A Delaware Lesson for Missouri

Is there anything that the Missouri GOP can learn from the Delaware primary for the U.S. Senate last week? There is if it can get past the tangled web that its Delaware counterpart created. In the past several weeks, the establishment Delaware Republican Party has made itself irrelevant for any general election campaign in Delaware.

Within political parties, there is a classic debate between the “large tent” and the “small tent” strategy. The view of the large tent is that a political party must be inclusive of a wide divergence of positions in order to permit the group to coalesce around one banner for the sake of size and power. To exclude individuals based on their views limits the size of the party and its influence. The large tent view permits a party to select a candidate that can win the race for an office in keeping with the philosophy of the region where the election is held. The theory of the small tent, in reaction thereto, is that if the views permitted by the party become too broad, the party will lose its distinction and become meaningless in its message. The small tent view permits a party to maintain a consistent message and educate the nation based on a principled message, but risks the party becoming isolated (or so it is the theory).

It is into the dilemma of the large tent, small tent views of a political party that the Delaware Republican Party fell as it responded to the efforts of the tea party. During the primary, the Delaware Republican Party supported long time Congressman Mike Castle, a candidate considered by many in Delaware and in the rest of the nation to be too liberal. However, the Delaware Republican Party responded that only a moderate of his type was capable of winning an election in blue state Delaware. This is the classic large tent view of the political party. Only by the conservatives accommodating a more moderate view from Delaware may the party grow and win the election.

The tea parties, on the other hand, supported Christine O’Donnell, whom they believed to be the more conservative of the two and to hold views truer to the traditional Republican standard. They were not prepared to bend their principles for the sake of the large tent view. Their principles committed them to a small tent view of the party.

What happened in the primary was ironic. However, it is a classic example of what will invariably happen to a large tent disconnected from its moorings. In its rhetoric, it opposed Ms. O’Donnell, saying she could not win in Delaware. The establishment Republican Party shifted the focus of its message to value of the large tent at the expense of substance. In an attempt to obtain power, substance was lost to expedience. The small tent tea party attempted to persuade the citizens of Delaware to its point of view and ultimately became a bigger tent than the big tent Delaware Republican Party by winning the election. The Delaware Republican Party is now on record as claiming that its candidate cannot win the general election, a position indistinguishable from the position of the Democratic Party. A desire for expedience has made the Delaware Republican establishment obsolete.

What should Missouri Republicans learn from these events? They should learn that the ultimate outcome of a large tent view is eventually irrelevance. Irrelevance comes either in the form of being indistinguishable from those around you or in becoming isolated, seeking only power for power’s sake. The argument that a certain candidate cannot win with the views of the small tent is a self fulfilling prophesy; it is self defeating. As the small tent accommodates to the big tent, the message is lost. A perfect example of this is the recent montra of the media that any thought to eliminate the federal Department of Education is extreme. This is a proposition which has been championed as wise thinking within my lifetime. The message has been lost.

A small tent view is a significantly more difficult position to be in the short term. It may mean loss for a time. However, it has far greater long term value. A small tent view, that is principled, can become a big tent by persuading the culture to the small tent’s principles as was done in the Delaware Republican primary. Ronald Reagan, the champion of conservative values in the Republican Party decades ago, was elected as governor of the state of California, one of the bluest of blue states today. Ronald Reagan brought the nation to him through a reasoned, persuasive dialogue on conservatism. He did not capitulate to a broader view of his party. He brought Republicans and Democrats to him.

What do these events recommend to the Missouri Republican Party? I have several observations, and these observations go primarily to Congressman Roy Blunt. If elected to the U.S. Senate, he will be the primary standard bearer of the Missouri Republican Party. First, return to principle. The Republican Party has been called back to its roots by the tea parties. It has been called back to a conservative ideal of strict construction of the Constitution, to a limited federal government and free markets. I am deeply impressed with the practice of State Senator Jim Lembke. Jim carries the Missouri Constitution wherever he goes. It is dog eared, worn, written in and bent. He almost never fails to testify that it is his guide in his job. I suspect that he is following an old admonition of Scripture.

And when he sits on the throne of his kingdom, he shall write for himself in a book a copy of this law, approved by the Levitical priests. 19 And it shall be with him, and he shall read in it all the days of his life, that he may learn to fear the LORD his God by keeping all the words of this law and these statutes, and doing them, 20 that his heart may not be lifted up above his brothers, and that he may not turn aside from the commandment, either to the right hand or to the left, so that he may continue long in his kingdom, he and his children, in Israel. Deuteronomy 17:18-20.

Roy, your practice should be the same with the U.S. Constitution. Therefore, when you have opportunity to vote once again on TARP, your vote should be no. When you speak of repealing nationalized healthcare, your reason should not be we cannot afford it. Your reason should be “IT IS NOT CONSTITUTIONAL.” Stay principled in keeping your commitment to the U.S. Constitution.

Second, eschew requests for bipartisanship. Our constitutional form of government was designed to protect the liberties of all. In our culture, bipartisanship has become a fraudulent catch phrase for surrender. Today bipartisanship is used by the majority party to induce the minority party to give up the rights of certain people for the legislated benefits of others. This should never be granted in a free republic. You have no right to give up the rights of the people you represent and subject them to tyranny, the confiscation of their property for another. By maintaining a small tent, you will create a large tent.

In closing, I recall a brief conversation I had with former state representative Roy Cagle. I met Mr. Cagle several years ago when he was the Minority Floor Leader of the Missouri House of Representatives. I introduced myself to him again after more than twenty years. He had no reason to remember me and he did not. By way of complement, I thanked him for his service to the state and told him he had served in the Legislature with my father, Bill Linton. At that his response changed appreciably. “Ah, Mr. Conservative, how is your father?” was his response. I told him he was doing well. He heartily thanked me for stopping him and for my kind words. My father’s commitment to principle had made an impression that had stuck. Commitment to principle always leaves a lasting impression. Capitulation does not. Thanks, Dad, for your commitment to principle.

Override the Governor's Veto of HB 1903 on September 15

On July 14, Governor Jay Nixon vetoed House Bill No. 1903. His reasons for rejecting the bill, though several, revolved around his disagreement on the handling of federal funds transmitted to the states from the federal government. How are we to think of this turf war between the Governor and the General Assembly in the state of Missouri? The best way is to return to an understanding of the respective functions the legislative and executive branches of our government.

In 2009, the Missouri General Assembly passed and the Governor signed Senate Bill No. 313. SB 313 established two funds within the state treasury, which funds were virtually identical, except that one was for collecting federal budget stabilization funds and one was for collecting federal stimulus funds, both granted to the state due to the American Recovery and Reinvestment Act of 2009. The bill directed the state treasurer to invest the money in the funds for the benefit of the funds. It also specified that the funds would not revert to the credit of the general revenue fund.

In 2010, the Missouri General Assembly passed House Bill No. 1903 which created two additional funds for subsequent gifts from the federal to the state government. These two funds, again, were virtually identical to the two funds created by SB 313, except that they were created for (1) subsequent federal appropriations to the states for extended budget stabilization or a temporary increase in the Medicaid Federal Medical Assistance Percentage and for (2) federal appropriations to the states as part of the federal race to the top program. The federal race to the top program is a race established by the federal government to provide financial incentives to states for complying with federal education standards. The key differences in these two funds are that the legislature required the commissioner of education to seek approval of the distribution of funds from a joint legislative committee and that moneys remaining in the fund at the end of a specified period would revert to the general revenue fund.

In his veto message, Governor Nixon cited three reasons for his rejection of HB 1903:
• The two additional funds are an unnecessary duplication of funds created by SB 313.
• The joint committee’s approval of the distribution of the race to the top funds is an improper intrusion by the legislature into the duties of the executive branch. And the process would unnecessarily delay distribution of funds to the schools of the state.
• By allowing the moneys to revert to the general revenue fund, the legislation violates several federal conditions on the race to the top money and subject the state to sanctions.

The first two stand or fall together with an understanding of the respective roles of the legislative and executive branches of the government. The third is far more complex and becomes an issue of wisdom. Article III, Section 1 of the Missouri Constitution declares that, “The legislative power shall be vested in a senate and house of representatives.” Simply put, the General Assembly has the duty to write law. Article IV, Section 2, more explicitly sets forth the duties of the Governor. “The governor shall take care that the laws are distributed and faithfully executed, and shall be the conservator of the peace throughout the state.” The duties of the Governor are to carry out the law written by the General Assembly.

The Constitution does not stop there. Section 36 of Article III provides that all money received by the state shall go into the treasury and none shall be withdrawn except in pursuance of appropriations made by law. Section 28 of Article IV makes this provision applicable to the Governor by specifying that now money shall be withdrawn from the treasury except by warrant drawn in accordance with an appropriation made by law. Therefore, it is the General Assembly’s obligation in the first place to appropriate moneys from the state treasury. Moneys received by the state from the federal government must first be appropriated by the General Assembly by law.

The real concern with the method of reviewing distributions proposed by the commissioner of education is not so much that it is an intrusion into the duties of the executive branch as it is whether the General Assembly may appropriate money via a joint committee and not an act of the entire General Assembly in passing a law. The General Assembly in HB 1903 undertook its Constitutional authority and created two new funds to collect additional distributions that it deemed SB 313 inadequate to address. And it did so for one fund that would give it additional oversight on how the moneys from a race to the top fund would be expended to safeguard the state. This is a legitimate role for the legislative function to fulfill. Certainly, the Governor has the authority to veto legislation, but it is not a reason for the veto of the legislation that it is an intrusion into the duties of executive branch.

While I accept the Governor’s third point and understand his reasoning, I confess that I find the General Assembly’s approach wiser. It is repeatedly and rightly claimed that the federal government is a government of enumerated and limited authority. The U.S. Supreme Court, some 16 years after the adoption of the U.S. Constitution, declared in its opinion in Marbury v. Madison, that, “The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.” The U.S. Constitution makes no provision for the federal legislature to legislate on matters of education. Therefore, the race to the top is wholly outside of the purview of the federal government. I would argue that it is inappropriate for the federal government to take money from the citizens of these united State for the purpose of dangling carrots before states to get them to adopt federal education standards. However, I am practical enough to understand the coercive power of money to the state. In light of the fact that money is so coercive, I prefer that the General Assembly, as the elected legislative body over the people, maintain its oversight of the money so bounteously tied to us by the federal government.

Uphold the Constitution of the United States, Mr. Castle

The following statements were attributed to Mike Castle, the U.S. Congressman from Delaware who is running in the republican primary for the U.S. Senate, yesterday morning in hotair.com:

“Some of the things [tea partiers] seem to advocate go beyond the norm,” says Castle. “I have trouble distinguishing sometimes between the factions out there that are in this ultra-conservative mode. You know—be it the patriots, or this Tea Party Express, or the different factions of the Tea Party. I’ve seen advocacy for eliminating the Department of Education, for example.”…
“There are a lot of things that the federal government does that, you know, might not be explicitly in the Constitution per se,” says Castle. “There are a lot of things that the states do, too. And they’ve been doing it in some cases since the 18th century.” He shrugs. “I do suppose it is a good question to ask.”

If these statements are true, Castle should be rejected summarily by republicans on his statement alone. My question is has Mr. Castle ever read the U.S. Constitution? He obviously understands that the power to address education is nowhere addressed in the Constitution. But does he realize the Constitution is a document which grants from States to the federal government only explicitly listed powers? Does he understand the Constitution does not address the authority of the States except in limited circumstances, such as the 14th Amendment? Does he understand the States are governments of general power and the federal government is a government of limited power? His comments do not indicate that he has the slightest clue about the meaning of the document which is the subject of the oath he took as a U.S. Congressman, the Constitution of the United States. How can he fulfill his oath in good conscience? How can he take the oath in good conscience? This attitude violates the oath he took to uphold the Constitution of the United States. Any candidate so woefully qualified to speak to the subject matter of the job he has and one he professes to seek should be summarily dismissed. And any official so callus to the meaning of the U.S. Constitution should also be summarily dismissed. Unfortunately, I think many of our federal elected officials are similarly qualified.

The State, the Advocate for the People and the Repeal of the 17th Amendment

The past two years have seen an unprecedented acceleration of the usurpation of power and tyranny by the federal government. The people of these united States are appalled and frightened by the arrogance of the federal tyrant and the dismissive attitude our elected federal officials have toward our national compact, the U. S. Constitution. Each elected official takes an oath to protect and defend the Constitution of the United States of American, but many blindly ignore that great document as they seek to cultivate national power.

In 2010, while the federal Congress was voting to require all citizens of America to purchase health insurance, the Missouri Legislature was voting to declare the federal mandate null and void. The final version of the Missouri Health Care Freedom Act, Senate Substitute for HB 1764, championed by Senators Cunningham and Lembke and Representatives Jones and Nieves, was passed by the senate by a vote of 26-8 (76%) and by the House by a vote of 108-48 (69%). The Missouri Health Care Freedom Act was submitted to a vote of the people of Missouri and approved by a vast majority of 71% on August 3, 2010.

How should the people of Missouri respond to the oncoming tyranny of the federal government? How should the state of Missouri take the message of Missouri Health Care Freedom Act and foster the liberties of its people? Many things must be done to cure our nation of the evil of tyranny. One partial remedy is the repeal of the 17th Amendment of the U.S. Constitution. The 17th Amendment provides that United States Senators shall be elected by a popular vote of the people of each state. But this was not always the case in this great federal republic. The Constitution, before the adoption of the 17th Amendment, provided that two Senators from each state would be chosen by the Legislatures thereof. It is now time to repeal the 17th Amendment and return the authority to select U.S. Senators to the state Legislatures.

The 17th Amendment is defended via claims of democracy and giving power to the people. However, the people have been duped and disserved by such emotional arguments to the end that they exercise their power ineffectively. All governing power in these united States derives from the people. The Declaration of Independence emphatically announces that,

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.

While recognizing that all authority comes from the people, the Declaration also asserts that the united colonies are free and independent states as is the state of Great Britain. The states have the right to levy war, conclude peace, contract alliances and establish commerce as independent entities. The conviction of the founding fathers was that the states derive their authority from the people and the federal government derives its authority from the states through the U.S. Constitution.

So the question is not who has the authority but how the people may most effectively exercise their authority. Which method of selecting the U.S. Senate is most protective of the liberties of the citizens of Missouri? Since 1913, when the 17th Amendment was ratified, U.S. Senators have been selected by a direct vote of the people of each state. Since that time, this nation has seen a continual concentration of power in the federal government, through this last year when we have seen the federal government usurp the authority to make individual health care decisions. The attitude of Senator McCaskill is endemic and representative. McCaskill was asked by CNS News on December 22, 2009, “Specifically where in the Constitution does Congress get the authority to mandate that individuals buy health insurance?” McCaskill said, “Well the -- we have all kinds of places where the government has gotten involved with health care and mandating insurance. In most states, the government mandates the buying of car insurance, and I can assure everyone that if anything in this bill is unconstitutional, the Supreme Court will weigh in.” As reported in Politico on January 20, 2010, Sen. McCaskill stated, "As I said to somebody last night: everybody needs to get the Washington wax out of their ears and listen and pay attention that people out there believe that we are going too far, too fast." On August 18, 2010, it is reported that McCaskill made the following comment on Proposition C, the Missouri Health Care Freedom Act: "Basically it's a referendum that doesn't have much legal impact. It was, I think, largely political, and I don't think it will have a large amount of impact on what actually happens with changes to health care in Missouri." Senator McCaskill did vote for the federal mandate on health care.

Taking these comments together, it is clear that McCaskill knew that the people of Missouri opposed the national health care legislation early on. After she got the Washington wax out of her ears and heard the opposition, she supported the national health care legislation and voted for it as the right thing to do. She voted for it even though she could not support her decision. Her response to the constitutionality question was a non-answer. Neither the past conduct of the federal government nor states’ actions has any bearing on the constitutionality of a proposition enacted by the federal government. While the Missouri Health Care Freedom Act passed with 71 % of the vote, its passage has not changed the tone of Sen. McCaskill’s rhetoric. In her assessment, it had very little impact.

As confirmed by the Declaration of Independence, the first and primary recipients of the governing authority of the people are the states. The states are the first line of defense against tyranny. Since the founding of the nation, the states have been the consistent advocate of liberty within this nation. Their authority must be respected. Unfortunately, the 17th Amendment has diminished the respect due the states.

If the U.S. Senate had been selected by the state legislatures in 2008, it is likely that the federal health care legislation would not have passed in 2010. In the 2010 Missouri legislative session, in addition to the Missouri Healthcare Freedom Act, there were a number of resolutions proposed recommending the Missouri Congressional Delegation take positions on particular matters, including the federal health care legislation, energy regulation, and a balanced budget. The common objection to each was that they were not worth the paper they were written on inasmuch as they could be freely disregarded by the representatives and senators. It should never be that Missouri’s Congressional Delegation should disregard the expressions of their state Legislature.

How different would it be if Missouri’s U.S. Senators were appointed by the Legislature? If each Senator were beholden to the Legislature for his or her appointment to the seat of service to the state, the situation would be drastically different. Imagine justifying your votes to 163 state representatives and 34 state senators rather than countless thousands of voters who may or may not show up to a particular election and who will make their decisions based on the quality of the public relation package presented to the public. The expressions of the state would be of paramount importance.

The state of Missouri will always be your first and best line of defense in thwarting federal tyranny. The natural lines of affinity and fidelity between local state representative and senators and the people will support Missouri as your best advocate of liberty. Remember that your state senators and representatives live close to you. They are more likely to share your interests. They are more assessable and easily replaced at your will. In addition, the state’s natural protection of its own interests and authority will encourage it to guard against a usurpation of power by the federal government.

As we have seen the federal tyrant increasingly usurp unauthorized and unwarranted power, the people must reclaim their authority to exercise their liberties. The most important question is how to bring the tyrant under the control of a free society. The answer is to bring more power back to the states. One way of doing that is to return the authority to select U.S. Senators to the Legislatures of the various states as was the original design of the founders. The people have their popularly elected advocate, their Congressman. The states must receive back their advocates for the people, the Senator.

Ethics Reform: A Return to Justice

It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure. There are but two methods of providing against this evil: the one by creating a will in the community independent of the majority that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable. . . . The second method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority. In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government.

So warns Federalist No. 51. Federalist No. 51, generally attributed to James Madison, was written according to its author, to "form a more correct judgment of the principles and structure of the government planned by the Constitutional Convention." The author observes that the best way to protect the rights of individuals in a federal republic is to distribute governing power amongst various sects and interests. When any particular group gains majority status in a republic, such group can wield power against the liberties of a minority.

We have seen in a dramatic fashion how political power concentrated in one political party has produced a loss of freedoms in this nation in recent years. Most recently, we have seen how the United States, controlled by one political party, i.e. a majority faction in political power, has brought about change at the expense of the liberties of the people. We have seen the usurpation of health care decisions, the takeover of large business interests, and the expansion of the federal deficit all at the cost of the American tax payer and their descendants. Such abuse of power is not limited to one political party. We should not forget that the TARP bailouts were supported by both of the last two administrations. The government, when controlled by both political parties, has overseen the subjugation of the people to massive federal debt. In light of these warnings from Madison, the citizens should be wary of any effort to concentrate power in political parties.

In 2010, the Missouri Legislature gave the state of Missouri an ethics reform law which will help concentrate political power in the two major political parties in the state. SB 844 is a wide ranging ethics and campaign disclosure bill. There are many things in SB 844 which are arguably improvements in the state’s laws regulating the conduct of political campaigns. (It is important to understand that ultimately no law can guard the integrity of the political and legislative process as can the electorate by electing honest individuals to office. Only by the voters seeking honest men and women of integrity to fill offices of power will liberty be secured. I will discuss these principles later in this editorial.) However, in many respects, the campaign reforms look to impose ethical standards on the wrong interests. Rather than addressing the standards and ethics of the candidates and elected officials themselves, it seeks to restrict the liberties of the citizens.

Take for examples a new restriction on the operation of political action committees, or PACs for short. PACs are private funds collected by groups of people with similar interests or philosophy. The new law prohibits PACs from receiving money from other PACs and other types of committees, such as a candidate’s own committee. The theory behind this restriction is that it prevents citizens from disguising the source of money contributed to a political campaign. By imposing such restrictions on PACs, we make it easier to assess what interest groups are influencing a particular official. In contrast, a candidate’s committee and political parties are not subject to such restrictions, and one committee for each political party for each chamber of the Missouri General Assembly as designated by the political party or official of the party is explicitly exempted from the restriction.

In our culture, political campaigns are most effectively conducted through the media outlets of television and radio. Media costs money. Therefore, money and political contributions are the facilitators of speech. Money is speech. The Constitution of the State of Missouri, no less than the U.S. Constitution, guarantees that now law will be made impairing the right of speech and that all people have the right to assemble together for their common good and apply to those invested with the power of government.

The practical effect of the new restrictions is to force PACs to either contribute their funds to a political party committee or to a candidate’s committee. Once money has been donated to a PAC, such money is unavailable to another PAC. The restriction prohibits PACs from combining their resources. While political parties may aggregate their resources and power, private assemblies of people may not. Such restrictions concentrate power in the political parties, and they deny speech to the people that they permit to political parties.

If we must regulate ethics, let us regulate the ethics of the subject under consideration. If I, as a lobbyist, were to approach a legislator with a bribe, the critical conduct of the transaction is whether the legislator accepts the bribe. It is the honesty and integrity of the legislator that is of paramount importance to the state. My conduct of offering the bribe is irrelevant to the legislative process if the bribe is rejected. Therefore, it is the ethics and the susceptibility to influence of the legislator that is the critical subject of ethical regulation.

Our constitutional principles clearly anticipate that citizens will influence elected officials. It is Section 9 of the Missouri Constitution which assures the people of the right to assemble and apply to those invested with the powers of government for redress of grievance by petition or remonstrance. The problem, of course, is the exercise of improper influence. In the same paragraph quoted above, the author writes that, “Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit.” Our problem is that we have lost sight of the true meaning of justice. Our legislative process is constantly pitting one interest against another. We legislate the taking of money from one group for the payment of benefits to another group simply because one group has money and another does not. Our nation is so completely in debt that the liberties of our children’s children will be infringed for the benefits doled out to the politically favored today. Is this justice? If our legislatures would return to their primary function and if our people would insist upon our legislatures protecting the liberty of all individuals, there would be less opportunity for the exercise of improper influence.

From Federalist No. 51, Always Worth Remembering

Second. It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure. There are but two methods of providing against this evil: the one by creating a will in the community independent of the majority that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable. The first method prevails in all governments possessing an hereditary or self-appointed authority. This, at best, is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties. The second method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority. In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government. This view of the subject must particularly recommend a proper federal system to all the sincere and considerate friends of republican government, since it shows that in exact proportion as the territory of the Union may be formed into more circumscribed Confederacies, or States oppressive combinations of a majority will be facilitated: the best security, under the republican forms, for the rights of every class of citizens, will be diminished: and consequently the stability and independence of some member of the government, the only other security, must be proportionately increased. Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, will the more powerful factions or parties be gradnally induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful. It can be little doubted that if the State of Rhode Island was separated from the Confederacy and left to itself, the insecurity of rights under the popular form of government within such narrow limits would be displayed by such reiterated oppressions of factious majorities that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it. In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good; whilst there being thus less danger to a minor from the will of a major party, there must be less pretext, also, to provide for the security of the former, by introducing into the government a will not dependent on the latter, or, in other words, a will independent of the society itself. It is no less certain than it is important, notwithstanding the contrary opinions which have been entertained, that the larger the society, provided it lie within a practical sphere, the more duly capable it will be of self-government. And happily for the REPUBLICAN CAUSE, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the FEDERAL PRINCIPLE.

PUBLIUS.

First Thoughts in Constitutional Law?

I just bought a Constitutional Law case book to brush up on my Constitutional Law. The first quote in the book was from Bishop Hoadly in a sermon to the King in 1717. "Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the lawgiver, to all intents and purposes, and not the person who first spoke or wrote them." While this may ultimately be a true prophesy, only a corrupt man would actually seek to fulfill this prophesy at the corruption of the original written or spoken word. It is a shame this is the first thought put before a law student on the matter of Constitutional Law.

It appears that the case under consideration in the case book, Marbury v. Madison, is in accord with my view.

From these, and many other selections which might be made, it is apparent, that the framers of the constitution contemplated that instrument as a rule for the government of the courts, as well as of the legislature.

Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!

Malfeasance as Justification for Preemption

“Against the backdrop of rampant illegal immigration, escalating drug and human trafficking crimes, and serious public safety concerns, the Arizona legislature enacted a set of statutes and statutory amendments in the form of Senate Bill 1070, the ‘Support of our Law Enforcement and Safe Neighborhoods Act.’” So begins Judge Susan Bolton’s order issuing a Preliminary Injunction against the enforcement of significant portions of SB 1070. In her order, Judge Bolton sustained four of the six challenges to the enforcement of SB 1070.

In setting forth her legal standards for her ruling, the Judge wrote, “The Supreme Court has consistently ruled that the federal government has broad and exclusive authority to regulate immigration, supported by both enumerated and implied constitutional powers.” She also rightly cited the Supremacy Clause which makes those laws for which the Constitution grants the federal government priority “the supreme law of the land.” Few could disagree with her basis for federal preemption on this subject. Indeed, it is unnecessary to rely on the ambiguous and arbitrary “implied constitutional powers” regarding this power since the historical evidence is so clear that the main purpose of the union was to provide for a central government to regulate our dealings with those outside of our borders. The Federalist Papers cite this interest as one of the most significant benefits of the union.

But more must be said. Indeed, the Congress has the Power “To establish an uniform Rule of Naturalization.” U.S. Const. art. I, § 8, cl. 4. One may rightly ask to what purpose or goal does Congress have this Power. To answer that question, it is necessary to return to the Preamble. The purpose or goal of Congress’ Power is to “establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.” In light of this purpose or goal, Judge Bolton’s introduction to her order speaks volumes. The federal government is failing miserably in the execution of its Power.

Judge Bolton rightly sets for the traditional analysis for federal implied preemption based on the Supremacy Clause. (Federal Courts must infer Congresses intention to preempt state law when it does not expressly describe the areas of preemption.) In this regard there are two types of implied preemption: field preemption and conflict preemption. Field preemption occurs when the congressional scheme occupies the whole legislative field on the matter. Conflict preemption occurs when both federal and state regulations is a physical impossibility or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.

One could quibble with Judge Bolton's analysis. For example, Section 3 makes a person who violates federal law by willfully failing to complete or carry an alien registration document guilty of a misdemeanor under Arizona law. The Judge observed that Section 3 attempts to supplement or complement the uniform, national registration scheme. In her analysis she wrote, “While the Supreme Court rejected the possibility that the INA is so comprehensive that it leaves no room for state action that impacts aliens, the Supreme Court has also evaluated the impact of the comprehensive federal alien registration scheme and determined that the complete scheme of registration precludes states from conflicting with or complementing the federal law.” [Citations omitted] She then concludes that, “Section 3 stands as an obstacle to the uniform, federal registration scheme and is therefore an impermissible attempt by Arizona to regulate alien registration.” Well, which is it? Is this field preemption or conflict preemption? And how does the supplement or complement of the Arizona law create an “obstacle” to the federal registration scheme?

The most telling part of the order is her treatment of Section 2(B). The first sentence of the section provides that “any person who is arrested shall have the person’s immigration status determined before the person is released.” The second sentence requires the detaining officer to make a reasonable attempt to determine the immigration status of the person. The federal government’s challenge to both sentences was similar. They made two arguments. First, since such inquiries will ultimately come to federal officials, the requirements impermissibly burden and redirect federal resources away from federally-established priorities.

Mr. Palmatier states in his Declaration that LESC resources are currently dedicated in part to national security objectives such as requests for immigration status determination from the United States Secret Service, the FBI, and employment-related requests at “national security related locations that could be vulnerable to sabotage, attack, or exploitation.” (Palmatier Decl. ¶ 4.) Thus, an increase in the number of requests for determinations of immigration status, such as is likely to result from the mandatory requirement that Arizona law enforcement officials and agencies check the immigration status of any person who is arrested, will divert resources from the federal government’s other responsibilities and priorities.

Second, the mandatory detainment would impermissibly burden the liberties of lawfully-present aliens. Based on these two arguments, the Court found that Section 2 created an obstacle to the enforcement of federal law.

I have no criticism of Judge Bolton on her holding in this case. Judge Bolton is bound to follow precedent of superior courts. She clearly attempted to follow the precedents set down. But I do have a critique of the analytical structure. Perhaps it is that the nation has lost sight of the purpose of our U.S. Constitution. Perhaps it has to do with the narcissism of the federal government, but the scope of the analysis distorts what should be considered.

Regarding the federal government's first argument, Judge Bolton clearly established in the open statements of her order that the federal government is responsible for defending the borders of these united states. She also clearly established that it is woefully failing in that responsibility. In essence, the federal government’s first argument is an argument on misfeasance bordering on malfeasance. Its argument is that it is incapable of fulfilling its obligation to enforce immigration laws due to its commitment to “other priorities.” While Mr. Palmatier detailed his commitment to these other priorities, I submit that the Court’s analysis was not broad enough. Clearly, defending the borders is at the core of the federal government’s responsibilities. If so, that responsibility is of its highest priorities. To divert resources to any priority other than defending the borders is a misallocation of resources, i.e. malfeasance. If the Court were to expand the scope of her analysis to the scope of the federal government’s activities, what would she find? She would find the federal government buying favor of certain segments of the population by means of welfare, food stamps, unemployment benefits, socialized healthcare, buying auto manufacturers, and deals to obtain votes on Obamacare from the Senators from the states of Louisiana, Arkansas and Nebraska. None of these activities fall anywhere near the core of the responsibility of the federal government. Malfeasance based on a perverted sense of federal priorities is now justification for federal preemption.

Regarding the federal government’s second argument, again, malfeasance has become an argument justifying federal preemption. It is the failure of the king to do his duty that brings burdens on the liberty of the country’s citizens and not the proper execution of those duties. Again, expanding the scope of the analysis helps in the analysis. The Power of the federal government extends to securing the borders and providing for proper naturalization. If the federal government fulfilled that purpose as described in the Preamble of the Constitution by on the first occasion keeping illegals out of the country, there would be no need to detain any legally present individuals. When the king fails in his proper duty we all suffer. The government failed to secure the borders on September 11. As a result, all citizens are now subjected to delays and searches when traveling by air. The government is failing to secure the borders today. As a result, the citizens of Arizona are subjected to increased crime and drugs as Judge Bolton has stated.

Misfeasance should never be a justification for federal preemption. The federal government has not only committed misfeasance. Our federal government has abdicated its responsibility to do those things which it has been directed to do by the U.S. Constitution and usurped authority it was never intended to have. And such conduct is used to justify their failure. And the people suffer.

Classical Economics and Our Health Care Blindspot

I have previously written that socialism, i.e. the usurpation of the individual’s initiative to be charitable by the government by means of legislation converts charity, mercy, compassion and love to obligation, duty and litigation. See “Healthcare: America’s Blind Spot.” In following a path of socialism in the form of socialized health care, the American government will, due to moral physics woven into the fabric of creation, inculcate in the following generation a failure to see these moral values. When government inhabits the field of charity by law and obligation, good deeds cease to be good and become obligation, subject only to claims of right through litigation. And as good ceases to be seen as good, the culture loses a vision of moral excellence. In the end, the compassion necessary for the proper administration of healthcare will become a blind spot for the American culture.

I expressed the moral physics propounded in Deuteronomy that a nation will be blessed to the extent that its people voluntarily give through church and other individual voluntary initiatives to the poor and needy. To the extent the resources to be morally good to the poor and needy are taken away through taxes, the less the people will be blessed. There is another way to view this blind spot, and that is through the lens of classical economics. Perhaps it is more accurate to claim that the theories of classical economics support the claim of moral physics which I have already described.

Guido Hulsmann in his lecture at the Ludwig von Mises Institute (at Mises.org) on “The Division of Labor and Social Order” describes how the division of labor permits human society to become more productive. In the presentation of some very simple case studies he portrays how two men capable of doing two separate tasks with differing degrees of effectiveness can increase production by allowing each to specialize in the task in which he excels. Even in the case where one is more effective in both tasks, both are benefited by permitting the superior performer to increase his specialization in the area where he is comparatively more superior. The only case in which there is no mutual benefit is when the two are equal in all respects. In all cases but this latter, the two are mutually benefitted by their cooperation. The division of labor encourages peace because even if the two were to have animosity toward each other, they understand the mutual benefit of their cooperation.

How then does this apply to the socialism of Obamacare? Socialism as government policy is a legally enforced equalization of the outcomes of all efforts. Socialism, contrary to popular belief, is not an economic theory. It is tyranny pure and simple, for it is based on the taking from the production of some for the purpose of distributing the fruits of that production to others. Socialism is legislated theft. The outcome of such legislated theft is the elimination of the benefits derived from a beneficial division of labor. The two in every respect are made equal in outcome. The benefits of cooperation which support a moral and well ordered society are eliminated. In the words of Hulsmann, only by an extraordinary measure of love can the cooperation be maintained.

Keep in mind that the equalization of status does not produce love; it only lessens the natural forces maintaining the cooperation of relationships. Love must come from inside an individual; it cannot be created by outside forces. Since, as I have already shown, the replacement of law for compassion will necessarily create a blind spot in our culture to what is morally laudable, the culture will lose its perspective of the beauty of love and compassion. Therefore, there will be less reason to love that which is beautiful in compassion and will in turn provide less support to the culture socialism will create.

Let us turn back this destruction which the federal government is forcing on the states. Let us enact the Healthcare Freedom Act.