Thursday, October 28, 2010

The Morning After

Cal Thomas writes in 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.

Saturday, October 23, 2010

A Response to Stephen Broden

The Blaze ( 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.

Saturday, October 9, 2010

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.