It seems to me that our modern day PCA theologians could use a good healthy dose of legal education in the law of contracts. They should understand that for a contract to be binding, both sides to the contract must give what the law calls "consideration" in order for a contract to be binding, and for a contract to be fulfilled. "Consideration" is something of legal value, whether an act taken or a promise given in response to the consideration given by the other party. Consideration can include the forgoing of a legal right. Consideration has nothing to do with merit, but it is a condition necessary for the fulfillment of a contract, and nothing more.
I am not saying that the covenant God made with Adam was a contract. However, I do believe that many of our concepts of contract are acquired from God's character in extending covenants. If theologians were to understand the distinction between consideration, also recognized in the Westminster Standards as conditions, they might not get so agitated over the Federal Vision discussion.
OK, I will take off my rose colored glasses now.
Monday, March 7, 2011
Friday, March 4, 2011
Drill Already!
A lot of folks can't understand how we came to have an oil shortage here in our country.
~~~
Well, there's a very simple answer.
~~~
Nobody bothered to check the oil.
~~~
We just didn't know we were getting low.
~~~
The reason for that is purely geographical.
~~~
Our OIL is located in:
~~~
ALASKA
~~~
California
~~~
Coastal Florida
~~
Coastal Louisiana
~~~
North Dakota
~~~
Wyoming
~~~
Colorado
~~~
Kansas
~~~
Oklahoma
~~~
Pennsylvania
And
Texas
~~~
Our dipsticks are located in DC
Time to return the regulation of land back to the states as intended by the framers of the U.S. Constitution.
Adopted from an email received this morning.
~~~
Well, there's a very simple answer.
~~~
Nobody bothered to check the oil.
~~~
We just didn't know we were getting low.
~~~
The reason for that is purely geographical.
~~~
Our OIL is located in:
~~~
ALASKA
~~~
California
~~~
Coastal Florida
~~
Coastal Louisiana
~~~
North Dakota
~~~
Wyoming
~~~
Colorado
~~~
Kansas
~~~
Oklahoma
~~~
Pennsylvania
And
Texas
~~~
Our dipsticks are located in DC
Time to return the regulation of land back to the states as intended by the framers of the U.S. Constitution.
Adopted from an email received this morning.
Thursday, March 3, 2011
The Initiative Petition
Much has been written in the Missouri Record in the recent past regarding the initiative petition process, and rightly so. This is an important issue. With the initiative petition process, Missourians have enacted into law certain requirements regarding utility rates, renewable energy, cloning, and puppy mills.
On Tuesday, February 22, the Missouri House Elections Committee heard testimony on HJR No. 16, a resolution that would propose to amend provisions of the Missouri Constitution relating to initiative petitions. Currently, in order for an initiative petition to be successful in proposing a change to the constitution of the state of Missouri, the proponents of the initiative must obtain signatures from eight percent of the legal voters in each of two-thirds of the congressional districts in the state. To propose a law, proponents must obtain the signatures of five percent of the legal voters in each of two-thirds of the congressional districts in the state. HJR No. 16 would require the same percentages of voter signatures, but from all congressional districts in the state.
The main objection to the proposal was that the change would increase the total number of signatures necessary to secure the initiative on the ballot and, therefore, make it more difficult to achieve a ballot proposal. This would give moneyed interests greater influence in the political process and diminish efforts by the typical citizen to affect change. While it may be a worthy goal to require proponents to obtain signatures from all congressional districts, the percentage of signatures should be reduced. The resolution was voted out of committee on March 1, and it is reported that the committee adopted an amendment reducing the percentage of signatures required in each Congressional district.
Clearly, this change would make it harder to secure an initiative petition on the ballot. Is this a bad thing? The answer to that question is not quite so clear. Audrey Spaulding has written in the Missouri Record that, “One of the greatest strengths of American government is that there are a number of checks and balances at the federal, state, and local levels that limit the ability of any one branch of government to abuse its power. The initiative petition process is one of those checks on power, and restricting it further will serve only to erode Missourians’ ability to limit legislators by initiating good — but politically difficult — policy change.” I agree with this statement in principle, but not in detail. I agree one the greatest strengths of the American government is the checks and balances designed into the U.S. Constitution. However, the initiative petition is nowhere addressed in the U.S. Constitution. The U.S. Constitution may be amended only by the actions of the states, sometimes at the prompting of the Congress. The initiative petition is a right of the people under the Missouri Constitution. Spaulding is right that the initiative process is a check on the abuse of power by the Missouri Legislature.
There is much confusion when it comes to issues surrounding the initiative petition process. The reason this issue is so confusing is that there is confusion regarding the source of governmental authority in our culture and even in our heritage. One theory propounds that the source of political power is the people. The very first section of the Constitution of Missouri supports this view when it declares that all political power is vested in and derived from the people and that all government of right originates in the people. This is clearly the popular “democratic” view of our nation, that we are a democracy. While the declarations of the Constitution of Missouri are of great weight in this discussion, the political philosophy expressed therein is not entirely supported in history or fact.
Generally, the original thirteen colonies received their governmental authority through royal charters issued by the sovereigns of Europe, whether kings or legislatures. No doubt this approach to granting governmental authority was consistent with the idea of the “divine right of kings” which held sway at the time. While the divine right of kings was greatly abused by the kings of Europe, its core principle was founded upon Scripture, particularly Romans 13, which held sway for most of the two thousand years of Western Civilization. Sir William Blackstone, the great English jurist of the early 1700s, recorded that English common law was subject to the law of God, specifically Scripture. Finally, the writings of the founding fathers almost universally express a fear of democracy. The will of a majority could impose tyranny on a minority just as devastatingly as any king. For that reason, they wrote into the U.S. Constitution a guarantee to every state in the Union for a Republican form of government.
The checks and balances Spaulding points out are inherent in a republican form of government and not in democracies. We see this in the legislative process. In the legislature in Missouri, a bill is submitted to a committee, and the committee holds a hearing. It hears the concerns expressed by opponents. Committee members are given an opportunity to amend the bill. If the bill makes it through the committee, the bill is debated on the floor of the House or Senate. Members have opportunities to amend the bill again. If the bill is passed in one chamber, it has to go to the other chamber and the entire process starts again. This process engenders compromise for the liberty of all. It also permits a consideration of issues unanticipated by those who initiate the law.
The democratic initiative petition process is not geared for the give and take of compromise. It is controlled by the initiative proponents. What is placed on the ballot can be as one sided as the proponents think they can get past the voters. The democratic process of the initiative does not lend itself to guarding the liberties of the minority. Neither is it geared toward a complete analysis of all issues. We have seen certain problems that have arisen from confusing language arising in the renewable energy standard and the puppy mill law, both passed by initiative.
So where does that leave the initiative petition? I agree that there is a place for the initiative petition in a free republic. Even though it is not entirely clear that all political power does actually come from the people, the Constitution of Missouri does vest the power there. The people should be allowed to express their radical displeassure with the state of the law. But isn’t that what elections are all about?
At this point, it is appropriate to make a radical distinction between amending the Constitution and passing a law. By way of analogy, I have argued in other places that amending the U.S. Constitution by use of a Constitutional Convention is a nuclear option when compared to simply utilizing the adequate tools already in the U.S. Constitution to reassert the rights of the states. Similarly, it should be difficult to amend the Constitution of the state of Missouri. The Constitution is the covenant agreement expressing the foundation upon which law is made. Covenants of this nature are the foundation upon which individuals enter into society. Covenants of this nature should not be lightly changed. It should be exceedingly hard to amend the Constitution of the state of Missouri.
With a law, on the other hand, the argument that the state legislature may not have the political incentive to change an unjust law has force. This is the unfortunate reality of living in a world ruled by sinful men and women. The goal, consistent with the principles of republican government, should be to permit the people to initiate the process and so direct a law to achieve the goal of liberty on a certain matter and still subject that process to the refining process of the legislature. Can such a mechanism be devised? Suitable suggestions might include an analogy to the Joint Committee on Administrative Rules. The Missouri Legislature has created a joint committee of both Representatives and Senators to which all administrative rules are submitted. The Joint Committee on Administrative Rules may propose to the Missouri Legislature that certain proposed rules not be permitted to go into effect. The Legislature may by resolution, signed by the Governor, so declare. Could a similar mechanism be designed to submit an initiative to a Joint Committee on Initiative Petitions, the purpose of which is to actually enact a law proposed by initiative petition but refined by the Legislature? I admit I do not have the answer.
With these principles in mind, I would prefer to rest on the side of a more consistent republican point of view and maintain that initiative petitions should be difficult to obtain. Many claim that making it more difficult to obtain a ballot measure through the initiative process will provide an advantage to moneyed interests. There is a bit of irony to this argument in that it is actually the initiative petition process by its very nature permits money to have a greater impact on a democratized government. Making it easier to obtain law through the democracy of the initiative petition will permit money to have an even greater influence on a democratized government. This is the advantage of money. It is an unfortunate circumstance of life. The appropriate response is to look to the Missouri Legislature to fulfill its God ordained responsibility of securing the liberty of the people. It is reviewing renewable energy standard and the new puppy mill law this year, which is a good sign.
On Tuesday, February 22, the Missouri House Elections Committee heard testimony on HJR No. 16, a resolution that would propose to amend provisions of the Missouri Constitution relating to initiative petitions. Currently, in order for an initiative petition to be successful in proposing a change to the constitution of the state of Missouri, the proponents of the initiative must obtain signatures from eight percent of the legal voters in each of two-thirds of the congressional districts in the state. To propose a law, proponents must obtain the signatures of five percent of the legal voters in each of two-thirds of the congressional districts in the state. HJR No. 16 would require the same percentages of voter signatures, but from all congressional districts in the state.
The main objection to the proposal was that the change would increase the total number of signatures necessary to secure the initiative on the ballot and, therefore, make it more difficult to achieve a ballot proposal. This would give moneyed interests greater influence in the political process and diminish efforts by the typical citizen to affect change. While it may be a worthy goal to require proponents to obtain signatures from all congressional districts, the percentage of signatures should be reduced. The resolution was voted out of committee on March 1, and it is reported that the committee adopted an amendment reducing the percentage of signatures required in each Congressional district.
Clearly, this change would make it harder to secure an initiative petition on the ballot. Is this a bad thing? The answer to that question is not quite so clear. Audrey Spaulding has written in the Missouri Record that, “One of the greatest strengths of American government is that there are a number of checks and balances at the federal, state, and local levels that limit the ability of any one branch of government to abuse its power. The initiative petition process is one of those checks on power, and restricting it further will serve only to erode Missourians’ ability to limit legislators by initiating good — but politically difficult — policy change.” I agree with this statement in principle, but not in detail. I agree one the greatest strengths of the American government is the checks and balances designed into the U.S. Constitution. However, the initiative petition is nowhere addressed in the U.S. Constitution. The U.S. Constitution may be amended only by the actions of the states, sometimes at the prompting of the Congress. The initiative petition is a right of the people under the Missouri Constitution. Spaulding is right that the initiative process is a check on the abuse of power by the Missouri Legislature.
There is much confusion when it comes to issues surrounding the initiative petition process. The reason this issue is so confusing is that there is confusion regarding the source of governmental authority in our culture and even in our heritage. One theory propounds that the source of political power is the people. The very first section of the Constitution of Missouri supports this view when it declares that all political power is vested in and derived from the people and that all government of right originates in the people. This is clearly the popular “democratic” view of our nation, that we are a democracy. While the declarations of the Constitution of Missouri are of great weight in this discussion, the political philosophy expressed therein is not entirely supported in history or fact.
Generally, the original thirteen colonies received their governmental authority through royal charters issued by the sovereigns of Europe, whether kings or legislatures. No doubt this approach to granting governmental authority was consistent with the idea of the “divine right of kings” which held sway at the time. While the divine right of kings was greatly abused by the kings of Europe, its core principle was founded upon Scripture, particularly Romans 13, which held sway for most of the two thousand years of Western Civilization. Sir William Blackstone, the great English jurist of the early 1700s, recorded that English common law was subject to the law of God, specifically Scripture. Finally, the writings of the founding fathers almost universally express a fear of democracy. The will of a majority could impose tyranny on a minority just as devastatingly as any king. For that reason, they wrote into the U.S. Constitution a guarantee to every state in the Union for a Republican form of government.
The checks and balances Spaulding points out are inherent in a republican form of government and not in democracies. We see this in the legislative process. In the legislature in Missouri, a bill is submitted to a committee, and the committee holds a hearing. It hears the concerns expressed by opponents. Committee members are given an opportunity to amend the bill. If the bill makes it through the committee, the bill is debated on the floor of the House or Senate. Members have opportunities to amend the bill again. If the bill is passed in one chamber, it has to go to the other chamber and the entire process starts again. This process engenders compromise for the liberty of all. It also permits a consideration of issues unanticipated by those who initiate the law.
The democratic initiative petition process is not geared for the give and take of compromise. It is controlled by the initiative proponents. What is placed on the ballot can be as one sided as the proponents think they can get past the voters. The democratic process of the initiative does not lend itself to guarding the liberties of the minority. Neither is it geared toward a complete analysis of all issues. We have seen certain problems that have arisen from confusing language arising in the renewable energy standard and the puppy mill law, both passed by initiative.
So where does that leave the initiative petition? I agree that there is a place for the initiative petition in a free republic. Even though it is not entirely clear that all political power does actually come from the people, the Constitution of Missouri does vest the power there. The people should be allowed to express their radical displeassure with the state of the law. But isn’t that what elections are all about?
At this point, it is appropriate to make a radical distinction between amending the Constitution and passing a law. By way of analogy, I have argued in other places that amending the U.S. Constitution by use of a Constitutional Convention is a nuclear option when compared to simply utilizing the adequate tools already in the U.S. Constitution to reassert the rights of the states. Similarly, it should be difficult to amend the Constitution of the state of Missouri. The Constitution is the covenant agreement expressing the foundation upon which law is made. Covenants of this nature are the foundation upon which individuals enter into society. Covenants of this nature should not be lightly changed. It should be exceedingly hard to amend the Constitution of the state of Missouri.
With a law, on the other hand, the argument that the state legislature may not have the political incentive to change an unjust law has force. This is the unfortunate reality of living in a world ruled by sinful men and women. The goal, consistent with the principles of republican government, should be to permit the people to initiate the process and so direct a law to achieve the goal of liberty on a certain matter and still subject that process to the refining process of the legislature. Can such a mechanism be devised? Suitable suggestions might include an analogy to the Joint Committee on Administrative Rules. The Missouri Legislature has created a joint committee of both Representatives and Senators to which all administrative rules are submitted. The Joint Committee on Administrative Rules may propose to the Missouri Legislature that certain proposed rules not be permitted to go into effect. The Legislature may by resolution, signed by the Governor, so declare. Could a similar mechanism be designed to submit an initiative to a Joint Committee on Initiative Petitions, the purpose of which is to actually enact a law proposed by initiative petition but refined by the Legislature? I admit I do not have the answer.
With these principles in mind, I would prefer to rest on the side of a more consistent republican point of view and maintain that initiative petitions should be difficult to obtain. Many claim that making it more difficult to obtain a ballot measure through the initiative process will provide an advantage to moneyed interests. There is a bit of irony to this argument in that it is actually the initiative petition process by its very nature permits money to have a greater impact on a democratized government. Making it easier to obtain law through the democracy of the initiative petition will permit money to have an even greater influence on a democratized government. This is the advantage of money. It is an unfortunate circumstance of life. The appropriate response is to look to the Missouri Legislature to fulfill its God ordained responsibility of securing the liberty of the people. It is reviewing renewable energy standard and the new puppy mill law this year, which is a good sign.
Friday, February 18, 2011
All Earthly Rule is Overshadowed by Heaven
"Christian capitulation to secular politics--more the rule than the exception in the modern church--is nothing less than apostasy, a denial of the gospel that announces Jesus as Lord. Solomon's residence in the temple complex [described in I Kings 6 and 7] stands as a scriptural figure indicating that all earthly rule, not only Israel's, is overshadowed by heaven and a reminder that the gospel we preach is good news about a king of all kings." Peter Leithart, 1 & 2 Kings, p. 64
.
.
CWIP and Economic Justice
On Tuesday, February 15, the Utilities committee of the Missouri House of Representatives conducted a hearing on Representative Jeanie Riddle’s HB 124, a bill to allow an electrical corporation to recover from ratepayers the costs associated with early site development for certain electrical generation facilities. This is a good bill but it does not go far enough. It is a pared down version of what has been introduced in the Missouri Legislature during the past two years, a bill that would permit an electrical corporation to recover the cost of “construction work in progress,” or “CWIP,” in rates prior to the commercial operation of the an electric plant. It is a good idea to permit electric companies to recover CWIP in their rates. HB 124 should be amended to permit the recovery of CWIP and passed into law.
Perhaps a little history is in order. In 1976, the voters of Missouri passed an initiative petition that prohibited the Missouri Public Service Commission from permitting electrical companies to recover CWIP in rates. Ameren Missouri, previously Union Electric Company, proceeded to construct its Callaway I plant by borrowing the funds necessary to construct the plant. The construction of the plant took approximately a decade.
Whatever the motivations in 1976 to passing the so called anti-CWIP law, circumstances have clearly changed. During the hearing on Tuesday, all parties recognized the need for the development of nuclear power. They recognized the need for new generation facilities to provide the necessary expansion to an aging fleet of generating facilities. Concern for the devastation that cap and trade regulations will bring on the state clearly also encourages Ameren Missouri to investigate a return to nuclear power.
The primary arguments for passage of the bill were the need for new generation and the economic development the construction of a new nuclear plant will bring to the state of Missouri. HB 124 would eliminate a disincentive for an electrical corporation to build a nuclear plant. The primary argument against passage of the bill was a consumer protection concern. Permitting an electrical corporation to put costs in rates would permit the utility to obtain recovery before it had proven the project was prudent in concept and execution and prior to a point in time when completion was assured.
None of these arguments has a bearing on whether the Missouri Legislature should pass HB 124. All agree that there is a need for new electric generation. All agree that there is a need to explore nuclear generation as an option. However, electrical corporations have an obligation to construct adequate generation facilities to provide for the requirements of their customers. HB 124 would not significantly add to this incentive. Economic development claims are also of little impact on the debate. What drives the economy is the exchange of money for goods and services desired by customers. If I spend a hundred dollars on a new television or on a new camera, the transaction drives the economy to a greater or lesser extent, but both drive the economy. Ameren may spend billions on a nuclear plant or some other form of generation. Either of these expenditures will impact the economy of Missouri. An incentive toward one particular form of spending does not necessarily increase economic development. It simply dictates the winners and losers in any such economic development. About the only expenditure that does not expand the economy is a tax payment to a government, for a government does not produce goods and services. The consumer protection concern is likewise of very little consequence to this discussion. The state of Missouri already has a structure in place in the form of the Public Service Commission which is designed to guard against the consequences of a utility’s imprudence and abuse of its customers. The Public Service Commission is fully capable of disallowing imprudent costs as it did in setting rates after Ameren put its Callaway I unit in service. Finally, all of these arguments fail in that they are mercantile in their most basic philosophy. The focus on the government and what the government’s interest is misses the point entirely. Rather, the question should be how the state should execute justice in the marketplace in Missouri.
Electric companies were and are what have been referred to as natural monopolies. No one wants a dozen sets of wires running down the street to permit a dozen different companies to compete to provide electric service. Since the electric utility infrastructure is so capital intensive, common wisdom suggests that competition be limited. This common wisdom has lead over the last century to what has become known as the “regulatory compact.” Utilities submit to regulation of their service by the state in exchange for a defined exclusive service territory and the right to a regulated return on their investments. With the regulatory compact comes a subsidiary theory that regulation should be designed to take the place of competition. It is the regulation’s substitution for competition that should drive the conclusion on HB 124 and CWIP.
In a free market, the forces of supply and demand prompt the setting of prices. As supply decreases or demand increases, the value of a commodity and its uses increases. As the price increases, the price sends a signal to potential suppliers inducing them to risk additional investment in producing the commodity. The Federal Energy Regulatory Commission has recognized this principle in recent orders directing operators of wholesale electric markets to increase the caps on what suppliers can charge in the wholesale market to permit the price signals of electricity to incent additional construction.
The Missouri Public Service Commission should be permitted to take these same issues into consideration when determining the rates for an electrical utility that sells at retail. It should not be foreclosed from considering how competitive forces would impact rates. All interested parties recognize that there is a growing need for electric generation. As a result, prices should go up. In a free market place, the forces of supply and demand would permit a seller to increase its prices in order to expand its business so as to increase its production. How rates should be set to reflect the change in the market place should be left to the Public Service Commission. The Commission may do this in one of several ways, including allowing the recovery of CWIP or increasing the rate of return granted to the electrical corporation to reflect the increasing supply demand risk in the market place.
To arbitrarily deny the recovery of CWIP produces a distortion in the attempt to mirror a free marketplace. Denying an electrical corporation the option of recovering CWIP in rates forces the company to borrow the money necessary to construct the facility, causing a “pay me later” consequence. The electrical corporation is forced to incur a significant amount of debt to accomplish the construction. Not only is there a significant amount of debt, the debt is expensive due to the fact that it is extended over a significant period of time. This makes the investment more costly. The Missouri Public Service Commission, the agency designed to function as a surrogate for competition, should not be arbitrarily denied the ability to function in its proper role in setting prices as the free marketplace would do.
The comments contained in this editorial are the views of David Linton and do not necessarily reflect the views of his clients.
Perhaps a little history is in order. In 1976, the voters of Missouri passed an initiative petition that prohibited the Missouri Public Service Commission from permitting electrical companies to recover CWIP in rates. Ameren Missouri, previously Union Electric Company, proceeded to construct its Callaway I plant by borrowing the funds necessary to construct the plant. The construction of the plant took approximately a decade.
Whatever the motivations in 1976 to passing the so called anti-CWIP law, circumstances have clearly changed. During the hearing on Tuesday, all parties recognized the need for the development of nuclear power. They recognized the need for new generation facilities to provide the necessary expansion to an aging fleet of generating facilities. Concern for the devastation that cap and trade regulations will bring on the state clearly also encourages Ameren Missouri to investigate a return to nuclear power.
The primary arguments for passage of the bill were the need for new generation and the economic development the construction of a new nuclear plant will bring to the state of Missouri. HB 124 would eliminate a disincentive for an electrical corporation to build a nuclear plant. The primary argument against passage of the bill was a consumer protection concern. Permitting an electrical corporation to put costs in rates would permit the utility to obtain recovery before it had proven the project was prudent in concept and execution and prior to a point in time when completion was assured.
None of these arguments has a bearing on whether the Missouri Legislature should pass HB 124. All agree that there is a need for new electric generation. All agree that there is a need to explore nuclear generation as an option. However, electrical corporations have an obligation to construct adequate generation facilities to provide for the requirements of their customers. HB 124 would not significantly add to this incentive. Economic development claims are also of little impact on the debate. What drives the economy is the exchange of money for goods and services desired by customers. If I spend a hundred dollars on a new television or on a new camera, the transaction drives the economy to a greater or lesser extent, but both drive the economy. Ameren may spend billions on a nuclear plant or some other form of generation. Either of these expenditures will impact the economy of Missouri. An incentive toward one particular form of spending does not necessarily increase economic development. It simply dictates the winners and losers in any such economic development. About the only expenditure that does not expand the economy is a tax payment to a government, for a government does not produce goods and services. The consumer protection concern is likewise of very little consequence to this discussion. The state of Missouri already has a structure in place in the form of the Public Service Commission which is designed to guard against the consequences of a utility’s imprudence and abuse of its customers. The Public Service Commission is fully capable of disallowing imprudent costs as it did in setting rates after Ameren put its Callaway I unit in service. Finally, all of these arguments fail in that they are mercantile in their most basic philosophy. The focus on the government and what the government’s interest is misses the point entirely. Rather, the question should be how the state should execute justice in the marketplace in Missouri.
Electric companies were and are what have been referred to as natural monopolies. No one wants a dozen sets of wires running down the street to permit a dozen different companies to compete to provide electric service. Since the electric utility infrastructure is so capital intensive, common wisdom suggests that competition be limited. This common wisdom has lead over the last century to what has become known as the “regulatory compact.” Utilities submit to regulation of their service by the state in exchange for a defined exclusive service territory and the right to a regulated return on their investments. With the regulatory compact comes a subsidiary theory that regulation should be designed to take the place of competition. It is the regulation’s substitution for competition that should drive the conclusion on HB 124 and CWIP.
In a free market, the forces of supply and demand prompt the setting of prices. As supply decreases or demand increases, the value of a commodity and its uses increases. As the price increases, the price sends a signal to potential suppliers inducing them to risk additional investment in producing the commodity. The Federal Energy Regulatory Commission has recognized this principle in recent orders directing operators of wholesale electric markets to increase the caps on what suppliers can charge in the wholesale market to permit the price signals of electricity to incent additional construction.
The Missouri Public Service Commission should be permitted to take these same issues into consideration when determining the rates for an electrical utility that sells at retail. It should not be foreclosed from considering how competitive forces would impact rates. All interested parties recognize that there is a growing need for electric generation. As a result, prices should go up. In a free market place, the forces of supply and demand would permit a seller to increase its prices in order to expand its business so as to increase its production. How rates should be set to reflect the change in the market place should be left to the Public Service Commission. The Commission may do this in one of several ways, including allowing the recovery of CWIP or increasing the rate of return granted to the electrical corporation to reflect the increasing supply demand risk in the market place.
To arbitrarily deny the recovery of CWIP produces a distortion in the attempt to mirror a free marketplace. Denying an electrical corporation the option of recovering CWIP in rates forces the company to borrow the money necessary to construct the facility, causing a “pay me later” consequence. The electrical corporation is forced to incur a significant amount of debt to accomplish the construction. Not only is there a significant amount of debt, the debt is expensive due to the fact that it is extended over a significant period of time. This makes the investment more costly. The Missouri Public Service Commission, the agency designed to function as a surrogate for competition, should not be arbitrarily denied the ability to function in its proper role in setting prices as the free marketplace would do.
The comments contained in this editorial are the views of David Linton and do not necessarily reflect the views of his clients.
Monday, February 14, 2011
SJR No. 15: Removing the Shadows
State Senator Brian Nieves introduced SJR No. 15 on February 8, 2011. Representative Curtman has filed a similar bill in the Missouri House. SJR No. 15, simply stated, relates to state sovereignty. If passed by the legislature, it would set before the voters of the state of Missouri a constitutional amendment to the state constitution that would declare that Missouri would enforce its constitutional authority.
One particular provision of the resolution declares that the State of Missouri shall:
The “penumbras” terminology comes from Justice William O. Douglas in his majority opinion in Griswold v. Connecticut, in which the court found the right of “privacy” within a penumbra of rights contained in the Bill of Rights. It was upon this right of “privacy” that the Supreme Court eventually precluded states from prohibiting abortions in the case of Roe v. Wade. The “penumbra” language in Griswold is ironic for at least two reasons. First, the finding of new rights within a penumbra of other rights is in complete contradiction to the very character of the Constitution. The authors of the Constitution repeatedly referred to the federal government as a government of limited powers. They memorialized this understanding in the Tenth Amendment by providing therein that powers not delegated were reserved to the states. Second, the Bill of Rights itself was intended as an expression of the inherent liberties of the states and of the people. With adoption of the penumbra language, the Supreme Court took the language of liberty and used it as a weapon against a state’s legitimate liberty in protecting the life of the unborn child.
A second irony is the use of the phrase “living, breathing document.” Written documents are intended to have a fixed meaning. Written documents are forms of communication and therefore instruments of relationship. For that reason, written documents are unlike human beings, in that when they become “living” and “breathing,” i.e. subject to every whim of interpretation, they simultaneously mean everything and nothing. They cease to fulfill their primary function and die. And if the written document is destroyed, the relationship is destroyed. Hence, if the U.S. Constitution becomes a living, breathing document, the nation is destroyed. To treat the Constitution as a dead letter is the only way to make the Constitution truly live and fulfill its purpose.
This concept of a living, breathing Constitution has resulted in a vessel of justice which is so overgrown with barnacles and crust that it is incapable of being maneuvered. Over the course of two hundred years, the Supreme Court has subjected the U.S. Constitution to numerous tests and qualifications. Congressional preemption of law under the Supremacy Clause of the Constitution can be implied in two types, each with its own test. The Supreme Court has identified three broad categories of activity that Congress may regulate under the Commerce Clause of the Constitution. One such category, those activities which “substantially affect” interstate commerce, has a four part consideration. The tediousness of these tests has gotten so bad that the recent opinion of Judge Roger Vinson in State of Florida v. United States Department of Health required several pages of discussion devoted to whether a person’s refusal to purchase health insurance was “activity.” The Commerce Clause of the Constitution simply allows Congress the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Does such a simple provision require a system of elaborate tests and conditions? No. The tests and conditions work to obfuscate the purpose of the Constitution. What typically happens is the various tests and conditions create the parameters under which the Congress must construct an elaborate maze of laws simply to satisfy the tests and conditions. It is time to scrape off the crust of all of these tests and conditions and start again. It is time for the Court to inquire again into the purpose of the Constitution.
Judge Vinson has highlighted and challenged our Supreme Court to reconsider one aspect of its Constitutional Jurisprudence.
I also applaud Senator Nieves and Representative Curtman for their initiative in introducing these bills. We saw last year that the citizens of Missouri are inclined to question and challenge the federal government’s usurpation of power in passing the Missouri Healthcare Freedom Act. Senator Nieves has heard the voice of the people and is taking the next step. If we want a strong and healthy Constitution and a strong and healthy nation, we must eliminate all of the shadows and penumbras, and we must return to the original meaning of the Constitution as the founders intended.
One particular provision of the resolution declares that the State of Missouri shall:
(3) Interpret the Constitution of the United States of America based on its language and the intent of the signers of the Constitution at the time of its passage. The several amendments shall be interpreted by their language and the intent of the congressional sponsor and co-sponsors of the amendment. Any interpretation of the Constitution based on an emerging awareness, penumbras or shadows of the Constitution, a theory of the Constitution being a "living, breathing document", or any interpretation that expands federal authority beyond the limited powers enumerated and delegated to the federal government, without an amendment to the Constitution, shall be deemed to exceed the limited powers enumerated and delegated to the federal government.This provision highlights the problem with the condition of our present Constitutional jurisprudence in almost comical terms. Why should the Constitution of the state of Missouri refer to “penumbras” and “shadows?” Why should it refer to “living, breathing documents?” These terms are necessary because these are the terms used by the highest court in our land to characterize their authority.
The “penumbras” terminology comes from Justice William O. Douglas in his majority opinion in Griswold v. Connecticut, in which the court found the right of “privacy” within a penumbra of rights contained in the Bill of Rights. It was upon this right of “privacy” that the Supreme Court eventually precluded states from prohibiting abortions in the case of Roe v. Wade. The “penumbra” language in Griswold is ironic for at least two reasons. First, the finding of new rights within a penumbra of other rights is in complete contradiction to the very character of the Constitution. The authors of the Constitution repeatedly referred to the federal government as a government of limited powers. They memorialized this understanding in the Tenth Amendment by providing therein that powers not delegated were reserved to the states. Second, the Bill of Rights itself was intended as an expression of the inherent liberties of the states and of the people. With adoption of the penumbra language, the Supreme Court took the language of liberty and used it as a weapon against a state’s legitimate liberty in protecting the life of the unborn child.
A second irony is the use of the phrase “living, breathing document.” Written documents are intended to have a fixed meaning. Written documents are forms of communication and therefore instruments of relationship. For that reason, written documents are unlike human beings, in that when they become “living” and “breathing,” i.e. subject to every whim of interpretation, they simultaneously mean everything and nothing. They cease to fulfill their primary function and die. And if the written document is destroyed, the relationship is destroyed. Hence, if the U.S. Constitution becomes a living, breathing document, the nation is destroyed. To treat the Constitution as a dead letter is the only way to make the Constitution truly live and fulfill its purpose.
This concept of a living, breathing Constitution has resulted in a vessel of justice which is so overgrown with barnacles and crust that it is incapable of being maneuvered. Over the course of two hundred years, the Supreme Court has subjected the U.S. Constitution to numerous tests and qualifications. Congressional preemption of law under the Supremacy Clause of the Constitution can be implied in two types, each with its own test. The Supreme Court has identified three broad categories of activity that Congress may regulate under the Commerce Clause of the Constitution. One such category, those activities which “substantially affect” interstate commerce, has a four part consideration. The tediousness of these tests has gotten so bad that the recent opinion of Judge Roger Vinson in State of Florida v. United States Department of Health required several pages of discussion devoted to whether a person’s refusal to purchase health insurance was “activity.” The Commerce Clause of the Constitution simply allows Congress the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Does such a simple provision require a system of elaborate tests and conditions? No. The tests and conditions work to obfuscate the purpose of the Constitution. What typically happens is the various tests and conditions create the parameters under which the Congress must construct an elaborate maze of laws simply to satisfy the tests and conditions. It is time to scrape off the crust of all of these tests and conditions and start again. It is time for the Court to inquire again into the purpose of the Constitution.
Judge Vinson has highlighted and challenged our Supreme Court to reconsider one aspect of its Constitutional Jurisprudence.
I appreciate the difficult situation in which the states find themselves. It is a matter of historical fact that at the time the Constitution was drafted and ratified, the Founders did not expect that the federal government would be able to provide sizeable funding to the states and, consequently, be able to exert power over the states to the extent that it currently does. To the contrary, it was expected that the federal government would have limited sources of tax and tariff revenue, and might have to be supported by the states. This reversal of roles makes any state-federal partnership somewhat precarious given the federal government’s enormous economic advantage. Some have suggested that, in the interest of federalism, the Supreme Court should revisit and reconsider its Spending Clause cases. [Citation omitted] However, unless and until that happens, the states have little recourse to remaining the very junior partner in this partnership.In this passage, Judge Vinson has challenged the Supreme Court to scrape off the crust from the Spending Clause and return to the clause’s original intent. I applaud the Judge.
I also applaud Senator Nieves and Representative Curtman for their initiative in introducing these bills. We saw last year that the citizens of Missouri are inclined to question and challenge the federal government’s usurpation of power in passing the Missouri Healthcare Freedom Act. Senator Nieves has heard the voice of the people and is taking the next step. If we want a strong and healthy Constitution and a strong and healthy nation, we must eliminate all of the shadows and penumbras, and we must return to the original meaning of the Constitution as the founders intended.
Monday, February 7, 2011
Education Plunder: Send the Money Back
A proposed email to our state Representatives and Senators:
Dear Senator or Representative:
I respectfully request that you support Senators Lembke, Nieves and Crowell in their efforts to return the 189 million dollars in federal education money to the federal government.
Our federal government, created to execute justice among the states and provide liberty to the people, has become the very antithesis of what it was created to be. It takes from some to give to others. This is the very definition of injustice and tyranny. What is injustice has been redefined as justice. This corruption knows no bounds. My children’s children are in debt for the lust of the federal tyrant for power and control. Their seeking after control likewise knows no bounds. There is not one scintilla of authority in the U.S. Constitution for the federal government to become involved in education. Education is the role of the family and the church. If it must fall to the state, so be it, but it is never the role of the fed. Send the tax revenue usurped for unauthorized purposes back to where it belongs and instruct the federal tyrant to reduce the crushing burden of debt on this nation. Thank you.
Dear Senator or Representative:
I respectfully request that you support Senators Lembke, Nieves and Crowell in their efforts to return the 189 million dollars in federal education money to the federal government.
Our federal government, created to execute justice among the states and provide liberty to the people, has become the very antithesis of what it was created to be. It takes from some to give to others. This is the very definition of injustice and tyranny. What is injustice has been redefined as justice. This corruption knows no bounds. My children’s children are in debt for the lust of the federal tyrant for power and control. Their seeking after control likewise knows no bounds. There is not one scintilla of authority in the U.S. Constitution for the federal government to become involved in education. Education is the role of the family and the church. If it must fall to the state, so be it, but it is never the role of the fed. Send the tax revenue usurped for unauthorized purposes back to where it belongs and instruct the federal tyrant to reduce the crushing burden of debt on this nation. Thank you.
Subscribe to:
Posts (Atom)
Posts
