Government does not exist to protect you from yourself

[editor's note: This is the last in a series of six articles to be published that express my views on the nature of the Federal Government, and Congress in particular. The six principles are:

1) The Constitution is law, not a living document
2) The Constitution guarantees a government of fixed and limited powers
3) A democratically elected representative government is a right. Being a representative is not
4) Government is not a wealth transfer system
5) Government exists to promote the general welfare
6)Government does not exist to protect you from yourself

end editor's note]

Government does not exist to protect you from yourself

Maxim: Individuals are (or should be) the best arbiters of what is appropriate for themselves.

To often Congress oversteps their bounds with respect to regulating consumption of goods and services. In point of fact, Congress routinely responds to a failure of regulation with even more regulation. As Ronald Reagan said in his first inaugural address, "government is not the solution to the problem; government is the problem." True, he was speaking about the economic problems facing the country at that time, but his wisdom is not less applicable to a myriad of problems facing us even today.

All too frequently, people turn to government to implement rules and regulations that further intrude into the lives of far to many people for no other reason than the fact that some people are just not capable of taking care of themselves. They believe that they ought to be able to do or say whatever they wish and that government should have the obligation of bailing them out of trouble. Too many parents abrogate the responsibility they have to raise their own children and instead expect government to enact regulations to "protect" their children from all manner of perceived ills.

Parents have recently forced Coca Cola to remove all vending machines from public schools through the threat of governmental sanctions. Several Congressional Members have called on the Federal Government to conduct hearings and impose penalties on companies engaged in producing video games because some parent groups consider them "too violent." Personal injury attorneys turn to the courts to exact usurious penalties from companies when their products are used in a manner never contemplated and cause injury to Johnny. In none of these cases do the parents ever stop to think that they bear some responsibility for the actions of their children.

Ironically, it is those same people who demand the right to control what Johnny is taught, arguing that government (i.e., school boards) do not have the authority to force Johnny to learn subjects the parents deem objectionable. Of course, when private citizens attempt to exercise their right to determine what subjects are acceptable through the form of enrolling their children in private or charter schools, those same parents then will howl that government must ensure an equality of outcome by increasing funding to their child's school. Since no one is willing to give up the funding, the predictable result is an increase in everyone's taxes and a decrease in the overall quality of public education. That these facts are interrelated escapes the cognizance of the voting public.

Using a collective "pervasiveness" theory, people assume that individual action will be either insufficient or ineffective, thus "requiring" government to get involved. If the problem is perceived as so large that only a "comprehensive solution" (to use government's favorite euphemism) is believed to solve it, people can free themselves from responsibility. But the inevitable result is that whatever regulations get enacted rarely solve the problem. Instead of vetting solutions in the free market of ideas, more regulations are crafted to cover the situations and loopholes not seen in the first set. Government grows larger and more intrusive, providing even more career bureaucrats a job for life.

This unnatural state of affairs is the antithesis of the great American experiment. This country was founded on the principles of hard work and personal commitment. The original colonists jealously guarded their personal lives, permitting government oversight of only those things that were fundamentally federal in nature. This concept of a limited government was embodied in the Constitution, unique at the time for being the first to codify a government of specific, designated powers.

Congress must pledge itself to get involved only when the problem to be confronted is one that falls under the powers listed in Article I, Section 8. Anything else is an unjust intrusion into the lives of individuals. People must take responsibility for their own lives and their own actions. Parents especially need to understand that government is not their personal nanny. Congress must resist the temptation to get involved with every perceived social ill and ask some simple questions: can private enterprise or local government better solve this problem? Is there a solution that does not require the creating of a new governmental agency and more regulations? When the answer to either question is "yes," Congress must step aside.

Government exists to promote the general welfare of a nation.

[editor's note: This is the fifth in a series of six articles to be published that express my views on the nature of the Federal Government, and Congress in particular. The six principles are:

1) The Constitution is law, not a living document
2) The Constitution guarantees a government of fixed and limited powers
3) A democratically elected representative government is a right. Being a representative is not
4) Government is not a wealth transfer system
5) Government exists to promote the general welfare
6)Government does not exist to protect you from yourself

end editor's note]

Government exists to promote the general welfare of a nation.

Maxim: Social engineering and pandering to the interests of a targeted group or region is not a legitimate goal.

Your representative does not represent your local interests at the national level, he represents you at the national level. This is more than a trivial difference in semantics. The nature of a representative was a topic of much debate in the early years of the Republic. In one of the few instances where he was wrong, Thomas Paine aligned himself with the former position, while Edmund Burke championed the (correct) latter.

Burke had learned as a Member of Parliament that it was sometimes necessary to vote in a manner that was contrary to the opinions of his constituents who might not be in possession of all the facts and the true state of affairs. Said Burke, "Your Representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion...Parliament is not a Congress of Ambassadors from different and hostile interests; which interests each must maintain, as an Agent and Advocate, against other Agents and Advocates; but Parliament is a deliberative Assembly of one Nation, with one Interest, that of the whole; where, not local Purposes, not local Prejudices ought to guide, but the general Good, resulting from the general Reason of the whole." As right as he was, unfortunately for Burke, this position ultimately cost him his seat.

It might be tempting in reading the above quote to conclude that he was making a comparison between the British Parliamentary system and a federal system, a Congress, like ours (Burke said the above in 1765, prior to the American War for Independence). This reading would be wrong. A "Congress of Ambassadors" would more closely align with the Committee of the Whole during the Constitutional Convention. In that body, the members were free to express their ideas and concerns from the standpoint of "would this benefit (or harm) the people in my State." In fact, this is the very reason that the Committee of the Whole was formed. It was the only way to ensure that any member could speak his mind and vote in a non-binding, non-impugnable manner while working out the details of the final form of the federal government. However, once that government was formed, it became the expressed duty of the elected members to look out for the general welfare as Burke had rightfully concluded.

In their eternal quest to remain bureaucrats for life, however, Congressmen continually try to get the most benefit for their local district. In fact, voters have come to expect, through the creation of the entitlement society foisted on America by the atrocious 'New Deal' and other such legislation, that Congress exists primarily to secure as much of the pie as possible for the home district, even when that means limiting or reducing the amount of pie available for every other district.

This egregious "give-me-more mentality" frequently leads Congressmen into passing legislation that hurts America in favor of his local district. Examples of this abound, from Congress' eternal bickering over BRAC recommendations to pork-barrel funding of bridges to nowhere. Often they resort to the borderline childish tactic of attaching an earmark to legislation which, due to previous "protect my job" rules, is considered a "must pass" resolution. Thus, a recent defense authorization to provide our brave servicemen the tools necessary to do their job came with an amendment to fund a sugar-cane research facility in New Orleans and the relocation of a brand new railroad bed in Mississippi 100 yards away from its current position. Both provisions were placed in this "must pass" legislation because the respective Congressman were unable to obtain the funding during earlier debates on a transportation bill.

Congress must remember the words of Thomas Paine: "Government is not a trade which any man or body of men has a right to set up and exercise for his own emolument, but is altogether a trust, in right of those by whom that trust is delegated, and by whom it is always resumable. It has of itself no rights; they are altogether duties." Congress must remember that their duty is to the Country, not to their district.

Government is not a wealth transfer system.

[editor's note: This is the fourth in a series of six articles to be published that express my views on the nature of the Federal Government, and Congress in particular. The six principles are:

1) The Constitution is law, not a living document
2) The Constitution guarantees a government of fixed and limited powers
3) A democratically elected representative government is a right. Being a representative is not
4) Government is not a wealth transfer system
5) Government exists to promote the general welfare
6)Government does not exist to protect you from yourself

end editor's note]

Government is not a wealth transfer system.
Maxim: Welfare is anathema to a free, capitalist society.

In 1794, James Madison addressed Congress and stated he could not "undertake to lay [his] finger on that article of the Federal Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents." For more than 70 years this principle held sway. Then the Socialist left found religion in the form of the 14th Amendment.

The 14th Amendment guarantees to every citizen equal protection under the law. This clause has been hijacked by the minions of political correctness and multi-culturalism to justify any manner of social program designed to provide a defined benefit to some “historically disadvantaged” group usually at the expense of society as a whole, but sometimes more nefariously at the expense of a some other perceived “advantaged” group.

Under the guise of 14th Amendment principles, Federal and State governments have found ways to transfer hundreds of billions of dollars in benefits and services to people based solely on race and gender as qualifiers. Government created Social Security and Medicare, burdening future taxpayers with the task of funding retirement for previous generations of people who failed to plan ahead. In short, the left has used the 14th Amendment to institute Socialism in America.

There is not a single example in history of a country where Socialism was successful. Quite to the contrary, the adoption of Socialist principles has invariably resulted in decreased production, depressed economies, and miserable populations constantly teetering on the brink of disaster. Western nations that have socialized medicine must support their systems through oppressive taxes that hurt both businesses and citizens. Government controls stifle innovation and competition, leading to long waiting times for sub-standard services. Regulation invariably leads to even more regulation as loopholes are found, requiring the transfer of even more wealth to ensure “proper” redistribution. That is the inescapable reality of Socialism.

America was founded by people who believed in the dignity of hard work and self sacrifice. This “rugged individualism” as Roosevelt called it was a virtually inexhaustible supply of raw talent. Capitalism was the catalyst that turned that talent into goods and services that did precisely what Socialism claimed: improving the human condition. Capitalism provides the incentive to work and study harder to invent something new and useful. Capitalism motivates professionals to become the best in their field. Capitalism induces people to attempt what others consider impossible. Thomas Paine said, “There is a natural aptness in man, and more so in society, because it embraces a greater variety of abilities and resources, to accommodate itself to whatever situation it is in. The instant formal government is abolished, society begins to act.”

Capitalism is part of human nature. It is the only economic system that is not the product of human creation. The desire to improve one's condition is an innate characteristic of man. That is why all other economic systems require intensive governmental control of both the means and results of production, and why they are ultimately doomed to failure.

With all history supporting this premise, indeed with the 20th Century standing as a complete repudiation of the Marxist beliefs, it is hard to imagine how a culture of entitlement could gain root within the West. Every effort at welfare has been an abject failure. The proponents would argue that is because government did not do enough, which leads to more welfare, which leads to more failures in the system, ad infinitum.

From education to health care, government control just does not work. Prior to the existence of welfare, Americans donated far more money to private relief organizations than they do now. Prior to Social Security, families took care of each other. Prior to Medicare, doctors and hospitals would provide low or no-cost health care to those in need. It took the passage of the New Deal to transform America into the great welfare state.

With government guaranteeing retirement money, people learned not to plan. With government guaranteeing payments for medical expenses, doctors had no incentive to provide free care or improve treatment. The more the government gave, the more the socialist left demanded. Rather than pack up their tents and move on when their good intentions failed as all Socialist programs do, the left convinced everyone who was not a white male that they were a victim, and as victims were owed things by the government.

America was thus transformed from the great welfare state to the great entitlement state where the only qualification for special treatment was being a member of a defined victim group. People were either oppressors or the oppressed, and under the socialist agenda, the 14th Amendment could be used to obtain any manner of preferential treatment. This is as un-American as it is unconstitutional.

Equality of opportunity does not require equality of outcome. America is all about choice. We do not all drive the same car, live in the same house, wear the same clothes, or eat the same food. Choice alone demands that the outcome cannot be equal. Government must protect equal access. Socialist Welfare programs that provide benefits to one group at the exclusion of another by definition is not equal access.

Congress must seek to promote the capitalist system in the least intrusive manner possible. Economic redistribution systems such as welfare as it exists today must end. A very wise anonymous person once said, “the surest way to get anything done is to tell an American that it is impossible.” Congress must get out of the way of the natural talent existing in each one of us and let loose the free market system. The freedom to pursue one's own path within reason will succeed where no amount of regulation can.

A democratically elected representative government is a right. Being a representative is not.

[editor's note: This is the third in a series of six articles to be published that express my views on the nature of the Federal Government, and Congress in particular. The six principles are:

1) The Constitution is law, not a living document
2) The Constitution guarantees a government of fixed and limited powers
3) A democratically elected representative government is a right. Being a representative is not
4) Government is not a wealth transfer system
5) Government exists to promote the general welfare
6)Government does not exist to protect you from yourself

end editor's note]

A democratically elected representative government is a right. Being a representative is not.

Maxim: Term limits are necessary to ensure Representatives and Senators fulfill their obligations to the country as a whole.

That Congress now views their main objective as re-election prevents them from acting in the best interest of the country and instead focus on getting as much of the federal pie for their own constituents as they possibly can. A previous article entitled “It's Time For A Change” deals extensively with this issue. The conclusion of that article is reproduced here:

"Alexander Hamilton once said, “When a man knows he must quit his station, let his merit be what it may, he will turn his attention chiefly to his own emolument.” Opponents of term limits often invoke this as proof that the Founders were opposed to them. However, this statement is taken out of context. Hamilton was speaking to the idea of forced rotation versus frequent elections. Nearly the identical debate took place over the length of service for the President, and as we saw, the Founders did not place any limits in the final Constitution. This does not mean they were opposed to term limits. It means that they left the matter unsettled.

“An important difference between forced rotation and term limits is that until his final term, a Member will not know for sure when “he must quit his station.” Far from using his last term to increase his lot in life, if Presidential history is any guide, he will instead turn his attention to creating his legacy.

“It's not rocket science. Term limits will not stop the incessant pork barrel spending, but it should make it possible for worthy citizens who are willing to serve their country instead of themselves to have a chance. And during their final term, at least, maybe they will finally get around to doing their job – provide for the common defense, promote the general welfare, and secure the blessings of liberty.” (from “It's Time For A Change”)

The Constitution lists a limited set of very specific requirements to be eligible for election to the House or the Senate. At various times in the history of our country, States have attempted to insert additional requirements over and above those listed in Article 1, Sections 1 and 2 (and extended in Amendment 14, Section 3). Each such effort has met defeat.

The Constitution further gives Congress the power to be the judge of their own elections (Art. 1, Sec. 5). Congress has used this power to create legislative districts within the States virtually to ensure re-election. Although several States have tried to correct this problem, the result has often been the creation of districts with locales far-flung from each other, further removing elected officials from those they are supposed to represent.

Congress must enact an amendment to the Constitution for term limits. Without such an amendment, term limit pledges or laws would not be enforceable. Congress could continue to use their power to gerrymander districts to ensure only those current members opposed to term limits would be elected. But, as James Madison observed in Federalist 51, “[i]n framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” Refer to the article “It's Time For A Change” for a realistic plan of how to make that happen.

The Constitution guarantees a government of fixed and limited powers

[editor's note: This is the second in a series of six articles to be published that express my views on the nature of the Federal Government, and Congress in particular. The six principles are:

1) The Constitution is law, not a living document
2) The Constitution guarantees a government of fixed and limited powers
3) A democratically elected representative government is a right. Being a representative is not
4) Government is not a wealth transfer system
5) Government exists to promote the general welfare
6)Government does not exist to protect you from yourself

end editor's note]

The Constitution guarantees a government of fixed and limited powers

Maxim: Government actions must be limited to those that meet a specifically identified goal of the Constitution.

The purpose of the Federal government is to exercise authority over those things which individuals or the States are either incapable or would be inefficient at managing on their own. Article 1, Section 8 contains the full list of those items so granted by the people to the Federal government. Opponents of the Constitution nonetheless argued during the ratification hearings in several states that without explicit guarantees of certain individual rights, the Founders had left open the path to tyranny.

Certain rights are absolute, that is, they existed before government. Certain rights are fundamental but not absolute. Government has an obligation to protect without regulating the former and protect through regulation the latter. There are only 3 absolute rights: life, liberty, and the pursuit of happiness. All other rights must be protected not restricted through regulation. That some rights are explicitly named by the Constitution does not imply that a power ever existed to restrict those not so named. The Constitution is one of enumerated powers; if its not enumerated, it is not a granted power.

Both the Magna Carta and the British Constitution in some form guaranteed certain civil rights, and yet the Crown had, as Jefferson wrote in the Declaration of Independence, “through a long train of abuses and usurpations, evinced a design to reduce [the colonies] under absolute despotism.” These events were still fresh in the minds of the opponents and therefore they sought some additional guarantee.

In September of 1789, the First Congress of The United States of America offered a series of resolutions that ultimately would become the Bill of Rights. Of important note is that the Bill of Rights expresses rights held by individuals, not collective rights held by the States. A clear reading of the wording proves that this is the case, as the framers were careful to use the words “Government,” “people,” and “States.”

It is important to remember that the Constitution is a grant of powers from the people and States to the central government. Thus, a clear text reading of the Constitution could not lead one to a conclusion contrary to what the 9^th Amendment made explicit (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”)

Practically, what all this means is that anytime Congress through legislation or action oversteps the bounds of one of the specific duties listed in Art. 1 Section 8, it is the responsibility of the President to veto the legislation, or the people to oppose the action through the proper channel of the Judicial Branch. Once referred for review to the Judicial Branch, it becomes the responsibility of the cognizant Judges or Justices to declare such actions null and void. This is all part of the system of checks and balances. Despite this, Congress has routinely enacted legislation that lies far outside one of the enumerated powers.

Alexander Hamilton, in the very first Administration, sought to expand the role of government far beyond the bounds of the Constitution. His ambitions contrasted sharply with the views of the Republicans, who where just as fervently tied to State's rights. The first quarter century of Independence saw bitter feuds between Hamilton's Federalists and Jefferson's Republicans.

Emboldened by a series of Supreme Court rulings (Marbury v. Madison [1803], McCulloch v. Maryland [1819], Cohens v. Virginia [1821], Gibbons v. Ogden [1824]) that greatly enhanced the power of the Federal Government, the Federalists saw virtually no limit to what they could justify under the “necessary and proper” and “general welfare” clauses. It is now doctrine in the legal system that Congress is the only arbiter of what falls under theses Constitutional injunctions. By declining to consider these claims as justiciable, the legal branch of our tripartite system has abrogated their responsibility to curtail these Congressional transgressions.”

But just as each branch has limited powers, so too is the principle that separation of those powers is Constitutionally guaranteed. No branch of government can delegate its powers to another, nor can one branch assume powers abrogated by another. Yet this is precisely what is happening routinely today. From Congress's passing of “Authorization to Use Military Force” resolutions for every overseas military operation since World War II, to the Senate eusing their responsibility to provide “advice and consent” to block judicial appointment, Congress has sought to unlawfully delegate some powers while equally unlawfully expanding others.

The American Constitution was unique in that it created a government of delegated powers. It used to be common practice in the early years of the Republic for bills before Congress to identify the specific clause in the Constitution that authorized the action. However, once Congress realized that the courts would allow virtually anything as long as Congress invoked the “necessary and proper” or “general welfare” clauses, this practice ceased. We must return to the original system. Congress must identify the specific grant of power that authorizes any potential legislation. Congress must confine its activities to those that fall within the narrow range contemplated by Article 1, Section 8. Congress must also exercise fully those powers, while simultaneously staying out of the business of the other branches.

Oh Those Taxes

Start by scrapping the tax code. Don't
fiddle with it. Junk it. Throw it out. Bury it. - Steve Forbes

The ink is barely dry on the recently passed tax package and pundits are once again criticizing the measure. Among other complaints, Congress has failed to permanently reform the alternative minimum tax. Congress refuses to address this for the simple reason that estimates show that a complete elimination of the AMT will cost about $600 billion over 10 years. This fails to recognize, however, that the problem is a pervasive "revenue neutral" attitude that exists in Congress to any proposed tax cuts. This money never belonged to Congress in the first place, but they greedily lined up their favorite pork-barrel projects to spend it. And since Congress has never met a program they didn't like, instead of cutting spending, they trot out the tired old rhetoric of loss of revenue.

The usual suspects on the left at the same time are trying to stifle meaningful debate on the issues with repeated reference to thoroughly discredited statements. However, Yahoo! News financial editors get the obfuscation of the day award with these tidbits:

1) "The latest legislation, touted mostly for extending the 15% tax rate for dividends and capital gains for two more years, would save the average taxpayer making $50,000 to $75,000 a year about $112, according to the non-partisan Tax Policy Center. Those making more than $1 million would get tax cuts exceeding $42,000."
2) "At a time when Bush and Congress are accelerating government spending, lower rates for upper-income taxpayers have pushed tax receipts as a percentage of the economy below 18% for five years in a row."
3) "Most middle-class American wage earners pay higher taxes on the fruits of their hard work than is paid by those fortunate enough to have substantial investment income."

I especially like the appeal to the "non-partisan Tax Policy Center." This fact is thrown in to hide the left's favorite trick of using "fuzzy math" to mislead you into accepting a half-truth as gospel. The truth is that whether you make $50K per year or $1 million per year, you get the same 15% rate on your investments. The hard dollar amount of $112 and $42,000 come from the fact that the average wage earner at $1 million per year simply has more investments than the average wage earner at $50K per year. What Yahoo! doesn't bother to mention is that the 15% tax the $1 million per year wage earner paid on his investments was more than 350 times as much in hard dollars as the $50K per year wage earner ($280,000 vs $750). But of course that statistic would also be "fuzzy math." The salient point is that both wage earners received the exact same benefit.

Yahoo!'s second tidbit is even more strange. Rather than focus on the tax receipts as a percentage of total government income, they compare the tax receipts to the total economy. This comparison conveniently ignores the "money multiplication factor" (the economic principle that a single $1 bill can buy more than $1 worth of goods through successive transactions). This allows Yahoo! to use the smallest possible number to make it seem like the wealthy do not pay their fair share of taxes. The reality is that the people who pay taxes "only" equal to 18% of the economy pay over 62% of the entire Federal budget. This is the highest percentage paid since the income tax system was legalized in 1913.

Yahoo!'s third tidbit is just plain ludicrous. They are talking about two completely different taxes as if they were the same thing. To use an already over-used analogy, they are comparing apples to oranges. The "fruits of their hard work" is double-speak for salary, whereas "substantial investment income" means stocks, bonds, etc. Both wage earners pay the same percent for taxes of the second type, whereas "those fortunate enough" actually pay significantly more of the first type. But once again, by using the appropriate terminology, Yahoo! can advance their goal of convincing you that the Bush tax cuts are only for his wealthy friends.

Comments such as these are not conducive to a discussion on how to reform the tax code. Low taxes on dividends and capital gains encourages investment. Investment encourages people to be self-reliant, minimizing the need for government to be in the business of retirement planning. The fact that some people are able to invest more than others is not unfair, it is capitalism.

Simplifying the tax system is a lofty goal, but as long as Congress persists in its revenue neutral mentality, meaningful reform can never take place. The perpetual debate over issues of "fairness" effectively stymie any attempt to show that various credits and exemptions, along with the progressive rate system itself, is a leading contributor to the welfare trap (rising income leading to reduced benefits creates a negative incentive to seek higher income). Pundits also invoke fairness in only one direction - it's OK to point out a perceived unfairness when everyone pays the same tax percentage, but it's definitely not OK to point out that lower tax payers consume a disproportionately higher percentage of government services and benefits.

Simplification in the form of eliminating all deductions, credits, and exemptions would remove politics from the tax process. It can hardly be argued that special interests contribute to Congress' failure to enact real reform. But one person's special interest is another's boondoggle. As long as voters can be split along the special interest line in the sand, one party or the other can assure an allegiance of voters. As an example, consider every Congress Critter's favorite deduction - home mortgage interest.

Forgetting for a minute that there are dozens of regulations defining what qualifies as a "home" for the purpose of this rule, the fact remains that virtually no renter can take advantage of this deduction. Any Critter advocating for a repeal of this deduction would immediately be attacked by his opponent, virtually guaranteeing that all home-owners in the district would vote against him. Since renters would be largely unaffected, their voting allegiance would probably remain more party-oriented. Faced with such a potential voter backlash, no one would ever propose such an action, and yet this is exactly the type of real reform we need.

A pure flat tax or a progressive rate tax assessed on all income at its source would go a long way to simplifying the current tax behemoth. Since it would apply equally to earned and unearned income, it would not be a benefit only to investors as is frequently claimed. Whether such a system would lead to higher or lower collected tax revenues ought to be debated by the economists, not the politicians. Adopting zero-based budgeting, wherein every spending bill identifies its funding source would remove the final political nail from taxation and properly recognize that revenue and spending are tightly connected. Tax cuts only increase deficits and budget surpluses only reduce deficits when spending remains the same. Taxation is one of those necessary evils, but Congress must remember that it is our money which demands their best stewardship, not their best larceny.

It's not rocket science. Time and time again Americans need to be reminded that equality of opportunity does not guarantee or even require equality of outcome. If someone goes to school, works hard, and earns a good salary, it is not their fault that a high-school drop out making minimum wage is not capable of investing as much in the stock market. A fair, simple tax code that taxes all income at its source, coupled with zero-based budgeting is the best solution for America. These Congressional non-effort half measures need to stop.

The Constitution is law, not a living document

[editor's note: The following is the first in a series of six articles to be published that express my views on the nature of the Federal Government, and Congress in particular. While it is clear that every political party ever created in the US has always felt its originating principles were rooted soundly in the Constitution, it is equally clear that each party has usually focused on a narrow range of “hot-button” issues in defining its position. Most, if not all of those parties (including the two dominant parties today) have failed to live up to a basic understanding of what the Consitution actually requires. I believe that these six principles ought to guide any member of Congress, regardless of party affiliation. The six principles are:

1) The Constitution is law, not a living document
2) The Constitution guarantees a government of fixed and limited powers
3) A democratically elected representative government is a right. Being a representative is not
4) Government is not a wealth transfer system
5) Government exists to promote the general welfare
6)Government does not exist to protect you from yourself

end editor's note]

The Constitution is law, not a living document.

Maxim: Only changes done in accordance with the amendment procedure carry any validity, notwithstanding any “interpretations” by any of the branches of government.

Many people subscribe to the belief that the Constitution ought to be reinterpreted whenever necessary to reflect “conventional wisdom.” This misguided belief is based on the seemingly reasonable premise that the Founding Fathers could not foresee future circumstances that could fundamentally alter the nature of the world or society. A common example used is the development of the Internet and how it has altered the traditional definition of what constitutes the “press.”

While on the surface, the premise appears reasonable, such circumstances can only arise from the incorrect assumption that the Founding Fathers intended the Constitution to merely define a philosophy of government and not set out actually to create one. Under this assumption, the Constitution is simply a framework for the creation of a transitory government to be molded at the whims of whomever happens to be in power at any point in history.

This assumption is a perversion of ideas expressed by Thomas Paine at the time of the War of Independence. Paine wrote extensively on the powers and nature of government, and rightly concluded that current generations had no right to give up fundamental rights of future generations. However, he was specifically referring to the fact that if people chose to give up certain rights to create a monarch, they did not have the right to give up those rights for others to come, thus making an hereditary monarchy impossible.

This principle was affirmed by SCOTUS in Fletcher v. Peck (1810) wherein it was noted “one legislature cannot abridge the powers of a succeeding legislature” and Reichelderfer v. Quinn (1932) stating “the will of a particular Congress . . . does not impose itself upon those to follow in succeeding years.” In other words, the only legitimate government for the long term was a limited, federal government which preserved the fundamental rights of all for all time.

The question that must be asked then, is whether or not an interpretation of a clause in the Constitution could unjustly limit rights of future generations. It ought to be self-evident that treating the Constitution as a living document is exactly what causes us to run afoul of this principle – once defined in this generation, it will become necessary for every subsequent generation to redefine clauses to ensure their rights were not unjustly abandoned by the previous.

The challenge comes in the fact that Justices are appointed for life, and therefore future generations might be deprived of their ability to re-interpret the offending clause since they might not be in a position to appoint justices of their own generation. Thus, the “living” document is only granted “life” when a new generation of Justices is able to assume office. As a result, only some generations are given this right of interpretation. The “living document” belief is in direct contravention of what was intended by the Founding Fathers.

The evidence of intent is found in the very fact that the Constitution includes not only provision for its own modification (via the amendment process detailed in Art. 5), but also through the declaration that the Constitution is “the supreme law of the land” (Art. 6). Amendments are the only legitimate way to add or subtract meaning from that great document. In fact, James Madison boldly declared in Federalist 14 that the Founding Fathers had “formed the design of a great Confederacy, which it is incumbent on their successors to improve and perpetuate.” The Confederacy was to be “improved” in condition and “perpetuated” in form. It was not to be interpreted.

As Edwin Meese once said, “The Constitution represents the consent of the governed to the structures and powers of the government. The Constitution is the fundamental will of the people; that is why it is the fundamental law. To allow the courts to govern simply by what it views at the time as fair and decent, is a scheme of government no longer popular; the idea of democracy has suffered. The permanence of the Constitution has been weakened. A constitution that is viewed as only what the judges say it is, is no longer a constitution in the true sense.”

It is true that laws are not immutable (legally speaking, anyway), and the judicial branch is tasked with the interpretation of laws. However, the interpretation of laws as contemplated by the Constitution was not to bend and to flex the language as necessary to fit the caprices of current public opinion, but rather to examine laws in reference to whether or not they were permissible under the Constitution as the supreme law. The Constitution clearly limits the power of the judiciary to an examination of 2 issues:

1. Does this law arise from one of the specifically designated powers of Congress?
2. Is this law both necessary and proper?

The corruption of the power of the judicial branch has created a legal system that encourages frivolous attempts by special interest groups to have laws reinterpreted to be favorable to their preferred position. The end result is that the political party aligning themselves with the opposite interpretation will invariably hurl charges of judicial activism. Ironically, however, the impetus for the judicial activism is the desire for adherents of both sides to receive activism in their favor. An even greater irony is the fact that this is just the sort of circumstance for which the proponents for a living document claim gives the need for the living document interpretation.

A clear reading of the Constitution on the limits of the federal judiciary unequivocally show that this was never intended. If Congress or their respective special interests wish to expand the role of the federal judiciary to include the ability to legislate from the bench, they must use the provided mechanism to amend the Constitution. Any attempt to interpret the Constitution as a living document is an abuse of power. Meese, again: “By seeking to judge policies in light of principles, rather than remold principles in light of policies, the Court could avoid both the charge of incoherence and the charge of being either too conservative or too liberal. A jurisprudence seriously aimed at the explication of original intention would produce defensible principles of government that would not be tainted by ideological predilection. This belief in a Jurisprudence of Original Intention also reflects a deeply rooted commitment to the idea of democracy.”

The Job The Federal Government Won't Do

Immigration is one of the specific powers delegated to the Federal Government. There is no concurrent jurisdiction given to the States for immigration, however, the States still retain a right to enforce their own laws. Can the States use their sovereign police powers to take action to enforce immigration law indirectly?

Last summer, the Chief of Police in a town in New Hampshire found a novel solution to the problem of illegal aliens: he charged the aliens with criminal trespass. It was widely expected that the defense would raise a preemption claim since ICE declined to get involved. Under such a claim, the defense would argue that federal enforcement of immigration held precedence over state enforcement, and if the Federal Government did not prosecute the aliens for immigration violation, the State could not charge them with criminal trespass. Unfortunately, the State AG declined to pick up the gauntlet, but at the time, I wrote an opinion on the merits of the preemption claim. Given the debates raging over the issue of illegal aliens today, I thought I would offer a condensed version of that opinion here.

The doctrine of Supremacy comes from Article 6, Clause 2 of the Constitution which declares: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

The framer's intent, clearly, was not to restrict State authority, but rather

1) To establish precedence in cases of concurrent jurisdiction

"It will not, I presume, have escaped observation, that it EXPRESSLY confines this supremacy to laws made PURSUANT TO THE CONSTITUTION; which I mention merely as an instance of caution in the convention; since that limitation would have been to be understood, though it had not been expressed.” (Hamilton, Federalist 33)

2) To ensure uniformity of interpretation

"The mere necessity of uniformity in the interpretation of the national laws, decides the question. Thirteen independent courts of final jurisdiction over the same causes, arising upon the same laws, is a hydra in government, from which nothing but contradiction and confusion can proceed.” (Hamilton, Federalist 80)

In Pennsylvania v Nelson (1956), it was determined that courts are to look to the pervasiveness of the federal scheme of regulation, the federal interest at stake, and the danger of frustration of federal goals in making the determination as to whether a challenged state law can stand. In other words, where the state law and the federal law are not in conflict, the question that needs to be answered is whether or not state enforcement of a criminal offense would hinder federal enforcement of the same offense.

Thus, there are 2 questions which must be addressed:

1) Are criminal trespass and illegal immigration status the same offense? If the answer is no, then there cannot be a preemption claim.

2) If the answer to that is yes, would the state enforcement preclude federal enforcement? Again, if the answer is no, there cannot be a preemption claim.

To the first question, we need merely examine the circumstances under which both violations arise. If it is possible to have the one without the other, the current view within the court is that they must be construed as different (in Cipollone v Liggett Group, 1992, 7 justices held that federal statutes must be read narrowly for preemption purposes [i.e., a presumption against preemption]).

The law made under the Constitution is expressly for the purpose of setting uniform rules for naturalization (section 8, clause 4). There is nothing within the Constitution that can be construed as a provision regulating the conduct of individuals within the context of criminal trespass (which would be the express purpose of a state law). Therefore, the two laws are distinct and under the test of Cipollone, the preemption claim must fail. The state is free to try the alleged violators.

However, supposing that the Courts were to rely on the “frustration of federal goals” aspect. In such a circumstance, we must examine the effect of state enforcement. It first must be noted that the claim to precedence only exists when there is a conflict between the two laws:

"If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.” (Hamilton, Federalist 78)

When no such conflict exists, the principle of Pennsylvania v Nelson holds. We must examine the enforcement rules to see if the federal criminal enforcement is somehow precluded. If a law provided for a statute of limitations provision that “does not run during any time when the accused is continuously absent from the state or has no reasonably ascertained place of abode or work within this state” (N.H. Criminal Code 625:8) for example, a State could elect to delay prosecution of the alleged violators until such time as the conditions could be reasonably met. That fact alone sufficiently proves that state enforcement would not preclude federal enforcement of immigration law.

In the event that prosecution is not delayed, however, we must examine the possible penalties for a potential conflict. Imprisonment or conditional discharge provisions in the law would present a mechanism for precluding federal enforcement, and potentially result in a finding of preemption. However, since ICE routinely declines to prosecute immigration violations, they have in effect vacated the field of criminal enforcement they had previously occupied under Pennsylvania v Nelson. Therefore, even though the test for preemption is “would” and not "did,” the state would be given de facto authority to prosecute (and consequently to jail or to place on conditional release any person found guilty of criminal trespass).

In conclusion, the application of the doctrine of preemption must fail given the current view of the court as expressed in Cipollone requiring a narrow interpretation of preemption claims. The States have numerous mechanisms available to ensure that enforcement of state law does not preclude federal enforcement. Finally, by declining to prosecute the federal offense, the state has been granted de facto authority to prosecute the criminal trespass. The States are free to do the job the Federal Government won't. Book'em, Dano.

WAKE UP!!!!

No matter what you may wish to believe, we are indeed engaged in a war. The war against Islamofascism did not begin on September 11, 2001 and it did not end with the declaration of “Mission accomplished.” Those on the left who were quick to condemn the current administration for “failure to connect the dots” are now criticizing the same administration for attempting to collect the dots in the first place.

Not content with their leaking of a classified terrorist surveillance program, the mainstream media has now seen fit not only to leak another classified program, but also to intentionally lie about its nature in order to create fear and loathing in America. To further facilitate the enemy's plans, the MSM has also seen fit to disclose exactly which telecommunications companies are not cooperating with the government. Even though recent polls show that 63% of Americans favor the action being taken by the NSA, the MSM continues to try to incite a negative reaction. When will they learn?

The phone companies already have complete records of when and who you call and for how long. That is how they are able to bill you. The phone companies have been collecting this information for over 100 years with nary a peep from the civil libertarians who have declared themselves to be the absolute authority on (perceived) invasions of privacy. They routinely sell this information to other companies without your consent and without the ACLU filing pointless lawsuits. There is no privacy lost when the NSA also has this information.

Telemarketers know when someone is probably home because the phone companies have compiled detailed statistics of your calling habits. That is why they call the majority of Americans at dinner time. Millions of people work the swing and mid shifts and therefore have different calling patterns. The telemarketers use this information which they obtain from the phone companies to call those people at times when they are likely to be home.

Recently, I had the opportunity to test this for myself. During a long period of unemployment, I was calling companies and conducting phone interviews during the day. Not surprisingly, in those two years, telemarketers called me in the late morning, the time I was most likely at home. Now that I am back at work, the phone is eerily silent during the day and the telemarketers call at night. The only way they could know that is by data mining the records they obtained from the phone company. These are the same records that the NSA is utilizing to identify terrorist networks.

Now it is certainly true that many privacy absolutists believe that the telemarketers are themselves engaged in an unlawful invasion of privacy. However, this “abuse” has been going on for decades without the ACLU getting involved. The reason for the over-reaction by the MSM is simply that they see another opportunity to discredit a President and his policies that they so hate. It doesn't hurt that they are offended by the suggestion of having a career military man nominated for the head of the CIA, a civilian organization. True to form, the MSM is capable of looking past the Intelligence credentials in order to see the “final nail in the coffin of democracy” as many on the hard left call it.

We are not fighting a conventional war. The enemy does not dutifully wear an identifying uniform. Radical Islam is intent on destroying America, and will use whatever means are necessary to accomplish that goal. This is an enemy with which we cannot reason. This is an enemy who will not stop short of the complete destruction of our way of life unless we destroy them first. Hezbollah's 1985 manifesto reads in part: “Our struggle will end only when this entity [Israel] is obliterated. We recognize no treaty with it, no cease-fire, no peace agreements.” Iran's president has called on the Muslim world to “finish the job started by Hitler.” Muslim rallies around the world refer to America as the “Great Satan.” These are not rational human beings. Appeasement will never work.

It's not rocket science. We must use every possible means to identify and destroy the enemy before he can act against us. Programs that tangentially intrude on your life in a manner completely unknown to you except for the criminal leaking of the press are part of that effort. The only people with anything to fear from a program such as this are those engaged in activities to undermine our way of life. We are in a war for our very survival. Never forget that in English, Islam” does not mean “peace.” It means “submission.”

Do The Honorable Thing, Barry

I'm not a fan of baseball, nor is this likely to matter in 12 hours, but for the sake of the integrity of "America's Pass-time" Barry Bonds needs to retire. Right now. Before he steps up to the plate. Now.

Barry, whether or not you knowingly took steroids, indeed whether or not you took them at all, it is no longer about you. It is about the game and its future. Many commentators are calling this the "steroid era." Debates rage regarding whether the history books ought to contain an asterisk next to your name. And your arrogance has certainly not helped to endear you to too many fans.

No one seriously questions your abilities. Even in your Pittsburgh Pirates, full head of hair, smaller biceps and deeper voice days, you were a superb ball player. That part of your career can never be taken away.

No one seriously doubts that you most likely will reach the all-time home-run record. But with this shadow hanging over you, it will be perpetually questioned whether you were honest in your pursuit of that record.

Just retire. Right now. Before you hit number 714. Be remembered for a final act of class.