Campaign finance laws: product of an imaginary Constitution

For a few years Thomas Knapp has argued that, under the Constitution, there's no such thing as "illegal immigration."

He's right. The Constitution authorizes Congress to make naturalization laws, but nothing concerning immigration, let alone restricting it.

Likewise, the Constitution mentions "commerce" among the states and with foreign nations, but says nothing about what you may produce or purchase within your own state, or about how you operate your own business on your own property.

And yet the mainstream believes in a Constitution that supports immigration restrictions, and that presumes federal control of your own body, choices, and business.

They support an imaginary Constitution which gives all power to Congress and the President except what they're explicitly prohibited from doing, when the language of the real Constitution gives them power to do only what is explicitly authorized, and prohibits them from doing anything else.

Campaign finance laws are the product of this imaginary Constitution. The Constitution says something about elections, but nothing about election campaigns.

It says... "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations" and "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members."

How does this even remotely imply that the arts of persuasion involved to encourage people to vote for a certain candidate for office can be regulated? The election is regulated; the day and manner (e.g., punch hole, electronic, etc.) in which you vote is regulated. But the decision of who you vote for can be influenced by a wide array of factors. The campaign isn't just what comes from candidates, their parties, or SuperPACS. The campaign is all around us, in op-eds, in blogs, in tweets, in what your favorite comedian, celebrity, or investor says. Even in ideologically-driven fiction written decades ago with no particular candidates in mind. Above all, the campaign exists in private conversations.

This should be obvious to anyone. You can't regulate a campaign by arbitrarily setting limits on how much money somebody decides to give to somebody else.

What the campaign finance restrictionists say, however, is that Bob Schieffer should be allowed his rants on CBS, but YOU are limited in how much ad time can be purchased on television. The Chicago Tribune can make a candidate endorsement, but YOU and your friends should be limited by federal law in how many full-page ads you create endorsing a different candidate.

Even if the First Amendment didn't exist, the restrictionists have no Constitutional basis for their existing laws and long-range goals (such as public financing of campaigns). And under the First Amendment, restricting how one chooses to spend one's money in support of a program of persuasion (such as to persuade people to vote for a certain candidate) is tantamount to "prior restraint" of the freedoms of speech and the press.

Most of this has been obvious to me since I started thinking about it as a teenager. And I've long suspected, those who embrace campaign finance restrictions are capable of endorsing any atrocious law, war, program, and policy. And they have.

Now, it may be said that I'm ignoring the "influence of money in politics." Excuse me, but no. Campaign finance laws make politicians less accountable than before. Candidates who are voluntarily transparent are more likely to be trusted by voters, but what are their incentives to be transparent if voters don't demand it?

Campaign finance laws are no substitute for transparency. And what do you expect they will fix? Let's say you gave the campaign limit to your favorite Senator, and Warren Buffett gave him nothing. Both you and Buffett call the Senator's office at the same time. Whose call do you think will be returned first?

Campaign finance laws are unjust, they abridge fundamental rights, and are the product of an imaginary Constitution. They must be repealed.

The Changing Conservative Movement

Check out my latest at The Partial Observer. Excerpt:

They could learn something from the Ron Paul movement itself. It encompasses people from atheist anarchists to Nevada prostitutes to college students to fundamentalist Christians such as 2008 Constitution Party Presidential nominee Chuck Baldwin.

That's inclusive, because the Constitution is inclusive. There is, after all, nothing exclusive by acknowledging that Congress should declare war before it is fought, the Federal Reserve is unconstitutional and is impoverishing the people, that the federal government has no business creating health care, welfare, and education programs, or that it has no business making marriage laws, drug laws, or abortion laws.

Is the Constitution Divinely Inspired?

Question: Is the Constitution Divinely Inspired?

Answers:

Progressive: Of course not, silly: there is no god!

Liberal: Of course not, because it was mostly written by slave-owners.

Conservative: No. It was the product of wise but imperfect men.

Anarchist: Are you serious?

Libertarian: Actually respecting the limits the Constitution places on power would be a good thing, but there was no reason to create it and the Articles of Confederation was better.

Neoconservative: Of course not: it doesn't mention anything about support for Israel.

The George Washington of Africa

Check out my latest at The Partial Observer. Excerpt:

A Constitutional convention is called. The new country adopts, sometimes verbatim, the Constitution of the United States. Executive, legislative, and judicial powers are separated. And as time goes by, there appears to be an actual commitment to following the letter of the Constitution.

Our rebel leader becomes President of this new "Africania."

Americans applaud, at first. Finally, a foreign country is doing what we want it to do!

But then American politicians grow concerned.

You Can't Have It Both Ways With Original Intent

Check out my latest at the Partial Observer. Excerpt:

It is safe to say the Framers of the Constitution never intended the federal government to be used to compel individuals to purchase health insurance.

On the other hand, why should we bother with the "original intent" of the slave-owning, dead white males who drafted the Constitution? Didn't they deny women the right to vote? Didn't they consider an African-American slave "three-fifths of a person?"

These are good questions. It is more than fair to bring the "original intent" of the Framers into question.

But let's not be hypocritical about it. After all,

The "original intent" of these elitist, slave-owning Dead White Males was to create a strong federal government that didn't previously exist.

Don't read this if you don't care about the Constitution

http://www.downsizedc.org/blog/don-t-read-this-if-you-care-about-the-constitution

Quote of the Day: "I want a government small enough to fit inside the Constitution." -- DownsizeDC.org co-founder Harry Browne (1933-2006)

Subject: Drugs and the Constitution

Our last Drug War Dispatch generated some concerned emails.

You can read our response here.

What we didn't mention in the previous Dispatch was the Constitutional problem of the War on Drugs. That's because . . .

Many people seem not to care what the Constitution requires. Today's message is for those who do care.

Drug control is NOT a Constitutional power of the federal government. At the very most the federal government could, perhaps, ban the importation of drugs, and prohibit their sale across state lines under the Commerce Clause of Article I, Section 8.

But nowhere in the Constitution is Congress empowered to prohibit the sale or possession of any item within state boundaries. The Tenth Amendment dictates that whatever Congress is not empowered to do must be left to the States, or to the people. This means Congress cannot . . .

* forbid the personal possession or use of drugs
* prohibit drug sales within the same state
* intervene in other countries with money or troops to fight undeclared drug wars

This means that drug prohibition laws can only exist at the state level. Imagine what could happen if some states had no prohibition laws, while other states had prohibition laws of differing severity. Competing claims about drug prohibition could be tested, in the real world. As it is . . .

Federal prohibition laws not only prohibit the sale and use of drugs, they also prohibit us from learning what would work best.

The 10th Amendment's Constitutional restrictions on federal power used to be well-known and understood. For instance, those who wanted to prohibit alcohol in the 1910's knew that the Constitution didn't give Congress the power to do this. So they had to pass the 18th Amendment, ratified in 1919.

Alcohol prohibition was a failure, so in 1933 the 21st Amendment repealed the 18th Amendment.

If prohibiting alcohol required a Constitutional Amendment, how does prohibiting other drugs NOT require a Constitutional Amendment?

It's an important question. To ignore the Constitutional process is to ignore the rule of law. No matter how one feels about drug use, the rule of law, especially as applied to government power, is essential to protecting our lives, freedoms, and property. With this in mind . . .

We want to ask you to do something different today. We've changed the message to Congress for our "Help End the Mexican Civil War" campaign. For today's action item it reads . . .

"You've sworn an oath to protect the Constitution, so could you please answer three questions. 1. Where does the Constitution authorize the federal government to wage a War on Drugs? 2. If alcohol prohibition required a Constitutional Amendment, how does prohibiting other drugs NOT require a Constitutional Amendment? 3. Shouldn't we be allowed to learn what works best by having states with different drug laws, or NO drug laws, in keeping with the 10th Amendment? I would appreciate an honest, thoughtful response."

If members of Congress receive enough of these messages, some will feel compelled to reply. We want to see what form these responses take, and we'd like to compare the names of those who respond with the list of those who have co-sponsored the "Enumerated Powers Act."

Remember, the "Enumerated Powers Act" would require Congress to cite its Constitutional authority for every law it passes. This would be impossible for them to do in the case of most drug prohibition laws, except those provisions that might squeeze through under the Commerce Clause.

If you receive a response could you please forward it to us, so we can publish it on our blog? Please let us know if you want us to omit your name to protect your privacy. Or, you can post the response in the Comments section of this blog post.

You can send your Constitutional questions to Congress here.

Please share this Dispatch with any friends who care about Constitutional requirements.

James Wilson
Assistant Communications Director
DownsizeDC.org

Government Censorship is Indefensible

I'm trying to be as understanding of other points of view. Many people do have good intentions and are just lacking facts and don't think things through. They know the economic system really is rigged against the masses. They really do want to protect the children. They really are afraid of terrorism. They go on to advocate policies that will exacerbate rather than alleviate their concerns, but their concerns are understandable.

But there are some causes where I just don't see any "good intentions" at all. They seem to me to be nothing but just attempts by selfish people to use the government to get back at enemies or force their utopia on everyone else. One example is campaign laws restricting speech. The government banned a documentary trashing Hillary Clinton during the Presidential campaign, saying it amounted to a political ad.

But the First Amendment is quite clear: Congress shall make no law abridging freedom of speech, or of the press. The Supreme Court has hedged in the past, making the indefensible claim that "commercial speech" can be regulated, that political campaigns can be regulated, and that campaign ads can be regulated. This is all demonstrably false in the Constitution's clear language.

And even if the First Amendment never existed, the Constitution doesn't give Congress the power to regulate speech or the press.

And even if the Constitution didn't exist, government has no right to censor. Speech, even foul and false speech, does not constitute aggression against another person's body or property. There is no justification for censorship, and there is no justification for the intentions that would make one want to censor others.

What Are States' Rights? Or, The Meaning of "Or"

In one of his Mises talks (I think this one), Thomas DiLorenzo clarifies what is meant - at least, what he means - by States' Rights. To paraphrase, the doctrine of States' Rights is merely the right of the people to come together to oppose and resist federal tyranny. It does not mean that the state governments have a "right" to oppress the people.

I received a letter from someone who has an interesting take on the Tenth Amendment that sounds very plausible and is consistent with DiLorenzo's thinking.

Think of these statements:

1. "My pet Fido was a canine, meaning, he was a dog."

2. "My pet Fido was a canine, that is, a dog."

3. "My pet Fido was a canine, or, a dog."

All statements indicate clarify the meaning of "canine" to those who may not know what a canine is. In the third sentence, the word "or" means "meaning" or "that is."

The Tenth Amendment reads, " The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

If "or" is used the same way as our canine/dog example, then "the States respectively" means "the people of each state."

If this interpretation is correct, The State is understood not as the government of a defined geographical area, but as the people of that area.

It seems that the common understanding of the Tenth Amendment is something like this: "Powers not delegated to the United States are thereby reserved to the State governments, and if the State governments don't exercise those powers, the people can have them to do as they wish; either way, the federal government isn't supposed to care one way or another." And this interpretation is distasteful to those who correctly assert that government's do not have the "right" to take away individual rights.

Does this new interpretation, in which "State" means "people" rather than "government," make any difference?

In one sense, it doesn't. Some will say that it still grants state governments the freedom to oppress if "the people" consent. But that's just a recognition that neither the other states nor the federal government has the right to govern them. Neither the state of Nebraska nor the federal government has the legitimate power to tell the people of South Dakota what to do or how to govern themselves. Similarly, neither the U.S. nor the United Nations have the legitimate power to tell the Canadian people what to do or how to govern themselves.

More significant is how the "United States" meant at the time the Constitution and Bill of Rights were written. I believe DiLorenzo along with probably several others have noted that when the preamble begins "We the People of the United States, in order to form a more Perfect Union" the meaning was not "we the people acting collectively as one nation" but rather "We the People of Connecticut, Delaware, Georgia, Maryland, Massachusetts, New Hampshire, New Jersey, New York, North Carolina, Pennsylvania, Rhode Island, South Carolina, and Virginia . . ."

So why wasn't it written that way? Because
a) the collection of states was understood when people said "the United States." They didn't have to name them all. They'd say, "the United States are . . ." instead of "the United States is . . ."
b) writing all the states out is awkward, and
c) because there was a possibility that not all the states would ratify and become part of this supposedly "more perfect" Union.

In sum, the people of the States formed the Union; the "American people" did not form the Union, for the "American people" did not exist. The Union was formed by and for the States, not by and for the majority of the "American people." Power is to emanate from the people as individuals coming together within their respective states - not from "the American people" as a whole, not from the state capitols, and not from the federal government.

To be for "states rights" is not to assert the right of state governments to oppress. It is rather, the right of the people to be free from centralized, federal control.

The Liberty Amendment

Are you familiar with this?

It's a proposed amendment to the Constitution, called the Liberty Amendment:

Section 1. The Government of the United States shall not engage in any business, professional, commercial, financial or industrial enterprise except as specified in the Constitution.

Section 2. The constitution or laws of any State, or the laws of the United States shall not be subject to the terms of any foreign or domestic agreement which would abrogate this amendment.

Section 3. The activities of the United States Government which violate the intent and purpose of this amendment shall, within a period of three years from the date of the ratification of this amendment, be liquidated and the properties and facilities affected shall be sold.

Section 4. Three years after the ratification of this amendment the sixteenth article of amendments to the Constitution of the United States shall stand repealed and thereafter Congress shall not levy taxes on personal incomes, estates, and/or gifts.

I assume this means that the "necessary and proper" or "general welfare" clauses of the Constitution can no longer be used to justify the existence of government-run businesses, such as the Federal Reserve, that are not specified already. But is Social Security a business enterprise? The Amendment doesn't address social-welfare programs. What about Veteran's hospitals? Professional or business enterprise? Something else?

What about National Park entrance fees and other user fees for services - are they taxes for a government enterprise or payments to a business enterprise?

If the political climate allowed the Liberty Amendment to be passed and ratified, the political climate would also render it unnecessary, because the people would follow the Tenth Amendment's restrictions on the federal government, and taxes on personal incomes, estates, and gifts would be repealed anyway.

Still, I like the idea of liquidating a lot of federal programs within three years.

Your Friendly Neighborhood Fed

I was recently notified of 10 Important Functions Performed by the Federal Reserve that You’ve Never Heard About.

Looking at the list, it appears that the constructive things the Fed does could just as well be done by a private, voluntary Association of banks - such as develop new technology or protect against retail payment fraud. Even should such an Association evolve into a de facto monopoly, in a true free market there are no legal barriers to start a non-associated, competing bank. So if the Association screws up in what it's supposed to do, individuals would be able to take their business elsewhere. But when the Fed screws up, what choice do we have?

Moreover, the Fed issues regulations, which are laws, and the Constitution authorizes only Congress to make federal laws. Therefore, such regulations - and other bureaucrat-made law in other federal agencies - should be considered unconstitutional.

The Fed also enforces laws Congress passes concerning banks. And what do these laws do, except distort the economy? An example is the Community Reinvestment Act of 1977, in which "banks are required to offer their services to underserved populations and small businesses." But the Fed's ratings and evaluations of bank compliance with this law distort the behavior of banks, and is "a possible cause of the subprime mortgage financial crisis, as it may have pushed banks to lend to customers that were not creditworthy."

If we are to have the Fed, we should go all the way and change the name of the country to United States of America, Inc. Acknowledge that the purpose of the federal government is to manage and protect a banking cartel, and all "extras" the government provides like war and welfare serve to keep the people frightened and dependent on the federal government, which means the banking cartel.

And then we could do one more thing: once the technology is in place, we should abolish all current taxes and implement the ATP Tax:

Every bank, brokerage, or other financial account established by a person, corporation or other taxable organization will pay 0.3% on ALL funds moving IN OR OUT of that account. The tax would be automatically transferred to a federal government tax collection account in the same institution. This will be true for stock, bond, options, and futures traders and investors; foreign citizens, companies and governments exchanging their currency for US dollars; a couple buying a new car (no more 6% sales tax, instead 0.3% APT tax); and, a teenager buying movie tickets with a credit card. The movement of funds is taxed and collected immediately without recording who or what was the source of funds or the recipient. This automated system would totally eliminate the need for filing tax returns and information returns, freeing individuals and businesses of enormous costs of tax compliance and greatly reducing the government's costs of collection and enforcement.

Sufficient revenue would be raised because

[m]ost of the revenues would be collected from the massive volume of stock and bond trades and foreign exchange transactions none of which are now taxed. One might be concerned that imposing taxes on these types of transactions would stifle economic activity in these critical areas, however, the tax is so small it would be dwarfed by the simple fluctuations in price that typically occur during the trading process. Although "day trading" and short term foreign exchange transactions will certainly decline, the reduction in these "hot money" transactions are only likely to reduce speculative market activity, thereby reducing the volatility of prices in these markets.

The way I see it, we should get rid of the Fed, Big Government, and centralization. But if we don't, it seems that the APT Tax would be the best system in preserving individual freedom (no more tax filing, compliance costs, or tax-related criminal prosecutions) while keeping taxes insignificantly low for the poor.

Of course, the people most interested in keeping the Fed, Big Government, and centralization don't have much concern for freedom or the poor anyway, so I doubt we'll see anything like the APT Tax.

Self-Sufficiency Harms the Economy

You have a small garden, and with it you grow some of your own food. You don’t sell any of it to anyone else.

This gardening activity, however, means that you do not purchase as much food from others as you would if you didn't have the garden. It is sensible, then, for the government to have you figure out how much produce you grew, figure out the cash value of it, and pay taxes on it.

Furthermore, this gardening affected interstate commerce. Your selfish insistence to grow some of your own fruits and vegetables influences the local market, and the local market affects the statewide market, and that affects the national market. Congress therefore has the right to prohibit individuals from growing their own food. And it should, to protect jobs.

Indeed, the entire do-it-yourself mentality is terribly selfish, greedy, and harmful to the economy. When you, as you call it, “save money,” you are depriving somebody else of that money. If you like to fix cars as a hobby and you fix your friend's car, that means a professional mechanic couldn’t do it, so he's lost that income. If you cook your own meals, restaurants will go out of business. Paint your house, clean the carpet, do the laundry, move, whatever it may be - there are professionals who are better at it than you, so you are not only hurting them by not hiring them, you are hurting yourself.

The nation would really be better off if each individual focused on doing one thing well, and only one thing. If their jobs become obsolete, they would be allowed to train for something else, but not before that. People should only be allowed to learn other skills if the economy depends on them. I mean, of course people should learn how to drive and use a computer keyboard, because there aren’t enough chauffeurs and typists to go around. Maybe they should even be allowed to prepare some meals at home to keep supermarkets in business - as long as they can’t grow their own food. But the underlying point is the same: generally speaking, self-sufficiency is bad for the economy.

In fact, all of your life choices also affect your economic choices, and that in turn affects the economy. So I don't understand how people can say that the Constitution prohibits Congress from regulating your life. After all, your bad choices will be bad for the economy, and that hurts other people. That hurts the general welfare. Of course Congress should step in.

Indeed, all these people shouting “freedom” or “liberty” are just being selfish. We are free because we live in a democracy.

Okay, the above paragraphs are absurd. But I will never understand the logic of those who concede people should have the right to grow their own food, but don't have the right to grow their own medicine. Or why friends can fix each other's cars, but aren't allowed to give medical help without a license. Or why some people creatively interpret the Constitution to give the government broad powers over some aspects of our lives, but then protest when the same creative interpretation is used by other people to empower the federal government over some other aspects. Or why they value democracy more than personal freedom.

Abolish Justice

The Justice Department, that is. The small-government movement can point to a lot of unnecessary agencies and departments in the federal government. There are the Special Interest Departments: Commerce, Labor, Agriculture. There are the Social Engineering Departments: Health and Human Services, Education, Housing and Urban Development. There are departments that fall in between like Energy and Transportation. Most of their duties go far beyond the powers the Constitution delegates to the United States government. And those few scattered agencies that actually do constitutional things can all be put into the umbrella of the Department of the Interior.

Most of the time, however, the worst that these agencies do is waste the public's time and money. The real damage done to America is done by the Departments that advocates of limited government would retain: State (our interventionist foreign policy creates more problems than it solves), the Treasury (think of the IRS or the national debt), and Defense (with its undeclared wars and massive waste)

And then there's the Department of Justice. The Department of Justice exists almost exclusively to attack our basic rights and freedoms found in nature and/or protected by the Bill of Rights. Real crimes - attacks on persons and their property - is a police issue that the Constitution leaves to the states. Victim-less crimes, such as drug possession or gun-dealing, are "unenumerated rights" protected by the Ninth Amendment. They do not affect the foreign and instra-state relations the Constitution was created to address. This means the federal government has a Constitutional responsibility to leave individuals alone. If what individuals do is "immoral" or a "threat to the public," that is an issue best left to the States.

So get rid of Justice. Whatever few necessary functions it serves could be put in the Department of the Interior. Yes, there can still be an Attorney General to serve as top legal counsel for the United States, but his rank would be the equivalent of an Under-secretary.

Oh yes, I almost forgot: scrap Homeland Security as well because, like Justice, its only purpose is to violate our rights. But that probably goes without saying.

The Constitution Goes Only So Far

From Article 1, Section 8 of the Constitution: "The Congress shall have Power ...To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

From Wikipedia:

The founders' understanding of the word "commerce" is unclear. Although commerce means economic activity today, it had non-economic meanings in late eighteenth century English. For example, in 18th century writing one finds expressions such as "the free and easy commerce of social life" and "our Lord's commerce with his disciples". Interpreting interstate commerce to mean "substantial interstate human relations" is consistent with much additional primary source evidence concerning the meaning of commerce at the time of the writing of the Constitution. This interpretation also makes sense for the foreign and Indian commerce clauses as one would expect Congress to be given authority to regulate non-economic relations with other nations and with Indian tribes.

John Marshall wrote: "Commerce, undoubtedly, is traffic, but it is something more--it is intercourse."

But does that give Congress virtually unlimited power in our human relationships?

William Watkins of the Independent Instititute say no:

Obviously, Congress cannot regulate the crops grown in foreign countries or in Indian territory. And because “commerce” must mean the same thing in relation to the states, Congress cannot regulate state agriculture either. (Congressional regulation of the interstate traffic in agricultural commodities or the importation of such commodities from foreign countries would be consistent with Madison’s and Hamilton’s emphasis on goods crossing state borders, however.)

I think that is the key. Congress can only regulate things that enter the United States, and things that cross state lines. It has no jurisdiction over economic exchanges and "intercourse" within states, no more than it has jurisdiction over other nations.

I suppose the tricky part is discerning if production and intentions fall into the jurisdiction. A federal minimum wage law is unconstitutional, but can Congress prevent goods from crossing state lines that were produced by laborders paid below a minimum Congress set?

If something can cross state lines normally, can Congress prevent it from crossing state lines if it will be used for a purpose Congress doesn't like? For example, it's fine for a person to carry wads of cash over state lines, but can Congress prevent him from carrying it across state lines if he intends to use it to buy drugs?

These questions underscore the fact that the Constitution goes only so far in protecting our liberty. Some things Congress prohibits - such as growing medical marijuana for personal use - is outrageously unconstitutional, so that if the federal government respected Constitutional limits, that liberty would be restored. But friends of liberty generally can't rely on the Constitution to protect them. Crossing state lines with yourself and any possessions you may own, or sending your property across state lines, is potentially the subject of Congressional regulation under the Constitution.

A few months ago, I wrote that repealing the 16th Amendment will NOT "liberate" us or kill the income tax, because the definition of Constitutional "excise tax" includes taxes on wages. In the same way, returning to a correct and narrower view of the Commerce Clause may still leave Congress with overly-broad powers. The case for smaller government should be based mostly on moral and economic arguments. Citing the Constitution, particularly the Bill of Rights, may help. But in the end, even placing Constitutional limits on the federal government will still leave open the possibility for all kinds of bad and counter-productive legislation.

The Myth of Conservative Judges

Vache Folle got me thinking about judicial activism. It occurs to me that no matter how a Supreme Court Justice behaves, he will be accused of being a judicial activist. In any case, it is virtually impossible to be a "conservative" Supreme Court Justice.

It is judicial activism to strike down the will of the legislature without clear textual evidence from the Constitution, but it is also judicial activism to overturn precedent. If, a long time ago, a liberal Court struck down a duly-enacted law in a decision short on Constitutional reasoning but long on sociology and social policy, that ruling should be overturned. But is it "conservative" to overturn a precedent? No; the very nature of conservatism is to build upon precedents, or sometimes to modify them over a period of time, but not to overturn them.

In the end, the very concept of judicial review - the power of the Supreme Court to declare a federal or state law unconstitutional - lets the activist cat out of the bag, leaving federal judges free to scratch and tear up laws or the Constitution whenever it pleases them. The doctrine of judicial review itself isn't even found in the Constitution.

But even a Justice who doesn't believe in judicial review and always defers to the legislature wouldn't really be a "conservative;" in today's climate he would actually be the most radical of them all.

This goes back to different conceptions of conservatism. One is moderate and works within the current political climate; the other is reactionary and insists on a strict interpretation of the Constitution even if it means abolishing the Fed and getting rid of the New Deal. The reactionary position may be the correct one, but it isn't conservative in the Burkean sense.

For the conservative Justices to be evaluated in terms of consistency, perhaps we ought to know which kind of conservatism we're talking about.

They're Both Right

Thursday's Lewrockwell.com there was suuposedly a "point-counterpoint" between Pat Buchanan and Lew Rockwell on the Attorney-firing "scandal." Buchanan believes the President should fight Congress over Congressional subpeonas of Administration staff, and he makes a strong argument. And Rockwell doesn't actually dispute it, writing only about how, under the Constituiton, the President is just a temporary manager with few powers. I agree with Rockwell, too.

But the Attorney firing scandal is about as frivolous an issue as I've seen. If a President can't even fire officials in the Executive Branch without Congressional oversight, then he's essentially stripped of his Constitutional responsibility to take care that the laws be faithfully executed.

President Bush has violated the Constitution too many times to count; why investigate him for somehting he's legally and Constitutionally entitled to do?

New Realities

My latest at the Partial Observer. Excerpt:

Iran-Contra sprang from an "anything goes" philosophy that defined American policy for forty years - now sixty years. Communism was then the pretext; now it is Islamic terror. The National Security Establishment believes that in order to preserve American principles such as peace, freedom, and democracy, we must abandon those very things and remain in a state of "permanent war, a perpetual state of emergency."

About the $.09

From Justin Raimondo:

We can stop the next war before it starts – but only if we catch the War Party at their game while they're playing it, and not after the fact, as in the case of Iraq. The Democrats are keen to cut off funding for a war that should never have started and could not have started without their cooperation: will they have the foresight and courage to defund the covert war against Iran before it becomes overt? I am not at all optimistic about this, but I'd be glad to be proven wrong.

If the U.S. does launch a war on Iran, the case that there's not a dime's worth of difference between the Two Parties will have its clinching argument.

But what about ... what? Abortion? Same sex marriages? God in the Pledge? If not a dime's worth of difference, there must be something. There must be 9 cents, isn't there?

There is one thing the Republicans could have done to establish that they are substantively different from the Democrats. In the last Congress, Ron Paul introduced the We the People Act, which says:

The Supreme Court of the United States and each Federal court--

(1) shall not adjudicate--

(A) any claim involving the laws, regulations, or policies of any State or unit of local government relating to the free exercise or establishment of religion;

(B) any claim based upon the right of privacy, including any such claim related to any issue of sexual practices, orientation, or reproduction; or

(C) any claim based upon equal protection of the laws to the extent such claim is based upon the right to marry without regard to sex or sexual orientation; and

(2) shall not rely on any judicial decision involving any issue referred to in paragraph (1).

If you have Constitutional objections to this, read the Section 2 Findings of the bill.

This bill would have returned questions of abortion, religion, and sex to the states - that is, to the pre-Warren Court status quo in America that the Religious Right has been pining for. Unlike other candidates, then, Ron Paul came through for the Religious Right, and did so on solid Constitutional grounds.

Yet, this bill did not have a single co-sponsor among any "conservative Christian" members of Congress. The bill was introduced in November, 2005 and was referred to the Judiciary Committee, where it died.

Had this bill moved forward, we may have seen at least one area of sharp disagreement between the Democratic and Republican parties. But the Republicans ignored Paul, because Republicans don't want Roe v. Wade overturned. They would rather play politics with judicial nominations, as do the Democrats. Indeed, one Republican front-runner believes abortion is a "Constitutional right."

Approaches are sometimes different, but the Two Parties have identical governing philosophies: more laws, more war, more spending, more central government.

Now, if the Democrats do stop the War on Iran, perhaps I'll reconsider these statements.

Can Arnold Save America?

Arnold Schwarzenegger, as Governor of California, has an obligation to protect its citizens from harm. Will he protect Angel Raich? The Associated Press reports:

A woman whose doctor says marijuana is the only medicine keeping her alive can face federal prosecution on drug charges, a federal appeals court ruled Wednesday.
The ruling was the latest legal defeat for Angel Raich, a mother of two from Oakland suffering from scoliosis, a brain tumor, chronic nausea and other ailments who sued the federal government pre-emptively to avoid being arrested for using the drug. On her doctor’s advice, Raich eats or smokes marijuana every couple of hours to ease her pain and bolster her appetite.
[...]
The Supreme Court ruled against Raich two years ago, saying medical marijuana users and their suppliers could be prosecuted for breaching federal drug laws even if they lived in a state such as California where medical pot is legal.
Because of that ruling, the issue before the 9th U.S. Circuit Court of Appeals was narrowed to the so-called right to life theory: that the gravely ill have a right to marijuana to keep them alive when legal drugs fail.

Raich, 41, began sobbing when she was told of the decision that she was not immune to prosecution and said she would continue using the drug.
”I’m sure not going to let them kill me,” she said. ”Oh, my God.”

I don't think any case provides more conclusive proof that our Constitutional system has been overthrown than the Gonzales v. Raich decision of two years ago. When Congress, the President, and the Supreme Court all conspire to ignore the Constitution - in this case the Commerce Clause and the Ninth and Tenth Amendments - then the system doesn't really have the "checks and balances" needed to safeguard our liberty. The federal government has no legitimacy.

Arnold shouldn't let the federal government kill Raich. If I'm the Governator, I announce that Raich and others in similar circumstances will be protected from federal arrest by whatever it takes: round-the-clock state police protection, the California National Guard, Arnold's own fists, whatever. Federal agents who try to arrest her will themselves be arrested for attempted kidnapping, and the federal prosecutor who ordered the arrest will himself be arrested for conspiracy to commit kidnapping.

A young woman's life is at stake - a mother of two. What greater, more honorable cause is there than to save her life? By defending her, Arnold would be defending the Constitution, and by defending the Constitution, Arnold would be defending her. Go for it, Arnold! You can crush the girly-men in at the White House and Justice Department, and all of America will cheer you on.

John McCain In His Own Words

“I would rather have a clean government than one…where ‘First Amendment rights’ are being respected that has become corrupt. If I had my choice I’d rather have a clean government.” - John McCain on Imus, as quoted by Matt Welch at Reason.

The sad part in these words is that a lot of Americans agree with McCain - including almost all Democrats in Congress and a giant chunk of Republicans.

The ironic part is that this level of agreement is evidence of how corrupt the government has become. And the more the government undermines the First Amendment, the more corrupt it will become.

How the Most Basic Right Is Now Gone

I posted this at Indie Castle.