Constitution

A Defense of the Free Market

One of the most common refrains from the political left and the media is that, regarding the economy, conservatives advocate for unchecked freedom for big business to do whatever it wants to do, and for no government interference with business at all. These assertions stem from a fundamental misunderstanding of the nature of conservatism.

For the conservative, the issue comes down to the proper role of government. To have no government at all is anarchy, and certainly no conservative would argue that. So the question is not whether or not there should be government involvement (there should), but what level of government involvement is appropriate.

When we look at the biggest financial scandals of the last decade (Enron, WorldCom, Fannie Mae and Freddie Mac, etc.), they all have one thing in common. At some point, whether through active complicity or negligence, government played a huge role in allowing the scandals to occur. And with every scandal, it becomes an excuse, or rather an imperative, to increase the level of government involvement to keep it from occurring again.

Some of the major scandals have occurred because the regulatory oversight assigned to one government agency or another was either inadequately enforced, or government employees were co-opted into the fraudulent scheme. Others occur because our statutory and regulatory law has become so complex that it is inevitable that a crafty thief will be able to find technical loopholes that fulfill the letter of the law while being contradictory to the clear intent of the law. Either way, we continue to add layer after layer of government bureaucracy, regulation and complexity, and yet the scandals keep getting more and more expensive. That is because the more complex the law, the easier it is to find a technical Get-Out-of-Jail-Free Card.

Closing out 2010, looking forward to 2011

We’re about to close the book on another year. 2010 was hard fought as we were unsuccessful in beating back ObamaCare. Thankfully, court challenges to the constitutionality of the health care reform law could pose a threat. In just the last month Judge Roger Vinson struck down the law on the basis that the federal government could not use the Commerce Clause to force individuals to purchase health insurance. It also looks like Judge Henry Hudson is prepared to do the same in Florida. And with another annual budget deficit well over $1 trillion, spending remains out of control thanks to single-party control in the Executive and Legislative branches of government.

But we did have some victories for liberty as the Second Amendment finally incorporated to the states in McDonald v. Chicago, outdated “don’t ask, don’t tell” policy was repealed and WikiLeaks released another round of documents that helped shine light on what the federal govermment is doing in our names.

The Judiciary: Not Despotic, But A Bullwark Of Liberty

In a post yesterday, Louis DeBroux points to the election results in Iowa which resulted in the rejection of three members of the Iowa Supreme Court primarily due to a campaign that decried their votes in favor of a ruling that legalized same-sex marriage in the state, as “one of the most important outcomes of the November 2010 elections.” While I agree with Louis that the rejection of three judges for doing their jobs is important, I have to strongly disagree that this is a positive development, or that it is ever a good idea to subject the  judiciary so directly to the popular will of an often fickle majority.

Like the social conservative groups that led the fight to defeat the Iowa Justices, DeBroux seems most concerned with the fact that the Iowa Supreme Court’s gay marriage ruling is out of sync with public will. However, that attitude completely misses the fact that one of the most important roles of the Judiciary is to stand as a bulwark agaisnt the whims of a majority seeking to impose its will on the minority in violation of their rights. The fact that a slim majority of Iowans might not support same-sex marriage is not, and should not, be relevant to the legal question of whether or not gay and lesbian couples have the right to be treated equally by the state when it comes to the benefits and privileges of the civil institution called “marriage.” In fact, it’s precisely because the majority doesn’t support it, that the right must be projected by the judiciary. That’s not “judicial activism,” it’s the judiciary doing its  job.

We Don’t Need No Stinkin’ Term Limits

Since I missed out on the earmarks debate between Jason and Doug this week (I agree with Doug, btw), I figured now would be a good time to “stir the pot” with regard to a subject that seems to be gaining ground among many in the more “conservative” political circles.

The meme among many involved in politics is that because we limit the number of terms for the Presidency, most Governorships, and many municipal officials, we should also limit the terms of those serving in Congress.  The arguments are full of logic and seem to make a LOT of sense, and I think the idea is palatable for most Americans.  The idea that a Senator would only serve two terms or that a Congressman would serve four or six or eight terms, depending on which proposal you read or hear about.  My opposition lies, as do many things I find myself in the minority about, in the details.

A Despotic Branch

One of the most important outcomes of the November 2010 elections was one that was virtually ignored by the media. In Iowa, all three state Supreme Court justices facing a retention vote were defeated and removed from the bench, the first time that ANY judge in Iowa have been removed since the retention vote was implemented in 1962. And what animus compelled the voters of Iowa to make such a drastic and historic change? Last year the state Supreme Court ruled unanimously, in Varnum v. Brien, to overturn as unconstitutional the vote of the citizens of Iowa making the legal definition of marriage as being between one man and one woman.

And what was the justification for overthrowing the will of the people? On page 15 of the unanimous decision, the court explains that “Our responsibility, however, is to protect constitutional rights of individuals from legislative enactments that have denied those rights, even when the rights have not yet been broadly accepted, were at one time unimagined, or challenge a deeply ingrained practice or law viewed to be impervious to the passage of time.”

Not yet broadly accepted? At one time unimagined? In essence, the court is blatantly admitting their belief in a “living” Constitution, one where “rights” can be created out of thin air by the will of the judicial oligarchy and imposed upon the lesser, unwashed masses who are simply too ignorant to grasp the brilliance of the judges. Such hubris is stunning, yet it is all too common today. Yet due to a media that is often hostile to the Constitution (TEA Party members have been described repeatedly by the media as “extremists” and “fringe elements” for their demands that politicians adhere to the text and intent of the Constitution”), very few people realize just how abusive the judiciary has become.

It’s Time For An Adult Conversation

By February 2011, now just over four months away, America will know whether the Republican Party that they have returned to power in the House, along with the increased number in the Senate, truly are a new breed of Republicans (or rather, a return to the traditional Republicans of the past…true limited government, low tax conservatives), or whether we have the same mess as before in new packaging.

To be sure, Republicans are unlikely to accomplish much in 2011 and 2012, at least from an administrative standpoint. Even if they regain a majority in the House (very likely) and Senate (an outside possibility requiring all the stars to align), they are still faced with an opposition president wielding veto power, a president who has vowed that there will be “hand-to-hand combat in Washington” if Republicans win. Despite his lofty rhetoric of ushering in an era of true bipartisanship, Obama’s latest comments reveal what most of us already knew. Namely, that “bipartisanship” to Democrats means Republicans must vote for everything that the Democrat majority passes or be labeled as “obstructionist”.

This is the same president who, shortly after taking office in January 2009, and when facing Republican opposition to the stimulus package, repeatedly reminded Republicans that he’d won the election. Therefore, the implication being, America has accepted his goals and his agenda and there will be no compromises. The stimulus package was rammed through with almost no Republican support (a good thing, because now Democrats have to take full responsibility for its failure), as was ObamaCare (passed with NO Republican support, also a good thing).

Understanding “the general welfare”

The general welfare clause is one of the most horribly understood and most misused pieces of the United States Constitution, second only to the Interstate Commerce Clause. With it, Congress has exercises many wealth redistribution schemes with the argument that it’s constitutional. However, when you look at the Founding Father’s intent, nothing could be further from the truth.

To start with, let’s look at this quote from Thomas Jefferson:

“Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated.”

James Madison agrees:

“With respect to the words general welfare, I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.”

It all looks pretty straight forward to me.

The phrase “general welfare” didn’t create a broad power that could be thrown around whenever someone wanted to justify taking from the rich and giving to the poor. No, it was guidance on how best to use the powers given to the Congress. They weren’t to work towards the benefits of a particular group, but for the benefit of Americans as a whole.

The Post Where I Actually Agree With Mike Huckabee

It was bound to happen at some point, but I agree completely with Mike Huckabee’s take on the “birthright citizenship” debate:

(CNN) – Mike Huckabee says he’s against changing portions of the Constitution that automatically grant citizenship to children of immigrants born in the United States – a position that puts the potential 2012 Republican presidential candidate at odds some of his party’s most prominent figures.

In an interview that aired on NPR Wednesday, the former Arkansas governor and 2008 White House hopeful said the section of the 14th Amendment currently in question has long been held valid.

“The Supreme Court has decided that, I think, in three different centuries, said Huckabeee. “In every single instance, they have affirmed that if you are born in this country, you are considered to be a citizen. The only option there is to change the constitution.”

Asked specifically if he would favor such an effort to change the constitution, Huckabee said flatly, “No.”

“Let me tell you what I would favor. I would favor having controlled borders,” he said. “But that’s where the federal government has miserably and hopelessly failed us.”

I suspect my agreement with Huckabee will begin and end here.

Stay lifted in Prop. 8 decision

Yesterday, Judge Vaughn Walker, who issued the opinion finding California’s Proposition 8 to be unconstitutional, lifted a stay on his decision allowing same-sex marriages to begin in the state on August 18th:

U.S. District Court Judge Vaughn R. Walker, who overturned the measure on Aug. 4, agreed to give its sponsors until Aug. 18 to appeal his ruling to the U.S. 9th Circuit Court of Appeals. Walker said that same-sex marriages may resume at that time unless a higher court blocks them.

Walker said the sponsors of Proposition 8 do not have legal standing to appeal his order because they were not directly affected by it.

In addition, Gov. Arnold Schwarzenegger’s  and Atty. Gen. Jerry Brown, the state’s highest officials and named defendants in the case, have told Walker that his ruling declaring the measure unconstitutional should be enforced immediately.

So, even though the stay was lifted, the proponents of Proposition 8 still have time to argue for a stay to be reinstated, which the Ninth Circuit court may decide to do until they’ve heard the case on appeal.

Obama Administration flips, individual mandate is a tax after all

Despite saying last year that the individual mandate is not a tax, the Obama Administration is arguing the opposite as it defends ObamaCare in federal court:

When Congress required most Americans to obtain health insurance or pay a penalty, Democrats denied that they were creating a new tax. But in court, the Obama administration and its allies now defend the requirement as an exercise of the government’s “power to lay and collect taxes.”

And that power, they say, is even more sweeping than the federal power to regulate interstate commerce.

Administration officials say the tax argument is a linchpin of their legal case in defense of the health care overhaul and its individual mandate, now being challenged in court by more than 20 states and several private organizations.

Under the legislation signed by President Obama in March, most Americans will have to maintain “minimum essential coverage” starting in 2014. Many people will be eligible for federal subsidies to help them pay premiums.

In a brief defending the law, the Justice Department says the requirement for people to carry insurance or pay the penalty is “a valid exercise” of Congress’s power to impose taxes.

Here is what President Barack Obama said last year:


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