Posts tagged with: constitution

Blog author: rnothstine
posted by on Monday, February 20, 2012

The HHS Mandate is troubling to so many simply because it’s a clear Constitutional violation. Any basic understanding of Constitutional rights and our religious freedom sees that this is primarily about religious liberty, and not solely an issue concerning contraceptives or Roman Catholics.

Last week we heard from James Madison on religious liberty in my post “Religious Liberty or Government Tolerance?”

In 1792, Madison wrote an essay titled “Property” in the National Gazette. This is a brilliant piece by Madison where he declares that government is instituted to protect the property of the person. “In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights,” says Madison. There is all sorts of property according to Madison. As Madison understands, property is not just material property, but also a property of conscience or religious opinions. Madison notes that man “has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them.” Furthermore, Madison declares this kind of property is “the most sacred.”

Madison said that those in government who violate that charge of protecting property “would be in his proper functions in Turkey or Indostan, under appellations proverbial of the most complete despotism.”

Below is an excerpt from Madison’s essay:

More sparingly should this praise be allowed to a government where a man’s religious rights are violated by penalties, or fettered by tests, or taxed by a hierarchy. Conscience is the most sacred of all property, other property depending in part on positive law [but] the exercise of that being a natural and unalienable right. To guard a man’s house as his castle, to pay public and enforce private debts with the most exact faith, can give no title to invade a man’s conscience, which is more sacred than his castle, or to withhold from it that debt of protection for which the public faith is pledged by the very nature and original conditions of the social pact.

The full essay is here.

Blog author: rnothstine
posted by on Friday, February 3, 2012

James Madison has rightfully been forever identified as father of the U.S. Constitution, author of the Bill of Rights and coauthor of the Federalist Papers. In his new biography of America’s fourth president, Richard Brookhiser introduces us to Madison the politician. In many ways, Madison is the father of modern American politics, with all its partisanship, wheeling and dealing, vote getting, partisan media, and popular opinion polling.

Brookhiser helps us to see the early framers as they were, brilliant men, who more often than not, waded into petty partisan squabbling. They were not afraid to roll up their sleeves and unleash a sharp pen to advance power and their party’s ideas. Madison, who was quick to understand that political contention would reign in the new Republic, organized political coalitions and allies for the purpose of power.

Madison is also the architect of hyper partisan newspapers like the National Gazette in New York City. A publication that soon begins to slam Federalists like Alexander Hamilton and even Madison’s fellow Virginian George Washington. Like Jefferson, he was a Francophile to the extreme. Hamilton would counter that Jefferson and Madison “had a womanly attachment to France.” Jefferson and Madison would often write letters to their revolutionary heroes in France, and by the time those letters crossed the Atlantic, the intended recipients were already victims of the guillotine.

Over his political life, Madison could also be quick to change course, especially when it benefited him and his presidential administration. Long an opponent of many Federalist policies, when the nation needed sound fiscal policy and a strong military because of war, he simply reversed course, and implemented ideas he had once fervently opposed. At times, he favored a strong centralized government, and especially when Federalists were in power, he favored strong state governments.

Because of poor health, Madison had a premonition that he would die as a young man, but he outlived almost all of his contemporaries (1751-1836). Madison as elder statesmen spoke out strongly against nullification, an issue that has been resurrected today because of ObamaCare and other federal power grabs. He did not believe a single state could nullify a federal law. At the same time, he also made strong arguments for strict constructionist views of constitutional interpretation. He vetoed a transportation bill that would have funded roads and canals because it was not specifically enumerated and did not fall under the commerce clause. The U.S. Supreme Court would later declare that it did fall under the clause within Madison’s lifetime. Madison believed such legislation “would have the effect of giving to Congress a general power of legislation.”

Later in life he also worried that political parties were becoming too regional. “Parties . . . must always be expected in a government as free as ours. When the individuals belonging to them are intermingled in every part of the whole country, they strengthen the union of the whole, while they divide every part,” said Madison. He easily foresaw that the Missouri Compromise was spiraling toward dangerous disunion. Madison owned over 100 slaves and Brookhiser points out that unlike Jefferson, he did not offer lofty rhetoric concerning the evils of slavery. And unlike Washington, he did not free his slaves upon death. Later in life, Madison declared the whole bible to be against slavery and toyed with the idea of moving slaves to Liberia or out West, but offered no real feasible solutions on the issue.

His strict interpretive views of the Constitution made him an early opponent of the need for a Bill of Rights. Madison feared that listing rights in the Constitution might ultimately void the rights that were not specifically mentioned. Ultimately, he would be a champion of the Bill of Rights and had already heavily influenced them in his previous work in drafting the Virginia Declaration of Rights. Madison challenged George Mason who wanted a clause about tolerating religion. Brookhiser wonderfully explains Madison’s contribution to religious liberty:

Madison, half Mason’s age, improved his language, proposing a crucial change to the clause on religious liberty. Mason’s draft, reflecting a hundred years of liberal thought going back to John Locke, called for “the fullest toleration in the exercise of religion.” Yet this did not seem liberal enough for Madison. Toleration implies those who tolerate: superiors who grant freedom to others. But who can be trusted to pass judgments, even if the judgment is to live and let live? Judges may change their minds. The Anglican establishment of Virginia, compared with established churches in other colonies, had been fairly tolerant – except when it hadn’t, and then it made water in Baptists’ faces. So Madison prepared an amendment. “All men are equally entitled to the full and free exercise” of religion. No one could be said to allow men to worship as they wished; they worshipped as they wished because it was their right as men. Madison’s language shifted the ground of religious liberty from a tolerant society or state, to human nature, and lifted the Declaration of Rights from an event in Virginia history to a landmark of world intellectual history (23, 24).

For much of Madison’s political career he plotted behind the scenes with his friend and mentor Thomas Jefferson to destroy their political rivals. Madison often carried out the dirtier work of politics so Jefferson could appear above the fray as a man of the people. He was instrumental in creating a young republic that was ruled by Virginians in Jefferson, Madison, and James Monroe. Republicans accused Federalists of trying to create a ruling faction, but the Virginian statesmen were even more adept in creating a political dynasty. But Brookhiser also helps to bring to life a snippet of the beautiful correspondence between two lifelong friends and Virginians in Jefferson and Madison. Jefferson also entrusted Madison as the guardian of his legacy in America and as an overseer of the continued flourishing of the University of Virginia.

While this book is a good introduction to Madison, it is perhaps woefully short at 250 pages for a complete study of the fourth president and founding statesmen. Brookhiser’s strength lies in deconstructing Madison and unveiling his flaws and partisanship, and his political genius as well.

Some on the political right or some classical liberals say we need to go back to the Founding period or we need to follow America’s Founders as if they were all of one accord. They forget even the Founders trampled on the constitution with measures like the Alien and Sedition Acts or the Louisiana Purchase when it suited them. Brookhiser concludes that while politics has changed, it has not to the degree that “would make it unrecognizable” to Madison.

“His intelligence and his knowledge of history showed him how this tension between different political spheres could be built into the Constitution as a bulwark of liberty, though he came to believe that appealing to popular opinion through the arts of argument and politics was a bulwark at least as strong.” says Brookhiser. “If men were angels, no government would be necessary,” said Madison. That we do have a government that has lasted for 225 years is a testament to this great man. And he would be the first to say it could be improved and fight for that improvement.

Yesterday, five leading Republican candidates participated in the Palmetto Freedom Forum, a serious debate on constitutional principles. Mitt Romney, Michelle Bachmann, Newt Gingrich, Ron Paul, and Herman Cain answered questions from Tea Party congressmen Jim DeMint and Steve King, and Princeton professor Robert P. George.

National Review Online has gathered reactions to the debate from notable conservatives; Acton director of research Samuel Gregg and senior fellow Marvin Olasky are among them. Gregg’s take-away is that American politics is shifting in two ways: first, constitutional conservatism is now seen as a winning message, and candidates are unafraid to disavow progressivism as a whole; and second, issues, particularly economic ones, once on the margins of political debate are now up for discussion in the mainstream.

Here is the full text of Gregg’s response.

If there was any theme linking the responses to the questions posed by Senator DeMint, Congressman King, and Professor George to five of the Republicans seeking their party’s nomination for president during today’s South Carolina debate, it was the need for America to return to its founding principles. Yes, there was substantive discussion of specific matters ranging from financial regulation to immigration. But again and again, most of the candidates articulated the principles—and subsequent policies—of constitutional conservation.

Politically this makes sense, because it helps to integrate American conservatism’s fiscal and social wings. But it also reflects many Americans’ consciousness that the last four years have seen an acceleration of a long drift away from the best of the American experiment. So whether it was different candidates quoting Jefferson at length, or Ron Paul and Robert George discussing the 14th Amendment’s finer details, evidence mounted that constitutional conservatism is going to be a major reference point for whoever ends up running against President Obama in 2012.

The second aspect of the debate worth underscoring is how issues once considered marginal to mainstream politics are becoming central. It’s no longer just Ron Paul talking about the need for sound money. The economic downturn and the failure of interventionist policies have turned the Fed and fiat money into live issues that no conservative candidate for office can ignore. Ben Bernanke—you’re on notice.

Last week I wrote a commentary titled the “The Folly of More Centralized Power,” making the case against ceding anymore power to Washington and returning back to the fundamental principles of federalism.

Rep. Amash (R-Mich.), a member of the freshmen class in Congress, made that case as well. Amash was asked about his Washington experience so far in an interview and declared,

When I was in the state government, I thought things were dysfunctional there in my opinion. Now I’ve discovered things in Congress are much worse than in state government and the state government runs fairly smoothly by comparison.

In speeches and townhalls, Rep. Amash has stated that the federal government has enumerated powers and it is not supposed to expand beyond that specific scope. I quoted the Virginia Constitution in my commentary. The line I cited was originally from the Virginia Declaration of Rights in 1776. It reads, “That no free government, or the blessings of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue and by frequent recurrence to fundamental principles.”

My commentary this week addresses the importance of federalism and our fundamental founding principles in relation to the problems that plague the nation. There was once plenty of commentary and finger pointing in regards to setting a new tone of political and civil discourse in the nation. However, the more the Washington power structure is threatened by those unsatisfied with where the leadership is taking us, the more those demanding a return to first principles will be splattered with, at times, revolting words and admonishment from those who think they know best. The commentary is printed below:

The Folly of More Centralized Power

by Ray Nothstine

Americans’ satisfaction and feeling of connection with Washington has dwindled to an all time low. According to a recent Rasmussen survey, only 17 percent of likely voters believe that the federal government has the consent of the governed. The numbers are hardly surprising. Congress recently cut a deal to saddle Americans with trillions of dollars in more debt. Shortly thereafter, one congressional member lashed out at a town hall last weekend demanding the tea party, which has been pushing back against big government, “go straight to hell.”

President Barack Obama, whose approval has sunk to a new low, is trying to recast himself as a Washington outsider as he heaps more blame on Congress, which is not exactly winning any popularity contests these days either. In The Washington Post, a political strategist offered this assessment: “The best place for a politician to be in 2012 is not on the ballot.”

Disenchantment with Washington is of course nothing new, but many Americans have grown weary of leaders calling for added federal spending and demands for shared sacrifice by way of tax increases. Washington’s inability to balance budgets and restore fiscal responsibility, a problem magnified by a crippled economy, has also bankrupted the public trust. Citizens who take summer vacations to the nation’s capital can easily connect the dots as they observe a Washington Beltway that is booming with jobs and opportunity as tax dollars siphon into the region, even while their own communities are ravaged by job loss and businesses struggle under regulatory burdens.

Earlier this month Salon Magazine ran a piece titled “The Real Confidence Crisis,” which proclaims that the solution to a broken government buried in debt by entitlements, runaway spending, and disorder is — more government. In other words, government must only be managed properly to work for us again.

Similarly, Time Magazine in 2010 published an article asserting that Washington was ineffective because bills were written to pass Congress, not to be effective. The problem solvers of our national ills only need to convince people that government can be competent again. All that America needs is a new generation of skilled technocrats to babysit the federal bureaucracy.

In contrast to this solution, in Federalist No. 45, James Madison declared, “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite.” Madison further articulated the case against the centralization of power not specifically enumerated to the federal government by saying, “The powers reserved to the several states will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the state.”

The Acton Institute’s Principles for Budget Reform make the point that in order to solve the debt crisis and political crises that plague us, “it is incumbent to ask again the basic questions about the role of government, at federal as well as state and local levels.” Madison, the architect of the U.S. Constitution, also had a role in the development of Virginia’s Constitution. Included in that document are the lines, “That no free government, or the blessings of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue and by frequent recurrence to fundamental principles.”

Furthermore, those looking to the federal government to solve the nation’s ills and meet their needs will continue to be disappointed. People feel disconnected from their federal government not only because they are separated geographically, culturally, ideologically, but also because they believe that their access to the political process has been severed. They doubt whether their representatives actually have the best interests of the nation in mind.

Now more than ever, as Washington multiplies our country’s ailments instead of curing them, politicians will continue to attempt to shift the blame for a financially and morally broken government in their effort to cling to power. The fight for Washington to surrender power will produce an epic conflict, however. It’s not just the vitriolic rhetoric that evidences the upcoming battle; centralized power is now so sacred that, against any proposals to limit the powers of the state, some professional clergy stand guard, ready to encircle the bureaucracy in prayer and offer their bodies for arrest.

Some in our churches and in government may disparage the tea party, and even wish its members a speedy banishment to Hell. But the tea party might be the powerful reminder we need to remind us that Washington can’t create Heaven on Earth. The sooner we take that advice seriously, and get our house in order, the better off we’ll all be.

Shane Claiborne and Jim Wallis are  posing the question, “What Would Jesus Cut?” in an effort to skew the federal budget debates toward the usual big government solutions favored by the religious left.

Recently, Claiborne wrote an article for the Huffington Post, exploring the idea of withholding a portion of his taxes to demonstrate his disapproval of military spending. He announced that he is going to withhold 30 percent of his taxes to protest all U.S. defense spending. Mark Tooley, at the Frontpagemag.com, has given thoughtful push-back questioning how Claiborne got the 30 percent figure along with articulating logical flaws in Claiborne’s ideology:

It’s not clear where Claiborne got the 30 percent figure.  U.S. military spending in 2011, including Iraq and Afghanistan operations, is supposed to be about $671 billion out of an over $3.8 trillion budget.  So the military will consume under 18 percent of federal spending.  Maybe Claiborne is playing the usual game of excluding “entitlement” spending from the total…

Claiborne, like much of the Evangelical and Religious Left, wants to reinterpret Christianity primarily into a resistance movement against the “empire,” which is chiefly America.  By doubling the actual amount of U.S. defense spending as a percentage of the federal budget, and deducting 30 percent from his IRS bill, Claiborne is striking his own blow against the empire.   No doubt America will survive without Claiborne paying all his taxes.  But what would happen if all American Christians ignored the teachings of their own faith and didn’t pay their taxes in protest against all military defenses?  What evils would then prevail?  How many would die?  What chaos and suffering would then ensue?

Here at the Acton Institute we have developed the Principles for Budget Reform resource page where we not only explore the problems with the federal budget, but provide solutions that are fiscally and morally responsible. Furthermore, we have questioned Wallis, Claiborne, and the “What Would Jesus Cut?” campaign by providing reasoned critiques which can also be found on the resource page.

In light of today being Tax Day,  we asked whether the “What Would Jesus Cut?” campaign might not be counter-posed with the question, “What Would Jesus Cut…from the Constitution?” Our new ad can be found on the Principles for Budget Reform resource page. We’re making the ad freely available for use as a poster or as an advertisement in your local paper, church publication or bulletin, or school newspaper.

If you listen to the radio, you’ve probably noticed the commercials promoting the U.S. Census. Where I live, stations are intermittently broadcasting commercials for the 2010 Census almost every time I’ve turned the dial. One of the commercial messages contains a story about crowded buses and the need for folks in communities to complete the census so they get more money from the federal government and can buy more buses. Huh?

The advertising budget just to promote this enterprise was initially publicized at $350 million. That included ad plays during the Super Bowl broadcast in February. Some members of Congress tried to find out from Census Director Robert Groves how the money was being spent following an audit, news of which revealed huge sums being wasted  including a $15 billion head count campaign that will involve over 140,000 temporary workers some of which were let go after being paid for doing nothing.

In an article relating some of this information the reporter gives us a clue as to something rotten in our country with her description of the Census as “a tradition that has occurred every ten years beginning with the first one in 1790 under Secretary of State Thomas Jefferson.” Tradition? Whoa!

Okay, I’m breathing slowly…. I’m better now.

The census is NOT a tradition; it’s a Constitutional mandate. It is required by law: Article I, Section 2. The purpose? To formally establish the number of all persons born or naturalized [citizens] in the states for the expressed purpose of determining that state’s representation in Congress’s House of Representatives. The specific language in The Constitution is “enumeration” from the Latin: ‘counted out’ – and no bus purchases are mentioned.

If you’ve received the official form and looked closely you likely have noticed that two questions asked of responders have to do with your origin and race. Specifically “Hispanic, Latino, or Spanish” origin, and “White; Black, African American or Negro; American Indian or Alaska Native; Asian Indian; Chinese; Filipino; Japanese; Korean; Vietnamese; Native Hawaiian; Guamanian or Chanmorro; Samoan; Other Pacific Islander; and my favorite “Some other race.”

Who are the bus riders in that group?

More relevant to all of us, why in an age of equal opportunity, race neutrality, race blindness, race equity and God knows what else, do we ask responders to a questionnaire that by law should only be aimed at counting heads, information that aims at differentiating by group?

“…and all went to be taxed, everyone unto his own city.”

The passage from Luke speaks of a tax but likely the collectors made a count to assure themselves that all were paying at the door. Caesars are like that. Taxes among the tribes of the Old Testament were commanded by God, then kings, and then lawful rulers. “Lawful” conjures up …. conforming to, permitted by or recognized by law. There’s contract law, property law, trust law, tort law, criminal law and that illusive one – Constitutional Law.

(Barak Obama in comments about his healthcare proposal seems to have the same nonchalant attitude for law as the reporter who used the word tradition. That’s not good.)

The census form is addressed to “those living at the house, apartment or mobile home” without any stipulation that they be citizens. Does it make sense to you that the House of Representatives whose numbers are based on a state’s population be required to be citizens of The United States for seven years while the population base of his district needn’t be legal citizens but only residents? Me neither.

More interesting is that a notice three weeks ago alerting me to the census form’s imminent arrival contained messages for those needing help completing the form printed in Spanish, Japanese, Chinese, Vietnamese and what I’m guessing is Laotian.

The question begs asking. If court cases sustaining equal opportunity in schools contain phrases such as this: “An educated citizenry is the predicate of a thriving democracy, Mueller v. Allen, 463 U.S. 388, 395 (1983)”, how do people understand the subtleties of a country’s laws without understanding and speaking its language?

And there’s another point to make: if completing the census will, as Robert Groves writes in his letter, “help each community get its fair share of [federal] government funds for highways, schools, health facilities, and many other programs” why don’t we make it easy for everyone concerned and just keep the money within our states in the first place, using it for local projects the cost of which we can control locally without the worry about things like Mr. Groves’ 140,000 temporary workers. Think about it.

That’s all for now, I have a bus to catch.

Blog author: jballor
posted by on Thursday, September 17, 2009

Today is Constitution Day in the United States.

It seems appropriate to remember especially this day the 10th Amendment to the Constitution:

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.

What a wonderful expression of federalism, a component feature of which is the concept of subsidiarity, or rather, coordinated and variegated sovereignty. Lord Acton said that federalism “is the best curb on democracy. [It] assigns limited powers to the central government. Thereby all power is limited. It excludes absolute power of the majority.” He also noted that federalism is “is coordination instead of subordination; association instead of hierarchical order; independent forces curbing each other; balance, therefore, liberty.”

I’m not greatly familiar with them, but it might be worth checking out the Tenth Amendment Center today. There’s more background on the Bill of Rights at the Stand to Reason blog today.

My essay on the Constitution, judicial activism and the “living document” trope is here at The American Spectator. Here’s one passage:

This brings us to the central irony. The very people most inclined to gush about our “living Constitution” treat it like a Mr. Potato Head:

Ooh, states rights. Let’s pop that off and replace it with a metastasizing Commerce Clause. Oh, and look here in my pocket. A constitutional right to redefine the age-old institution of marriage. Oh and let’s tack this one on, too — a constitutional right to kill a half born baby and throw whatever’s left in the garbage. If anyone complains, we’ll call it “the constitutional right to privacy.”

It’s time to pause and take the living-document metaphor seriously. Living things have an internal logic, have functional constraints. They aren’t endlessly malleable. You can’t replace grandpa’s liver with a second heart just because you think livers are passé — unless you intend to kill grandpa.

In this week’s Acton Commentary, I explore the differing mainstream cultural views of gun rights and abortion in the United States and Europe. The point of departure is last month’s Supreme Court decision in DC v. Heller (07-290) striking down the District’s handgun ban (SCOTUSblog round-up on the decision here).

In “Guns, Foreign Courts, and the Moral Consensus of the International Community,” I write that the “tendency to invoke foreign jurisprudence is becoming more troubling as it becomes clearer that the moral consensus that once united Western nations has almost entirely broken down.”

As Paul J. Cella commented on a number of related stories at home and abroad, “We are only a tendentious opinion from one of the Liberal Usurpers on the Court, or their creature Kennedy, under the spell of the New York-DC elite adulation — one tendentious opinion citing foreign law, or sweet mystery of life, or mystical evolving standards, away from the same tyranny that would send the homeowner who defends his wife against thugs to jail, while showering the thugs with sympathy.”

At the same time the Court was deciding Heller, it ruled “that imposing the death penalty for child rape violates the Eight Amendment’s ban on cruel and unusual punishment.” La Shawn Barber has details on the difficulties surrounding that decision, but in relation to the topic of my commentary I want to point out that the EU Constitution in its original form as circulated for ratification in 2004, under Article II-62, titled “Right to life,” held in part, “No one shall be condemned to the death penalty, or executed.” At the same time this article made no explicit or special mention of abortion.

For more insight into the disconnect between the UN/EU on the one side and the US on the other over gun rights, see Kenneth Anderson’s illuminating post, “International Gun Control Efforts?” (HT: The Volokh Conspiracy).

As Mike Huckabee was wont to say, we wouldn’t have the First Amendment without the Second. And if guns are outlawed, only outlaws will have knives (that explode?!).