President Obama, during his 2010 State of the Union address, did the unprecedented, which I suppose should surprise no one. He called out the Supreme Court, whose members were seated in front of him, and lambasted them on a recent decision called Citizens United v. Federal Elections Commission. The outcome of the case was that free speech was not limited only to individuals but could include corporations, groups of individuals, etc. As Justice Scalia pointed out in his concurring opinion, the First Amendment refers to speech not speakers.
Florida
You hear a lot of talk these days about the Senate being broken because nothing can get passed with a majority vote. Everything has to get sixty votes to pass and that’s just un-American. Is it?
The House of Representatives
The Founding Fathers were brilliant in designing the government that has survived longer than any other, and it wasn’t an accident. The House of Representatives was designed to be the branch of government closest to the people. The members come from districts that are sized based on population. It is also in the House of Representatives that all revenue bills (i.e., tax increases) must originate. The Senate cannot create legislation to raise taxes.
The Senate
The Senate was designed with a different purpose in mind. In the form of federalism that they created, the Senate was supposed to represent the individual states. Originally Senators were appointed by the state legislatures and this continued until the ratification of the Seventeenth Amendment in 1913, which provided for the direct election of Senators by the people. The Senate was designed to be a check on the tyranny of the majority. In the House, populous states like New York, California, Texas and Florida, have a lot of representation. To prevent a handful of states from pushing around everyone else, representation in the Senate is the same for Rhode Island as it is for California, two each. In the House, California trumps Rhode Island. In the Senate they do not. Are you picking up the theme?
The Dreaded Filibuster
Being able to filibuster in the Senate is another way of allowing cooler heads to prevail. If legislation before the Senate cannot win over some reasonable number of Senators, then it’s probably not a very good idea for the country.
As proof that things are more partisan today, pundits point to how the number of filibusters has greatly increased over time.
In the entire 19th century, including the struggle against slavery, fewer than two dozen filibusters were mounted.
It is reported that things really took off during the Clinton administration. Hmm, what else was going on then… Hillary Care? We have also seen the out of control growth of the federal government’s involvement in almost every aspect of our lives, such as, how much we can be paid, how much a bushel of wheat should cost, how schools are funded; none of which is in the Constitution as powers the federal government should have. Those are all things that, according to the 10th Amendment, are the purview of the states or the people.
The Filibuster Fix
So if you don’t like the way the Senate is bogged down, instead of taking the brakes off the car, how about dumping the junk in the trunk? The less minutia the federal government gets involved in (let’s start with health care), the less reason, reasonable Senators will have to filibuster.
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. – Tenth Amendment of the Constitution of the United States of America
The Tenth Amendment
The Tenth Amendment of the Constitution is an interesting piece of work. The way the Constitution is written is to explicitly state what the national government could do, and thereby exclude it from doing everything else. When some of the Founding Fathers advocated a Bill of Rights the federalists strongly objected. Why? First, they thought it was redundant. If, for example, the Constitution did not say the national government could regulate speech then having a First Amendment guaranteeing the Freedom of Speech made no sense. The national government was only permitted to do precisely what the Constitution said it could do.
The second objection concerned having the opposite intent of the original writing of the Constitution. You see, if the constitution has a provision that says what the national government cannot do (First Amendment barring free speech for example) it implies that the national government can do anything else that is not prohibited, which is exactly what the federalists did not want the Constitution to say. It wanted to specifically enumerate the powers granted to the national government and no more. So they compromised by adding the Tenth Amendment, which spelled out that distinction. To quote Hamilton in Federalist 84:
“Why, for instance should it be said that the liberty of the press should not be restrained, when no power is given by which restrictions may be imposed?”
The Federal Government’s Runaway Growth
The federal government has expanded enormously particularly with FDR and the New Deal. The Supreme Court has paid scant attention to the Tenth Amendment in curbing that expansion. Perhaps it is time they gave it a closer look and more weight in their decisions.
Below is what the Constitution says Congress has the Power to do.
Article I. Section 8. The Congress shall have Power To:
- Lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States;
- To Borrow Money on the credit of the United States;
- To regulate Commerce with foreign Nations, and among the several states, and with the Indian tribes;
- To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
- To coin Money, regulate the value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
- To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
- To establish Post Offices and post Roads;
- To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
- To constitute Tribunals inferior to the supreme Court;
- To define and punish Piracies and Felonies committed on the high seas, and Offenses against the Law of Nations;
- To declare War, grant Letters of Marque and reprisal, and make Rules concerning Captures on Land and Water;
- To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two years;
- To provide and maintain a Navy;
- To make Rules for the Government and Regulation of the land and naval Forces;
- To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrection and repel Invasions;
- To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Apportionment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
- To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings; — And
- To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
Does anybody see anything there about minimum wages? miles per gallon? housing subsidies? urban development? education? energy? James Madison summed it up thus in Federalist 45:
“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. The former will be exercised principally on external objects, as war, peace negotiations, and foreign commerce;….The powers reserved to the several states will extend to all 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.”
To see how far we have come from Madison’s and the other Founding Fathers views can be seen in the New Deal era court case Wickard v. Filburn(1942). Roscoe Filburn was a farmer during the Great Depression who was growing wheat to feed his chickens. The Federal Government had imposed limits on how much wheat a farmer could grow based on acreage in order to prop up wheat prices. The amount of wheat that Filburn was growing exceeded this number, however, Filburn intended to use the wheat entirely on his own farm. Not only was the wheat not going to leave his home state, it was not going to leave his farm! But the Supreme Court ruled that by growing more wheat than allowed, Filburn would not have to buy additional feed in the open market and by not doing so the lack of his consumption of wheat on the market would adversely affect the price of wheat, therefore he was violating the Federally imposed limits. Now if that doesn’t set off Tenth Amendment alarm bells, I don’t know what could.
Federal Government Sprawl
Here are the cabinet level departments of the Federal Government. Those in bold seem, in my opinion, to be consistent with the enumerated powers above. Those in italics seem, again in my opinion, to be a national government overstepping its Constitutional bounds. It is not that each and any of these things should not be done at all, but according to the Tenth Amendment should be at the discretion of the states or local government.
- Department of Agriculture
- Department of Commerce
- Department of Defense
- Department of Education
- Department of Energy
- Department of Health and Human Services
- Department of Homeland Security (Incorporate in Department of Defense)
- Department of Housing and Urban Development
- Department of Justice
- Department of Labor
- Department of State
- Department of the Interior
- Department of the Treasury
- Department of Transportation
- Department of Veteran Affairs (Incorporate into Department of Defense)
Federalism
One of the brilliant ideas of federalism is the ability to vote in two ways. One, is at the ballot box and the other is with your feet. If my state puts forth a bad idea and the majority of the citizens of my state agree with the bad idea, I have the freedom to move to another state. However, if we keep moving all these bad ideas up to the national level, my right to vote with my feet is taken away. If states like California and New York choose to follow polices that lead to their bankruptcy, so be it, but let’s not force those policies on Texas and Florida or force the citizens of those states to pay for the mistakes of Californians and New Yorkers.
Since George Washington, who had four cabinet positions, we have added thirteen new cabinet departments and eliminated two and the ones eliminated did not go away, they simply became part of other government entities (e.g., Navy into Defense; Post Office into Postal Service). In other words our government is telling us that they have not solved a single problem for which one of these agencies were created since 1789, otherwise why wouldn’t that cabinet department be shut down, after ceremoniously giving all the key players well deserved gold watches? But Government encroachment marches on with the Obama Administration poised to devour one-sixth of the U.S. Economy into the Department of Health and Human Services. They tell us they know how to solve that problem. With their track record do you believe them? Perhaps it’s time to dust off the Tenth Amendment, and start putting a scalpel to the federal government rather than tying a bib around its bloated neck.
Let’s look to 2010 as the year we start taking back our government. Polls show how far out of touch our elected leaders are from the views of their constituents. It’s time to retire them from office. Let’s keep up the hard work and countdown to November 2010.
Conservatives, do not lose heart. Tea Party people, stand firm. Like many great turning points in history, they often involve an historic battle that is lost. The Alamo. Remember the Maine. Dunkirk. Pearl Harbor. 9/11. What they do instead is rally the troops, get them fired up and motivated.
The Battle
In New York’s 23rd Congressional District, the aloofness of the professional pols came to a head. It was the epitome of a recent Rasmussen poll that said 74% of Republicans said their elected leaders were out of touch with the base. On the Democratic side, the opposite was the case were most Democrats felt their elected leaders held similar views to their own. So what happened in the special election in New York’s 23rd district?
Republican party bosses chose Dede Scozzafava to defend a seat that has been Republican since the Civil War. Ms. Scozzafava is pro-abortion, pro-”reform in workers ability to organize”, pro-gay marriage, pro-Obama stimulus package, and endorsed by the Working Families Party, an ACORN front group. That was more than conservatives could stand. Doug Hoffman threw his hat in the ring, conservatives from around the country rallied to him, and Scozzafava eventually dropped out of the race and threw her support behind…the Democrat!!
So the race was between a Democrat and a Conservative, with the Republican candidate a footnote. The Democrat prevailed by about 5% and picked up a seat for Nancy Pelosi.
The Talking Heads
The liberals started rubbing their hands and crowing over the Republican party self-destructing. I see it differently.
In a Gallup poll, 40% of Americans considered themselves conservative, 20% described themselves as liberals. That leaves 40% in the middle. The prevailing wisdom among the Republican Party leadership is that we need to run “moderates” and have a big tent to win elections. I say, do the math.
If you need 50% to win the election, and many times you don’t, then run a conservative candidate. You will start off with the 40% that call themselves conservative, and then you only need to win 25% of the middle to put you over the top. (40% in the middle x 25% = 10%; 40% conservative base plus this 10% = 50%).
Liberals have the tougher job. Starting out with only a base of 20% self-described liberals, they need to win 3/4 of the middle to get to 50% and win. It’s even tougher for them because they typically have to go hard left to win the primary and then try to swim upstream to get back in the middle without anyone noticing.
Putting Elections on a Platter
So what has been the strategy of the Republican Party leadership? Run moderates, because “we can’t win elections with the conservative base alone.” That’s true but neither can the Democrats win with just their liberal base and as I just proved, theirs is the tougher job. But when you run moderates, here’s what happens. A good portion of the conservative base stays home, disgusted. So from starting with 40%, you maybe now have a 20% base. You just let the Democrats pull even. Now you have to win not 25% of the middle but half of the middle. Let’s say the middle is a continuum from almost conservative to almost liberal. If Republicans keep their base, then they can just go after the middle group that is “almost” conservative. If they alienate their base then they have to get every vote in the middle that is the least bit conservative and maybe some liberals. On the flip side, if they keep their base by running conservative candidates, that forces the Democrat to get all the liberals, all moderates, and some who lean conservative, to capture 3/4 of the middle. After going hard left to get nominated, that is an almost impossible task.
Don’t Let Obama Fool You
Obama’s election had an historical element to it that we are not likely to see again. He is an incredibly good speaker, that is, until you realize that is all he is. Put up a moderate like McCain, and it was no contest. The only time it became interesting was when McCain picked Palin, which got the base energized. But the McCain campaign completely mismanaged bringing Palin on board, and the moment was lost.
Remember the 23rd!
So, conservatives have to rally and the Republican leadership has to pay attention. As Margaret Thatcher used to say, “Don’t go wobbly.” Start putting conservatives on the field and turn the tide of the battle.
The next battle is Florida where Charlie Crist…better update his resume, there is a new kid in town, named Marco Rubio and he’s a conservative.












