United States Constitution

Day of Disgrace

by Bill O'Connell on May 21, 2010

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Yesterday, at a joint session of Congress, Filipe Calderon the President of Mexico addressed the joint body. In his address he openly criticized the new immigration law recently passed in Arizona. This law was passed by a duly elected legislature in Arizona and signed by the governor. To their great disgrace most, if not all, Democrats as well as President Obama’s cabinet members gave the Mexican president a standing ovation. These Members of Congress took an oath to support and defend the Constitution of the United States against all enemies foreign and domestic. Are these Members of Congress going to now claim, well… Mexico is a friend, not an enemy so we can actually help them wipe their feet on the Constitution?

An analysis done by Megyn Kelly, an anchor on Fox News and an attorney, compared federal law and Supreme Court decisions to the new Arizona law. She found that current federal law is tougher than what was recently passed in Arizona. Under federal law, police can stop anyone for any reason or no reason and ask them for their immigration status. In Arizona, a police officer can only ask immigration status if, while in the course of stopping the individual for another reason and they suspect the individual may be in the country illegally, for example, if they don’t have a valid driver’s license. If they can produce a valid driver’s license, the inquiry is over.

So let’s recap. Existing federal law is tougher than the recently passed Arizona law regarding asking an individual for proof they are here legally. The federal government is AWOL on enforcing immigration law. Arizona acted where the federal government failed. Attorney General Eric Holder calls the Arizona law discriminatory and a potential law suit target, but without actually reading the law. It is also clear, he does not know the federal laws he has sworn to uphold. Janet Napolitano also has not read the law and she has a sworn duty to secure the homeland. She also does not know the federal laws in place that she should be enforcing. Both of these individuals along with most, if not all, Democrats in Congress give a standing ovation to a foreign head of state who criticizes a properly passed state law. The whole lot of them are a disgrace to this country and should be booted out of office at the first opportunity.

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New Year’s Day 2010 – A New Decade of Hope and Change

by Bill O'Connell on January 1, 2010

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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.

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Provide for the General Welfare…

by Bill O'Connell on August 15, 2009

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Congressman Tim Bishop referred to it in his town hall meeting. If you ask a statist where does the Constitution authorize them to get involved in every detail of our lives, the only place they can point to is Article I, Section 8:

The Congress shall have the 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; {my emphasis}

So what does the general Welfare mean? Statists who claim the Constitution is a living breathing document believe that this clause gives them the right to do whatever they please, and whatever gets them reelected. As conservatives we believe in original intent and therefore we have to go back to what the founders meant when they penned those words. Why is that an important distinction? Because the meaning of words change.

Are You Gay?

If you were asked that question in the eighteenth century, the questioner would have been asking you if you were merry; keenly alive and exuberant; having or inducing high spirits. If asked that question today, the questioner wants to know if you are a homosexual. So if the founders wanted to emphasize that the Constitution was a serious document and wrote, “nothing contained herein should be construed to be gay,” no one at the time would have raised an eyebrow, other than the dopiness of the clause. If read in today’s context, it would create an uproar.

Are You Bad?

The band Huey Lewis and the News have a song called “Bad is Bad” in which the band plays on how the word “bad” now means ”good” in contemporary vernacular, but sometimes it actually means bad, really bad. It shows how words change can change with time. Back when the Founders wrote the Constitution and you said someone was bad, you might find yourself choosing dueling pistols. Today, the response to the statement, “You’re bad,” would probably be, “Thanks, man.”

So if you don’t seek out the original meaning of the Constitution and our laws based on when they were written, everything can become meaningless over time.

What Did the Founders Mean by Provide for the General Welfare?

Alexander Hamilton was a proponent of a broad interpretation of the General Welfare and he supported that position during the Constitutional Convention. However proposals along those lines, such as spending for internal improvements were rejected by the Convention.

“{James} Madison repeatedly argued that the powers to tax and spend did not confer upon Congress the right to do whatever it thought to be in the best interest of the nation, but only to further the ends specifically enumerated elsewhere in the Constitution, a position supported by Jefferson.” — The Heritage Guide to the Constitution, p.93

There was another interpretation that fit in the middle that even Hamilton recognized. That was that the term “general” meant “national” welfare and not for purely local or regional benefit. President James Monroe demonstrated this

“in his 1822 message vetoing a bill to preserve and repair the Cumberland Road. Monroe contended that Congress’s power to spend is restricted ‘to purposes of common defense, and of general, national, not local, or state, benefit.” — The Heritage Guide to the Constitution, p. 93.

Later President James K. Polk vetoed a bill that looked a lot like today’s runaway earmarks.

“It provided $6,000 for projects in the Wisconsin territory — constitutionally permissible because of Congress’s broader power over federal territories — but it included $500,000 for a myriad of projects in the existing states. Polk contended that to interpret the Spending Clause to permit such appropriations would allow ‘combinations of individual and local interests [that would be] strong enough to control legislation, absorb the revenues of the country, and plunge the government into hopeless indebtedness.’” – ibid, p. 95

If you changed some of the numbers you could have written that today rather than in 1847. Where this came off the rails, along with so many other government disasters we are paying for today, was during FDR’s tenure beginning in 1936. Subsequent Supreme Court decisions left the definition of “General Welfare” up to Congress. How ridiculous is that? Justice Sandra Day O’Connor summed it up pretty well in her dissent in South Dakota v. Dole

“If the spending power is to be limited only by Congress’ notion of the general welfare, the reality….is that the Spending Clause gives ‘power to the Congress….to become a parliament of the whole people, subject to no restrictions save such as are self-imposed.’ This….was not the Framer’s plan and it is not the meaning of the Spending Clause.”

Out of Control Spending

The outrage demonstrated at the town halls shows that the American people are fed up with Congress ignoring what they are saying and bankrupting the country. The Supreme Court in the 1930s opened the door to profligate spending by Congress that was kept in check by the Constitution for 140 years prior. To allow Congress to define general welfare as they want and then spend accordingly makes no sense logically or otherwise. If the Supreme Court does not set this right, a Constitutional Amendment may be required, and I am no fan of amending the Constitution at every turn. As an American I take pride our Constitution that we have only felt a need to amend 27 times in over 200 years. But if we allow changes in the definitions of words to drag the Constitution along with them, then we need to take measures to put the Constitution back where it was as a beacon to guide us rather than a quaint artifact of our history.

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Liberty and Mobility

by Bill O'Connell on June 1, 2009

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Movin' Out

One of the great blessings bestowed upon us by our Founding Fathers was federalism. Our federal form of government evolved from the Articles of Confederation, where states had primacy and the national government acted only with the consent of the states. This proved to be too cumbersome.

In writing the Constitution, the Founders identified very specific roles and responsibilities for the national government and left everything else to the states or the people (see Tenth Amendment). In doing so it gave the people the power of liberty through mobility. If you didn’t like the way they did things in Massachusetts, you could move to Virginia. If the people of Pennsylvania didn’t want a mass migration of people to Georgia, they needed to be careful regarding the laws that they passed so as not to alienate a large block of their constituents.

The War on Federalism

The statist, who loves government and believes government should control every aspect of our lives, hates federalism, because it weakens its control. So they attack it through the courts.

Here is their standard battle plan. Let’s the case of Gay Marriage. Vermont’s legislature approves Gay Marriage. Whether you are in favor of that or oppose that it shouldn’t affect you if you don’t live in Vermont. If you are in favor and you live elsewhere, you can move to Vermont. If you live there and are opposed you can either fight to overturn it in Vermont, or move elsewhere. That’s the beauty of federalism. If continued to its logical conclusion, some states would approve it and those in favor would migrate there, and those who are opposed would concentrate in states that would ensure that it would not be adopted in their state. You could have a raging debate, but your liberty would be preserved through mobility.

However, the statists have a different view of things. After the law is passed in Vermont by the legislature (as is proper), or made up out of thin air by the court in Massachusetts (judicial activism and improper), some couples who are married in these states move to another state. By doing so, they should leave their state sanctioned rights behind. However, what they will typically do when their Vermont sanctioned rights are not honored in, say, Tennessee they will rush to federal court and says their Constitutional rights are being violated. A court stocked with judicial activists, will find some fig leaf of justification with words like emanations and penumbras, to make a new law of the land and with the stroke of a pen, the liberties of all Americans will be swept away based on the will of the people of Vermont. You no longer can protect your liberty through mobility. You cannot go anywhere to live in proximity to like minded people and live the life you believe in. Mobility is no longer a tool to protect your liberty it is a weapon against you. People can secure rights elsewhere and use mobility to come to your doorstep and use the courts to force their beliefs on you.

Fierce Fighting

I believe that is why the fighting over these issues become so fierce and acrimonious. If something is allowed anywhere, it will soon be allowed everywhere, because of an activist judiciary. Our rhetoric has become more strident, our politics is anything but bipartisan, all because everything is being elevated to the federal level. States are becoming less and less important. If you don’t believe it ask people, who was responsible for the fiasco after hurricane Katrina? If they say President Bush, ask them to name the mayor of New Orleans or the governor of Louisiana at the time. Bush and the federal government should have been the third line of defense, not the first. The first should have been the city, then the state and then the federal government.

Back to Federalism

Show me where in the constitution it says the government should own General Motors and Chrysler. Show me where it says that a tunnel, entirely in the city of Boston should be paid for by the taxpayers of Arizona. Show me where in the constitution it says education is the responsibility not of local government but the federal government. It doesn’t. And until well roll back this juggernaut, our liberties will be crushed little by little, day by day.

This is why it is also important to guard against activist judges getting on the bench or being elevated to higher levels of the court. It is just these activist judges who are taking away your liberty to move away from those who don’t believe what you do and moving toward those you do agree with. Take note of the nomination of Judge Sotomayor to the Supreme Court.

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Is the Groundswell Starting?

by Bill O'Connell on February 20, 2009

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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 — Amendment X, United States Constitution

“I’m Mad as Hell and I’m Not Going To Take It Any More”

That quote from the movie “Network” popped into my head as I read about a legislator in Oklahoma, calling for legislative support for the 10th Amendment to the Constitution. It passed the state assembly unanimously. So what does this mean? The sponsor of the bill, State Senator Randy Brogdan, explains:

The “federal government has been putting the screws on (the states) a little tighter and tighter each year” along with unfunded mandates of varying sorts.

And each time this happens, Brogdon explained, “We lose a little bit of our freedom and liberty.”

The federal government has been growing enormously and taking on more and more things that used to be handled locally, such as education, and welfare. Other programs have not changed as the economy has, for example, as the percentage of the population that farms has decreased dramatically has the Department of Agriculture shrunk accordingly?

You Must Obey!

The way the federal government works around this is by saying, okay, you don’t have to do what we tell you, but you will get no federal funding if you don’t. It seems like a Catch-22, no? Since the 16th Amendment, which authorized the income tax, the federal government can decide how much to tax incomes and there is little that the states can do about it. They take money from your pocket under threat of imprisonment, and will give it back to you only if you comply with their rules.

How Do We Fix This One?

It may require a constitutional amendment to fix as the 16th Amendment says:

The Congress shall have the power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration. — 16th Amendment to the Constitution

I’ll leave the legal mechanics to those better qualified, but I would propose the following. That the federal budget shall include a breakdown of projected revenues derived from income taxes, broken down by source: individual, corporate, etc. A state should then be allowed to refuse mandates and programs from, say, the Department of Education, and withhold from the IRS that proportion of tax dollars destined for the Department of Education from that state.

Certain departments should be deemed mandatory, such as Defense, State, Treasure, to name a few as these departments serve all citizens.

The legislation under consideration in Oklahoma will have little effect if the federal government can suck up as much money as it wants to from the states, via their citizens and then just keep the money if the states refuse to participate in the programs. How do you determine which programs should be subject to the states discretion? No money should flow from a state, to Washington, and then back to the state. That is just plain stupid and wasteful, or a distribution of wealth, none of which is a government function. Paying for roads and infrastructure that does not cross state lines should be funded locally. It is ridiculous that the federal government pays 90% of the cost of a highway that lies entirely within a city. Look at the scandalous “Big Dig” in Boston. Billions of dollars spent and parts of it are falling down. Why should any of this be paid for by the people of Kansas, Oklahoma, Alaska, New York, Florida, et al.?

But the real answer is following the 10th Amendment. It clearly states that the role of the federal government is spelled out in the Constitution. If it’s not in the Constitution then that responsibility is left to the states or the people. Show me where in the Constitution it says that the federal government is responsible for education. It’s not in there and that department should be shut down tomorrow.

It’s Time to Rein the Monster In

The anger in the country is growing. Those who acted responsibly are being told they have to bail out the irresponsible. They are being told by “Buck a Day Biden” that it is their patriotic duty to pay higher taxes to help out. Meanwhile half a dozen Obama appointees haven’t paid the taxes they owe, let alone paying more. I give Biden the “Buck a Day Biden” moniker because that is how much this millionaire gives to charity. He doesn’t want to spend his own money on charity, he wants the government to take your money to fund government programs to do that.

If you don’t think the anger is growing take a look at this. Rick Santelli

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Another Democratic Power Grab

by Bill O'Connell on February 12, 2009

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A bill is moving through Congress to give a Congressional seat to the District of Columbia. Guess which party would benefit from that? The problem is that it’s unconstitutional.

If the residents of Washington, D.C. want representation in Congress there are ways of going about it:
1) Return the District of Columbia to Maryland. In that way they will be counted in the population of Maryland for the apportionment of representatives and will be represented in both the House and the Senate;
2) Make Washington, D.C. the 51st state; there is a process for this that should be followed.

But to just say, okay, let’s add another seat to the House of Representatives is unconstitutional. The District of Columbia was specifically formed in the Constitution, to change it would require an Amendment to the Constitution

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Dismal Debate

by Bill O'Connell on October 16, 2008

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Watching the third and final Presidential debate I can best sum it up by saying A pox on both your houses! In the midst of a very precarious financial situation both candidates talked about how they were going to get more deeply enmeshed in all of our lives. The tenth amendment of the constitution states:

“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.”

In other words if it’s not spelled out in the constitution, it is not a federal function. Seems like a pretty good idea, no? Keep government as close to the people as possible. What we are witnessing is a massive gathering of all government at the federal level. Where in the Constitution does it say that education, health care, teacher’s salaries, and pension plans are the responsibility of the Unites States?

In 2006, the IRS took in $1.3 trillion in taxes from individuals and last night the candidates said that government wasn’t big enough! We need to add more programs. We need to take more tax revenue (but only from the rich). Both candidates will balance the budget.

What we need to do is print out the tenth amendment, laminate it, and require every politician carry it in his or her wallet and then read it aloud before voting on any bill or law. The way out of this mess is to put together a plan to disassemble the New Deal, The Great Society, No Child Left Behind, cut taxes massively, and let the States, the counties, the cities, the towns and the villages address the issues that lie within their borders and be accountable to the citizens that live therein.

Liberty is not about more government to run every aspect of our lives. It is about the minimal amount of government that is necessary so that we can have the right to live our own lives as we see fit.

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United States Constitution

New Year’s Day 2010 – A New Decade of Hope and Change

Provide for the General Welfare…

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