Category Archives: Legitimate Functions of Government

The more things change…

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… the more they remain the same — is an old French saying. Joe Wolverton at the Tenth Amendment Center looked at the Constitutional Convention debates and found that the issues they discussed August 20, 1787, could be front-page news today.

They discussed:

  • The “Necessary and Proper Clause,” which they intended simply to give Congress the authority to pass whatever laws were needed to carry out the objectives stated in the Constitution. Most of the Convention could not foresee that this was a phrase that created room for abuse.
  • A bill of rights, which the Convention then rejected. It later incorporated some provisions, such as allowing Congress (not the President) to restrict the right of habeas corpus in time of invasion — a provision that Abraham Lincoln ignored, and which Congress unconstitutionally delegated to the President in the National Defense Appropriation Act. A more comprehensive Bill of Rights was added as the first ten (and 27th) amendments to the Constitution.
  • The Convention defined treason. It was heavily debated, but a motion to table was defeated. The final wording, which appears in Article III, Section 3, reads:

Treason against the United States, shall consist only in levying War against them, or in adhering to the Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

In other words, only on the battlefield or in direct assistance to the enemy on the battlefield. Luther Martin, a delegate from Maryland, anticipated an event that took place following the War between the States when he suggested adding the following language, which was rejected:

Provided that no act or acts done by one or more of the States against the United States, under the authority of one or more of the said States shall be deemed treason or punished as such.

The event referred to was the proposed trial of Confederate President Jefferson Davis for treason. The trial was never held, in part because the prosecutors realized that it would raise the issue of whether secession was Constitutional. They were not confident that they could win that argument. However, the day may be coming when the omission of Mr. Martin’s clause will come back to haunt us.

We need to watch what the feds are doing — regardless of who wins the Presidential election this fall. “Eternal vigilance by the people is the price of liberty.” Fortunately, we have lots of help from the Tenth Amendment Center.

Playing chicken

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In my book Governing Ourselves, I lay out what I call the “four institutions of society,” which are: government, the economy, religious and non-profit organizations, and the family. I stressed the risks to a free society that occur when any one of them becomes too dominant over another.

This came to mind as I was reading about the Chick-fil-a kerfuffle. We get into trouble when we mix politics, religion, and business. The Left has a strong tendency to mix politics with business when they call for boycotts when businesses or their CEOs do something they do not like. (Social conservatives do the same thing when they call for boycotts of sponsors of television programs they find offensive).

In a free society, Don Cathy, CEO of Chick-fil-a, is free to say whatever he wants about gay marriage; and most people will still go to Chick-fil-a or not, depending on how much they like the product, the service, and other factors relating to the restaurant business. In other words, what Don Cathy says in the political arena should (and usually does) have little to no influence on the success of Chick-fil-a as a business.

On the other hand, the homosexual community wants the unions of its couples to be blessed by society as a whole – which realistically will not happen as long as a substantial portion of society believes that such unions are contrary to their religious beliefs. However, having no mechanism at all for recognizing their partnerships has a discriminatory effect against them for purposes of health insurance, divorce, and probate.

From the libertarian perspective, a solution suggests itself. Uncouple marriage from a voluntary process I call “household registration.” If you live with another adult in a committed relationship – man/woman (whether married or in another committed relationship), gay/lesbian partners, or even non-sexually as parent/adult child or adult siblings; you can register that relationship. The purpose of such registration is to ensure that each individual can receive “family” benefits and is fairly treated following a separation, whether voluntary (equivalent to divorce) or by death (probate). Household registration requires no blood test and no “solemnization” by clergy.

Far from “threatening,” trivializing or dishonoring marriage, household registration elevates marriage to the sacred union envisioned by the scriptures of every major religion, by concentrating on the spiritual significance of the vows that are taken. It also acts to reduce the moral confusion that comes from the ability to “marry” too casually (for example, by a justice of the peace in Las Vegas).

Whether or not homosexuals may actually marry is a question for religious organizations to decide. At least, my proposal for household registration will relieve political pressure to satisfy the legitimate needs of gays and lesbians by trampling on the conscience of the faithful.

Why are we celebrating Independence Day?

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Today is the Fourth of July. On this day, we celebrate the anniversary of the Declaration of Independence, which declared before God and the world the reasons the people of the thirteen colonies found it necessary to separate themselves from the British Empire.

Last Thursday (June 28), the Supreme Court rendered its decision in National Federation of Independent Business v. Sebelius (Docket 11-393) to assert that the Affordable Care and Patient Protection Act is Constitutional. The decision specifically stated that the penalty for those who do not buy health care insurance is really a ”tax,” and that the federal government has an “unlimited” power to tax. Like Franklin County Common Pleas Judge Timothy Horton’s decision May 30 to allow racetracks to operate casinos, the U.S. Supreme Court’s decision offers technical support for a law in blatant violation of its underlying Constitution, which is supposed to be the “supreme law of the land.”

While I do oppose national health care on policy grounds because it further distorts the free market in health care and imposes unnecessary costs on everyone; I could live with state-sponsored health insurance – if the plan be not executed at the federal level. National health care is blatantly unconstitutional, based on the plain text of Article I, Section 8, and the Tenth Amendment to the U.S. Constitution. There is no prohibition on government-managed health care at the state level; and accordingly, I had no problem with Massachusetts and Utah experimenting with systems of their own.

This decision broke my heart. I do not know how anyone, having read about this opinion, can reasonably argue that the Constitution of the United States is anything other than a dead letter. The courts have developed pseudo-”Constitutional” arguments to support expansions of federal power for nearly 80 years. While the Supreme Court has occasionally posted roadblocks to that expansion, they have been at best temporary. The “checks and balances” that the Founding Fathers erected in the Constitution no longer work. Neither the Congress nor the Supreme Court continues to act as a check on the President, and neither the Congress nor the President has effectively checked the Supreme Court since the earliest days of the Republic.

Thomas Jefferson and James Madison argued that federal power could be checked by the states through the U. S. Senate and resolutions of nullification. But the Seventeenth Amendment (providing for direct election of Senators) stripped the states of their role in the federal government; and nullification resolutions not backed by a deeper commitment have no teeth.

What is that “deeper commitment”? The writers of the Declaration pledged their very “lives, fortunes, and sacred honor” to make sure that America would make good on its independence. We are so far from that commitment that no state to date has even shown the courage to attempt the arrest of federal officials in their states who violate the Constitution and their state’s laws — something Arizona needs to try if it ever hopes to avoid being overrun by illegal Mexican immigration.

And I would be deeply (and pleasantly) surprised if the Ohio General Assembly made good a nullification of the Act based on Article I, Section 21, of the Ohio Constitution, adopted by two-thirds of Ohio’s voters only seven months ago, which reads (definitions omitted):

§ 1.21 Preservation of the freedom to choose health care and health care coverage.

(A) No federal, state, or local law or rule shall compel, directly or indirectly, any person, employer, or health care provider to participate in a health care system.

(B) No federal, state, or local law or rule shall prohibit the purchase or sale of health care or health insurance.

(C) No federal, state, or local law or rule shall impose a penalty or fine for the sale or purchase of health care or health insurance.

(D) This section does not affect laws or rules in effect as of March 19, 2010; affect which services a health care provider or hospital is required to perform or provide; affect terms and conditions of government employment; or affect any laws calculated to deter fraud or punish wrongdoing in the health care industry.

If we do not take courageous civil action to protect our freedom, it will soon be too late to take any action at all. We will be overwhelmed and defeated before the struggle even begins. In the Declaration, Mr. Jefferson acknowledged that resistance to established authority should not be taken lightly:

Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. [Emphasis added]

British writer Jeff Thomas (no relation), reminds us that we have been enduring a “long train of abuses and usurpations” designed to render us under “absolute despotism,” and he is kind enough to provide a list [Edited for clarification and for links. The writer's comments are in parentheses, mine are in brackets]:

  • The [USA PATRIOT] Act (Passed in 2001 and extended in 2011 with additional controls) expands law enforcement powers and removes civil liberties and constitutionally guaranteed rights.
  • The National Defense Authorization Act, passed on 31st December, 2011, allows the indefinite imprisonment by the military of any “suspects” (including American citizens on American soil) without allowing due process of law.
  • The MAP-21 Bill, which allows the Internal Revenue Service to suspend the passport rights of Americans, based on the premise that their tax obligations may be unfulfilled.
  • The National Defense Resources Preparedness order, created in March, 2012, allows the President to take over control of all food, water, labour and industry in the US, “to promote national defense.”
  • 30,000 Drones to fly over the US allowed by executive order, February, 2012, providing the government with an Orwellian surveillance ability and a killing capacity ranging from selected individuals to entire communities. [Even the Socialists are upset about this].
  • FEMA Internment Camps, to be constructed in every state, with 3 – 15 in each state, for an undisclosed purpose. [The Federal Emergency Management Agency calls these camps "fusion centers." They were "authorized" by Homeland Security Presidential Policy Directive 8, signed by President Obama March 30, 2011. They exist today, and FEMA has published policies for their management. Notice that the directive is of later date than the policy document.]
  • 450 million hollow point bullets ordered by the Department of Homeland Security To be used domestically. (The DHS is not responsible for addressing national invasions or overseas wars; it exists solely for the control of internal disorder. Hollow point bullets are not intended for sharpshooting – they are designed specifically to maximize tissue damage.)

Want more evidence? Read my Independence Day blog post from two years ago, where I list federal abuses going back almost to the founding of the Republic. The “Government long established” by the Declaration of Independence has itself become a tyranny over the American people.

Now, please, tell me again, why are we celebrating the Fourth of July?

Update July 4: Maurice Thompson at the 1851 Center has sent an email to supporters giving practical suggestions how Ohioans can resist mandatory health care using Article I, Section 21 of the Ohio Constitution cited above. His suggested action steps are: (1) ensure that Ohio does not implement a state-based “exchange,” (2) Ensure that there be no expansion of Medicaid in Ohio, and (3) Challenge the mandate based on its impact on our Constituitional rights. It is well worth reading.

Posting of the bans

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The news has brought up so many examples of government acting as the people’s nanny, I thought it was time to add a logo to my blog.

One of them is the texting ban while driving in Ohio that Gov. John R. Kasich signed June 1. I certainly agree that texting while driving is extremely dangerous, and I understand that the purpose of the legislation is to prevent texting more than prosecute it; but aspects of this law still do not make sense to me:

  • One obvious issue is that texting while driving is a primary offense for under-18s, but a secondary offense for 18 and older. This means, in theory, that a police officer can stop a teenager for committing no violation except the texting, while he has to find some other offense for an adult who does so. Question: how is the police officer to know whether or not a driver is over 18 before he stops the car?
  • Secondly, this kind of law enforcement is a bit like hate crime legislation. Texting is not itself an offense. The offense is not being in control of your vehicle. We already have laws for reckless driving. Why do we need another one for driving while distracted (or for that matter, drunk, drugged — or to carry it further, with the car stereo on loud enough to rock the whole neighborhood)? The key is to teach people to drive safely and to show them why it is dangerous to drive when impaired. And if they do not focus on the road while driving, that we have severe penalties against reckless driving, vehicular homicide, and so on.

The other example, which takes the nanny state idea to a new level, is New York Mayor Michael Bloomberg’s proposal May 31 to ban the sale of sugary soft drinks in containers larger than 16 ounces (as reported in the New York Daily News). Mayor Bloomberg justifies the ban on the basis of public health statistics showing that 58 percent of New York City adults and nearly 40 percent of city public school students are obese or overweight.

David Frum at CNN calls this legislation “visionary.” I call it ridiculous.The proposal exempts milkshakes (which can contain up to 500 calories each) and diet sodas. And anyway, as New York resident Helen O’Connor reminds us, “If I can’t buy one big drink, I’ll buy two smaller ones.”

Compound fractures

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The process of fracturing shale rock for oil and natural gas, commonly known as fracking, has stirred quite a bit of discussion here of late, particularly since many have blamed the process for the 12 earthquakes in Youngstown late last year. This article from the Christian Science Monitor provides an explanation of the possible relationship between fracking and earthquakes; though it (and an article in Sunday’s Columbus Dispatch) note that groundwater contamination from ”disposal wells” is likely to be the more serious problem. Disposal wells hold the water-sand-chemical mixture used to push out the oil and natural gas. Environmentalists argue that if the disposal wells are not well built, the mixture can leech into aquifers that are used by most Ohioans for drinking water. To date, there have been no instances of such leeching. However, the discipline of risk management teaches that the importance of a risk equals the probability of it happening times the severity of what could happen if the event occurred. Put more simply, we should consider prohibiting fracking if groundwater pollution is unlikely, but if its occurrence is likely to create serious illness or death to hundreds of Ohioans.

I do not know enough about this issue to give an opinion on the environmental risks involved with fracturing wells; but this is not the only issue having to do with fracking.

The other issue has to do with how extraction of the oil and natural gas is to be taxed. In his Mid-Biennial Budget Review, Gov. John R. Kasich proposed a tax that would be used to reduce the income tax burden of each Ohioan (Plain Dealer, Mar.4). This is a bad idea, because the revenue from the fracking tax would not be applied in any way that has to do with extracting minerals from the earth.

How taxes are used should be related to the way they are collected. For example, levying a property tax to support a township fire department is entirely appropriate, because the purpose of a fire department is to protect property. So property owners would be the principal beneficiaries of a fire department. While it also protects the personal property of renters, it is the property owners who would suffer the most substantial losses from a fire. However, a property tax is not an appropriate way to finance schools, because schools are used to develop the people of the state. They have nothing to do with protecting property. An income or sales tax is much more appropriate for funding public schools.*

The state government has the right and the obligation to collect taxes from those who profit from extracting non-renewable resources from the earth. In economics, this is known as land rent.**  The soil and what is under it, in principle, belongs to all of us in common. It is not the property of the state, but we delegate to the state the responsibility for ensuring that it is fit for us to live and grow food on, and to drink water from. Because oil and natural gas, unlike trees and crops, are non-renewable, the people of Ohio should collectively be paid for the resources that will not be available to future generations. For the state to use this rent to reduce income taxes would be like a college using its endowment to cover its operating expenses. In either case, funds raised over generations can foolishly be spent in a few years, when they should be used for buildings and other improvements that will provide benefits for many years.

The best use for the fracking land rent would be to conduct research into renewable energy sources, which can be solar, wind power, geothermal, or nuclear fusion (as highlighted in another article in today’s Columbus Dispatch). The object is to make sure that, in time, Ohio would become self-sufficient, or maybe even a net exporter in renewable energy, thus providing for the day when we can no longer feasibly extract coal, oil, or natural gas.

* An even better way is suggested in my book Governing Ourselves: Abolish public schools and provide parents with education vouchers for use at the private school of their choice. Funding for those vouchers can be taken from income or sales taxes. Elsewhere in the book, the reader can learn about “passive enforcement,” which can be an effective and less-costly way to enforce environmental standards.

** Wikipedia provides an introduction to the concept of land rent. Land rent is also the concept underlying the economics of Henry George (in Progress and Poverty, which was also discussed in my book.

One size does not fit all

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Who said this?

“I would not look to the United States Constitution if I were drafting a Constitution in the year 2012”

Would you believe, a member of the United States Supreme Court? Justice  Ruth Bader Ginsberg said this in an interview with Egypt’s Al-Hayat TV Feb. 1. Instead, she would recommend the South African Constitution and the Canadian Charter on Rights and Liberties. The New York Times (Feb. 7) presented an interesting analysis of trends in constitution-making around the world, which suggests that the U.S. Constitution is less and less used as a model for nations around the world.

This statement has caused quite a bit of outrage among American conservatives, including Rick Montes at the Tenth Amendment Center, who also bristled at a similar statement by Justice Antonin Scalia which appeared to hold up the 1936 Soviet Constitution as a model of human rights, clearly ignored by Stalin’s regime. However, the context suggests that Justice Scalia’s reference was sarcastic.

The relevant question is, which country are we talking about? Another country may well find our presidential form of government less suitable than the parliamentary form, which evolved in its present form after our Constitution was adopted. We have learned much in the last 200 years, and that should be taken into account. Other countries may find federalism difficult to implement or culturally unsuitable. If we truly believe in freedom, we must acknowledge that each country must decide for itself what form of government is best calculated to protect the liberties of their people. One sized definitely does not fit all.

Now, as to the United States. I agree that the United States Constitution is excruciatingly difficult to amend; but living in a state whose Constitution is ridiculously easy to amend, I can appreciate that quality about the U.S. Constitution. Yes, the U.S. Constitution is over 200 years old, but its Framers and Ratifiers were wise people who carefully considered human nature, especially the lust for power; and created mechanisms to control it as much as humanly possible.

Most of the defects that we find with the federal constitution can be (and often have been) corrected in our state constitutions. Our own state constitution, itself 160 years old, provides protection of our freedom far superior to that of the United States.

Paraphrasing G. K. Chesterton on Christianity, we must remember that the Constitution has not been tried and rejected; some are choosing to reject it without it really having been tried (at least in the last hundred years). The basic point of the U.S. Constitution is as true today as it was in 1787. It sets limits on the power of the federal government, which if followed closely, will enable the states to protect our freedom.

Complex societies need simple laws

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That is the radical thought that entered John Stossel’s head at Townhall. He observes that politicians think that as society grows more complex, more laws are needed to keep up; but Mr. Stossel effectively argues the opposite:

It is precisely because society is unfathomably complex that laws must be kept simple. No legislature can possibly prescribe rules for the complex network of uncountable transactions and acts of cooperation that take place every day. Not only is the knowledge that would be required to make such a regulatory regime work unavailable to the planners, it doesn’t actually exist, because people don’t know what they will want or do until they confront alternatives in the real world. Any attempt to manage a modern society is more like a bull in a darkened china shop than a finely tuned machine.

One way to simplify laws is to decentralize government. Then localities will deal with only the laws they need, and will be more easily held accountable to their voters.

 

Federal regulation gone wild!

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We have all read about how extensive, costly, and unconstitutional federal regulations affect our freedom and the economy. After reviewing a proposed regulation as part of my work, I thought it would be interesting to share with you a small sample of the material that is entered into the Federal Register every day. In the interest of job security, the regulation I am highlighting is not the one on which I am working.

The case in point is found in the Federal Register, Vol. 76, No. 211 (Tuesday, November 1, 2011), beginning on page 67317. Introduced by the U.S. Department of Agriculture’s Agricultural Marketing Service, it modifies existing regulations on the handling of onions grown in certain counties in Idaho and Oregon that are part of the Idaho-Eastern Oregon Onion Committee.

The verbiage of the rule itself is only about 20% of the content, and is located at the very end. The entry begins with header information and a one-paragraph summary, effective date, and a list of pertinent contacts in the regulatory agency. About half of the entry is “supplementary information” – essentially a justification for making the rule. The remainder explains how the proposed rule complies with such Congressional mandates as the Regulatory Flexibility Act and the Paperwork Reduction Act. It also references a “small business guide” on complying with various fruit, vegetable, and specialty crop “marketing agreements.”

Conspicuous by its absence is any justification for the rule based on the Constitution of the United States. I suppose it would technically fall under the power to regulate interstate commerce, since the Onion Committee serves parts of two states and its members undoubtedly export their onions elsewhere; but I cannot imagine that the Framers, even nationalists like Alexander Hamilton or William Patterson, could have envisioned such micromanagement at the federal level.

And this is only one regulation by one division of one agency in one day. Multiply this by all the regulations imposed since the Federal Register began in 1937, and it is easy to see why we are in the mess we are in.

No Presidential candidate and no Congress can make a serious dent in this Leviathan without an extremely broad-based mandate for radical decentralization. Frankly, it would be much easier to break up the union.

Or as I often say at work, “… and people wonder why I am a secessionist!”