Individual Liberty — Individual Responsibility 

Then and Now

After a few years of serious thought on the subject, I've come to an inescapable conclusion: The United States of America today is nothing like the country that our founders envisioned. The form of our government pays lip service to the form of government that the founders established, but it's very different in fundamental ways. Even so, I still find it preferable to the governments of any other nation on Earth. I think I'd prefer the government our founders envisioned, but the changes would be a shock for us all.

One of the first things that distinguishes our country from that envisioned by the founders is how we think of it. Today we say that "The United States of America is" great. (Well, I say that. There are some that would say otherwise.) In the past, I imagine that we might have said that "The United States of America are" great. It's a subtle distinction, but the founders envisioned the federal government as tying together individual states to present a common face to the world. That vision changed sometime in the mid nineteenth century. The government of the United States was not originally a government "of the people, by the people, for the people" as stated in President Lincoln's Gettysburg address. Rather it was a government "of the states, by the states, for the states".

The government of the United States of America is not, and never has been a democracy. In fact, as far as I can tell, the government of no nation on Earth is a democracy. In a democracy, the people vote on every decision of the government. Imagine how unwieldy that would be with a population of over three hundred million people. We have a hard enough time as it is determining who is eligible to vote in national elections and counting ballots accurately even when we have months to prepare for the election. Is it any wonder that even today's proponents of direct democracy don't really argue for a "true" democracy?

Instead of a democracy, our federal government is a representative republic. We (the people) elect representatives to enact our laws. Under the original system, as envisioned by our founders and hammered out with much compromise, the people elected representatives to "the people's House", the House of Representatives, and the state legislatures elected two representatives to serve in the Senate. That changed in April of 1913 when the seventeenth amendment to the Constitution was ratified. Now the only real distinctions between the House of Representatives and the Senate have to do with which house can initiate legislation for appropriations and which house gets to ratify treaties, the appointment of ambassadors, judges, and cabinet officials. That, and the length of their respective members terms of office.

As I said earlier, I'd prefer the government our founders envisioned. That includes the way our Senators are chosen. I'd personally like to see the seventeenth amendment repealed and return the selection of our Senators to the state legislatures. It's a fair bet that that's not going to happen in my lifetime though, if ever. Besides, it might make little difference anyway. My wife is fond of reminding me that our elected representatives don't listen to the people who elected them anyway. For the most part, she's right about that, and I don't think that Senators are or would be any different. As it stands now, our Senators pander to the people at election time and then do what they damned well please once they're in office. Returning the power of selection to the state legislatures isn't likely to change that at all, especially when state legislators act the same way themselves.

For that matter, repealing the seventeenth amendment would probably have little effect for another reason. Part of the reason why the seventeenth amendment was even proposed in the first place has to do with the fact that state legislatures couldn't be bothered to live up to their responsibilities under the federal Constitution in the first place. As I understand it, some states went without representation in the Senate because their legislatures couldn't select Senators. Other state legislatures simply passed on the responsibility for the selection of Senators to the people, holding popular elections and then selecting the winners of the popular elections to be their senators. It was a freshman senator (Joseph Little Bristow,  a Republican from Kansas) that proposed the seventeenth amendment, although he was elected by the Kansas legislature. Interestingly enough, Sen. Bristow was defeated in his re-election bid in 1914.

The seventeenth amendment wasn't the only change in the structure of our federal government though. There have been a total of twenty-seven amendments to our Constitution over the centuries since it was ratified. Quite possibly the most disastrous of all of them is the fourteenth amendment. I say this even though the authors of the fourteenth amendment quite possibly had the most noble of intentions, and despite the fact that I am almost certain that my liberal friends will excoriate me for it.

First of all, the fourteenth amendment was for the most part unnecessary. The fourteenth amendment didn't abolish slavery in the United States, that was done by the thirteenth amendment. The fourteenth amendment didn't grant the right to vote to black people or former slaves, that was done by the fifteenth amendment. Among the amendments to the Constitution that I like, these two, the thirteenth and fifteenth are near the top of the list of positive changes to our government's structure. While the fourteenth amendment also included some positive changes, I think that the law of unintended consequences has resulted in some negative changes. Some of the negative consequences of the fourteenth amendment (in my opinion) include:

• Anchor babies —

  The fourteenth amendment begins with the statement "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." At first read this seems like a good idea, and the intention was obviously to remove any doubt about the citizenship of people who were born slaves and freed by the thirteenth amendment. This was wholly unnecessary though, since Congress could have enacted a law that granted citizenship to those people since Article 1 section 8 of the Constitution explicitly grants the Congress the power to "establish an uniform Rule of Naturalization". The unintended consequence of the Constitutional amendment as it is worded is that we now have people deliberately violating our immigration laws with the express intent of having a child in the United States so that that child can be a United States citizen and serve as a buffer to prevent their deportation.

• The effective rewriting of the first amendment —

  The fourteenth amendment states in part "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Our federal courts, (particularly our Supreme court) have, in my opinion interpreted this badly. Explicit prohibitions against certain federal actions have been extended to the states, to our counties, to our cities, and even to our public schools as a result. Where the first amendment begins with the words "Congress shall make no law", court interpretations of the fourteenth amendment have changed the intent to "no governmental body or agency shall make any regulation". Some people see this as a good thing, but to me it has resulted in a perversion of the first amendment. Where once, Congress could enact no law that prohibited the free expression of religion our courts do so with impunity, in the name of prohibiting the "endorsement" of religion by government at any level.

  Even liberal Democrats should have reason to dislike this part of the fourteenth amendment. After all, they love to repeat the mantra that President Bush was "selected, not elected". It was the equal protection clause of the fourteenth amendment that was invoked by the Supreme Court when they decided Bush v. Gore in 2000, effectively ending the recounts in Florida, resulting in President Bush's electoral victory. Ironically, if the full recount using uniform standards that was mandated by the Supreme Court had been undertaken in the first place, Al Gore might have been President. It was his decision to try counting only heavily Democratic counties in the first place that resulted in his election loss.

For a while, I labored under the misapprehension that the fourteenth amendment also placed undue restrictions on the state legislatures' right to determine the means by which presidential Electors are chosen as granted by Article II of the Constitution.

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

My thoughts were that to a certain degree the fourteenth amendment overrules that, without explicitly modifying it. The second paragraph of the fourteenth amendment says in part "But when the right to vote at any election for the choice of electors for President and Vice-President of the United States … is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State."

A more careful reading tells me that the fourteenth amendment does not affect the rights of state legislatures to determine the means of selection of Electors. After all, it says "at any election for the choice of electors". State legislatures are still free to choose electors without holding an election. It's just that when they choose to hold an election as the means for selecting electors that they have to allow everyone eligible to vote to vote or the state loses some of its representation. The elided portion of this amendment (in my quote above) was actually worthwhile and probably necessary.

The third and fourth sections of the fourteenth amendment should probably have stood alone. Of the entire amendment, these sections seems to be the most justifiable to me. So really, my primary objections to the fourteenth amendment only apply to the first section — the one most likely to get me in trouble with liberals today. The first section of the fourteenth amendment truly needs amending. Even there, the equal protection clause is, on the whole, a good thing. Sadly, nothing in the first section seems to apply to the federal government.

Of course, just as with the seventeenth amendment, I doubt that we'll ever see changes to the fourteenth amendment during my lifetime, or even my children's lifetime. These two amendments have served to make our federal government work the way that it does today, and they are a part of what our government is today. Wishing for a return to the better part of the past isn't going to accomplish much. We have to live with the government we have today. That means that we must accept Senators that pander to the people rather than look after the interests of their state governments and we have to accept anchor babies and, sadly, the perversion of the original intent of the first amendment as a limitation on the federal government.

Probably the two largest changes between the government envisioned by the founders and the government of the United States today has to do with the expansion of the powers of the federal government, and the unchecked, unbridled power of the federal courts.

To illustrate my point about the greatly expanded powers of the federal government, consider this quote from James Madison (kindly provided by the Patriot Post)…

[T]he government of the United States is a definite government, confined to specified objects. It is not like the state governments, whose powers are more general. Charity is no part of the legislative duty of the government.

— James Madison (speech in the House of Representatives, 10 January 1794)

From this and a careful reading of the Constitution itself, it is clear that the founders intended the state governments to retain their governance over the people and that the federal government was intended to govern and protect the states. The founders wanted a limited federal government with only those powers necessary to treat with foreign nations as an equal and to unify and protect the states.

It's very clear to me that the founders did not envision a massive entitlement system woven into the very fabric of our federal government. And yet today we have our social security system — a government mandated Ponzi scheme if there ever was one, extracting by force of law moneys from today's workers to provide retirement benefits and death and disability benefits to yesterday's workforce. The founders would never have approved of our social security system. As Madison said, "Charity is no part of the legislative duty of the government."

As it is, the social security system is unsustainable. We've known that for decades. I cannot remember a time in my adult life when politicians and economists weren't warning of the time in the future when social security would be bankrupt. The sad thing is, they've been warning about it for decades, and people seem to have become convinced that it just isn't so. After all, we've all heard the stories about Chicken Little and the boy who cried wolf. Just because they've been warning us for so long doesn't mean it's not true though.

The myth of the social security "lockbox" is just that, a myth. Today's social security recipients are not being paid using moneys they put into the system, they're being paid with moneys that today's workers are paying into the system through payroll taxes. One modern trend is to reduce the size of your family by having fewer children. Fortunately, thanks to the big expansion in our population during the "baby boom" the birth rate hasn't been going down. It's nearly twice what it was in 1940, and has essentially held steady since 1955, fluctuating a bit up and down, but pretty close to four million births per year over the last six decades. As long as the birth rate holds steady, we can probably be assured of a steady inflow of funds into the social security system. The problem is the outflow keeps increasing.

As more and more "baby boomers" begin to retire and draw social security, the system must pay out more and more benefits. Adding to the problem, the average life expectancy in the U.S. keeps going up. Where it once was "common knowledge" that the average life expectancy was about 70 years, it is now 78.1 years, or nearly a decade more that people will be receiving social security benefits. For women it's now 80.7 years. Paying out those benefits for an extra decade means more money is going out of the system than before.

I cannot remember the time when politicians weren't promising to "fix" social security. Usually the fixes involve higher payroll taxes, or raising the cap on income for payroll taxes (that's the plan of the Democratic party's candidate for the next Presidential Election), cutting the level of benefits, or raising the retirement age. "Privatizing" social security has been touted as a "fix" for the problem, because private investments tend to do better in general than the "fixed" rate of return in the social security system. Of course, politicians object to that plan because the moneys going into the system are being used to pay current benefits. Privatizing them for future benefits simply won't work because less funds will be available to pay current benefits — or for the government to raid for the general fund. Worse still, "privatizing" social security "accounts" might actually require the government to apply real accounting principles to the system. People might actually begin to expect that the money they put into the system will be used to pay their benefits.

The real fix for the mess that the social security system is in is even less likely to be accepted than privatizing it. The plain fact of the matter is that the federal government has no business being in the retirement account business in the first place. Our founders didn't want government to be running entitlement programs. Our founders didn't provide any authorization for such a program in the Constitution. Oh, I'm sure that the words "general Welfare of the United States" in the first paragraph of Article 1 Section 8 might be interpreted to provide such an authorization, but it's clear from the words of Madison and others that that's not what the founders meant by that.

If Congress can do whatever in their discretion can be done by money, and will promote the General Welfare, the Government is no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions.

— James Madison (Letter to Edmund Pendleton - 1792)

No, the real fix for the mess that our social security system is in is to abolish it entirely. It's unconstitutional, it's a violation of the founders intent, and it infringes upon states' rights. States' rights? "What the hell are you talking about?" I hear you asking. Well, how about the tenth amendment to the Constitution. You know the one I'm talking about surely…

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.

That plainly says, at least to me, that since there is no authorization in the federal Constitution for the Congress to implement a social security system of the type we currently have, and there is no prohibition in the federal Constitution on the states implementing such a plan that only the states have the authority to implement such a "social safety net." The states after all were intended to govern the people, not the federal government.

"The state governments have a full superintendence and control over the immense mass of local interests of their respective states, which connect themselves with the feelings, the affections, the municipal institutions, and the internal arrangements of the whole population. They possess, too, the immediate administration of justice in all cases, civil and criminal, which concern the property, personal rights, and peaceful pursuits of their own citizens."

— Joseph Story (Commentaries on the Constitution, 1833)

It's plain that a great many people in our nation are dependent upon social security. No politician in his (or her) right mind is going to suggest abolishing the program now. It's a reality and a fact of American life. It's also broken and prevents our government from spending its money on its real obligations. Not to mention the fact that it's only one example of many ways our federal government has usurped powers that belong to the states, done so poorly and polluted the vision of our founders. The Medicare system comes to mine as another example of such a program, as does the federal government's meddling in education — possibly the one example of federal overreaching that is even acknowledged by a federal entity (the National Archives).

Q. Where, in the Constitution, is there mention of education?
A. There is none; education is a matter reserved for the States.

All of this comes from a deliberate misinterpretation of the words "and general Welfare of the United States" in Article I, section 8, paragraph 1. No Democrat and no Republican politician today would dream of changing these things — of returning our federal government to the form envisioned by our founders, or of returning it to compliance with the plain meaning of the Constitution. The people wouldn't allow it. Too many of them are dependent upon the federal government in one way or another, or hope someday to be so. And that's truly sad.

As our federal government grows in power, exceeding its authority and assuming ever more control over the lives of the citizens of the many United States of America it is aided and abetted by the first of the three branches of government envisioned by the founders to exceed its constitutionally defined role — the courts. This is largely because of a flaw in the Constitution that was recognized early on by the Anti-Federalists and dismissed by the Federalists.

During the drafting of the Constitution, much vigorous debate centered around the powers that the government should have. The debate focused initially upon the powers of the executive and upon the makeup of the legislature. The system as it was ultimately established limited the powers of the President, giving Congress the ultimate power over his election, and the ability to vet his decisions. The President was given the power to appoint ambassadors and cabinet officers, but Congress (via the Senate) was given the power of refusal. The President was given the power to veto legislation, but Congress was given the ability to override that veto. The Legislature was divided into two houses, a "peoples" house (the House of Representatives) and a states house (the Senate). This compromise thwarted the will of some of the founders to have the legislature solely represent the people and thus grant more power to the larger states, and thwarted the will of others to ensure that each state had equal representation regardless of population. Congress was granted the power of impeachment to remove any and all officers of the United States federal government, and each house was given the ability to discipline its own members. Congress was also granted the power to determine the makeup of the federal courts, the hierarchy of the federal courts, and even to limit their jurisdiction. This is the system of "checks and balances" that was designed to prevent any branch of the government from assuming a role that did not belong to it.

Much has been said about the system of checks and balances. There is a general perception that we have three co-equal branches of government, and some of the founders even stated that it was so. A reading of the Constitution though doesn't give me that impression. It's plain to me that the founders (at least the ones that prevailed) intended for Congress to be the premier branch of the federal government. As the direct elected representatives of the people and the states it is natural and just that Congress ought to by right be the premier branch of the government. The presidency is in many ways subordinate to the Congress, charged with executing the laws that the Congress enacts, and subject in many ways to Congressional oversight. Not being directly chosen by the people or the states, the president can't truly speak for them. The courts ultimately were intended by a plain reading of the Constitution, and by the words of the founders themselves to have an even more limited role.

Far less is said in the Constitution about the federal courts than about either the Presidency or the Legislature. Nothing whatsoever is said in the Constitution about a check on the decisions of the courts. Their jurisdiction may be limited by Congress, but if they exceed that jurisdiction there is no remedy described. Justices of the Supreme Court are appointed to indefinite terms and hold their offices "during good Behaviour", a nebulous term that in practice means until they choose to step down. This is where the founders failed in my estimation, and ultimately paved the way for the most profound change in the federal government of all.

To begin with, the founders recognized, and the federalists asserted that it was fundamentally important that the power of judgement had to be separate from the executive power. After all, it's not good for someone to be "judge, jury, and executioner" together with being the arresting officer. That may have worked in the movies for Judge Dredd, but it's really a system of injustice, not of justice. The federalists also asserted that the power of judgement had to be separate from the legislative branch. It simply wouldn't do to make law on the fly while trying a case (as our courts appear to do these days).

"there is no liberty, if the power of judging be not separated from the legislative and executive powers."

— Federalist No. 78.

Unfortunately, as I described earlier, the Constitution didn't say enough about the Judiciary. The failure of the founders to establish sufficient checks on the Judiciary resulted in judicial oligarchy. Today our courts make law from the bench, substituting the policy preferences of judges and "justices" for the laws enacted by the legislature. They have usurped the power of the legislature by claiming for themselves the power to "construe the laws according to the spirit of the Constitution". The anti-federalists warned of this.

…The supreme court under this constitution would be exalted above all other power in the government, and subject to no control…

…The judges are supreme and no law, explanatory of the constitution, will be binding on them.

— Antifederalist No. 78 - 79

Sadly, the anti-federalists were right but the federalists dismissed their arguments. The Constitution doesn't grant the courts the power to legislate and it doesn't grant the courts the power to invalidate legislation. Perhaps tiredness after the long struggle to hammer out the many compromises necessary to craft our Constitution had crept in, but the federalists were wrong. They asserted…

In the first place, there is not a syllable in the plan under consideration which directly empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State.

— Federalist No. 81

The problem with that of course is that there was not a syllable in the plan under consideration that directly prohibited the national courts from doing that very thing. The founders were very careful to limit the powers of Congress. They were very careful to limit the powers of the President. They were not so careful to limit the powers of the judiciary. It didn't take long for the judiciary to assume powers that weren't "directly" authorized to them under the Constitution.

"It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each."

— Chief Justice John Marshall

This was a plain usurpation of the legislative power. Under our Constitution it is emphatically the province and duty of the Congress to say what the law is. After all, it's the Congress that is empowered 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." Article I Section 8 of the constitution does NOT say that "The Courts shall have the power to make all laws".

The anti-federalists were right, there is no check upon the power of the courts. But what about Congress' power to limit the court's jurisdiction? The courts routinely ignore it and other matters of jurisdiction.

…the Court's intervention in this military matter is entirely ultra vires.
— Justice Antonin Scalia (Dissenting in Boumediene v. United States)

Ultra Vires? That's Latin and translates as "Beyond the powers". The term is from corporate law, but the essential idea is that the court is acting beyond its authority and its intervention in the matter is illegal.

What about Congress' other, ultimate power over the courts? The power of impeachment? I have to ask the question "what good is it?". As some of my liberal readers were fond of telling me when I took note of Nancy Pelosi's blatant disregard of the Logan Act, "a law that isn't enforced might as well not be a law at all" (they didn't comment with those statements, but they did speak to me about it, some via email). In this case, a power that isn't used might as well not be a power at all.

Seldom is a judge impeached, at the federal level or even at the state level. It takes something truly egregious to result in the impeachment of a judge. In the state of Washington, even a DUI isn't enough to result in the impeachment of a judge. It's so rare that the last time it happened was in 1989, when Alcee Hastings was impeached and removed from office, and he was only the sixth judge to be removed from office by the United States Senate in this way. It has been nearly twenty years since a judge was successfully impeached. Who knows? Perhaps the judiciary isn't completely immune. The House is considering another impeachment even as I write this.

Today's federal government has far exceeded the visions of our founders. In part it has done so through politicians simply ignoring those visions and pandering to the weaknesses of the people. In part it has done so by slowly evolving toward a mobocracy rather than a limited federal republic. In part it has done so with the willing acquiescence of the states, giving up their power and authority because of internal strife and faction. In part it has done so through the power play between the various branches, with the courts seeking supremacy over all as Justice Scalia said in Boumediene… "What drives today's decision is neither the meaning of the Suspension Clause, nor the principles of our precedents, but rather an inflated notion of judicial supremacy."

Of course, this too is unlikely to change. Our politicians and special interests love to use the courts to enact laws that simply wouldn't get past the political branches of the government. Where the people have expressed their will and it goes contrary to the interests of a particular group lawsuits seem to be the way to enact policy preferences that are otherwise unacceptable to the people. This doesn't just happen at the federal level, although it may ultimately reach that level. The California supreme court recently overturned the will of 61% of the people of California, in a move that may eventually substitute the will of four judges for the will of the entire American people. If you can't get the majority of the people to agree with you, it seems that a lawsuit is the way to go.

You'd think that with opinions like this I might simply give up hope. Not so. Despite the fact that our government has evolved in ways that it was never intended to, and despite the fact that no politician will do anything serious to reverse the trend (who want's to give up power once attained after all), our nation is STILL the land of the free and the home of the brave. Our nation is still the BEST place to live on God's green Earth. Our liberties are still ensured by our Constitution and there are still people bent on preserving them. Returning to the founders vision might be a bit of a shock, but someday it just might happen. Unsustainable bloat in the federal bureaucracy will eventually see to that when the entitlement programs we've burdened ourselves with collapse under their own weight — just as all Ponzi schemes eventually do.

It's the return of open trackbacks! I'm going to do things a bit differently this time though. The frequency of my blogging has changed. I don't post every day anymore, only when I find something that I really want to say. I'm not going to substitute an open trackbacks post for a regular post, and they're not going to be "sticky". If I don't have something to say, there's not going to be an open trackbacks post.

This linkfest is for the 19th of June, 2008.

If you have something interesting you'd like to share, feel free to link it here and leave a trackback.

Just remember the trackback policy.

For the best exposure, go to the blogger's oasis and use the linkfest chooser to choose the posts you'd like to hook up with.