Category Archives: Constitution

Instead of rioting over Roe, Democrats should bring a case on immigration

Roe vs. Wade came as a shock, even to people who believe the power to regulate abortion is reserved to the states. Lost in the triumphant celebrations of the decision on one side and the abject horror and hysteria on the other is the fact states like my own (New York) are now less restricted in liberalization of their abortion laws.

The 1973 decision didn’t just strike down state laws prohibiting abortion. It wrote new ones, something no court, state or federal, has any legitimate power to do. This is the other edge of the sword in allowing federal judges to override state law. They have taken the power away from the states forever.

The Court did two things in its Roe decision. First, it implicitly affirmed the Incorporation Doctrine, the legal theory that the Fourteenth Amendment “incorporated” most of the first ten amendments to the Constitution to apply against the states. I recently had the opportunity to discuss this with constitutional scholar and historian Kevin Gutzman on an episode of my podcast (neither of us believe the doctrine is valid).

The Incorporation Doctrine was necessary to arrive at the original Roe decision. It provides the basis for a federal court to strike down state laws. Without this doctrine, the Bill of Rights is only applicable to the federal government, leaving protection of individual rights to the bills of rights in the state constitutions.

Second, the Court narrowed interpretation of the Incorporation Doctrine to those rights specifically enumerated in the Constitution or “rooted in the Nation’s history and tradition.” The Court did not find any evidence of an American tradition of a right to abortion, but rather a tradition of precisely the opposite: the longstanding tradition of states prohibiting abortion before Roe.

Note that this is not a finding that no right to abortion should exist. It is merely a finding that protecting this right, if it does exist, is not a power delegated to the federal government.

Neither is regulating immigration, according to James Madison, the man who wrote the words of the Constitution. In his Virginia Resolution of 1798, in opposition to the Alien and Sedition Acts, he wrote,

That the General Assembly doth particularly protest against the palpable and alarming infractions of the constitution, in the two late cases of the “alien and sedition acts,” passed at the last session of Congress; the first of which exercises a power no where delegated to the federal government;

Like Roe vs. Wade, the federal government’s power to regulate immigration was simply “discovered” by the Supreme Court in a decision at least as spurious as Roe. There are no words in the Constitution indicating this power is delegated to the federal government.

Proponents sometimes point to the naturalization power as somehow implying a power to regulate immigration. But this is ridiculous. Naturalization concerns only the power to determine who becomes a citizen of the United States. It has nothing to do with regulating who can or cannot cross the borders of any of the states.

Others point to the 1808 clause as meaning the federal government was delegated the power after 1808. While this argument is slightly more plausible, both it and the naturalization clause were written by Madison himself, who nevertheless stated regulating immigration was a power “no where delegated.”

Jefferson added in his own Kentucky Resolution of the same year that the 1808 clause was added merely out of “abundant caution,” not a grant of this new power after 1808.

As there has been no subsequent amendment to the Constitution delegating this power to the federal government, it must remain with the states.

While the Incorporation Doctrine would not apply as this is not a dispute regarding the federal Bill of Rights, it is noteworthy that at the time of the decision, there was no tradition or history of the federal government regulating immigration. On the contrary, the case in which the Court concluded this was a federal power concerned a dispute over the way the California State immigration officers were regulating immigration.

If there has been a federal power as contentious as regulating abortion, it has been regulation of immigration. Cities run by liberal politicians have declared themselves “sanctuary cities” in defiance of federal immigration laws. States like Florida and Texas, run by conservative politicians, have taken to shipping “undocumented immigrants” sent to their states either back to their point of entry or to Washington, D.C. in protest.

This is no way to conduct civil society.

The rancor over immigration is the predictable result of the federal government exercising authority never delegated to it by the states. The Post Office may be abysmal, but it doesn’t inspire the hatred federal immigration enforcement does because it is recognized as a power the states agreed to delegate to the federal government.

If either Democrats or Republicans brought a case on immigration, it would test the Court’s conviction to its constitutional principles. Immigration checks all the boxes of the Court’s own reasoning for a power improperly usurped by the federal government through a previous SCOTUS decision. In Dobbs, the Court wrote, “This Court cannot bring about the permanent resolution of a rancorous national controversy simply by dictating a settlement and telling the people to move on.”

In the cases of both abortion and immigration, that is precisely what the Court did. Overturning Chy Lung vs. Freeman would right precisely the same wrong.

It is not as if federal regulation of immigration is working now. Under both liberal and conservative presidents, the process to immigrate legally has been woefully deficient, resulting in millions of immigrants entering the country illegally or (more often) staying long past their visas expire. There is every reason to believe the states would do a better job at this and could also tailor their immigration laws to be as strict or lenient as they wish.

To those who find the consequentialist arguments of Chy Lung vs. Freeman compelling, there is an opportunity to offer an amendment to the Constitution to properly delegate this power to the federal government. This would not simply be a dead-on-arrival letter. It would give Americans across the political spectrum a chance for input on the language of such an amendment and the limits, or lack thereof, on the power.

If no amendment agreeable to the requisite number of states can be written, then the process of trying will have proven this is a power which must be reserved to the states. If an amendment can be ratified, then the federal government can go on sucking at regulating immigration, just as it does at delivering the mail, without risking a civil war.

Tom Mullen is the author of It’s the Fed, Stupid and Where Do Conservatives and Liberals Come From? And What Ever Happened to Life, Liberty, and the Pursuit of Happiness?

Tom Mullen’s First Inaugural Address (Excerpt on Regulation)

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…There has been a lot of speculation in the media about how I will direct the various regulatory agencies as far as lifting burdensome regulations or imposing new ones. I have here in my hand a copy of the U.S. Constitution – the only “deal” ever made between the people of the various states regarding a federal government with any constitutional validity – and it says, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”

Now, for many decades, there have been various agencies in the executive branch of the government exercising this legislative power in defiance of the Constitution. We call it “regulation” instead of “legislation” so as to deceive ourselves and others that what the EPA, SEC, or FDA does is not legislating and therefore constitutional. But any government agent writing rules that either prohibit or compel behavior with the force of law is legislating.

If we truly believe government only draws it just powers from the consent of the governed, then surely, we can see that this is a problem. The only place anyone ever consented to the federal government having any power at all was in ratification of the Constitution and its various amendments. And that consent was only obtained with great effort and solemn assurances that the government would not exceed the powers delegated to it.

Nowhere in the Constitution is the president or any member of the executive branch delegated power to legislate. Neither can the Congress simply delegate this power to the executive through legislation. Any alteration in the distribution of powers in the Constitution must be made by constitutional amendment. The sole power granted the executive concerning the legislative process is the veto, which itself can be overridden by Congress with sufficient support among its members.

Therefore, any regulation written by an employee of the executive branch, or anyone else, that is not subsequently passed by the House of Representatives and the Senate, and signed into law by the president, represents rule without the consent of the governed.

Read the rest at Tom’s Patreon…

Tom Mullen is the author of It’s the Fed, Stupid and Where Do Conservatives and Liberals Come From? And What Ever Happened to Life, Liberty, and the Pursuit of Happiness?

SCOTUS Proves Once Again It Is the Wrong Body to Determine Federal Powers

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A leaked draft of an opinion written by Justice Alito of the U.S. Supreme Court suggests the Court is prepared to strike down the 1973 Roe v. Wade decision that found unconstitutional state laws prohibiting abortion. The ruling would also strike down modifications made in the Planned Parenthood of Southeastern Pa. vs. Casey decision of 1992.

If the final decision is substantively the same as the draft, it will continue a process of “re-federalization” that has been gaining momentum since the 2016 election cycle. Many viewed the Donald Trump presidency as divisive, but Trump’s election was more revelatory of existing divisions than divisive itself.

Long before Trump declared his candidacy, many states had already effectively nullified federal marijuana regulations and immigration laws. Talk of Texas seceding from the union had resumed during the Obama administration; similar rumblings in California began soon after Trump was inaugurated.

What has inspired the most rancor on both sides are cultural issues: abortion, what is taught in schools, who is allowed to get married, who is and is not required to bake the wedding cake, and who is and is not allowed to cross the borders, immigration being both a cultural issue and an economic one.

There is also an underlying dissatisfaction with economic outcomes, which are most affected by the monetary system and the New Deal regulatory structure, although neither conservatives nor liberals seem anxious to address either.

None of the federal powers above, including regulating immigration, are expressly delegated to the federal government in the Constitution. They were all “discovered” by the Supreme Court using reasoning arguably as dubious as that employed in Roe v. Wade.

The whole idea of judicial review for constitutionality is a suspect one. The reason for having a written Constitution in the first place is to ensure there is no confusion about what powers the federal government has been delegated and not delegated. It should not be necessary to hold a legal proceeding, followed by a lengthy written decision by the “finest legal minds in the land” to determine whether or not a given power is delegated to the federal government in a five-page document.

If there is any doubt at all, an amendment should be offered. That is the only honest way to obtain consent of the governed for a new power. Acquiring power through the court system is a transparent attempt to do so without the consent of the governed, with knowledge aforethought that you are imposing authority that would not be granted voluntarily.

Article V of the Constitution provides the means by which consent of the governed is obtained by the federal government. It is not obtained through federal elections. They merely determine who exercises power, not what power is exercised.

Neither are amendments ratified by a simple majority of United States citizens. They are ratified by a supermajority of the states, who are the parties to the Constitution. They formed a federal government, not a national one, for the express and stated purpose of preventing a simple majority of all U.S. citizens from ruling over a unitary nation.

This is clear from notes on the constitutional convention taken by James Madison and Robert Yates. Forming a national government with the states as mere subdivisions was thoroughly discussed and rejected. The union would be a federation of states with limited powers delegated to the federal government and all others retained by the states or the people.

This is more than just academic pedantry. The United States is a boiling cauldron of political hatred about to boil over. Once the abortion decision is official, we can expect a repeat of the rioting we saw in 2020 over George Floyd. We saw even the typically orderly right give into similar behavior last January. There is no reason to believe things will simmer down anytime soon.

Article V provides a way out of this. Offering amendments to grant the federal government those powers it has illegitimately acquired in the past through the courts will result in one of three outcomes for each disputed issue: 1) the amendment will be ratified as offered, 2) the amendment will be revised through negotiation into something a supermajority of states accept and then ratified, or 3) the amendment will fail completely, making clear to all this is a power that must be reserved to the states.

Perfection is unattainable in any political process. But any of the three outcomes above would provide a pressure valve on the issue in question. Amendments should be offered for all powers obtained by the federal government through the courts in the past, no matter how long ago the acquisition occurred: regulation of abortion, immigration, healthcare, education, and marriage included.

While we’re at it, why not settle the very first constitutional crisis the way it should have been settled: an amendment granting the government the power to incorporate a bank.

Given the exponential growth of the federal government over the past one hundred years, dozens of amendments should have been offered during that period. Yet, since 1933 only six have been ratified, one of those being what would have been the Second Amendment if ratified when originally proposed in 1789.

Both conservatives and liberals are reluctant to pursue the constitutional amendment process because it is difficult by design. But there are only two ways to exercise power: with the consent of the governed and without it. Americans have chosen the latter over the past century, taking the relatively easy, dishonest route to power through the court system. That has led us to where we are now: at each other’s throats.

We would be wise to retrace our steps and determine the federal government’s powers legitimately before we have a real insurrection on our hands.

Tom Mullen is the author of It’s the Fed, Stupid and Where Do Conservatives and Liberals Come From? And What Ever Happened to Life, Liberty, and the Pursuit of Happiness?

The Gaping Hole in the Libertarian Immigration Debate

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I watched with interest the debate on immigration between Dave Smith and Spike Cohen. I encourage everyone, libertarian or not, to watch it as well. Neither participant called the other a fake libertarian, a racist, a communist, or (insert pejorative here). On the contrary, Smith hurt himself by spending too much time praising Spike during his opening.

Instead of dumb name calling, the debate included thoughtful and thought-provoking arguments for both positions, which were “open borders” and “not open borders.” As to who won the debate, I’ll leave that to the judgment of the viewer. There were no knockdowns.

Like Dave, Spike, and host Marc Clair, I am an ancap. So, my ideal solution would be privatizing everything. And as for my personal feelings about all three, I can only say:

However, especially since it was largely representative of most libertarian discussions on immigration, I am compelled to point out a startling omission in the debate. That was the apparent false assumption by both Dave and Spike that the only options were between the federal government regulating immigration and open borders. Neither even mentioned the constitutional, historical argument: state regulation of immigration.

I was waiting for the conversation to get there until Spike made a statement (about the 43:43 mark), unrefuted by Dave, that since there was no Ellis Island or similar federal immigration enforcement operation for the republic’s first one hundred years, the United States had “straight up open borders” during that time.

No, they didn’t. It is true the federal government wasn’t regulating immigration because the states were regulating it. As I explained in more detail here, the federal government only got involved in immigration as a result of Supreme Court decisions dealing with state immigration enforcement, particularly Chy Lung vs. Freeman, arguably the most spurious decision the Court ever issued on the constitutionality of a federal power.

Without rehashing the linked article above, they didn’t really make an argument the power was delegated. Their decision was based solely on the reasoning that it would be disastrous if the federal government didn’t have the power to regulate immigration, so therefore it must have it. They explained why the federal government should be delegated the power, not that it had already been delegated the power.

It wasn’t the first time the federal government attempted this usurpation. Most people remember the Alien and Sedition Acts for their suppression of free speech, but that was only half the problem. The other half, emphatically argued by both Jefferson and Madison in the Kentucky and Virginia Resolutions in 1798, was that the Alien Act was unconstitutional because it exercised a power (regulating immigration) reserved to the states. Their argument for state nullification of the Alien Act amounted to the same argument made by “sanctuary cities,” only at the state level.

Conservatives often argue the power to regulate immigration is granted to the federal government because it is part and parcel of the power to regulate naturalization (becoming a citizen). This is ludicrous. The vast majority of people who cross the border have no intention of becoming citizens and the two powers are completely distinct.

Others point to the 1808 clause, which has slightly more superficial merit, but you can read my arguments against that in the linked article as well.

For the record, Jefferson addressed the 1808 clause in the Kentucky Resolution and Madison, who wrote the words of both the Naturalization and 1808 clauses, nevertheless stated regulating immigration was a power “no where delegated to the federal government.”

Since there hasn’t been an amendment to delegate this power since then, it must still reside with the states or the people.

The constitutional approach provides two alternative solutions to the immigration question that could work for both conservatives and liberals and be more tolerable to libertarians:

Acknowledge the federal government does not posses this power and propose an amendment to delegate it to the feds.
Acknowledge the federal government does not posses this power and allow the states to resume their authority as protected under the Tenth Amendment.

The amendment suggestion is more than just a formality. If an amendment were proposed, it would require a supermajority of states to ratify it. Out of the dogfight that would naturally follow, something agreeable to both sides might emerge.

If not, alternative #2 would be the default position. While that may appear unthinkable at first glance, allow me to point out that states are already availing themselves of this option right in front of our eyes.

Blue states are declaring “sanctuary cities,” meaning they won’t expend their own resources to enforce federal immigration laws. The governor of Texas says his state is building its own border wall. Florida governor Ron DeSantis wants $8 million from his legislature to “create a new program that would allow the state to contract with private companies to transport ‘unauthorized aliens’ out of Florida.”

Just like marijuana laws, states are beginning to nullify federal immigration laws and any honest proponent of strict construction of the Constitution should admit they have the right to do so.

It’s a far cry from a private property system, but it’s much closer than either federal enforcement of immigration laws or federal subsidization of immigration into the states. If we can’t have a libertarian solution, we can at least have a constitutional one.

Supporting this position checks all the boxes brought up by the participants in the debate. No libertarian candidate would have to support the disastrous federal immigration system. Instead, they could tell voters in each state they support their right to determine the rules themselves, without interference from Washington.

It would also be eminently more practical. It would not mean routine interstate travel would be disrupted by authorities attempting to physically stop people from crossing state lines. The federal government has already shown that to be futile.

State government immigration departments could focus on those people establishing residence within the state rather than attempting to prevent anyone from merely driving through. Those arriving at airports or ports from foreign countries could be processed the same way by state officials as they are now by federal officials, at each state’s discretion.

Not every state would regulate immigration the same way. Those states that wanted open borders could have them. Those that wanted border walls could build them. Those that wanted something in the middle could have that, too.

Nothing governments do can be truly called a market solution but allowing up to fifty different immigration policies would much more closely approximate one than the current one-size-fits-all approach. And it would allow a more scientific way to answer not only whether more or less immigration is good for the current state populations but how much or little regulation is optimal. There may be up to fifty answers to the latter question.

No, the constitutional approach is not perfect, just as neither solution proposed in the debate was perfect. But it beats a civil war between the very unlibertarian factions currently seeking control at the federal level. And it has the potential to evolve into something closer to a private property system than could ever emerge with Washington in charge.

Tom Mullen is the author of It’s the Fed, Stupid and Where Do Conservatives and Liberals Come From? And What Ever Happened to Life, Liberty, and the Pursuit of Happiness?

It’s Not Democracy That’s Dying; It’s Our Anti-Democratic Safeguards

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Everyone is worried about “our democracy.” The left believes Donald Trump is trying to destroy it by challenging the results of the 2020 presidential election, aided by state legislatures controlled by his party passing stricter voter identification and ballot verification laws.

The right believes the Democratic Party is trying to destroy democracy by stuffing ballot boxes with illegitimate votes and flooding the country with undocumented immigrants who will either vote illegally themselves or have children who will eventually vote Democrat.

They all agree on one thing. Our democracy is in peril, and it must be saved.

Certainly, if there was enough fraud to change the results of any election, that is a problem. But what is tearing our society apart is not destruction of our democracy, because we don’t live in a democracy. And it isn’t just a republic, either. All “republic” means is that the people elect representatives to perform the various functions of government. North Korea is a republic; China is a republic. Neither are countries in which most Americans would want to live.

No, what made the American system better was not its democratic elections or republican form but it’s anti-democratic safeguards. The Constitution allows for representatives to be elected democratically – although only the House of Representatives was originally by direct vote of the people – but the rest of its provisions are there to protect us from democracy.

The bicameral legislature, presidential veto, separation of powers, and strictly enumerated powers are all intended to protect individuals from what democratically elected representatives might do.

The Bill of Rights is completely anti-democratic. Its articles say the democratically elected Congress shall make no law regarding the establishment of religion, shall not infringe the rights of free speech, or to bear arms. They say the democratically elected executive shall not conduct unreasonable searches, punish you without due process, etc.

The key to all the so-called “checks and balances” in the Constitution is they set up adversarial processes that must occur before power is exercised.

Older readers may remember the Schoolhouse Rock cartoon, “I’m Just a Bill.” It attempts to educate youngsters on all the hoops a bill must jump through to become a law. While clever, the problem with its tone is the strong implication that the bill failing to become a law is regrettable, even tragic.

That the Constitution makes it difficult to pass a law is a feature, not a bug.

The popular sentiment that Congress “isn’t getting anything done” springs from the same misconception. When a bill is proposed and subsequently either dies in committee or fails to pass a general vote, Congress did indeed “get something done.” It vetted the proposition to require or prohibit some human activity by force and (usually wisely) declined to do so. That’s as much “getting something done” as passing the bill – and usually ages better.

Yet, while still professing fidelity to the Constitution, federal legislators have passed many laws allowing the executive branch to bypass this entire process and effectively legislate by fiat. If you’re wondering how President Trump could levy a tariff (a tax) on imports without a law passed by Congress, it’s because Congress passed the Trade Act of 1974, effectively allowing the president to exercise this power exclusively delegated to Congress if, in his sole judgment, “any existing duties or other import restrictions of any foreign country or the United States are unduly burdening and restricting the foreign trade of the United States.”

The National Emergencies Act similarly transfers legislative power to the president by his merely declaring an emergency to exist. Worse yet, the “state of emergency” doesn’t end until the president declares it is over or Congress passes a joint resolution to end it – which can be vetoed by the president!

As I’ve written before, the entire New Deal constitutes an unconstitutional transfer of power from the legislature to the executive by allowing regulatory agencies to not only write their own regulations (legislate) but often usurp the judicial power by deciding disputes in their own administrative courts.

That’s why President Biden can mandate vaccines for businesses with over one hundred employees without new legislation from Congress. He can simply have OSHA require it through “regulation” – a euphemism for the executive branch legislating.

Needless to say, Congress cannot assign powers exclusively delegated to itself to another branch of the government, no matter how many legal or logical acrobatics Supreme Court justices have performed saying they can. There would be no need for Article V of the Constitution if Congress could merely override the separation of powers or other constitutional constraints with legislation. And the Constitution certainly provides for emergencies. There is no emergency more serious than war, for which the Constitution clearly provides.

Yet, no one blinks an eye when a president decides to bomb Syria (name one that hasn’t lately) without a declaration of war and in violation of the War Powers Resolution which specifically limits the president’s power to “introduce the United States Armed Forces into hostilities” to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” [emphasis added]

The list of violations of the Constitution’s limitations on power and separation of those powers it does grant is too long to cover here. But they all have one thing in common: they eliminate adversarial processes capable of overriding the will of majority – of overriding democracy – to preserve liberty.

Everyone recognizes the political climate in the United States is toxic and many legitimately fear it will become violent. This isn’t because democracy is diminished. Rather, it is because the people of these states have tolerated the erosion or elimination of most restraints on democracy built into our Constitution.

My own view of the Constitution is much closer to Lysander Spooner’s than Madison’s or Jefferson’s. But as I said four years ago, the limits it places on federal power, especially in terms of the separation of powers between the federal and state governments, could prove useful in easing the pressure before the boiler explodes. While peaceful, full-scale secession from both the federal and state governments might be the philosophical ideal, it is much less likely than a “soft secession,” accomplished by simply enforcing the Constitution’s limits on federal government power.

That soft secession has already begun, although most of those seceding probably don’t realize they are doing so. Over half the states have nullified federal marijuana laws by passing state legislation legalizing their use for medical purposes, recreation, or both. Many blue state cities have declared themselves “sanctuary cities,” refusing to enforce federal immigration laws.

Most recently, Texas passed a law prohibiting abortion once a fetal heart rate is detectable, or more accurately clarifying laws prohibiting abortion never taken off the books after Roe v. Wade.

None of the federal laws or regulations in question are constitutional. They were all merely passed by Congress or enacted by executive edict and then, in some cases, “discovered” to be constitutional by the Supreme Court. Madison himself said regulating immigration was a power “no where delegated” to the federal government. And whether one considers abortion healthcare or homicide, the federal government isn’t given power over either.

Most people in red states have a visceral hatred for sanctuary cities, just as most in blue states hate the Texas abortion bill. And that’s just the point. These are matters that can only be dealt with locally. No supermajority of states ever has or ever will consent to the federal government imposing one policy in these areas over all the states.

The response to Covid-19 has followed the trend. In 2020, there was an increasingly diverse policy response as the pandemic progressed, with some states imposing severe lockdowns and mask mandates while others imposed less severe restrictions or none at all. South Dakota led the way in refusing from the start to close businesses or issue stay-at-home orders, followed by Florida in September 2020 and Iowa and Texas in early 2021.

As for President Biden’s vaccine mandate (announced but not yet written), Florida and Texas have already banned the mandates within their states, while South Dakota governor Kristi Noem took the most libertarian approach in neither mandating nor banning vaccine mandates for private businesses. Meanwhile, New York’s governor Kathy Hochul has ordered all healthcare workers in her state to get the vaccine and is prepared to call in National Guard personnel to replace those who don’t comply.

Many fear violent conflict resulting from state nullification of federal laws or regulations. But we haven’t seen that over nullification of marijuana prohibition and we wouldn’t likely see it when state governments take similar action on other issues.

Rather than a recipe for violence, more widespread soft secession from the present, unconstitutional system would allow the two dominant political tribes to stand down from their current, confrontational posture. And it would allow the rest of us to at least “pick our poison” in terms of which less-than-ideal system we would prefer.

Most important, it would save us all from what we have now: democracy run amok.

Tom Mullen is the author of Where Do Conservatives and Liberals Come From? And What Ever Happened to Life, Liberty and the Pursuit of Happiness? Part One and A Return to Common Sense: Reawakening Liberty in the Inhabitants of America.

Congress isn’t just a “better way” to legislate; it’s the only way

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Biden-pen-signing-Fox-5-DC-1200x630 Kudos to the Editorial Board of the New York Times for putting aside the likely preferences of most of their readership and charging President Biden to, “Ease Up on the Executive Actions, Joe.” The piece argues, on constitutional and practical grounds, that presidents must work with Congress to establish legislation to carry out their agendas, rather than seeking to do so through executive actions.

While well-intentioned, the piece is flawed and self-contradictory, beginning with its subtitle, which asserts Biden, “is right to not let his agenda be held hostage.”

No, he isn’t.

The premise underpinning this statement, shared by much of the public, is that a new president’s policy agenda should be enacted by Congress based solely on the president’s election. This is backwards. The idea Congress is merely a rubber stamp for the will the executive is straight out of Hobbes’ Leviathan and foreign to the U.S. Constitution. Rather, the Constitution presumes legislation originates in Congress, exercising only those powers granted it, with the president’s role to either assent and execute, or veto.

While politicians love to throw around Rousseauian language like “will of the people,” the founders clearly rejected Rousseau’s vision of “the total alienation of each associate, together with all of his rights” to some “general will.” Our system is based upon the idea most natural rights are inalienable, no matter how large a majority seeks to infringe them.

The Constitution presumes there is no “agenda” to be pursued by either Congress or the president, but rather a narrow list of powers to be exercised by Congress in legislation and the president in execution. Whether the government should be involved in new areas is beyond the powers granted to either branch. They are reserved to the amendment process, which is difficult by design.

It has become routine for presidential candidates to promise sweeping changes they have no power to deliver. This has led the people to increasingly believe merely electing the presidential candidate of their choice should result in those changes. When it doesn’t, they blame Congress for “not getting anything done.” This is also backwards.

When a bill is proposed in Congress and voted down, Congress is indeed “getting something done.” If there were anything at all to the idea of a will of the people, that will would be found in the diverse opinions of the Congress, not the unitary will of the executive. The rejection of legislation suggested by the president is as representative of the people as its passing.

To comprehend the reason for the bitter divisiveness in American politics and its increasing propensity for violence, one should not only look to the vast expansion of centralized power over the peoples of vastly different cultures within the American federation, but to the relentless migration of power from the legislative branch to the executive. When one’s whole way of life could turn on the election of one man or woman to the presidency, that election takes on an outsized importance even to those normally disinclined to politics. The legal instability inherent in executive supremacy only adds fuel to the fire.

No, Congress is not a “better” way to legislate. It’s the only way. And for all the talk of defending democracy, a true belief in our republican system would respect the nay votes equally to the yeas.

Give Americans a Chance to Vote for Congress and the President on Different Days

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voting President Trump continues to draw enormous crowds at rallies across America’s heartland even as Nancy Pelosi’s House Democrats continue to move towards impeachment. National polls show all the leading Democratic candidates extending their leads over Trump, but national polls can be misleading. The U.S. doesn’t hold a national election and Trump remains extremely popular with his base. Despite the Democrats’ leads in the polls, another recent survey found that a majority of Americans believe Trump will be reelected.

However the election turns out, a large portion of America is going to be very angry.

It would seem our system of government isn’t working for the vast majority of Americans, most of whom identify as either conservative or liberal, if not Republican or Democrat. The right is enraged the Democrats are trying to overturn the results of the 2016 election, as they see it, while the left is enraged – well, Trump just seems to enrage them, period, no matter what he does.

Unfortunately, neither of America’s largest political tribes seems able to conceive of stripping the federal government of any of the enormous power it holds, most of which is arguably illegitimate per a strict reading of the Constitution, past SCOTUS rubber stamp decisions notwithstanding. The left has suggested eliminating the Electoral College and packing the Supreme Court with progressive-minded judges, both moves which would result in even more concentrated power in Washington. Meanwhile the right has lined up behind Trump’s use of flimsy “national emergency” reasoning to usurp everything from war powers to gun control to tariffs from Congress.

So, if the political acrimony can’t be diminished by reducing the power of the federal government and major constitutional changes are unlikely to succeed, what can Americans do besides go on hating each other until something worse than Twitter rants become the norm?

One answer may be to make it easier for Americans to get what their voting patterns consistently say they want: gridlock.

Nonstop anger has been a constant in American political life for this entire century. But if you ask most Americans what the opposing political party has actually done that has offended them, there are only a handful of concrete answers.

For the left, it was the Iraq War, the Patriot Act and tax cuts during the Bush administration; for the right, Obamacare more than anything else during Obama’s reign. President Trump hasn’t really signed any significant new legislation besides the 2017 tax reform. That and his handling of immigration under existing law are probably the only two concrete things Democrats could come up with for why they hate him so. The rest is just personality politics.

All these successful bills over which Americans have vehemently disagreed in recent decades share one thing in common – they were all passed when one party held the White House and both houses of Congress. And except for the 2002 and 2004 elections, while America was still in hunker down mode after the 9/11/2001 terrorist attacks, American voters consistently have reacted by taking away at least one house of Congress from the party holding the White House.

Contrary to what the media constantly tell us or what the hardcore minority bases in either party might say, the American electorate as a whole seems to prefer gridlock to Congress “getting something done.”‘

Congress already possesses the power to override state election laws, “except as to the Places of chusing Senators.” Congress asserted this power in 1845 to mandate all states hold presidential elections “the Tuesday after the first Monday in November.” It subsequently designated the same day for House and Senate elections.

Congress should reverse the latter statutes and mandate the opposite – that congressional elections must be held on a different day from presidential elections. If a constitutional amendment could succeed making that mandate even harder to overturn, so much the better.

Holding presidential and congressional elections on different days would allow voters to avoid playing “Washington Roulette” – voting for the president and Congress all at once and hoping there isn’t a one-party-sweep bullet in this years’ electoral chamber. Certainly, Americans could still elect one party to the White House and both Houses of Congress if they wanted. But recent electoral history suggests they wouldn’t if they could help it. And had separate elections been the rule for the past forty years, the legislation most unpopular with one side or the other might never have been passed.

“Get out the vote” proponents would complain that making Americans show up at the polls twice would reduce voter turnout, but that just begs the question of whether capturing the votes of those who would pass merely based on convenience really results in better elected officials. It would also likely be argued that separate elections would harm lower income earners who might not have the flexibility to get off from work to vote. That can easily be overcome with expanded polling hours.

What get-out-the-voters are really worried about is exposing how few Americans really care about federal elections. Most Americans already skip the midterms and only a slim majority vote in most presidential elections. Holding the presidential and Congressional elections on separate days would probably lower turnout for both and quell the perennial talk of a “mandate” from any one election for either party. That would be a bonus.

Americans have nothing to lose and everything to gain by holding their presidential and congressional elections on different days. Before taking drastic steps everyone will eventually regret, they should try this minor adjustment and observe the results. There is no better way to return “power to the people” than by giving them the option to impose gridlock on the federal government at their discretion.

Just like modern “progressives,” the big government Federalists meant well

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mobocracy It’s true Federalists like Madison (at the time) and Hamilton proposed a much stronger federal government than the 1788 constitutional convention authorized, but many people wrongly argue they were motivated by purely tyrannical intentions. On the contrary, their main motivation was the belief a stronger central government would protect the individual from the democratic mobocracies they believed the states were already becoming.

While there is certainly an argument their concerns were exaggerated at the time, one need look no further than NY, CA, MA or any number of “blue states” (and many red ones, too) for proof their concerns were valid.

The flaw in their thinking was that a more powerful central government would ever protect individual rights from government power. Everything they wanted and more has come in through the back door over the past 231 years. Hamilton’s central bank and Madison’s federal government veto over state laws (but by SCOTUS, instead of Congress, as Madison proposed) are just two examples. We can see their strong central government turned out precisely the opposite of what they intended.

Power corrupts, absolute power corrupts absolutely, and absolute power over hundreds of millions of people, concentrated in one city, is absolutely terrifying.

Democracy Goes Out the Window During “Government Shutdowns”

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Important_government_shutdown_notice_for_the_Stature_of_Liberty Everyone loves democracy, until the vote doesn’t go their way. Then, there are protests, marches, recounts, and other forms of whining from everyone who doesn’t like the results. We saw that after Donald Trump’s election and after the 2018 midterms, when Democrats tried to keep recounting the votes in some races until they got the result they wanted.

Now, we’re seeing it with the impending “government shutdown.” I use quotation marks because two things are true. First, this time around, about 75% of the government is already funded through September 2019. Second, even when none of the government is funded, it doesn’t really shut down.

But it should.

Somehow, the strange notion has taken hold that when Congress votes not to pass a new bill, it “isn’t getting anything done.” Not true. If Congress takes a vote and the bill is voted down, Congress has done its job every bit as much as if the bill had passed. In most cases, it does us all more good voting bills down than passing them. Regardless, Congress is representing the people no less by voting “no .” There is no immutable law of nature that says new bills must be constantly passed. The system is actually set up to make new legislation difficult, not easy.

If you’re going to insist on the superstition that Congress does “the will of the people,” then at least be consistent. If Congress votes a bill down, that is as much the will of the people as passing one.

This Friday, Congress may very well fail to pass a bill to fund the remaining 25% of the government. If they don’t vote to appropriate those funds, then no money should be spent on any part of the government for which funds aren’t appropriated. Those aren’t my rules. It’s right there in the government’s own rule book, in black and white: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”

By the way, spare me the “republic-not-a-democracy” comment blizzard. I know it better than you do. The form of government is a republic, but there is a lot of democracy baked in – more all the time, unfortunately, thanks to the Supreme Court’s rampage over what’s actually written into the Constitution. But even without their tyrannical creativity, the republic is built on a series of majority votes. That’s “democracy,” even if the government is not “a democracy.”

Regardless, the rules say majorities in both houses of Congress and the president have to approve any spending. When that doesn’t happen, those of us who want the government to shut down are supposed to get our way. After all, Congress represents us, too, whether we like it or not. That’s one of the key rationalizations for taxing us (“no taxation without representation”).

I won’t hold my breath waiting for the evangelists of democracy to follow the tenets of their own religion. Those seeking your money in the name of their deities rarely do.

Progressives Want to Revive FDR’s Undemocratic Court-Packing Idea

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judgeandgavel Reeling in horror over President Trump’s nomination of Brett Kavanaugh (or whomever Trump may have picked) to replace retiring Justice Anthony Kennedy on the Supreme Court, there are now a slew of progressive liberals calling for implementation of one of the most undemocratic ideas in the history of the Democratic Party: FDR’s “court-packing” scheme. Roosevelt responded to the Court striking down some parts of the New Deal by proposing Congress pass a law to allow him to add a new justice to the Court for every current justice over seventy years of age.

The bill was ultimately struck down by the Democrat-controlled Senate in 1937, but only after both the Social Security Act and National Relations Labor Act were ruled constitutional by the Court earlier that year. Opponents of the New Deal specifically or expansion of federal power through SCOTUS in general view these decisions as somewhat coerced by the threat of Roosevelt’s court-packing proposal.

Whether that’s true or not really misses the point. Seeking to achieve political goals through Supreme Court rulings rather than the constitutional amendment process—when those goals involve the federal government undertaking new powers—amounts to acquiring power without the consent of the governed. It’s ironic that it is again supporters of the “Democratic” Party who are advocating avoiding a vote on their proposals.