Category Archives: Constitution

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

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.

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.

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.

Read the rest at Foundation for Economic Education…

Jefferson and Madison: Regulating Immigration a Power “No Where Delegated to the Federal Government”

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immigration_constitution President Trump announced his second nomination to the Supreme Court on Monday. Perhaps as forward in the minds of conservatives as preserving the right to keep and bear arms, expressly protected from federal infringement by the Second Amendment, is how the new justice might rule on the Trump administration’s various immigration policies, decried by the left as “fascist!” and supported by the right as the federal government’s “constitutional duty.”

Yet, federal regulation of immigration is a power both Thomas Jefferson and James Madison maintained was “no where delegated to the federal government.” And since no amendment has granted that power since they made that argument in 1798, it is exercised by the federal government without the consent of the governed, legitimized only by the same kind of “activist Court” conservatives condemn when it sanctions federal power they don’t like.

First, to the document itself. Conservatives make two arguments for the Constitution somehow delegating this power. One is completely spurious; the other more plausible, but ultimately without merit. The first argument is the power is granted with the words, “To establish an uniform Rule of Naturalization,” in Article I, Section 8. But “naturalization” concerns only who can become a citizen of the United States, not who can visit, work or live as a permanent alien. When pressed, even most reasonable immigration hawks will concede this.

The second argument concerns the first paragraph of Section 9, which reads, “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.” The reasoning here is that since the federal government is prohibited from banning migration (immigration) or importation (the slave trade) only until 1808, it must be granted the power to do so after 1808.

This is the same backwards reading of the Constitution – that anything not prohibited to the federal government must be within its powers – that conservatives scream bloody murder about on almost any other issue. It is true that for individuals possessing an inalienable right to liberty, a law which prohibits, for example, certain activity on Wednesdays and Fridays does not restrict individuals from that activity on any other days of the week. That is a correct legal interpretation for laws pertaining to individuals.

However, the Constitution is not a set of laws pertaining to individuals and the federal government does not have an inalienable right to liberty. On the contrary, the Constitution is written with the assumption the federal government has no power not delegated to it. The Tenth Amendment was ratified to ensure that point wasn’t lost. Therefore, just because certain powers are prohibited to the federal government by one or another clause of the Constitution, one cannot assume that any power not prohibited is granted. Only powers explicitly delegated are within the federal government’s purview. Strict constructionists go so far as to point out the words “expressly delegated” were used in many of the ratifying conventions, “expressly” left out by Madison in drafting the Tenth Amendment because he thought it unnecessary.

Read the rest at Foundation for Economic Education…

The Supreme Court Has Destroyed Consent of the Governed

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us-supreme-court As Americans celebrated the 242nd anniversary of their secession from Great Britain, references to the Declaration of Independence ratified on July 4, 1776 were many. But while the left reminded us “all men are created equal” and the right reminded us that all inalienable rights come from our Creator, far too little attention was paid to another phrase in Jefferson’s famous preamble: “deriving their just powers from the consent of the governed.” Judging from the way most Americans talk, almost no one remembers how that consent is supposedly obtained.

Hint: It isn’t from voting in elections, but that’s what most Americans seem to believe. According to this narrative, representatives are elected democratically, and by casting one’s vote, one consents to whatever legislation the representatives who win the election choose to pass, or whatever executive actions the elected president chooses to take. In the aftermath of Obamacare’s passage, surrogates for President Obama often justified that new federal endeavor with the quip, “That’s why we have elections.” Conservatives employ the same reasoning when their candidates win.

That raises the question: Why did the framers bother with Sections 8, 9 and 10 in Article I, Sections 2, 3 and 4 in Article II, or Sections 2 and 3 of Article III? Why did they include Article V at all?

The answer is that the aforementioned sections define the list of powers the people were consenting to, all others being reserved to the states or the people, while Article V was provided as the one and only means for the people to consent to any new powers. Put another way, any power exercised by the federal government that is not among those delegated in the Constitution is power exercised without the consent of the governed.

Read the rest at Foundation for Economic Education…

Why They’ll Really Hate You

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They will hate you if you refuse to let them rule you. They will hate you if you don’t let them plan your life, spend your money and run your business. They will hate you if you don’t let them “educate” your children. They will hate you if you pursue your own happiness, encouraging your fellow men and women to do the same.

They will hate you if you have opinions they don’t approve of. They will hate you if you have real courage, which means saying what the government doesn’t want you to say, rather than ignorantly and self-destructively parroting its talking points. In short, they will hate you if you do not do the thing all their marches, propaganda, and televised hysterics are designed to force you to do: bend the knee.

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.

Newsflash: Teachers Are Already Armed

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armedwoman In the wake of yet another mass shooting in a public school, a host of familiar recommendations have resurfaced about how to “prevent this from ever happening again.” Predictably, both conservatives and liberals are looking to the government for a solution. Americans have somehow arrived at a point where they cannot conceive of human action that is not either prohibited, mandated, or, at the very least, centrally planned.

Just Like Drugs

The first problem is the goal. It is absurdly unrealistic to believe any set of rules is going to prevent anything from “ever happening again.” If you doubt that, I invite you to examine the war on drugs. Many decades ago, politicians decided American citizens taking heroin was never going to happen again. They banned that drug completely. You aren’t allowed to possess or sell it under any circumstances. Not after a background check. Not with a doctor’s prescription. Not at all.

Ban them completely for the civilian population, they say, and mass shooters won’t be able to obtain them.

Today, that drug is at the center of what the same government calls an opioid “epidemic.” Epidemic. So much for heroin overdoses “never happening again.”

Yet, despite this evidence, liberals still suggest what they’ve always suggested: further restrictions on gun ownership. A good portion of them believes that only government employees charged with national defense or public safety should be allowed to carry guns. Ban them completely for the civilian population, they say, and mass shooters won’t be able to obtain them.

You know, just like drugs.

Read the rest at Foundation for Economic Education…

Progressives Sink to New Low Using Teenagers as Political Pawns for Gun Control

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Just when you thought the left-wing totalitarians among us couldn’t sink any lower, they have. Not content to simply exploit the tragedy of school shootings in the third person, they have now recruited teenage survivors to organize themselves as a political special interest group, demanding hundreds of millions of innocent people be forced to their will.

Shame on their parents for allowing children who have no experience yet in the real world – and no, being shot at in those soft-target prisons known as “public schools” is not the real world – to be used as political pawns by people who don’t care about them one bit.

The media lionizing these misinformed adolescents – as well as whoever is encouraging and/or funding this latest propaganda effort – are hoping no one would dare dispute the word of “the children” who survived the tragedy. I hope they’re wrong.

The answer should be some tough love to the little darlings, along these lines:

“Listen you little brats. I’m sorry you were exposed to this terrible tragedy and lost friends and loved ones. And I’m glad you survived. But none of that gives you the right to “demand” the rights of hundreds of millions of innocent people be violated, leaving them more vulnerable to precisely the kind of tragedy you just experienced.

Get back to us after you’ve paid taxes for a few years, rather than consumed them. And if you’re going to demand anything, demand your parents pull you out of the Progressive Brainwashing Centers that have skewed your thinking so badly and almost got you killed.”