In 2020, candidate Joe Biden made it as clear as Joe Biden can make anything that the days of looking past the atrocities committed by the Saudi Arabian government would be over should he be elected. An October 2, 2020 post on his campaign website read,
“Under a Biden-Harris administration, we will reassess our relationship with the Kingdom, end U.S. support for Saudi Arabia’s war in Yemen, and make sure America does not check its values at the door to sell arms or buy oil.”
Less than two years later, President Biden is scheduled to visit Saudi Arabia in hopes of persuading the kingdom he disparaged as a candidate to increase oil production. Biden is suffering the worst approval ratings of any president in recent memory due to runaway inflation, in part the result of his own energy policies.
The trip follows Biden’s attempt to bully U.S. oil producers into boosting production, something they rightly pointed out is being strangled by the president’s own policies in the short term and economically unviable in the long term given a sitting U.S. president who has vowed to put them out of business.
Meanwhile, the president’s supporters are demanding Biden try to keep his campaign promises regarding Saudi Arabia. In an article in Foreign Policy, U.S. Senator Chris Murphy demands Biden procure real concessions from the kingdom on human rights abuses. His screed is emblematic of the departure from reality that pervades Washington on all issues, foreign and domestic.
Remember, Biden is not traveling to Saudi to offer the kingdom help. He is asking for help from them. What leverage does Murphy believe the president holds over a government that not long ago wouldn’t even answer his phone calls?
Murphy claims, “Over and over again, the Saudi government acts in ways that are directly contrary to U.S. security interests.” But he gives no examples of legitimate security interests that have anything to do with Saudi Arabia. The bulk of the complaints against the kingdom relate to its human rights abuses, which, however deserving of condemnation, do not threaten the security of American citizens in any way.
The recent SCOTUS decisions on vaccine mandates, gun regulation, abortion, and the EPA are flawed from a strict constructionist perspective. Rather than striking down 20th century theories underpinning decisions which unconstitutionally expanded the powers of the executive branch and the federal government in general, respectively, the Court instead tried to set limits to the ways in which those doctrines could be applied.
Still, insofar as these decisions represent a change in direction, rather than the last word on these issues, they may provide a roadmap out of the political acrimony that is tearing American society apart.
The legislative power
In ruling against President Biden’s vaccine mandates and the EPA’s “Clean Power Plan,” the Court makes reference to a long-ignored principle called the “nondelegation doctrine,” which posits that Congress has no authority under the Constitution to delegate its legislative power to the executive.
In other words, when the Constitution 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,” it means no legislative powers are vested in the executive.
Strictly applied, this principle would mean striking down the New Deal, root and branch. Although there were examples of limited rulemaking by executive branch regulatory agencies prior to the 1930s, it was FDR’s coup that created and empowered to legislate the myriad “alphabet soup agencies” within the federal government.
Rather than such a radical change, the Court merely set limits to how far beyond legislation passed by Congress and signed into law by the president regulatory agencies can go in making legally enforceable rules themselves.
The “glass half empty” way to look at this is that the Court has further established that the executive branch can legislate – just “not too much.” The opposite view, as expressed by constitutional scholar Kevin Gutzman, is that these precedents represent the first indications of the Court turning away from 84 years of bad precedent and back towards a constitutionally limited government.
(For my discussions on this subject with Gutzman, see Episodes 1, 28, and 94 of Tom Mullen Talks Freedom).
The significance of this question cannot be understated. Garet Garret called the New Deal a “revolution” for good reason – it effectively transformed the U.S. government from its previous republican form to a new, soft form of fascism, with an executive branch issuing fiat commands instead of a legislature representing a diverse constituency writing laws.
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.
…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.
“Can you believe this spending with a REPUBLICAN in the White House????”
I’ve heard it my entire adult life, starting during the Reagan years. I’m not sure how many times Republicans have to increase spending twice as fast as their Democratic predecessors before people get used to the idea that this is what Republican presidents do, regardless of which party controls Congress.
This shouldn’t be a surprise. The Republican Party was born out of the ashes of the Whigs, whose stated goal was to expand the range of things the federal government spent money on. Before the Civil War, most roads were privately owned. Not just privately built; privately owned. Taxpayers didn’t contribute a cent towards them.
Not only did the Republican Party Sovietize the road system, they did the same with railroads and all sorts of other areas of life. Before FDR, it was Republicans who established most new federal departments.
Today, the government has Sovietized the distribution of Covid-19 vaccines and other treatments, a precedent established under the last Republican president.
When you consider the actual records of Republican presidents from Lincoln through Trump, it turns out that Harding and Coolidge were the real “RINOs.”
In the post-WWII era, spending almost always goes up (not counting the obvious decrease right after the war – which led to an economic boom, btw). But I decided to take a look at how fast it went up during the various presidential administrations starting with JFK/LBJ. I used the following methodology:
Measure the increase in yearly federal spending for each president as a percentage of the spending in the last year of his predecessor. For example, spending was $590 billion in the last year of the Carter Administration. It was $1.06 trillion in the last year of the Reagan administration, an increase of $473.4 billion or 80.1%. That comes in at just over 10% per year on average.
You’ll never guess who grew spending at the slowest rate since 1951. Certainly not the Gipper. Nor was it either Bush. No, as a percentage of spending during his predecessor’s last year in office, the president who grew the budget at the slowest rate was Barack Obama.
I broke it all down on Episode 85 of Tom Mullen Talks Freedom. I provide documentation of the outlays and receipts on the show notes page. A summary table is provide below.
All spending increases are aggregated for the full term of the presidency and then averaged. Example: to calculate President Obama’s spending increases, 2008 spending is subtracted from the spending during the last year of his presidency (2016) to arrive at an increase of $870 billion over eight years. That total is divided by 2008 spending of $2.9 trillion to arrive at the 29.2% aggregate spending increase. Spending increases for each presidency is calculated in similar fashion.
I combined the presidencies of Kennedy/Johnson and Nixon/Ford as Kennedy and Nixon both served partial terms which were completed by members of their own parties.
Calculations are made for the Trump years 2017-2020 and 2017-2019.
Spending is not adjusted for inflation. All spending is in billions
Of course, regardless of how quickly or slowly it increases, federal spending is always destructive. It’s important to remember the government has failed at every major spending initiative it has undertaken in my lifetime, whether it is military or domestic policy. Vietnam, Iraq, Afghanistan, the Department of Education, the War on Drugs, Covid – it’s always all pain and no gain when it comes to the government. And the price just keeps going up.
Still, it is remarkable that spending goes up so much faster when a Republican is in the White House. The excuse is often made for Reagan that he had a Democratic Congress. But the Republicans controlled the Senate for 6 of Reagan’s 8 years in office, so that claim isn’t even true. The Democrats did have both houses of Congress during George H.W. Bush’s 4 years, but spending didn’t go up as fast during those years. Oops.
The other excuse often brought up in defense of profligate Republican presidents is that Congress “has the purse strings.” This is technically true, but when one looks at the spending proposed by the presidents in question and compares it to what Congress eventually appropriated, there is never much difference.
When an opposition party controls Congress, there is always some demagoguing over financially inconsequential components of the president’s proposal. See “funding Big Bird.” But in general, the executive branch proposes the spending and Congress rubber stamps it. And let’s not forget, no spending can occur without the president’s signature.
There is also some evidence that the combination of a Democratic president and Republican Congress may slow spending increases the most, but comparing spending increases during the first two years Presidents Clinton and Obama were in office (with Democratic Congresses) to spending increases over the remainder of their terms hardly provides conclusive proof.
The record does show that spending seems to grow relatively slowly with a Democratic president and a Republican Congress. And since gridlock in Washington is always good, to the extent we get it, for all sorts of non-fiscal reasons, let’s hope for a Republican landslide in this year’s midterms.
“They can’t stand prosperity.” My father used to say it about his beloved Buffalo Bills during periods in the 1970s when they were competitive but couldn’t quite break into the ranks of the elite contenders. He was referring to the team’s maddening habit of ceasing to do what had previously been successful and “snatching defeat from the jaws of victory.”
What he said of the Bills applies to Americans in general.
There is no mystery to why the United States in a matter of decades grew from a few agrarian colonies to the richest, most powerful nation in history, surpassing competitors with over a millennium head start. It was capitalism. Period.
That’s what “the land of opportunity” meant, back when America was so styled. The opportunity was economic opportunity. The million-plus wave of immigrants who came here in the late 19th and early 20th centuries weren’t pursuing abstract notions of liberty. They were coming because there was an opportunity to make a materially better life for themselves and their families. That opportunity existed solely because America was economically freer – more “capitalist” – than the countries they left.
While America may be the most prominent example of capitalism’s success, it is by no means the only one. Indeed, history is replete with examples of economic freedom emerging, bringing with it unprecedented prosperity, and eventually being strangled by the re-emergence of state meddling.
Murray Rothbard documents this phenomenon occurring repeatedly throughout Europe in the pre-colonial period. More recently we’ve seen it in Asia, with the rise of the “Asian Tigers” in the 1990s, culminating in the rise of prosperity in China. During the same years, both Scandinavia and Canada dramatically cut taxes, regulations, and government spending to save their economies from becoming what Venezuela is today.
Throughout history, countries that freed their economies from mercantilist or socialist controls, even if not completely, have seen a dramatic reduction in poverty and rise in living standards. Nowhere is the opposite true.
Yet, in almost every case, including America, people just “can’t stand prosperity.” There is always and everywhere an instinct to kill the goose that laid the golden egg. Even among Americans today who by no means consider themselves socialist, there is an inherent resistance to allowing the conditions that has made the lives they lead possible.
Why?
Ludwig Von Mises wrote an entire book exploring the reasons for the “anti-capitalistic mentality.” I believe his insights were correct, especially in in terms of academia’s resentment towards the way free markets reward less educated, “vulgar” businessmen with more wealth than they enjoy themselves.
Walter Block has done research with fellow academics indicating there is an evolved preference in humans to prefer what he calls the “direct benevolence” associated with socialism over the “indirect benevolence” of the market economy.
Then, there is the plain, old human failing called, “envy.” The market economy results in the most prosperity for the most people, but it doesn’t distribute that prosperity equally. In fact, it doesn’t “distribute” prosperity at all. It allows each individual to keep the fruits of his labor and dispose of them as he sees fit. Some people are able to produce more than others and therefore accumulate more wealth.
There are some people who simply cannot abide this. Forget that no system has ever produced economic equality, least of all socialist systems, but the fact that no one even seems to be trying to correct this unjust inequality, in the envious person’s eyes, makes him resentful of the capitalist system that allowed the rich person to accumulate so much more than he.
While the above explanations certainly provide part of the answer, I do not believe they address the primary reason so many people are resistant to economic freedom. We use reason to overcome our passions and even our evolved instincts every day. But there is one instinct, one emotion that I believe transcends all the rest in motivating us to be suspicious of freedom.
“If libertarianism works, why has there never been a libertarian country?” We hear it all the time from those whose historical perspective can be measured in weeks and months. We also know the answer to this question: “There has been: the United States of America.”
The American republic was libertarian to the core at its birth. The Declaration of Independence posited the existence of natural rights that preexist government, and that government is instituted for one purpose and one purpose only: “to secure these rights.”
Conservatives don’t believe this. Thomas Hobbes and Edmund Burke didn’t believe it. Nor did Russell Kirk. Republican politicians may claim to believe it to get votes, but they legislate as if they do not. True conservatives believe the purpose of government is to restrain man’s savage inclinations. What liberty is permitted is subordinate to that end.
Neither do liberals believe in this “American Creed.” Like their philosophical father, Jean-Jacques Rousseau, they believe the purpose of government is to restore some mythical “equality” that existed in nature before private property evolved and ruined everything. A just society, Rousseau and the liberals contend, requires, “the total alienation of each associate, together with all of his rights, to the entire community.”
Rights cannot be both inalienable and totally alienated. This worldview, like the conservative, is fundamentally opposed to the ideals of the Declaration.
In opposition to Hobbes, Rousseau, and their contemporary Edmund Burke, the founding generation were all “channeling” John Locke in 1776. Jefferson called Locke one of the three greatest men who ever lived on multiple occasions. Near the end of his life, he penned a resolution for the Board of Visitors of the University of Virginia to ensure it was Locke’s worldview that was taught to students.
When George Mason referred to himself as “a man of 1688,” he was referring to the Glorious Revolution and English Bill of Rights, both inspired by Locke’s principles.
So far from these founding principles had the republic strayed under Federalist rule, believed Thomas Jefferson, that he referred to his presidential election as “the revolution of 1800.” In his first inaugural, he called for a return to libertarian principles, describing “a wise and frugal government, which shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned.”
It was not the only time Jefferson asserted a libertarian role for government. In an 1816 letter to Francis Gilmer, he wrote, “No man has a natural right to commit aggression on the equal rights of another; and this is all from which the laws ought to restrain him.” In his Notes on Virginia, Jefferson wrote, “The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.”
These principles won election after election and led to the death of two opposing parties, the Federalists and the Whigs, in the first half of the 19th century. The Federalist platform of high protectionist tariffs, government infrastructure projects, and a central bank was defeated over and over again until the new Republican Party found success by being on the right side – the libertarian side – of the slavery issue.
The new party was able to ride a coalition of former Whigs and abolitionists to victory in 1860 and dominance over American politics for the next half century. Unfortunately, the Republicans were on Alexander Hamilton’s side rather than Jefferson’s on most policy matters.
Still, it was not until the Progressive Era that Jefferson’s libertarian principle was officially repudiated by Woodrow Wilson, directly, and indirectly by the American electorate when they put Wilson in the White House. Wilson couldn’t have been clearer that it was a government limited to enforcing the libertarian non-aggression principle that had to go. He wrote in The New Freedom,
“We used to think in the old-fashioned days when life was very simple that all that government had to do was to put on a policeman’s uniform, and say, “Now don’t anybody hurt anybody else.” We used to say that the ideal of government was for every man to be left alone and not interfered with, except when he interfered with somebody else; and that the best government was the government that did as little governing as possible. That was the idea that obtained in Jefferson’s time. But we are coming now to realize that life is so complicated that we are not dealing with the old conditions, and that the law has to step in and create new conditions under which we may live, the conditions which will make it tolerable for us to live.”
It doesn’t get much plainer than that.
Jefferson had defined liberty as, “unobstructed action according to our will, within the limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law’; because law is often but the tyrant’s will, and always so when it violates the right of an individual.”
For Wilson, it was something quite different. “Human freedom consists in perfect adjustment of human interests and human activities and human energies,” wrote Wilson. Of course, it was the government that was to do the “adjusting” necessary to achieve this “new freedom.”
The Great Reset is the logical conclusion of this reasoning.
The 20th century was dominated by progressives attempting to do precisely what Woodrow Wilson said needed to be done: adjust mankind until they achieved their utopian vision of perfect equality and “social justice.” Today, those adjustments have reached the ridiculous extremes they were always destined to reach.
From time to time, the Republican Party, notably during the Reagan years, has opposed this vision with a watered-down libertarian message, always riddled with loopholes that allowed it to expand the government even faster than the liberals when elected. But notice it was the libertarian message that resonated. Ask rank and file Republicans what attracts them to conservatism, and they will often say things like “limited government” and “God-given rights.” George W. Bush won in 2000 promising “a humble foreign policy.’ But these are antithetical to true conservative principles.
The Libertarian Party has recently had a dramatic change in leadership. The Mises Caucus won every national committee seat it ran a candidate for, including the national chair. It won based on repudiating what it said was weak party leadership too concerned with not offending anyone and too focused on approval from the progressive establishment. The new leadership promises a bolder, purer libertarian message focused on the issues that truly affect the lives of most Americans.
To them I humbly offer this advice: Do not forget we are not conservatives or liberals or any combination of the two. We do not fall on any “spectrum” between right and left. We are not “socially liberal, but fiscally conservative.” We see the world in a completely different way, based on completely different principles than conservatives or liberals, Republicans or Democrats.
I use the words, “conservative” and “liberal” solely in a political sense. They have nothing to do with one’s personal preferences, although many try to blur the line between personal and political to skew the libertarian message one way or the other. These political terms refer exclusively to the role of government, or for hardcore Rothbardians, what can be responded to with force even in a stateless society. Our answer is simple: only a previous violation of property rights.
Americans are starving for a radical message. That explains both the Trump phenomenon and the success of Bernie Sanders and “the Squad.” But unlike these conservatives and liberals, libertarians can point to a clear record of success when their principles were implemented. It was called the Industrial Revolution and the meteoric rise in living standards for the majority of society.
Libertarians should resist pedantic distinctions between “classical liberal” and “libertarian” – they are one in the same, merely at different points in development. As the late, great Will Grigg once said, “I reserve the right to get smarter over time.” So do libertarians, who have learned over time to apply their principles more consistently than their proto-libertarian ancestors.
Do not be afraid to take “extremist” libertarian positions. Jefferson cut military spending by over 90 percent. Libertarians should run on doing likewise. That’s what allowed Jefferson and his party to eliminate all internal taxes. But it doesn’t end there.
All of the damage done during the progressive era must be undone. Repeal the New Deal root and branch. Close the federal Department of Education and then go to work on ending public schooling at the state and local levels. Legalize competing currencies for the dollar. And once sound money’s superiority to central bank larceny is clear to all, End the Fed.
Unlike fringe issues like “legalizing sex work,” however valid they might be from a libertarian perspective, these are the policies that can change the lives of every American citizen. They also have the potential to reawaken that yearning for liberty that Bastiat said, “makes the heart beat faster and shakes the world.” At the same time, they will be most viciously opposed by all the forces who benefit from an unfree world.
If you’re not being falsely labeled a racist, a bigot, a Russian operative, a fascist, or all of the above by the totalitarian establishment, you’re probably not being effective. Refuse to engage the enemy on its terms. Trust that there is an untapped yearning for freedom out there in those who see through these cheap, cartoonish tactics, especially now as the Regime is failing so spectacularly.
The 20th century saw a reversal in the trend towards human freedom. The 21st has so far been worse. We are at a crossroads. It is not hyperbole to say the choice is freedom or slavery. Let no one for a moment be confused as to which side we’re on.
“These are the times that try men’s souls,” wrote Thomas Paine in late 1776, when the newly independent American states were at war with the mightiest empire in the world and not doing terribly well. Seven more years of hardship lay ahead, during which even John Adams’ family would struggle to keep body and soul together during the lean years of the Revolutionary War. Abigail Adams sold pins, handkerchiefs, and other trade goods sent home by her husband to feed the family while he was away making history.
246 years later, things aren’t nearly so bleak for Americans…yet. But they do suffer from the worst inflation in decades, growing shortages of food and other items, and an impending economic “hurricane,” if JP Morgan Chase CEO Jamie Dimon is correct.
The difference is this hardship is completely self-inflicted and unnecessary. Americans don’t suffer deprivation now to preserve newly declared independence and found a republic that will go on to inspire the world. They suffer from policies their own government imposed upon them, starting with Covid lockdowns, that have done no good whatsoever while causing immense harm.
With Washington, D.C., it’s always all pain and no gain.
In April, 2020, I asked, rhetorically, “When the Coronavirus Shutdown is over, will anyone blame their governments for the economic devastation they caused?”
There are some people who think the Federal Reserve is irrelevant in today’s economy. Rather than exerting control, they argue, the Fed merely “chases” the market rate of interest, eternally behind the curve and not having near the effect someone who, say, wrote a book called, It’s the Fed, Stupid might believe.
John Tamny is an example. He agrees with us free market types on most things, but not the Fed. He says the Fed is “a rate follower, not a rate setter.”
I don’t agree on the whole, but there are examples where the Fed is chasing the market, rather than making it, in terms of its interest rate policy. The recent explosion in 10-year Treasury bond yields, well beyond the Fed’s target fed funds rate, and the Fed’s subsequent interest rate increases, is an example.
But since 2008, interest rate policy and control of the money supply are not as intimately linked as they once were, for reasons I explain in today’s episode of Tom Mullen Talks Freedom. For that and other reasons I discuss, we ain’t seen nuthin’ yet in terms of the effects Fed policy is going to have on financial markets and the economy.
Of course, all the Fed is doing is trying to fight the price inflation it caused itself with previous monetary inflation. And if lowering prices was the only effect removing dollars from circulation was going to have, there would be no need to worry about it (the same is true for adding dollars – they could just give us all a million dollars a year!).
The Fed has finally found itself between that rock and hard place Austrian economists predicted they would reach, where there is no good option. Remove money from the economy aggressively and risk dramatic deflation of financial markets and economic malaise or don’t remove money and allow inflation to persist.
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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.
