Category Archives: US Constitution

Like the 17th Amendment? You will love Ted Cruz’s plan for the Supreme Court, then!

Yes, it is that simple. Ted Cruz, presumably in an effort to romance the disenchanted members of his “base” following two ruling by the Supreme Court (SCOTUS), has forwarded an idea that is only outdone in its folly by the 17th Amendment we have come to know and resent. If not an attempt at romance, it serves as evidence of his inability to understand the Constitution and history.

Some might ask: “what is the 17th Amendment and why was it bad?” Well, the 17th Amendment transformed the structure of the government one step closer to the mob rule that our founders knew quite well and feared rather adamantly. It took the make-up of the Senate from being chosen by the legislatures of the several states and placed it into the hands of the populace in each state. While to many this may sound appealing, there was a very specific reason such a structure existed.

First, the Senate was to represent the state’s themselves, which is why the breakdown of Senate representation is equal amongst the states. The people as individuals, and within districts, had representation in the House of Representatives; however, to balance the potential for popular whim to dominant the law, the Senate was to represent the interests of the states directly. This structured created an overlapping, but disparate constituency structure that would frustrate attempts of any “factions” to exert control over another group of citizens.

The shift in structure by the 17th Amendment washed away a significant protection of the rule of law and preservation of the rights of individuals by subjecting all of Congress to popular impulse. With the presidency already subject to popular impulse, now two full branches of government represent the mob rule idea that is/was democracy and began to erode at the foundations of liberty that are established in limited government.

If Ted Cruz gets his way, the final branch of the federal government will become but an additional conduit for popular opinion which can sway to and fro like a weak sapling in a hurricane. Justices will serve at the whim of any overbearing majority which can establish itself, even temporarily. The Constitution will be relegated to the dustbin of history and rights will no longer be considered inherent nor God given; instead they will only exist until they are no longer convenient.

Don’t believe me when I say it would be (and would have been) catastrophic? I have attached a table below (click on Cruz Table in green) that lists the current members of the Court and their appointment info, winning president at their first retention vote (based on Cruz’s rule of second national election following appointment), likelihood of dismissal that first time, and subsequent retention years.

Any trust I had in Cruz’s ability to be president dissipated when I heard him make this suggestion. My skepticism was affirmed when I made the table. Clearly he lacks historical understanding of the make-up of the Court by the founders or he was so anxious to be everyone’s knight in shining armor and surrounds himself with yes-men to such a great extent that nobody caught this. Either way, I intend to distance myself from him as time moves forward.
Cruz Table

The paradox of self-righteousness

    With both sides of the traditional political spectrum being consumed with forwarding some moral ideal, it warrants consideration whether people have any claim to freedom if they are unwilling to grant it to another. The Founders clearly intended that one person should not be able to force the actions of another, but we must also come to the realization that any legislative solution to an individual moral question is contrary to the goal of liberty; regardless the origin of any perceived “moral imperative.”

      The paradox of self-righteousness can be easily found in the first word of the phrase: self. The moral authority of one person over their own actions is clear; however, from where is the moral authority of one person over another derived? A common argument submitted to prove the existence and necessity of a list of moral tenets is murder being illegal. While, on its face, this argument would seem to hold—the reality, however, is that murder is not illegal due to a moral dilemma of killing someone. Instead, murder is illegal because it deprives the murdered of the most basic of natural rights—the right to life (which results in a loss of liberty and property as well).

   The fundamental basis of liberty is one’s own right to self-determination; or, as the Declaration of Independence states: “the pursuit of happiness.” However, happiness is not a collective idea, it is an individual one. The same is true for morality as the righteousness of a moral position can be best characterized by the individual forwarding the idea; not surprisingly, the moral code can also be best followed by (only) that same person. If one man or woman has the authority or “right” to impose a moral belief on another, where then is the limits of any other person to do the same?

    This illustrates the paradox. Imposed morality represents a two-sided problem because if the ability exists for one to impose on the others, is it not then implied that all the others have the same ability to impose their beliefs as well? This is where we stand currently. Everyone vying to use government’s monopoly on force to make others behave the way they want them to. If it is okay for conservatives to say no to gambling or drugs due to their moral code, why is it so unreasonable for progressives to wish to coerce “charity” as a moral imperative of their own? Both are premised on the idea that government can save us from a bad (or less than ideal) behavior or condition. By any one group imposing moral control on another, the door is open for the inverse to happen at a later date. A de facto standard is created whereas government becomes a weapon of majoritarian tyranny that’s use is justified as long as a moral precept and a large enough segment of the population is coupled together. Instead, when one is tempted to use government in an attempt to reform others for a personal moral end, society would benefit from them remembering the words of Bastiat: Why don’t you reform yourselves? That task would be sufficient enough.”

 

What is the Electoral College…and is it a good thing?

      Since the election I have had several requests to do a blog about what the Electoral College (EC) is and what purpose it serves.  The question is reminiscent of the same question that was asked following the 2000 election when the Electoral College and the “popular vote” split between Bush and Gore.  You may ask why I put the popular vote in quotations, and that is an easy question to answer:  there is no such thing as a constitutional popular vote for president and as such it is a measureable myth of sorts.

       Obviously most people know that the Electoral College is outlined in the Constitution (Article II, Section 1); however, it is 1) the value of the Electoral College and 2) how it came to be which causes confusion and creates a bit of disinterest in the electoral process.  First, I will tackle the most common questions surrounding its value in today’s world.  Second, I will give some background as to why the Framers of the Constitution felt it necessary for the resistance of tyranny.

Question #1:  Where does the number come from?

      There are 538 electors (half plus one equals 270 to win) which make up the EC and the number of those electors represents the composition of Congress; one for each of the 435 voting members of the House and one for each of the 100 voting members of the Senate.  I know you are beginning to question my math skills, but do not be concerned!  The additionally 3 electors represent the non-voting “representatives” from the District of Columbia.

Questions #2:  Why do some states have more this time than 2008?

      Great question!  The answer:  reapportionment.  Reapportionment takes place after every census based on the changes in population from state to state (and district to district).  For example, from 2008 to 2012 Ohio and New York lost 2 electoral votes each and Texas gained 4 electoral votes.  As population changes so does representation in the House and the electoral allocation.

Questions #3:  Since the “popular vote” does not count, why bother voting?

        Well, this is where I hear people showing concern as to whether to vote or not.  The statewide popular vote does determine the electoral allocation.  So, yes you should vote…but only if you take enough time to care and become at least moderately informed.  [Quick Tip:  If you do not know the names of both the current president and vice-president, do your neighbors, children, and fellow citizens a favor and keep it at the house; you can always vote on American Idol instead!!!]

       Now, this is where the water really muddies and we must begin transitioning into the purpose of the EC.  Our Constitution was designed, regardless of what your high school teacher or friendly neighborhood lefty may have told you, to enumerate (grant) certain specific powers to the government of the United States; the rest of which would be “reserved to the States respectively, or to the people (Amendment 10)…Seriously, it says it in there and was written by the same guy who designed the framework of the Constitution (James Madison).  In a nut shell, this means that the states maintain a level of sovereignty and this is the first step into understanding why exactly the EC is important:  (semi) sovereign states choose presidents, not the general public.

       In fact, the EC was an elaborately developed strategy to avoid a popular vote because the only thing the Framers may have feared more than the tyranny of a king was a tyranny of the majority.  Actually, the whole idea of even having a president was quite contentious, but I will refrain from that discussion for the purpose of keeping it as short as possible.  But what of all the cries of majority rule and we must follow the will of the people(?)…well, to state it simply, that is a bunch of crap.  Consider the words of Madison (Oct. 5, 1786) concerning majority rule:  “In fact it is only reestablishing under another name and a more specious form, force as the measure of right.”  Additionally, Madison (Oct. 17, 1788) warns that government’s oppressive capacity does not come from “acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the constituents.”  Majority rule was anything but a well-respected concept then, as it should be now.

      However, if you are still not convinced that majority rule (which always results in the minority being taken advantage of, or worse) is a bad thing let me remind you of a few incidents in the history of both the US and the world in which the much-fabled majority ruled:  Jim Crow and slavery in America and the Jewish Holocaust orchestrated by that hero of democracy, Adolf Hitler.   Still want to order up a heaping helping of good ole democracy?  [Note:  that is why we are guaranteed a republican form of government in the Constitution and the term democracy does not show up even once.]

     There were other alternate ideas for voting the president into office, one was a vote by the House of Representatives (similar to the parliamentary system of England) and it was even kicked around that the Senate should elect the president.  These ideas were unsuccessful because they placed into peril the concept of the separation of powers by putting the legislature in control of the executive branch; and, seeing how much politicians try to bribe the people to get into office, it is hard to imagine the hijinks that would have occurred in that format.

        Because of those reasons (primarily) the EC was born as a system for which states chose the president, but not necessarily through any direct vote of the people.  [Fun Fact:  each state retains the power to determine how electors will be selected; so, if the states decided to let the state legislatures pick the electors, they could and the citizens of the state would no longer be able to vote for the president (depending on the structure of the state constitutions, of course).]  People often point to the limited campaigning in the several swing states as a solid justification for the popular vote by noting that more states would be important; however, that is naïve at best.  Instead of campaigns in the swing states, politicians would merely double down on large population centers in political strongholds to boost their margins in those areas in an attempt to outpace the popular vote of any competitors.  Thus, states like California, Texas, New York, Florida, and Illinois would become major players in presidential politics and it would seem profoundly imprudent to give California any further say in the president than they already have…besides they are too busy screwing up their own state to need any more responsibilities.

       The Electoral College seems to be wrapped in a shroud of mystery, but is a relatively simple and very relevant creation of our Framers.  The problem that comes in explaining it is that it requires the acknowledgement that majority rule is a profoundly poor system (a truth that the very designers of the system knew well).  Our Framers were not some obscure set of hick farmers with a lack of understanding of the principles of an organized society (as is sometimes suggested); instead they were a very highly educated, well-studied group of political scholars.  If you doubt this I would suggest you visit the Library of Congress and review the display of Jefferson’s personal library; it is full of volumes of political theory from Plato to John Locke (in French, English, and Latin).  They studied and understood political history and what had led to the failures of republics and the rapid erosion of liberty that plagued democracies throughout history; therefore, it is no wonder that liberty in America has survived many assaults and continues beyond the accepted life-expectancy of a free society.  We have already irreparably damaged a part of our Constitutional structure through the perversion that is the 17th Amendment (subject for another blog); and it is uncertain how many more assaults, by those who wish to impose the will of the majority through the police power of government, that our republic may be able to survive.

 

Why warnings of tyranny must not be “rejected.”

Unfortunately, you’ve grown up hearing voices that incessantly warn of government as nothing more than some separate, sinister entity that’s at the root of all our problems. Some of these same voices also do their best to gum up the works. They’ll warn that tyranny is always lurking just around the corner. You should reject these voices.

                                                -Barack H. Obama, 2013 Ohio St. Commencement

        Actually, what they suggest is that any government is predisposed to usurp the liberties of its people. What they would suggest is that trust in a government official merely at their own behest is unwise at best and disastrous at worst. But, to be completely honest, it is not the government official for whom we must fear attempted subjugation; instead, it is “from acts in which the Government is the mere instrument of the major number of the constituents” (James Madison, 1788). It is the tyranny of some oppressive majority. Generally, though, a single figure stands ready to exact the pound of flesh which this majority so dearly desires.

     “Reject these voices” Obama tells young people…or, perhaps in other words: “pay no attention to the man behind the curtain.” Indeed, the manifestation of a threat to liberty has and will always be a single figure. Is Obama that figure to be feared? Who knows, only time can bear that out; however, I suspect he is only one of the puppets opening the show. The proverbial hand up his back, as with other leaders before him, has been our neighbors and family members and perhaps even ourselves. Eagerly our populace has stood ready to pull the handle for whomever promises to subdue ideological enemies and punish others for our own self-victimization. The choice has largely been either those people willing to seize the property of one man for the benefit of another; or, on the other hand, seize one’s liberty to appease the conscience of another. Both are mere perversions of liberty and, I would assert, share the same outcome: slavery.

    There is, however, shelter from the looming storm of statism. Unfortunately, the concept of liberty appears far too risky for those who never lived without it—sloth likely is our greatest sin. Liberty is merely a punch-line for people like Obama and Bush. For two “truths” resonate loudly for both: 1) the people cannot be trusted with liberty, and 2) most of us are more than happy to trade it for payments in-kind. Our weakness invites the shackles that will bind us, be they real or figurative. Ronald Reagan once said:

Socialists…can provide you shelter, fill your belly with bacon and beans, treat you when you’re ill, all the things guaranteed to a prisoner or slave.

This may be the best characterization of socialisms’ ill-fated pursuit. Despite popular opinion, however, the socialists ride on donkeys and elephants; and we should be wary of both.

      What then are those of us who yearn for liberty to do—where is our shelter? Not coincidentally, the “they” who Obama speaks of are very much the same as the “they” who founded our great nation. And those great minds and greater men gave us a weapon to defend ourselves from tyranny. They armed us with words whose sole purpose was to warn us of tyranny and provide the tools to defend ourselves from it: the Bill of Rights.

        What is the Bill of Rights? In school it is an inconvenience we have to remember for one test. In our adult life it is only the 1st Amendment (part of it, anyway) for Democrats and simply the 2nd and 10th for Republicans. But, in a broader sense its purpose was the explicit outline of what tyranny may look like. In fact, if tyranny was not even a possibility, the Bill of Rights would be unnecessary. Furthermore, for those who claim the mere age of the Constitution is proof of its own irrelevance and short-sightedness; they would be wise to appreciate that it is the very blanket of liberty which keeps us warm at night.

            For example, in the last couple of years alone, the news has been filled with government acts which challenge the:

  • 1st Amendment (“Obamacare” and the Catholic Church; Rosen from Fox News, etc.)
  • 2nd Amendment (gun control efforts)
  •  4th Amendment (NSA data collection, phone tapping, etc.)
  • 5th Amendment (illegal government takings during TARP)
  • 6th Amendment (NDAA)
  • 8th Amendment (NDAA, again)
  • 9th Amendment (the one the statists of neither party like)
  • 10th Amendment (Obamacare and unfunded mandates on states)

        Maybe the guys in the powdered wigs were on to something, huh? Simply put, our Constitution and the first ten amendments were designed to protect us from our government; and ensure we have the tools with which to protect ourselves from it. This is true even when an over-zealous majority threatens to exercise the government’s monopoly on violence to make us behave in a way which pleases them. It would be fair to say that distrust of government is the founding principle upon which our great republic (not democracy) was built. We would be wise to heed these warnings, not reject them; the cheap parlor trick of the politician is an illusory idea that we are safe because we are Americans. Instead, to retain the freedoms encapsulated in what Martin Luther King, Jr. referred to as the “promissory note to which every American was to fall heir” we must remain ever-vigilant. I leave you with these words:

Although all men are born free, and all nations might be so, yet too true it is, that slavery has been the general lot of the human race.  Ignorant—they have been cheated; asleep—they have been surprised; divided—the yoke has been forced upon them.  But what is the lesson?  That because the people may betray themselves, they ought to give themselves up, blindfold, to those who have an interest in betraying them?  Rather conclude that the people ought to be enlightened, to be awakened, to be united, that after establishing a government they should watch over it, as well as obey it.

                                                                               -James Madison, 1792

 

Three-fifths compromise…was it truly racist?

“Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.”

             The preceding passage is from Article 1, Section 2 of the U.S. Constitution and gives a guideline for how both the number of representatives in the House of Representatives and taxes shall be apportioned. The underlined portion is of particular importance for our topic as it has been the source of much historical misinformation.   It is likely that what you learned about this part of the Constitution while in high school is incorrect, or at least rather misleading; then again, much of what you learned about the Constitution is highly inaccurate. The common reaction or presumption about the so-called three-fifths compromise is that it was a tool used to control slaves in the United States and is evidence that white Americans thought that blacks were only 3/5 human. There was a segment of society that thought such an absurd thing; however, this portion of the Constitution is not indicative of it. In fact, anyone that is a direct descendant of someone bound in slavery ought to be truly thankful that this concept made it into the Constitution.

            I know this idea is counter to what our popular culture and politicians lead us to believe of the framers of the Constitution; but, on the bright side, it is hardly the first time politicians have lied or obfuscated reality. We must first understand that at this point in the Constitutional Convention there was significant concern that the union might yet dissolve making the former colonies a veritable smorgasbord of resources and increasing production for the European powers to come and dine from. Furthermore, there was existing contention between the northern states and southern states regarding the institution of slavery and its moral repugnance (my description). However, many at the convention were well aware that an attempt to end the practice in the Constitution would result in a fracture in the union and certain conflict both with outside powers and between the states themselves. Since protection, or national security in today’s parlance, was the primary impetus of the union, it was imperative that the slavery question be held to another day. Otherwise, slavery would have continued in the divided territories anyhow.

           On the other hand, it was important to the north that slavery not be allowed to remain a perpetually growing enterprise and that southern states would not be able to drive the congressional boat because they could count slaves for representative reasons without any intention to allow them to vote–or engage in any other sort of self-destiny. The three-fifths rule was not a new concept designed for the Constitution and some in the northern states were concerned the three-fifths number was too high. In fact, some southern delegates briefly attempted to argue for the counting of their slaves as whole persons. I will give you a second to take another look at that last sentence. The slave owners wanted the slaves to count as whole persons for the purpose of representation while the anti-slavery northern delegates would have preferred a downgrading. If racism was the motivator for this provision, would not the tables have been reversed? Of course they would have.

            So, why did the anti-slavery north support counting slaves as less than a whole person while the pro-slavery south wanted them counted completely? Power; specifically political power, which likely would have allowed slavery to last long beyond when it was eradicated in America in the 1860s. If the slaves of the south would have been counted as whole persons the balance of the House of Representatives would have fallen significantly toward the southern states and would have likely caused the practice to perpetuate and spread throughout the new territories. The south was low on population (non-slave) compared to the north, but the volume of slaves pushed their numbers well beyond those of the north. Some in the north held concerns that even with a three-fifths rule the south would just import more slaves as a way to gain control of the House; and, because of the Electoral College, probably the presidency in most cases.

            The three-fifths compromise actually helped stem the spread of slavery into the west through legislative domination. It seems reasonable to assume that with a large legislative mandate created by a complete counting of slaves in the south, the practice would have had enough power to live well beyond the 1860s. Regardless of the accusation by those who profit from the “racial” divide; there is no inherent racism in the three-fifths clause. If someone tells you there is you should either question their knowledge on the matter or their motives. Perhaps we should consider what Dr. Martin Luther King had to say about the framers of the Constitution and their glorious experiment in liberty:

“When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence (Yeah), they were signing a promissory note to which every American was to fall heir. This note was a promise that all men, yes, black men as well as white men, would be guaranteed to the ‘Unalienable Rights of Life, Liberty, and the pursuit of Happiness.’”