On Governors and Liberty

State governors are the battered wives of the Federal system.

Given a hefty annual allowance from Washington, D.C., they are content to suffer blow after blow to the  State sovereignty guaranteed by the Constitution. This is true of Democrats and Republicans alike. Living more or less happily for four- and eight-year stints in their various state-owned mansions, they could just as well be administering colonies for a distant British Crown.

And why not? Over $600 billion in direct Federal aid flows annually for medical, education, transportation, agricultural, housing and other miscellaneous outlays that now comprise the largest source of State revenues. Two states – Louisiana and Oklahoma – lean on Uncle Sam for half of their budget revenue. Thus, we end up with governors who would rather occupy their workdays choosing new license plate colors than objecting to unconstitutional Federal spending on colonoscopies, preschools, highways, sugar subsidies and free townhouses.

In case you were absent that day, the whole point of the Constitution was to keep us a free people, not to give free things to people.  The national government was given a few specific chores: maintain a navy, deliver the mail, keep states from engaging in trade wars, and a few others listed in Article I, Section 8.

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Arizona Takes One on the Chin

The enthusiasm by which the Supreme Court eviscerated Arizona’s immigration law (known as S.B. 1070) yesterday should surprise few observers. Pittsburgh Pirates fans would noisily protest if the umpire arrived sporting a Phillies jersey. That the self-appointed referee between the National Government and the States is on the National Government’s team is not unconnected with the lopsided scorecard.

The legal arguments that carried the 5-3 decision in Arizona v. United States are worth understanding, since all are based upon the “Supremacy Clause” (Art. VI, cl. 2) of the Constitution. As typical, the Supremacy Clause is selectively quoted:

The Supremacy Clause provides a clear rule that federal law “shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” 567 U. S. ____ (2012)

But Justice Kennedy omits the first bit: “This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States…” (italics added). Stated another way, if a conflict exists between a federal law made pursuant to an enumerated power and a State law, the federal law wins. This differs drastically from what I call the Pelosi Rule, which is the tyrannically crazy idea that if Congress votes for it, the law is constitutional, end of story. 

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Roger Clemens and the “Level Playing Field” Clause

Article I, Section 12 of the United States Constitution authorizes Congress to investigate and prosecute professional sports figures for use of performance-enhancing drugs.

In fact, it was James Madison who “felt no small anxiety for the elixirs & etc. employed by certain Cricketers for inequitable advantage on the Field as now widely reported in our Newspapers,” giving sound basis for what constitutional scholars call the Level Playing-Field Clause.

What? Did I hear you say that your dog-eared pocket Constitution omits Article I, Section 12? That can’t be. How else do we explain the right of the Federal Government to spend tens of millions of dollars prosecuting that threat to the Republic, former Red Sox pitcher Roger Clemens, for alleged steroid use?

By now you’ve perceived that the opening paragraph is not true.

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Rescuing the Constitution

Of the many grievances endured by our Constitution, our current President’s indeterminate nationality is a minor one. This does not mean I disapprove of the biographical colonoscopy presently being conducted by breitbart.comJerome Corsi and others; I say have at it. But even if Geraldo Rivera were to track down a Standard 8 film of Barack Obama’s water birth in the Mogonga River, liberals aren’t going to start plastering Romney ’12 stickers on their Chevy Volts.

Most of the other infractions, a roll call of which would include Obamacare, the NDAA, the Departments of Education, Energy, Housing and Urban Development, Agriculture, Labor and Transportation, and the Federal Reserve, are far more deleterious to our wallets and our liberty. The absence of the foregoing would not result in urban areas not being developed or kindergartens being shuttered. I imagine dairy farmers will figure out how to market milk, and banks, without Freddie Mae and Fannie Mac, will underwrite risk-worthy mortgages.

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National Review’s War on Liberty

Once upon a time, National Review brimmed with intellectually relevant conservative ideas. It stood athwart history and yelled stop, or so it was introduced. Post-William F. Buckley, Jr., it has become a dull sounding-board of the Republican Establishment. Take intern Nathaniel Botwinick’s fact deficient treatment of nullification (“The ACLU’s Double Standard,” National Review, May 10, 2012).

Botwinick serves up an easy indictment of the ACLU for supporting pet issues over a consistent constitutional theory. In the law we call this a “positional conflict”. Rallying for nullification against the National Defense Authorization Act but decrying it in defense of Obamacare does indeed raise the eyebrows of credibility. Fair enough.

But Botwinick digs one deep in the shins of James Madison and Thomas Jefferson with his ignorance of American constitutional history. Botwinick observes: “If nullification is allowed in any case, it creates a precedent that threatens to rob the federal government of its ability to enforce the basic rights that the Constitution provides.” That, in a nutshell, is the progressive revisionist story of our constitutional compact, and a viewpoint that Nancy Pelosi and Barack Obama would readily embrace.

But it turns American history on its head.

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Tenthers to the Left and Tenthers to the Right

Respecting the Tenth Amendment does not necessarily predispose allegiance to an economic theory. Thus both libertarians and socialists can enthusiastically agree that our national government is bound by strictly enumerated powers and save their blows for whether the sovereign states should adopt single payer health care schemes or operate liquor store monopolies.

Likewise political party is not the sine qua non of constitutional fidelity. Yes, certain factions in each can be fairly aligned with or against the Tenther movement. The Tea Party shares some contiguity with the Grand Old Party but by all accounts is more willing to defend our constitutional charter. The Occupy Wall Street movement overlaps the Democratic Party by sharing meaty bits of its Weltanschauung including a lack of sentimentality toward constitutional who-whats-its, and both claim Alec Baldwin as one of their own.

Among the viable Republican contenders for the presidential throne, Willard Mitt Romney is unapologetic in his total disregard for constitutional niceties. Mitt subrogates questions of constitutionality to claims of his management genius. Once upon a time, said Mitt, he was in favor of abolishing the Department of Education, because that position was “very popular with his base”. To Mitt’s credit it is only his base that has shifted; his constitutional promiscuity is firmly intact.

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The Spirit of Freedom

“The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite.”
– James Madison

Thank the Tea Party for reminding us of that great Enlightenment paean to liberty, the US Constitution. Our Constitution never disappeared; rather, it became that great 18th-century edifice plastered over with modernist 50s and 60s facades that appeal only to socialist utilitarians for whom natural beauty is as valueless as natural law.

A creepy heap (many call ‘Democrats’) now feverishly advocate for a Federal polity that blends socialist Sweden, an Orwellian nanny state and the piñata politics of Hugo Chavez’s Venezuela. Nancy Pelosi’s resume speaks for itself: the Constitution is a joke.

And Barack Hussein Obama led the deep-end plunge. No triangulating Clinton would have succeeded as spectacularly in awakening a free people to the assault on American essentialism. But the quick boiling of liberty that commenced in January 2009 jarred a jaded public into defense of our first principles, and for some, into a steep learning curve.

How had America forgotten the Constitution? We Americans are better (or at least more) educated than our parents’ generation. Rachel Maddow and Keith Olbermann hail from Stanford and Cornell, respectively. Reasonably intelligent people otherwise, but as Ronald Reagan would understand, too much they know isn’t so. I don’t know Maddow or Olbermann, so I can’t argue whether they are indeed merely ignorant, or, more plausibly, Keynesian do-gooders, if by doing ‘good’ they mean impoverishing us into a nation of government dependents and media celebrities.

The Left sneers at us. They say we fetishize the Constitution. They care not whether socialized medicine is legal, let alone economically sensible, or even salutary. To progressives, the States are merely differently-accented instrumentalities of the national government, not co-equal sovereigns bound by constitutional compact.

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