Category Archives: Federalism

The Constitutional History Lessons You Didn’t Learn in School

More often than not, history is written by the winners and taught by individuals who love big government. Tom Woods’ Liberty Classroom has been providing a refreshing non-P.C. presentation of history that is rarely brought up. Very little of what we call history either is “settled” without controversy or without lingering questions.

• What is the true philosophical inspiration for the Declaration of Independence?
• What is the meaning of “natural law” and “natural rights”?
• Was the American Revolution just about “no taxation without representation”?
• Was the Articles of Confederation really inadequate for the needs of the several states?
• Was the Constitution itself legally drafted and adopted in replacing the Articles of Confederation?
• How controversial was the Constitution previous to its ratification?
• Was it originally the intention that the union would be perpetual? (i.e. Was it the common understanding during the ratification debates that states could leave the union or not?)
• What did the founders think about states nullifying federal law?
• Was the American Civil War (or “War Between the States”) really about slavery?
• Might slavery have ended without war?
• Was the Supreme Court intended to be the final arbiter of both state and federal law?

These questions and more are explored in Tom Woods’ Liberty Classroom. The video below “German and British Antecedents [to the U.S. Constitution]” is the first of 15 videos available for free from Liberty Classroom (watch the rest here,). Each lecture runs for about 25 minutes. Enjoy!

Do We Really Want the President to Enforce ALL Federal Laws?

The Rule of Law, theoretically at least, is superior to the arbitrary Rule of Men. For most of human history, the law has been subject to the whim of a head of state be s/he a monarch, czar, dictator, emperor, etc. James Madison and the framers of the U.S. Constitution wisely determined that the document would be the “supreme law of the land” and everyone from the President to the peasant would be subject to the same law.

But what happens to the Rule of Law when the laws become too vague, too numerous, too unpredictable, and too unjust? According to a 2008 Louisiana State University study (referenced in this article), there were over 4,500 federal crimes on the books. This does not include the thousands more regulations that also carry criminal penalties.

So my question to conservatives and some libertarians who have been critical of President Obama’s executive order to allow individuals who were brought illegally across the border as children under the age of 16 to have temporary work permits is as follows: Do you believe that the president should enforce each and every one of the over 27,000 pages of federal code and prosecute everyone who can be accused of any of the 4,500 + crimes? Should the president send uniformed men with guns to raid the Gibson Guitar Corp, dairy farms who sell raw milk to the public, and medical marijuana dispensaries which operate pursuant to state law? If the argument is that the president is shirking his responsibility by picking and choosing the laws he will “faithfully execute,” the answer necessarily must be “yes.”

Obviously, the federal government even as large as it is could not possibly enforce every single federal law. Assuming for a moment the federal government could enforce every single federal law and regulation, as people who claim to value personal liberty above all else, is this something that would in any way be compatible with liberty?

I think not.

When the federal code is so full of laws and regulations, it’s the same as having no Rule of Law at all. The president necessarily must decide which laws to enforce and which to ignore or at the very least prioritize how he will execute the law. As immigration laws go, it seems to me that deporting individuals who were educated here, not criminals, and pay taxes should be a much lower priority to be deported or jailed than someone who as an adult illegally immigrated, stole someone’s identity, and committed a host of other crimes.

Beyond the sheer volume of laws and regulations, I do think there are instances when the president should NOT enforce the law if he, in good faith, believes the law violates the constitution and/or is unjust. Who among us today would argue that when the Fugitive Slave Act of 1850 was in force that a president who refused to enforce such a law was acting like a king because he was usurping the “will of the people”? I would also point out that when the Fugitive Slave Act was the law of the land, it wasn’t at all unconstitutional even though most sane Americans today, regardless of political affiliation and/or philosophy would say the law was immoral. If the constitution itself violates Natural Law (i.e. does not recognize the rights of life, liberty, and property for all human beings), then it too should be nullified in those instances.

Nullification presents problems of its own, however. I recognize that nullification of laws passed by congress presents a possible constitutional crisis. We certainly do not want an all-powerful executive branch that can ignore the congress and the courts, so what is the solution?

The solution, however politically difficult it would be, would be to repeal the vast majority of the federal criminal code and much of the remaining 27,000 pages of statutes. The most sensible place to begin would be with the federal criminal code. Most criminal law should be dealt with at the state level anyway. I haven’t checked recently but I’m pretty sure that rape, murder, burglary, assault/battery, and fraud are crimes in all 50 states and in all U.S. territories.

Additionally, even those who believe the war on (some) drugs is good public policy, most states would most likely (unfortunately) continue locking up non-violent drug offenders without Washington’s help. The country we love would not descend into chaos if criminal law was dealt with almost entirely by the states. If we cannot trust the states to handle protecting individuals inside their borders, what is the point of even having states?

If the federal criminal code only dealt with crimes such as counterfeiting, treason, enacting legitimate interstate commerce regulations (to keep the trade among the several states “regular,” not what the interstate commerce clause has become thanks to SCOTUS), and yes, immigration policy, the president could and should conceivably enforce all the federal laws that are neither unconstitutional nor immoral. The president would no longer have the discretion to enforce the laws he favors and not enforce the ones he does not.

Rasmussen Poll: 61% of 500 Likely Voters in Colorado Support Regulating Marijuana Like Alcohol (Amendment 64)

This is one of the most encouraging polls I’ve seen in a long time. Honestly, I didn’t think that Amendment 64 [full text here] would have much chance of being approved by the voters, especially since a similar measure, Prop 19 failed in California in 2010. The Huffington Post reports:

The survey of 500 of likely voters in Colorado conducted on June 6, 2012 shows sixty-one percent are in favor legalizing marijuana if it is regulated the way that alcohol and cigarettes are currently regulated.


That is the highest percentage of Colorado voter support that any marijuana legalization poll has shown to date. In December of 2011, a similar poll from Public Policy Polling showed only 49 percent in favor of general legalization of marijuana.

I also found this to be interesting (continuing the same article):

Amendment 64 also recently received support from both Republicans and Democrats — in March, 56 percent of the delegates at the Denver County Republican Assembly voted to support the legislation, and in April, the Colorado Democratic Party officially endorsed Amendment 64 and added a marijuana legalization plank to the current party platform.

Bipartisan support for legalizing marijuana and regulating it like alcohol in Colorado? This is quite encouraging and fascinating (in California, you may recall, there was bipartisan opposition from the blue and red teams).

This isn’t to say there that Amendment 64 will sail through unopposed. There are anti-64 groups mobilizing so those of us who want to see 64 pass cannot be complacent. Also, with about five and a half months until election day, anything can happen.

On Judge Jerry Smith’s “Homework Assignment” And Judicial Deference To The Legislature

Last Tuesday, a federal judge in the 5th Circuit, Jerry Smith, blasted a DOJ lawyer on an ObamaCare case in the wake of Obama’s comments on judicial activism. The Judge assigned the lawyer a three-page, single spaced homework assignment to draft a position on whether the judiciary has the legitimate right to overturn Unconstitutional legislation.

Everyone was up in arms over this, and to be honest, I frankly think it was pointless, in bad taste, and didn’t do anything but spin up a news cycle for about 24 hours. After reading a particular Popehat piece, I’m not all that surprised, but I’m certainly a bit dismayed that Jerry Smith decided that this was a necessary act.

Well, the homework assignment is here for all to see:

DOJ Letter to 5th Circuit re Judicial Authority

There’s a section in here that is particularly interesting. One aspect of this is an “F-U” to the judge, but points to something that I think is a bit unnecessary in Constitutional jurisprudence:

While duly recognizing the courts’ authority to engage in judicial review, the Executive Branch has often urged courts to respect the legislative judgments of Congress. See, e.g. , Nature’s Daily. v. Glickman, 1999 WL 158 1396, at *6; State University of New York v. Anderson, 1999 WL 680463, at *6; Rojas v. Fitch, 1998 WL 457203, at *7; United Food and Commercial Workers Union Local 75i v. Brown Group, 1995 WL 938594, at *6.

The Supreme Court has often acknowledged the appropriateness of reliance on the political branches’ policy choices and judgments. See, e.g., Ayotte v. Planned Parenthood of Northern New Eng., 546 U.S. 320, 329 (2006) (explaining that, in granting relief, the courts ‘·try not to nullify more of a legislature’s work than is necessary” because they recognize that’” [a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people’”(alteration in the original) (quoting Regan v. Time, inc. , 468 U.S. 641, 652 (1984) (plurality opinion))); Turner Broadcasting System, inc., 512 U.S. at 665-66. The “Court accords ‘ great The “Court accords ‘ great weight to the decisions of Congress”‘ in part because “[t]he Congress is a coequal branch of government whose Members take the same oath [judges] do to uphold the Constitution of the United States.” Rostker v. Goldberg, 453 U.S. 57,64 (1981) (quoting Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 102 (1973)). These principles of deference are fully applicable when Congress legislates in the commercial sphere. The courts accord particular deference when evaluating the appropriateness of the means Congress has chosen to exercise its enumerated powers, including the Commerce Clause, to accomplish constitutional ends. See, e.g. , NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 32 (1937); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 408 (1819). See also Thomas More Law Center v. Obama, 651 F.3d 529, 566 (6th Cir. 20 11) (Opinion of Sutton, J.); Seven Sky v. Holder, 661 F.3d 1, 18-19 (D.C. Cir. 201 1) (Opinion of Silberman, J.)

So the Supreme Court should grant a great deal of deference to Congress, because Congress cares deeply about their Constitutional obligation!

Paging the folks over at Volokh:

Most of us know that when then-Speaker Pelosi was asked where the Constitution gives Congress the power to enact an “individual mandate,” she replied with a mocking “are you serious? Are you serious?”

Here are a few more pearls of constitutional wisdom from our elected representatives.
Rep. Conyers cited the “Good and Welfare Clause” as the source of Congress’s authority [there is no such clause].
Rep. Stark responded, “the federal government can do most anything in this country.”
Rep. Clyburn replied, “There’s nothing in the Constitution that says the federal government has anything to do with most of the stuff we do. How about [you] show me where in the Constitution it prohibits the federal government from doing this?”
Rep. Hare said “I don’t worry about the Constitution on this, to be honest […] It doesn’t matter to me.” When asked, “Where in the Constitution does it give you the authority …?” He replied, “I don’t know.”
Sen. Akaka said he “not aware” of which Constitutional provision authorizes the healthcare bill.
Sen. Leahy added, “We have plenty of authority. Are you saying there’s no authority?”
Sen. Landrieu told a questioner, “I’ll leave that up to the constitutional lawyers on our staff.”

So some don’t care, and some just assume the authority exists but can’t cite it, and some make up new sections of text in the Constitution that don’t even exist. Deferring to Congress on whether or not legislation is Constitutional is like deferring to Philip Morris on whether cigarettes are good for your health.

Obama Breaks Medical Marijuana Promise; How will his G.O.P. Challengers Respond?

Nearly two years ago, President Obama’s Justice Department announced a hands off approach concerning the states that passed “compassionate use” laws which legalized selling and using marijuana for medical purposes provided that all parties concerned operated within the state’s law. This seemed to give those who wanted to go through the legal processes to either operate a dispensary or acquire the paperwork to use marijuana within state guidelines the green light to proceed without worrying too much about federal drug laws – at least as long as Obama was president. Now it seems that the Obama administration is changing this policy, leaving patients and suppliers who operated in good faith on very shaky legal ground.

According to The Associated Press, at least 16 California dispensary owners and landlords received letters putting them on notice that they must close down their operations within 45 days or face criminal charges and confiscation of their property.

In the same article, Kevin Sabet, a former adviser to the president’s drug czar is quoted as saying “This really shouldn’t come as a surprise to anyone. The administration is simply making good on multiple threats issued since President Obama took office.”

To be fair, I don’t recall ever reading anything from the administration that explicitly promised they wouldn’t prosecute individuals under federal law but it certainly seemed that at the very least, medical marijuana patients and providers would be a very low priority for prosecution. Patients and practitioners had to know that there would be at least some legal risks even with Obama in office and realize that the next president could just as easily change the policy.

This presents a very interesting opportunity to find out which G.O.P. presidential candidates are truly committed to the notion of federalism (especially where the Tenth Amendment is concerned) and those who are not. Rep. Ron Paul and Gov. Gary Johnson obviously favor ending the war on (some) drugs and would clearly restore state sovereignty on this and other issues. Gov. Rick Perry in his book Fed Up! (as quoted here) writes:

Again, the best example is an issue I don’t even agree with—the partial legalization of marijuana. Californians clearly want some level of legalized marijuana, be it for medicinal use or otherwise. The federal government is telling them they cannot. But states are not bound to enforce federal law, and the federal government cannot commandeer state resources and require them to enforce it.

Rick Santorum seems to be the least committed to the notion of state sovereignty as he pillories Gov. Perry for this and other positions regarding state laws he deems to be “moral wrongs.”

It’s certainly Gov. Perry right to believe marriage can be redefined at the state level, that marijuana can be legalized and that tax dollars should be used to give illegal aliens special college tuition rates, but that’s completely out of touch with what most Americans believe.

So says the man who is polling at 2.7% (RCP Average).

Regardless of what one thinks about medical marijuana legalization at the state level or federalism in general, those who find themselves in legal limbo deserve to have a clear answer to where they stand. The candidates should all agree that this vague, unpredictable policy is unacceptable.

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