Category Archives: Federalism

A Good Compromise On Gay Marriage ? Not So Much

David Blankenhorn and Jonathan Rauch, who come from totally opposite sides of the same-sex marriage debate, offer this compromise in a New York Times Op-Ed this morning:

It would work like this: Congress would bestow the status of federal civil unions on same-sex marriages and civil unions granted at the state level, thereby conferring upon them most or all of the federal benefits and rights of marriage. But there would be a condition: Washington would recognize only those unions licensed in states with robust religious-conscience exceptions, which provide that religious organizations need not recognize same-sex unions against their will. The federal government would also enact religious-conscience protections of its own. All of these changes would be enacted in the same bill.

(…)

Linking federal civil unions to guarantees of religious freedom seems a natural way to give the two sides something they would greatly value while heading off a long-term, take-no-prisoners conflict. That should appeal to cooler heads on both sides, and it also ought to appeal to President Obama, who opposes same-sex marriage but has endorsed federal civil unions. A successful template already exists: laws that protect religious conscience in matters pertaining to abortion. These statutes allow Catholic hospitals to refuse to provide abortions, for example. If religious exemptions can be made to work for as vexed a moral issue as abortion, same-sex marriage should be manageable, once reasonable people of good will put their heads together.

The first problem with this proposal seems to be rather self evident to me. Namely, where in Article I, Section 8 of the Constitution is Congress granted the power to regulate marriage ? Some might argue that Section 5 of the 14th Amendment creates such a power to the extent that marriage is a “privilege or immunity” contemplated by Section 1 of that Amendment, or that depriving homosexuals of the rights and benefits of civil marriage constitutes a deprivation of life, liberty, or property, without due process of law; or that it denies them equal protection of the laws. However, that argument would run head-on into the fact that there’s little evidence that the framers of the 14th Amendment intended it to be such complete a usurpation of state’s rights as this argument would contemplate. Moreover, such an interpretation of the 14th Amendment would effective mean that the 10th Amendment had been repealed by it’s ratification; and there’s no evidence that was the intention back in 1865.

So, at the very least, we’ve got a significant federalism problem that shouldn’t be dismissed.

A second problem with this proposal is that it continues with the idea of creating two separate statuses. What, exactly, would be the difference between marriage and these civil unions ? Unless the differences are in name only, then we’re not talking about real equality. Would heterosexual couples be able to enter into these civil unions instead of marriages ? If not, then you really are creating two different classes of people. And, finally, what would be the rules regarding dissolution of a civil union ? Would it be easier ? Harder ? Would traditional domestic relations law apply ?

If the only difference between “marriage” and “civil union” is the name, then what’s the point of having two different institutions ?

A final problem with this proposal is that it raises what is clearly a straw man in this whole debate. Except in the mind of the truly wacko, the idea that same-sex marriage poses any serious threat to religious liberty. Modern marriage is a civil institution governed by the state, so long as that is the case then the state has no right to discriminate against people when it decides who is and is not entitled to claim the benefits of that relationship. Churches, on the other hand, are free under the First Amendment to confer their religious marriages under any circumstances they deem fit.

The problem, of course, is that marriage today is still a hybrid institution.

Is it a civil relationship governed by the state, or a religious one governed by the laws of whatever deity(ies) you happen to worship, or, is it a combination of both ?

The solution, as I’ve mentioned before, seems rather obvious:

If that’s what you believe a marriage is, the union of a man and woman before God and man, then what does the state have to do with so fundamentally a religious institution ? Why does the state need to recognize it at all and why does it need to grant that religious institution preferntial benefits in the form of tax breaks and a protected legal status that is not available to unmarried persons ?

Kellie and I were married in the Roman Catholic Church, which has requirements for marriage that exceed, and are different from, those of civil marriage. That wedding ceremony is what made the marriage official in the eyes of God, not the little piece of paper we got from Cuyahoga County, Ohio the day before.

Here’s my proposal. Get rid of civil marriage licenses entirely. Let people decide for themselves what they believe about marriage and let them, if they wish solemnize that union in a church of their choice. We are hundreds of years past the day where the state was involved in religious affairs, it doesn’t need to be involved in this matter either.

It’s really not as radical an idea as you might think. Contrary to what some of the “traditional marriage” advocates would have you think, state involvement in marriage is a relatively recent thing historically:

For 16 centuries, Christianity also defined the validity of a marriage on the basis of a couple’s wishes. If two people claimed they had exchanged marital vows — even out alone by the haystack — the Catholic Church accepted that they were validly married.

In 1215, the church decreed that a “licit” marriage must take place in church. But people who married illictly had the same rights and obligations as a couple married in church: their children were legitimate; the wife had the same inheritance rights; the couple was subject to the same prohibitions against divorce.

Not until the 16th century did European states begin to require that marriages be performed under legal auspices. In part, this was an attempt to prevent unions between young adults whose parents opposed their match.

That practice carried over to the American colonies and, later, the United States, where marriage licensing laws quickly became a way to prevent socially disapproved inter-racial marriages and to limit the rights of women:

By the 1920s, 38 states prohibited whites from marrying blacks, “mulattos,” Japanese, Chinese, Indians, “Mongolians,” “Malays” or Filipinos. Twelve states would not issue a marriage license if one partner was a drunk, an addict or a “mental defect.” Eighteen states set barriers to remarriage after divorce.

So, the idea that the marriage must be something defined by the state isn’t as historically grounded as some would have you think.

And what about the supposed threat to religious liberty if homosexuals were allow to declare themselves married ?

Well, it ain’t there:

[N]obody is saying that your church has to approve or consecrate same-sex unions. Heck, you could have a religion that said people with different hair colors can’t get married if you wanted to, just don’t make it the business of the state to codify your religious prejudices.

Exactly.

Blankehorn and Rauch make a good effort at trying to find some middle ground on this issue. And that alone I take as a sign that the rigid opposition to same-sex unions that we’ve seen in the past is melting away far quicker than anyone anticipated (just look at Utah for more proof of that assertion). As a practical, Constitutional solution to the problem, though, I’m afraid they’ve fallen short.

Originally posted at Below The Beltway

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“They Still End Up Gettin’ Drunk” In Utah

Utah is a beautiful state. I have traveled there quite a few times over the last few years — I”ll be there next week, in fact — and am always struck by the amazing scenery available just traveling in the Salt Lake City area. I’ve driven through the salt flats, and have stayed up in Park City (albeit during the summer, not for skiing/snowboarding). It’s a gorgeous state. It’s also the fastest-growing state in the US, and has a strong growing business climate (which is what brings me there).

As a homebrewer and beer connoisseur, though, Utah doesn’t suit me. The domination of the state by the Mormon church has led to some of the most draconian alcohol laws in the US. My former home, Atlanta, although known itself for some strange blue laws, looks like Vegas when compared to Salt Lake City. In Utah, even homebrewing is illegal.

Luckily, it is not a dry state. Liquor is allowed, but the myriad of strange laws restricting its sale — described below by the bartender interviewed by Reason.tv’s Ted Balaker — are quite confusing. The below even leaves out the requirement of “joining the private club” within most bars in order to have access to the good stuff.

And as the bartender says, it doesn’t seem to stop anyone who desires from getting drunk. But I’m sure the Utah Department Of Alcoholic Beverage Control staff feel really good about their mission.

Bush Was a Dictator – And the U.S. Government Is a Dictatorship

A dictator is a monarch who is both law-maker and law enforcer, who also acts as final judicial arbiter in cases, and is not legally liable for his actions.

By such a standard, George Bush was a dictator.  He claimed the power to ignore the legislature, and to arbitrarily rewrite the law – citing the U.S. Constitution’s appointment of the president as the “Commander in Chief” of the United States Army and U.S. Navy as justification.  If the Congress passed a law he didn’t like, he refused to enforce it.  If it failed to pass a law he liked, he enacted it anyway. He successfully suppressed the courts’ power of habeas corpus throughout most of his term, effectively wielding the power to seize anyone off the street and to detain them arbitrarily with no review.  And, despite his many violations of the law, he never faced any credible threat of legal sanction.

Many of his supporters argue that since George Bush stepped down willingly at the end of his term, he was no dictator.  But a what characterizes a dictatorial government is how the leader controls the government, not how he got into power or left it.  A Roman appointed to the office of Dictator during the years of the Republic had his term expire after only a year, yet during that year no-one would argue that during that year there was no dictatorship, even though they often stepped down willingly at the end of their term. Nor do they have to come to power through violent means: witness Adolf Hitler’s appointment as Fuhrer by the German Parliament via the Enabling Act, which was all nice and legal and regularly renewed by parliament.

While many people have been outraged by Bush’s arrogation of power, there was been no serious attempt by the judiciary and the legislature to rein him in.  The judiciary did, very late in the game, start to protest against his more outlandish legal theories justifying his unilateral actions, but for the most part they deferred to the president.  In Congress, a few gadflies started impeachment proceedings, but they never amounted to anything.  To the contrary, throughout his presidency the other branches bent over backward to defer to this claim of authority.

Since he has taken office, President Obama has been busy issuing new directives limiting the power that he and his subordinates claim.  Many see this as an end to the unitary executive.  But, this personal arrogation of power is very similar to the homeowner allowing a friend to crash on the couch.  It can be rescinded at any time.  In the absence of any movement in the legislature or the judiciary, it merely amounts to the dictator announcing his intention to stay his hand, rather than a permanent abdication of power.

Furthermore, he has continued legislating by fiat, the latest of which is his executive order designed to force improvements in fuel efficiency.  Regardless of  whether one feels that this is a good or bad idea,  one must admit that the power to enact such a major change in government policy, which will likely impose billions of dollars in compliance costs, when on the shoulders of one man, is dictatorial.

In many ways, the U.S. has become the most dangerous kind of dictatorship – a democratic one.  While dictators are often quite violent and, well, dictatorial, they sometimes  do to take a long view, since they expect to experience the long-term consequences of any misrule.  On occasion, dictators can even be pretty decent,  recognizing that a hands-off approach will increase their power far more quickly that a hands-on approach.  I can think of no better example of this phenomenon in action than that of Singapore.

In the U.S., on the other hand, the rulers can only expect to stay in office for less than a decade.  Rather than worrying about long term consequences, they are far more likely to be concerned about how to maximize their use of the office in the short period they hold it. Rather than worrying about the long term health of the nation, under a democratic (the system of government, not the political party) dictatorship of limited duration, we expect to see decisions that are focused on a smaller time scale.

When the Roman Republic collapsed and was replaced by the imperial system, the old forms of the republic were maintained.  The senate appointed consuls and voted on legislation.  However, for the next few centuries, political power resided in the hands of the Emperor, who was named Dictator by the Senate.  While early emperors like Augustus had fairly sound economic policies, the history of the empire is a sad tale of failed economic policies creating new crises, of poorly though out intervention begetting stronger interventions, each multiplying the devastation of the unintended consequences of its predecessor.

The republican system of government is not completely extinguished in the United States,  It is, however, all but dead.  Absent a dramatic sea-change in the attitude the American people towards their government, we will increasingly be at the mercy of popularly elected dictators, who are not restrained by any significant limitation on their powers.

I am an anarcho-capitalist living just west of Boston Massachussetts. I am married, have two children, and am trying to start my own computer consulting company.

Montana Brings A Gun (10th Amendment) To A Knife (Interstate Commerce) Fight

This could get interesting:

A personal firearm, a firearm accessory, or ammunition that is manufactured commercially or privately in Montana and that remains within the borders of Montana is not subject to federal law or federal regulation, including registration, under the authority of congress to regulate interstate commerce. It is declared by the legislature that those items have not traveled in interstate commerce. This section applies to a firearm, a firearm accessory, or ammunition that is manufactured in Montana from basic materials and that can be manufactured without the inclusion of any significant parts imported from another state. Generic and insignificant parts that have other manufacturing or consumer product applications are not firearms, firearms accessories, or ammunition, and their importation into Montana and incorporation into a firearm, a firearm accessory, or ammunition manufactured in Montana does not subject the firearm, firearm accessory, or ammunition to federal regulation. It is declared by the legislature that basic materials, such as unmachined steel and unshaped wood, are not firearms, firearms accessories, or ammunition and are not subject to congressional authority to regulate firearms, firearms accessories, and ammunition under interstate commerce as if they were actually firearms, firearms accessories, or ammunition. The authority of congress to regulate interstate commerce in basic materials does not include authority to regulate firearms, firearms accessories, and ammunition made in Montana from those materials. Firearms accessories that are imported into Montana from another state and that are subject to federal regulation as being in interstate commerce do not subject a firearm to federal regulation under interstate commerce because they are attached to or used in conjunction with a firearm in Montana.

Reading through the introduction to the bill, Montana directly claims that the 9th and 10th Amendments, the Montana state Constitution, and the fact that they are declaring all of this to be intrastate commerce removes them from federal regulation on firearms.

I’m not sure how this will stand up to the precedents of Filburn and Raich. Based on his concurring opinion in Raich, one may suspect that even Scalia (if he’s consistent) would strike down Montana’s statute:

Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective. As Lopez itself states, and the Court affirms today, Congress may regulate noneconomic intrastate activities only where the failure to do so “could … undercut” its regulation of interstate commerce. … This is not a power that threatens to obliterate the line between “what is truly national and what is truly local.” Lopez

Scalia just wrote the government’s argument in case they try to implement their will. They simply will claim that this intrastate activity substantially undercuts their ability to regulate firearms in interstate commerce.

Morally, I applaud the state of Montana for standing up for their Constitutional rights. Given modern Constitutional jurisprudence, though, I don’t have high hopes for their success.

Hat Tip: Billy Beck

More “Change” From the Obama Administration

Meet the new “change” — same as the old change.

Here’s soon-to-be Surgeon General Sanjay Gupta on the reform of medicinal marijuana laws:

But I suspect that most of the people eager to vote yes on the new ballot measures aren’t suffering from glaucoma, Alzheimer’s or chemo-induced nausea. Many of them just want to get stoned legally. That’s why I, like many other doctors, am unimpressed with the proposed legislation, which would legalize marijuana irrespective of any medical condition. [snip]

But I’m here to tell you, as a doctor, that despite all the talk about the medical benefits of marijuana, smoking the stuff is not going to do your health any good.

There’s a good rebuttal of Gupta’s article here.

Elected Officials Fail Civics Quiz

In today’s bread and circuses world, it doesn’t surprise me one bit that Americans overwhelmingly fail a quiz on civics. What is slightly surprising is that our elected officials do even worse:

Are most people, including college graduates, civically illiterate? Do elected officials know even less than most citizens about civic topics such as history, government, and economics? The answer is yes on both counts according to a new study by the Intercollegiate Studies Institute (ISI). More than 2,500 randomly selected Americans took ISI’s basic 33 question test on civic literacy and more than 1,700 people failed, with the average score 49 percent, or an “F.” Elected officials scored even lower than the general public with an average score of 44 percent and only 0.8 percent (or 21) of all surveyed earned an “A.” Even more startling is the fact that over twice as many people know Paula Abdul was a judge on American Idol than know that the phrase “government of the people, by the people, for the people” comes from Lincoln’s Gettysburg Address.

Now, I went to their website, and took the quiz. It’s surprisingly harder than I thought it would be. I do have one criticism, in that several of the questions are very confusingly worded, and several appear to be free-market biased, which I agree with but may not be entirely objective. But if you have a basic understanding of American history and civics, you should be able to do fine.

It’s striking, though, that our elected officials are unable to pass this quiz. These are the people responsible for our government, and they don’t know the history or role of government. The questions are somewhat difficult in a few cases, but there’s nothing in there that shouldn’t be easy knowledge for anyone who would have the temerity to run for political office.

If these guys can’t be bothered to know about America, why is it that we grant them the power to run it?

Check out the quiz, and feel free to post your scores in the comments section. I was a bit disappointed, as I only answered 32 of 33 correctly…

Third Party Debate

The City Club of Cleveland extended an invitation to the top six presidential candidates*. Of the six candidates, Libertarian Party candidate Bob Barr, Constitution Party candidate Chuck Baldwin, and independent candidate Ralph Nader participated; Democrat Barack Obama, Republican John McCain, and Green Party candidate Cynthia McKinney were no-shows.

Unlike the debates we have already seen in this cycle, the candidates in this debate actually debated the issues!

*The candidates who could theoretically receive the requisite electoral vote to win the presidency

Barack Obama Says The Constitution Is Flawed, And He’s Right

In what seems to be a follow-up to yesterday’s kerfuffle about Barack Obama’s comments about the Warren Court and redistribution of wealth, there’s now an audio clip of him from the same radio program discussing what he called a “fundamental flaw” in the Constitution:

I think it’s a remarkable document…

The original Constitution as well as the Civil War Amendments…but I think it is an imperfect document, and I think it is a document that reflects some deep flaws in American culture, the Colonial culture nascent at that time.

African-Americans were not — first of all they weren’t African-Americans — the Africans at the time were not considered as part of the polity that was of concern to the Framers. I think that as Richard said it was a ‘nagging problem’ in the same way that these days we might think of environmental issues, or some other problem where you have to balance cost-benefits, as opposed to seeing it as a moral problem involving persons of moral worth.

And in that sense, I think we can say that the Constitution reflected an enormous blind spot in this culture that carries on until this day, and that the Framers had that same blind spot. I don’t think the two views are contradictory, to say that it was a remarkable political document that paved the way for where we are now, and to say that it also reflected the fundamental flaw of this country that continues to this day.

Obama was referring, quite obviously, to those provisions of the Constitution that not only protected slavery, but enshrined it. First, there’s the infamous 3/5th’s clause in Article I, Section 2:

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 provision in Article I, Section 9 that prohibited Congress from banning the slave trade before 1808:

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

And, the provision in Article IV that required the return of fugitive slaves who managed to escape into non-slave states:

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, But shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

Each of these provisions enshrined and perpetuated an institution that constituted a gross violation of individual and violated the very principles upon which this nation was founded. It was a stain that ate at the very soul of the country and didn’t get erased until the blood of 600,000 men had been shed.

So, in that sense, <strong>Barack Obama is absolutely right when he says that the Constitution was “fundamentally flawed.”

And, you know what ? It still is.

For example, the Interstate Commerce Clause has been used to do far more than regulate commerce between the states. The Necessary and Proper Clause has been used to find powers for Congress and the President that exist nowhere in the Constitution. The Ninth and Tenth Amendments are, thanks largely to the vagueness of their language, largely unenforceable. Congress’s monetary powers have been ceded to an unelected Federal Reserve Board. And don’t even get me started about the flaws in some of the Amendments.

Don’t Forget to Study Before the Final!

I just received my mail-in ballot a week or so ago. The ballot, with multiple choices with arrows to be filled out next to each choice, reminds me of taking standardized tests back in the day. Some tests were easier than others but I knew that if I did not study, one of two things could happen: (1) I could get lucky and answer enough of the questions correctly to pass or (2) I could possibly fail.

In a way, the general election is a final exam. Whether one “passes” the exam or not depends on whether s/he votes according to his or her principles. In order to increase your chances of voting according to your principles, you must study.

I am disgusted with the Republican and Democrat parties. When going over my ballot, my first instinct was to vote Libertarian in every race with a Libertarian candidate. I had studied all of the ballot measures and was satisfied that I could make intelligent choices there, but I hadn’t researched the candidates below the presidential level*. In the U.S. House race, I found three choices: the incumbent Diana DeGette (D), George Lilly (R), and Martin Buchanan (L). I knew that DeGette supported the bailout so she was never an option. Buchanan is a Libertarian and his positions he posted on his website are indeed Libertarian.

So why not just support the Libertarian you ask?

Regardless of how much I despise the Republican and Democrat parties, I make an effort to learn about the individual candidates and their positions before making a choice. Much to my delight and surprise, I found the Republican, George Lilly to be a “Ron Paul Republican.” I knew that there were such individuals running in this election but I never thought I would have had an opportunity to vote for one!

Now, I know that an endorsement from Ron Paul is not necessarily all it’s cracked up to be but take a look at Lilly’s positions posted on his website:

Please join me in RESTORING the Constitution, and together, let’s:

1. RESTORE the economy — free up business from onerous outdated regulations.

2. RESTORE proper use of the military (136 nations have U.S. military presence.)

3. RESTORE integrity to the treaty process to protect America’s interests first.

4. RESTORE individual privacy and say “no” to the Real I.D. Act.

5. RESTORE high quality medical care at affordable prices.

6. RESTORE checks & balances — the executive branch has gotten too powerful.

7. RESTORE integrity in the campaign financing process.

8. RESTORE integrity to the dollar — re-institute the gold standard. Watch this YouTube video!

9. RESTORE integrity to the tax system — rein in the I.R.S.

10. RESTORE and retain rights to unregulated health supplements & the Internet.

The following will be my top priorities in Congress:

1. Create a level playing field for Americans who receive the benefit of Workmen’s Compensation, mandatory health insurance, retirement benefits, taxes, OSHA, EPA etc. and calculate that into the cost of the products manufactured so that any foreign country not providing the same benefits to their employees would have to pay a tariff on their imported products to equal that amount.

2. Support a bill that calls for a single subject on all spending bills.

3. Oppose unconstitutional spending in the form of corporate subsidies.

4. Oppose unconstitutional spending in the area of education so that “No (every) Child Left Behind” is abolished.

5. Hold the Federal Reserve to account for their corruption of the dollar which has driven up the price of everything way beyond what any normal person can even consider affording!

While I have some concern about his #1 priority being a little on the protectionist side, I certainly applaud his willingness to stand up for the Constitution and against big government**. He’s not purely libertarian but in my estimation, he’s at least as libertarian as Ron Paul.

Having learned about George Lilly’s positions, most of which I agree with, I am very glad I had taken the time to make an informed choice. Now my choice was between the Ron Paul Republican and the Libertarian. Who should I choose?

Most things being equal, I decided to support Lilly. As a practical matter, the Republican Lilly would have a much better chance of unseating DeGette than the Libertarian Buchanan. I have not seen any polls regarding the District 1 race, but I suspect that in a district which seems to worship the ground Barack Obama walks on, DeGette will be difficult if not impossible to beat. If most of the libertarian vote goes to Buchanan, we’ll almost certainly re-elect a tax and spend Democrat to another term.

This is why I urge everyone to study each race before casting a vote***. Put emotions aside and “think the vote.” Though the electorate as a whole may fail the exam, we should each make the effort to pass individually.
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Just What Was The Administration Threatening Recalcitrant Representatives With? Martial Law?!?

I hope that Representative Sherman is the victim of a bad game of “telephone”. If he is not, if the administration really did threaten to impose martial law if the bill weren’t passed, then the time has come for us to cast out the vipers in Washington D.C.

Hat tip to The Crossed Pond and Dispatches from the Culture Wars

I am an anarcho-capitalist living just west of Boston Massachussetts. I am married, have two children, and am trying to start my own computer consulting company.

Happy Anti-Federalist Day!

So, today is Constitution Day, a day to celebrate the ratification of the Constitution. Aptly, then, I’ve been reading John Ferling’s A Leap In The Dark, a history of the American Revolutionary period beginning in the 1750’s and ending with the peaceful transfer of power to Jefferson in the 1800 election. Over the last few days, I’ve been through the chapters on the battle to create and ratify the Constitution.

The book, which I recommend heartily, gives a strong human feel to the Revolution. Contemporary high-school history classes teach the Revolution as if it were a foregone conclusion, a natural progression of the transgressions by King George III on the colonies. In reality, it was always in doubt, and divergent factions within the colonies could have scuttled the Revolution at any point between the Stamp Act in 1765 and Yorktown.

Enter figures such as Samuel Adams and Patrick Henry, two true radicals committed to independence. Adams in particular was masterful during the days of 1770-1773– a time with little new development from the Crown to cause popular outrage– when he worked to keep the situation simmering. His leadership in the Boston Tea Party directly forced the British hand into the Coercive Acts, likely the point of no return for both sides. Henry entered the national scene thereafter as a Virginian delegate to the First Continental Congress, and his alliance with Samuel & John Adams helped to win his fellow colonists towards independence rather than reconciliation.

The American Revolution was a truly incredible feat, both for having defeated the British and for having ushered in a society unlike any of those in old Europe. Gone were the days of imperial government, of a titular nobility, and of subservience to faraway central governments who could rule with a heavy hand over the individual colonies’ (now States’) matters. Under the Articles of Confederation, thirteen independent States worked to decide matters of importance to all, but with the ever-present assumption that each was– and ought to be– independent of the others.

But although commerce was booming, and the life of the average American in their respective States was improving, not all was well. The Congress (and several States) had racked up enormous debt to fight the war and were vulnerable to outside attack by the powers of Europe. The nature of a one-State-one-vote Confederation between northern mercantilists and southern agrarian planters allowed those European powers to divide-and-conquer to get what they wanted from our national policy.

Several people, such as Samuel Adams and Patrick Henry, recognized that the Articles of Confederation were not working and needed to be revised. They understood that the American States were in jeopardy and would have trouble banding together against regional invasion if a change was not made. They were not, however, looking for a new central government with widespread power.

Enter James Madison, and his ideological cohort, Alexander Hamilton. “The Father Of The American Constitution” was sent as a delegate from Virginia to revise the Articles of Confederation, but he had other designs in mind. He wanted a national, centralized, sovereign government that would supercede the States, binding them into a singular entity. The “United States of America”, per his plan, would be more aptly described as the “United State of America”. He found himself with many like-minded souls at the convention (such as Hamilton) to “amend” the Articles. They moved far beyond the proposed revision of the Articles, and a completely new Constitution was written.

The battles between the Federalists and Anti-Federalists was joined. The Federalists suggested that without a new Constitution, the States would become client-states of Europe, severely limited and unable to protect their own interests from the European monarch’s divide-and-conquer tactics. The Anti-Federalists, on the other hand, saw the birth of a new government that would have the same sort of arbitrary and remote power against which they had just fought a war of Independence. Hamilton wanted a European-style government, destruction or complete subservience of the States, and widespread national powers. Patrick Henry disagreed:

If we admit this Consolidated Government it will be because we like a great splendid one. Some way or other we must be a great and mighty empire; we must have an army, and a navy, and a number of things.

When the American spirit was in its youth, the language of America was different.

Liberty, Sir, was then the primary object. We are descended from a people whose Government was founded on liberty.

Our glorious forefathers of Great-Britain, made liberty the foundation of every thing. That country is become a great, mighty, and splendid nation; not because their Government is strong and energetic; but, Sir, because liberty is its direct end and foundation.

We drew the spirit of liberty from our British ancestors; by that spirit we have triumphed over every difficulty.

But now, Sir, the American spirit, assisted by the ropes and chains of consolidation, is about to convert this country to a powerful and mighty empire.

If you make the citizens of this country agree to become the subjects of one great consolidated empire of America, your Government will not have sufficient energy to keep them together.

Such a Government is incompatible with the genius of republicanism.

The Liberty Papers bills itself as written by the heirs of Patrick Henry. Each contributor to this blog, of course, would have to determine for himself how much that description applies, but it is rather clear that the end result of the American republic was Hamiltonian, not what Henry would have wanted.

Much like Frost’s The Road Not Taken, the American Revolution was driven by radical men, blazing the path less traveled. The ratification of the Constitution was the true point at which the more conservative “governmental” members of the movement regained control and put it down the path well worn.

Today is a day to officially cheer the Madisonian/Hamiltonian vision of a great American empire, a vision today fulfilled by men like John McCain and the Washington set. Instead, I suggest you pause and ask yourself whether the Splendid government those men have produced is worth it. Ask yourself whether you would rather follow the path of Samuel Adams and Patrick Henry, or of a man like Hamilton who worked tirelessly to enhance and increase the power of the central government. Today, I will be cheering the Anti-Federalists.

Do Strict Constructionists Wish to Bring Back Slavery?

The View seems to be an endless source of idiotic commentary, especially in the realm of politics. It appears that Whoopi picked up where Rosie left off when Sen. John McCain appeared on the show.

To have “a strict constructionist” philosophy means to return to slavery and other injustices of the era of the founding fathers? What Whoopi fails to understand (and what Sen. McCain failed to explain) is that the founders themselves knew that the Constitution as written was not perfect and would have to change over time via the amendment process:

Article V. – Amendment

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

On December 6, 1865, the Thirteenth Amendment abolished slavery:

1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

2. Congress shall have power to enforce this article by appropriate legislation.

A strict constructionist judge would, by definition, take Article V and the Thirteenth Amendment into account because a strict constructionist judge would rule on the current state of the Constitution; not as it was approved in convention on September 17, 1787.

Having said that, I do not believe that a President McCain would appoint strict constructionists any more than any other president has in recent memory. Anyone who could have authored the McCain-Feingold campaign finance reform bill, a law which undermines the very foundation of freedom of speech and expression, cannot be taken seriously as someone who respects and/or supports the Constitution. In the modern political parlance, the term “strict constructionist” has become a codeword* for someone who supports whatever the current so-called conservative agenda happens to be. If McCain were serious about appointing strict constructionists, he would appoint individuals who would find many of the Bush Administration’s policies, executive orders, signing statements and laws unconstitutional. Many of McCain’s own proposals would also necessarily be D.O.A.

But Whoopi need not worry: if McCain does become the next POTUS, she will not find herself picking cotton. Even by McCain’s definition of “strict constructionist.”

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Ron Paul’s Speech at the “Rally for the Republic”

Ron Paul spoke in front of a crowd of approximately 10,000 at the “Rally for the Republic” (AKA the “Ron Paul Convention”) across the river from the Republican National Convention.

Below are the first 3 parts of his speech, the full text of the speech can be read here.

Other speakers on the last day of the rally included Tucker Carlson, Lew Rockwell, Gov. Jesse Ventura (who hinted that he might make a presidential run in 2012), and Barry Goldwater Jr.

Libertarian presidential nominee Bob Barr was also in attendance at Ron Paul’s big show but Barr said he was not disappointed that Paul did not make an official endorsement of his campaign:

Barr, a former GOP congressman, told ABC News he respects Paul’s intent not to make an endorsement in the general election, and is “here today because there are thousands of people who believe we need to shrink the power, the size, the scope of the federal government.

“These are liberty-loving Americans, and those are my kind of people,” Barr exclaimed.

[…]

“We’re all in this together — we believe in the same things,” Barr said.

“Ron has chosen to work within the Republican Party, I’ve chosen to work through the Libertarian Party through the electoral route, but we all want the same thing,” he added.

http://www.campaignforliberty.com/

http://www.bobbarr2008.com/

Government Reefer Madness Update: Lynch Receives 100 Year Sentence

This is an update to a post I wrote in late June. Maybe its time to propose some sort of “fully informed jury” legislation and demand a return to federalism?

Government Reefer Madness

Its stories like these that make my blood boil. Here we have a young man who has found relief from serious pain with marijuana. I have yet to read a story where anyone has overdosed and died from smoking too much cannabis but for some reason, our federal government sees a need to prosecute those who dispense and use the drugs for medical and therapeutic purposes. The Republicans can talk all they want about how they are proponents of federalism but regrettably, their actions differ from their words when states like California decide a new direction when it comes to drugs.

What makes me even angrier is the thought that John McCain’s wife Cindy, was busted for stealing prescription pain killers (drugs many times more dangerous than marijuana, by the way) yet because she is married to John McCain, she gets a pass. One would think that Sen. McCain would be a little more sympathetic to those who seek relief from pain via marijuana or other means but the good senator seems to be content with the status quo double standard which currently exists. When asked if individuals such as Owen Beck should have access to medical marijuana, Sen. McCain “Just Said No!”

Steve Kubby

Despite these setbacks in what the federal government says that an individual can do with his or her body, there has been at least one recent victory on the medical marijuana front. Former 2008 Libertarian presidential candidate Steve Kubby recently wrote a post at Third Party Watch reporting that all the charges against him have been dropped and his record has been expunged.

Kubby writes:

Yes, you read that right, thanks to the incredible support of my fellow libertarians, I not only survived, I PREVAILED!

Because of those who cared enough to help me and my family, I survived an indictment for 19 criminal counts amounting to a minimum of 40 years to life in prison. That indictment was backed by a $10 million grant by the US government to put me, and the medical marijuana revolution, behind bars.

While Mr. Kubby’s fight appears to be over, the man who made it possible for Owen Beck to receive relief from his pain, Charlie Lynch, his fight is just beginning. Lynch is facing charges which could put him in prison for 100 years. And for what? Dispensing a product (marijuana) which California voters decided was acceptable for medicinal purposes?! Meanwhile, the average first degree murderer spends 20 years in prison in California.

This is madness. Foolish, disturbing, government reefer madness.

Barr: “I Was Wrong About the War on Drugs”

For those of you who are concerned about Bob Barr’s position on the war on (some) drugs, maybe this article Barr posted at The Huffington Post will help allay some of your concerns. I am among those who would like the congressman to speak out more forcefully on this subject as I have seen him miss opportunities to explain why libertarians oppose the war on (some) drugs.

Barr writes:

For years, I served as a federal prosecutor and member of the House of Representatives defending the federal pursuit of the drug prohibition.

Today, I can reflect on my efforts and see no progress in stopping the widespread use of drugs. I’ll even argue that America’s drug problem is larger today than it was when Richard Nixon first coined the phrase, “War on Drugs,” in 1972.

America’s drug problem is only compounded by the vast amounts of money directed at this ongoing battle. In 2005, more than $12 billion dollars was spent on federal drug enforcement efforts while another $30 billion was spent to incarcerate non-violent drug offenders.

The result of spending all of those taxpayer’s dollars? We now have a huge incarceration tab for non-violent drug offenders and, at most, a 30% interception rate of hard drugs. We are also now plagued with the meth labs that are popping up like poisonous mushrooms across the country.

Call me naive, but I think Mr. Barr gets it. The fact that Mr. Barr understands that so many tax dollars are being wasted on incarcerating non-violent drug offenders is evidence of this. According to the Bureau of Prisons, drug offenses account for 52.8% of all criminal offenses. How many of these are non-violent offenders and how many of the violent crimes would be dramatically reduced if drugs were legalized or decriminalized? With 1 in every 100 adults behind bars in the “land of the free,” America incarcerates more people than any country in the world. This needs to change.

However, because our government is divided into three separate branches, there is only so much a president could do in ending the war on (some) drugs. I can think of only three ways a Barr Administration could impact the war on (some) drugs at the federal level*:

1. Pardon all non-violent drug offenders en masse. This would have the effect of limiting law enforcement to going after violent drug offenders as any new offenders would be affected by the mass pardon. This is a question I asked Mr. Barr at the post debate press conference; you can listen to his answer here.

2. Veto any bill which funds the war on (some) drugs.

3. Direct the Justice Department, the DEA, and all other federal agencies not to enforce the existing federal drug laws. Not every law can be enforced; it’s the executive branch’s role to enforce the law. Rather than enforce unconstitutional, draconian drug laws the executive can direct all agencies to focus on keeping the American people safe from anyone who violates the individual’s rights of life, liberty, and property through force or fraud.

As Brad pointed out with some concern, Barr mentioned something about the “current” war on (some) drugs was a failure when he was a guest on the Colbert Report. Did Mr. Barr really mean the war on (some) drugs needs to be fought “smarter” rather than ended?

Barr continues using the tragedy of WWE wrestler Chris Benoit as an example of how a private organization can combat drug abuse without the help of government:

While it is clear the War on Drugs has been a failure, it is not enough to simply acknowledge that reality. We need to look for solutions that deal with the drug problem without costly and intrusive government agencies, and instead allow for private industry and organizations to put forward solutions that address the real problems.

[…]

In the wake of the tragedy, the head of the WWE, Vince McMahon, and its other leaders looked internally to recognize these problems and address them. Although in the two years before Benoit’s death, dozens of wrestlers had been suspended, gone to rehab, or been dismissed under the WWE’s recently adopted “Wellness Program,” the WWE strengthened its drug policy further, re-emphasizing that its policy wasn’t merely a document, but the internal laws of the company that would be enforced.

[…]

McMahon didn’t wait for Congress to pass a law or parade his wrestlers in front of congressional committee hearings; he took the lead and assumed responsibility over the health and welfare of the individuals who work for the WWE.

As part of the WWE Wellness Program, wrestlers go through regular drug testing and even cardiovascular testing. The latter identified a previously unknown heart condition for the wrestler “MVP” and he was treated for Wolff-Parkinson-White Syndrome. The government’s War on Drugs wouldn’t have done that.

This is one area where the government can and should combat drug abuse; not by locking people up but by allowing businesses and organizations to set their own policies. This means that an employer should have the ability to discriminate against anyone who they believe would harm his or her business (be it drug abuse, alcohol abuse, smoking, obesity, or whatever). Once again freedom is the answer to the drug problem (in this case, freedom of association).

I have only one major complaint with the Barr campaign remaining regarding the war on (some) drugs. I suspect that someone inside the Barr campaign is reading this. If so, please tell Mr. Barr to express these thoughts to the likes of Sean Hannity, Glen Beck, or anyone else on the Right that brings up the war on (some) drugs question.

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States Rights — Petty Oppression Better Than Widespread Oppression?

I’ve long said that I only support democracy so much as democracy improves individual rights. Likewise, I only support federalism and states rights so much as they improve individual rights. Federalism is a means, and liberty is an end.

And as this story shows, local government doesn’t always lead to more libertarian ends than we get from Washington:

BLACK JACK, MO (AP)
Another unmarried couple is being told by a suburban St. Louis town they’re not welcome.

A man, his girlfriend and her three children recently bought a house in Black Jack in north St. Louis County. But because Toi Pruitt and Joe Pulliam and the children don’t meet the town’s definition of a family, they couldn’t get an occupancy permit.

In 2006, Black Jack revised its definition of a family after initially refusing a permit for Fondray Loving, Olivia Shelltrack and their children. That family had filed a federal lawsuit.

The new ordinance allows unmarried couples as long as the children are related to both. None of the children are related to Pulliam.

The city attorney says he’s willing to fight for the ordinance in court.

To be fair, there are advantages to local power. It’s far easier to oust politicians on a local level, and it’s far easier to leave a locality that doesn’t respect your rights when it’s a city-sized rather than a nation-sized geographical area.

But it can often be harder to change laws like this in local areas, for two reasons. First, these types of infringements occur every day, and often go unnoticed by the media and even fellow townspeople. Because these issues don’t reach a level where the general public is aware, they don’t have the incentive to change the law. Second, simple bigotry may account for a town that democratically prefers to infringe upon the rights of unmarried couples to buy and occupy property. In that case, even if the majority of the town understands that a situation like this is occurring, they may not care.

Remember, “states rights” is but one tactic, that can sometimes lead to greater liberty when it is used in opposition to federal government infringement of rights. But it’s a double-edged sword. Your local government can infringe upon your rights and damage your life just as thoroughly as the federal government can, and it’s just as wrong. Liberty is the end, and we should not lose sight of this goal in our search for tactics that may improve it.

Hat Tip: Radley Balko

Interview with Libertarian Presidential Candidate Wayne Allyn Root

Liberty Papers: I’m here with Libertarian Presidential Candidate Wayne Allyn Root and Cornelius Swart of The Portland Sentinel

Portland Sentinel: Okay, so how did you feel about yesterday’s debate based on the rankings?

Root: I don’t think that really had anything to do with it. This is a very different crowd. The debate was not the same crowd as what’s going to be at tonight’s debate. That debate was all the more liberal candidates of the Libertarian Party.

I was the only candidate that is perceived as a conservative that had the chutzpah to show up and face down that crowd and I think they loved it. And I think I will be everyone’s second and third choice in that room. In matter of fact I know I’ll be lots of first choices, I got a whole bunch of tokens there but more importantly I have everybody’s second and third choices and that’s what’s going to win this nomination. No one’s going to win it on the first ballot.

Its going to be won more between the second and the sixth through eighth ballot. And I believe the likeability factor as a second or third choice of conservative Libertarian delegates will absolutely determine the final one. I’m very confident that I’m everybody’s second or third choice, because I’m friendly with everybody and I’m a good guy. And I think that’s very important. I know the issues, I’m the best communicator by far, I’m the best guy to put on national TV. I can put a positive face on this party’s vision and image.

I think everyone knows now for sure that I’m in no way, shape, or form [that I] am really the conservative candidate. I’m actually a moderate, mainstream, Libertarian who’s both right and left. I’m not threatening anyone to the left. I think before last night there were a lot of people who weren’t quite sure which camp I was in. Maybe they were worried I was in Bob Barr’s camp but its pretty obvious I’m not.

Portland Sentinel: How are you different from Bob Barr’s positions?

Root: Well, lets start with a different issue because, I’m not being a typical politician trying to dodge your question but I really mean this. It’s not issues that are going to determine the race. It’s going to be personality that determines the race. And that’s the most important thing you should look at besides the issues. I’m not saying the issues aren’t important but personality is 60% and issues are 40%.

Personality, the proof of that I’ll give you great examples from both the right and the left.

From the right: Barry Goldwater was the original founder of libertarian thought. Lot’s of the people in this party were disciples of Barry Goldwater in ’71 when this [Libertarian] party was founded. They based it on his philosophy. Now I know that there’s also Ayn Rand, Murry Rothbard, and it goes on and on, but the founders of this party, that circle were all Barry Goldwater disciples. Barry Goldwater was a great guy with a great message but he lost in a landslide. Sixteen years later Ronald Reagan took the same message and won in a landslide. Same message.

On the left: George McGovern had a liberal message and lost in a landslide. All these years later, who has the exact same message as George McGovern? Barack Obama, the most popular politician in America. He happens to be my college classmate, class of ‘83 at Columbia University. Barack has a great personality.

So whether you are from the left or the right you have to grudgingly admit it has nothing to do with the message it is the sales ability of the messenger. We are a nation that likes to hear positive message. Ronald Reagan would say things in a positive way and Barack Obama says a liberal message in the most positive way I have ever heard. Most liberals speak in a negative, angry, way. Barack Obama speaks in a happy positive way. He’s the Ronald Reagan of liberals and I’m the Ronald Reagan of libertarians. I did great at every part of the debate except when I brought up Reagan’s name. Mike Gravel went into a tirade about Reagan and blah, blah, blah.

He totally misrepresented my words! I went out of my way to say “I’m not talking about Ronald Reagan’s politics.” I’m not saying I defended what he did in office. I’m just saying that as a communicator, you have to grudgingly admit that the guy was fantastic and that’s the reason he won. It had nothing to do with his views, America liked him.

That’s my message. I can be the Ronald Reagan of this party. Not to say I agree with all of his politics, forget about the politics. Maybe I’ll want to change that for this crowd: I could be the Barack Obama of this party.

[Laughs]

Liberty Papers: But are your policies the same no matter what your crowd is?
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In Favor Of The Electoral College

Why do I like the electoral college?

Because living in California, these people aren’t canceling out my vote.

Remember, those of you who worship at the altar of democracy, these people are actually allowed to vote. Hannitized, every last one of them.

It’s about individual rights, people, not about democracy. The former is an end, the latter is a means. And that means– with voters like these– doesn’t always [or even usually] lead to increased freedom and individual rights.

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