It occurs to me that this raises a potential problem for two of the current crop of Republican candidates. Neither Huntsman nor Romney supports same-sex marriage. Both are Mormons. Surely at some point some curious voter will ask one or the other for his view of polygamy. Given that they are trying to get votes from people who regard polygamy as so obviously wicked that the mere possibility of legalizing it is a convincing argument against legalizing same-sex marriage, what are they to say?

It is true that the Church of Latter-Day Saints abandoned polygamy a century or so back. But it is also true that it was founded by polygamists, throughout its early history regarded polygamy as an important part of its religion, and abandoned it only under severe outside pressure, including military occupation by the U.S. army. Can a believing Mormon really hold that polygamy is not merely a bad idea at the moment but inherently evil? Can someone unwilling to say he believes that polygamy is evil win the Republican nomination?

I can see his point… But by changing a few words, you can make a completely different point:

It is true that the United States abandoned slavery a century and a half back. But it is also true that it was founded by slaveowners, throughout its early history regarded slavery as an important part of its national economy, and abandoned it only through the bloodiest war in the nation’s history, a war fought between the states for the very continuance of the union. Can someone calling themselves a “Classical Liberal” and claiming to represent the views of the Founding Fathers really hold that slavery is not merely a bad idea at the moment but inherently evil? Can someone unwilling to say he believes that slavery is evil win the Republican nomination?

Logically, I think we’re at the same place here (although, again, I consider slavery to be inherently evil but don’t consider polygamy/polyandry to be inherently evil — as long as only occurs with full consent of all parties).

As someone who would call myself a classical liberal, or libertarian, I don’t think there’s any particular difficulty maintaining that slavery is evil while still revering the work that the Founding Fathers did to create America. Slavery is an unfortunate blight on our history. It is an affront to the values affirmed in the Declaration of Independence. Slavery was a failure of the time, and while we can’t erase it from the record, classical liberals point to the outstanding positive contributions that the Founding Fathers made implementing the ideas of Constitutionally-limited government and the rule of law in solid practice. And the very nature of the system they put into place allowed for some of their mistakes such as slavery to be rectified by the 13th Amendment (sadly, it required a war and the deaths of hundreds of thousands of men in addition).

If we wanted to break it down, there are hundreds of things we could force politicians to answer for if we took the worst of their social associations and forced them to answer for it. We don’t ask Catholic candidates whether the history of the Crusades means they’ll engage in wars of religious oppression. We don’t ask Gingrich, a Southerner, whether he plans to re-institute Jim Crow. And we accept that classical liberals can be anti-slavery without hypocrisy. If anything, the problems that Mitt Romney may face is the fact that he follows a minority religion of relatively recent origin, so the folks who believe in long-established fairy tales are already prejudiced against him with distrust. So he may face the question that Friedman brings up, but such questions — contrary to David Friedman’s implication — are unfair.

Politicians have enough problems that we don’t need to invent “gotchas” like these to ensnare them. It may be valid to ask him whether he supported the efforts of his church to spend as much money as it did on the California Prop 8 ballot measure, as it is at least current, but bringing up long-disavowed sins committed by Mormons three generations ago is completely unnecessary.

A stand-up comedian I heard once said that prejudice is simply a sign of laziness, because if you take the time to get to know someone, they’ll give you hundreds of individual reasons to hate them. The same is true of politicians; they all stink, but each has their own distinctly distasteful odor to find offensive.

Clearly, we fall far short from having Bill of Rights that we adhere to and that was designed for our future posterity over 220 years ago. In the end, it is public opinion that most restrains political power — not words on paper, not judges, not politicians’ promises. A population that is not decidedly and passionately against violations of their liberties will see their rights stripped away. If we want to have a Bill of Rights Day worth celebrating, we must demand that officials at all levels respect our freedoms — and not let the government get away with abusing them.

Gregory is right: preserving the Bill of Rights ultimately rests with all of us.

In the first video below, Mark Kirk (R-IL) in his floor speech explains how Sections 1031 and 1032 violate the principles of the Bill of Rights by reading the applicable amendments. Sen. Kirk makes some geography based distinctions in determining whether U.S. citizens have due process rights (which I disagree with; geography should not matter) but otherwise does a great job of explaining to his fellow senators why keeping these sections in the bill is a terrible mistake.

Though he voted against the offending sections of the bill, Sen. Kirk ultimately voted with the majority in supporting the overall legislation.

Sen. Rand Paul (R-KY) on the other hand supported neither. Paul’s floor speech is equally compelling and perhaps even more chilling than that of Kirk’s. Could you find yourself an innocent victim of this bill? Do you have any missing fingers? Do you have more than a seven day supply of food? How many firearms do you own and if so what kind of ammunition do you use? Depending on your answers to these questions, it’s possible that you could find yourself detained, perhaps at Guantanamo Bay or elsewhere, indefinitely with very little legal recourse according to Sen. Paul.

Related Posts:

The Late David Nolan’s Indefinite Detention of U.S. Citizens Fears One Step Closer to Being Realized

Are You or Someone You Know a Victim of the Drone Mentality?

Nolan Exposes McCain’s Antipathy for Civil Liberties in Arizona Senate Debate

Quote of the Day: Americans Cheer the Assassination of the Fifth Amendment Edition

Obama: Judge, Jury, and Executioner in Chief

His spokesman Hogan Gidley emails me in response to Mark Miners comments: “Senator Santorum is certainly an advocate for states’ rights, but he believes as Abraham Lincoln – that states do not have the right to legalize moral wrongs. The Senator has been clear and consistent – and he believes that marriage is and can only be: between one man and one woman.”

Now, it’s easy to see where Santorum is coming from — the Lincoln-Douglas debates. Lincoln at the time was arguing, as so many libertarians argue, that there are some rights which are not to be voted on. Popular sovereignty can be good for making some decisions, but that in the case of slavery, it is used to uphold a moral wrong. Infringements upon rights granted by natural law cannot be justified by majority vote:

Lincoln’s strategy was to isolate Douglas’s doctrine of popular sovereignty from the national mainstream as a form of moral dereliction for its indifference to the corrupting effect of slavery in republican society. Douglas insisted that in his official capacity as a United States senator he did not care whether the people in a territory voted slavery up or down. Lincoln admonished: “Any man can say that who does not see anything wrong in slavery, but no man can logically say it who does see a wrong in it; because no man can logically say he don’t care whether a wrong is voted up or voted down.” Douglas argued that the people of a political community, like any individual, had a right to have slaves if they wanted them. Lincoln reasoned: “So they have if it is not a wrong. But if it is a wrong, he cannot say people have a right to do wrong.”

Lincoln and Douglas were coming from different first principles. In fact, the argument is not at all unlike modern arguments about abortion, a point I’ve made before. The question is not whether abortion should be allowed, the question is whether a fetus is inherently “person” enough to have natural rights. If it is, abortion is murder. If it is not, abortion is no different morally from removing a cancerous growth from one’s uterus. Yet both sides constantly talk past each other without acknowledging that they are working from wildly different first principles.

Abraham Lincoln, contrary to what Santorum suggests, is not suggesting that all men must be forcibly stopped by government from engaging in moral wrongs. He explicitly acknoledges the libertarian right of natural law — you can do what you wish with what is yours. You may self-govern; the nanny state is not there to stop you from acting within your personal domain. From his 1854 speech in Peoria, IL (same source link as above, italics original, bold added by me, and one sentence from the original speech inserted into the below passage for continuity):

The South claimed a right of equality with the North in opening national territory to the expansion of slavery. Rejecting the claim, Lincoln denounced slavery as a “monstrous injustice” and a direct contradiction of “the very principles of civil liberty” in the Declaration of Independence. Lincoln said that the right of republican self-government “lies at the foundation of the sense of justice,” both in political communities and in individuals. It meant that “each man should do precisely as he pleases with all that is exclusively his own.” Declared Lincoln: “The doctrine of self-government is right—absolutely and eternally right—but it has no just application” as attempted in the Nebraska Act. Spelling out the natural-law premises of his argument, Lincoln continued: “Or perhaps I should rather say that whether it has just application depends upon whether a negro is not or is a man. If he is not a man, why in that case, he who is a man may, as a matter of self-government, do just as he pleases with him. But if the negro is a man, is it not to that extent, a total destruction of self-government, to say that he too shall not govern himself? When the white man governs himself that is self-government; but when he governs himself, and also governs another man, that is more than self-government—that is despotism.” Recurring to the nation’s founding principles, Lincoln summarized: “If the negro is a man, why then my ancient faith teaches me that ‘all men are created equal’; and that there can be no more moral right in connection with one man’s making a slave of another.”

Note my bolded portion on self-government. It seems that Abraham Lincoln and Rick Santorum have some agreement that a state cannot legalize a moral wrong — they merely happen to have WILDLY different definitions of what constitutes a moral wrong.

Abraham Lincoln is following the traditions of natural law and natural rights. Each man is his own, and barring his attempts to coerce others to do his bidding, he should have freedom to operate as he sees fit. Slavery is an attempt to coerce others to do his bidding, and therefore it is an abhorrent moral wrong that has no place in a free society.

Rick Santorum is following a different tradition, one that states that man is NOT his own, and should forcibly be stopped from operating in his own domain if his actions violate no ones natural rights, but violate Santorum’s own sensibilities. If two members of the same sex, wholly consensually and within the bounds of their natural rights, want to engage in a right of contract such that they bound themselves together for all the legal purposes we generally associate with marriage, they must be barred from doing so. This consensual and voluntary action must not be permitted!

Abraham Lincoln says that the government must not condone the violation of one man’s natural rights by another, and that democracy is not an adequate justification for doing so. Rick Santorum says that government must be in the job of actively violating those natural rights, even if the people of a territory choose to vote to recognize those rights! Abraham Lincoln says that slavery is wrong because it takes away the right of self-government; Rick Santorum says that we must all be slaves of the state, because he doesn’t like what we choose to do with our freedom.

Abraham Lincoln decries a situation which denies the equality before the law of human beings; Rick Santorum claims the mantle of Abraham Lincoln while cheering laws that deny that equality! In doing so, Rick Santorum misses the irony: he’s replaying the Lincoln-Douglas debates in modern times, but he doesn’t realize that he’s taking Douglas’ side, not Lincoln’s.

“I would remind you that extremism in the defense of liberty is no vice! And let me remind you also that moderation in the pursuit of justice is no virtue!” – Barry Goldwater

Ron Paul’s supporters and detractors would probably agree that many of his positions are out of the main stream of modern political thought. By definition, this makes Ron Paul and those of like mind extremists.

Josh Harkinson, writing for Mother Jones has put together a list of what he considers “Ron Paul’s 15 Most Extreme Positions.” Among these “extreme” positions are “eviscerate entitlements” (such as Social Security, Medicare, and Medicaid), eliminating entire departments (ex: Education, Health and Human Services, Energy, etc.), “enable state extremism” (allow the states to determine issues like gay marriage and school prayer rather than address these issues at the federal level), end the war on (some) drugs, and Ron Paul’s statements against the Civil Rights Act and the Americans with Disabilities Act.

Josh Harkinson lists these positions and calls them “extreme” but does not make any arguments against these positions because these positions are already unpopular in his estimation (and indeed, many of these positions are unpopular). Harkinson, either consciously or not has resorted to what is referred to as the Ad Populum fallacy, otherwise known as “appeal to popularity.”

Ad Populum fallacy works like this:

1. Most people approve of X
2. Therefore, X is true

By calling someone an extremist or calling his/her positions extreme is at least a variation of this fallacy: “Most people disagree with Ron Paul on entitlements, therefore; Ron Paul is wrong.”

To be sure, most of the items on the list of 15 that I fully agree with, others that raise my eyebrows (ex: I haven’t investigated number 4 yet) and others that I disagree with* but whether or not each is an extreme has nothing to do with if I agree or not. Whether a position on an issue is extreme or not is entirely beside the point! Rather than calling a position extreme, it should be debated on its merits or lack thereof.

Popular opinion, especially in American politics, is a very fickle thing. Consider how much attitudes have changed over the history of the U.S. It was once considered perfectly okay for one human being to own another. To call for the abolition of slavery in one era was considered extreme, in another controversial, in yet another popular. Any person who would say today that the institution of slavery should be resurrected would now be called an extremist (among other things).

What does this change in popularity concerning slavery tell us about the morality of slavery? Was it a moral institution because it was accepted as part of the culture and perfectly legal but now immoral because most would say that slavery is one of the great shames in our nation’s history?

Of course not.

Slavery was as immoral when Thomas Jefferson owned slaves as it would be today. Popularity has no bearing on questions of right and wrong.

Obviously, there are many more examples of how popular opinion has shifted over time. These positions of Ron Paul’s that Josh Harkinson calls extreme today could become controversial (i.e. having nearly as much support as those who are opposed) or even mainstream in the future. This is likely a great fear of Harkinson and those of his ilk as it’s much easier to call Ron Paul, libertarians, or libertarian positions extreme than it is to confront them directly.

Yes, Ron Paul is an extremist but he is in some very good company. We can safely say that the founding fathers – the original tea partyers were the extremists of their day. They certainly couldn’t be described as mainstream. The words penned by Thomas Paine in Common Sense and later Thomas Jefferson in the Declaration of Independence were downright treasonous!

“You’re an extremist!”

My response: “Yeah, so? What’s your point?”

Actually, I consider being called an extremist a badge of honor; so much so that I have put a bumper sticker on my vehicle declaring myself as such (I bought the sticker below from LibertyStickers.com).

The day my views become mainstream will be the day I have to seriously reevaluate my views because I doubt they will be mainstream any time soon. But even though my views or those who promote them don’t win very often on Election Day doesn’t make my views wrong…just unpopular.

Hat Tip: The Agitator

*Ron Paul relies entirely too much on the states on civil liberties issues IMO. Rights ought not to be subject to a vote at any level of government

Here’s the thing: people with unscientific, irrational, and foolish ideas about evolution and global warming might still have something worthwhile to say about other topics. Take, as one example, Senator Tom Coburn. Coburn doesn’t believe in global warming. He also thinks that lesbian gangs were terrorizing Oklahoma’s school bathrooms. But he’s a been a vigorous critic of earmarks. He’s right to attack earmarks, and no less right because he’s a nut on other issues. If he’s the lone voice in the wilderness on earmarks, and we refuse to engage his criticisms because they’re coming from a lesbo-potty-phobic global warming denier, then we’re being lazy and cowardly. On the other hand, there are plenty of people, and groups, that believe firmly in evolution and global warming, but can’t be taken seriously as bastions of science or reliable political analysis. You won’t find much creationism or global warming denying at the Huffington Post, but you will find it to be a cesspool of junk science and assorted twittery.

Honest people — people who care about issues, and not crass group identities — ought to resist the strong human drive to construct rationalizations for ignoring competing viewpoints. “We can safely ignore and marginalize any blog where most of the authors or commenters don’t believe in evolution or global warming” is lazy tribalism, just as surely as “we can ignore any bloggers and blogs that don’t support Sarah Palin” or “we can ignore any bloggers or blogs that don’t oppose the War on Drugs.” It’s all a cheat, a form of shorthand — a quick way to separate, in our mind, people who belong from people who don’t. It may unclutter your RSS feed, but you’re not going to learn much that’s new, you’re not going to challenge yourself.

Personally, I’m quite skeptical of man-made global warming but like Popehat, I admit that I’m by no means a climatologist nor anything remotely close. He does make very good points here about writing someone off because they believe something kooky on one subject or even a assortment of subjects. There is always the temptation to ignore individuals like the “Truthers,” the “Birthers,” and “Creationists” – just to name a few. It’s quite defensible for me to tune someone out who goes into the whole “Obama is a secret Muslim hell bent on America’s destruction” nonsense if that is the topic of discussion but the same person might be quite rational and knowledgeable on other issues.

Also consider the founders of this country. Many of them either owned other human beings or defended the practice in the name of property rights even as they eloquently made the case for liberty. Thomas Jefferson, in The Declaration of Independence, scribed “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness” yet himself didn’t find it “self-evident” that owning slaves inconsistent with this philosophy.

Should Jefferson be condemned by historians for being a slave owner?

Absolutely!

Does this make his arguments or his founding brothers’ arguments any less valid?

I think not.

Part 1 deals with the philosophical foundations that came out of the Age of Enlightenment.

Part 2 explains the reasoning behind each of the ten amendments we call the Bill of Rights

As the narrator went through each of the amendments, I couldn’t help but think of the many instances where these very rights have been violated and continue to be violated by federal, state, and local governments throughout the country. For those of you who want to really know what we are about and the larger liberty/small government movement is all about, these are the very principles we are trying to restore. These are our guiding principles.

If ever you are perplexed by a position that we write about be it our opposition to the war on (some) drugs, opposition to conscription, support for sound money, support for the right to bear arms, opposition to ObamaCare, opposition to the so-called Patriot Act, etc. , you might find it helpful to refer back to these first principles.

I would like to encourage others to share these videos because I would like to see these videos go viral to remind our friends on the Left, the Right, and the middle about why these rights are so important and worth fighting for.

Related: The Philosophy of Life, Liberty, and Property Explained

What SHOULD we be talking about in the aftermath of the horrible shooting in Tucson? We should be praying for the complete recovery of Congresswoman Gabrielle Giffords. We should be expressing our sympathy of the families of the other victims. We should be discussing the irony of a little girl born on September 11, 2001 being killed in a senseless act of violence nine years later. There should be discussions on failures in our system that permits mentally deranged people access to weapons and political leaders. Discussion on security for our elected officials would also be appropriate. Though these items were included in the conversation over the weekend .. they all took a back seat to talk driven by the left and the ObamaMedia over the supposed role that evil right wingers, Sarah Palin and the Tea Parties in particular, played in this situation.

We all remember Rahm Emmanuel’s comment at the beginning of the Obama reign: “Never let a crisis go to waste.” We only need to change one word there. “Crisis” to “tragedy.”

The “ObamaMedia” as Boortz put it was very quick to blame “heated political rhetoric” and “hate speech” on the part of those of us who dare to criticize our government (though when Bush was president, criticizing the government was a very patriotic thing. I say it was and still is and always will be patriotic to criticize government). Somehow, when sick individuals take someone’s words and uses them as an excuse to commit violence, the person who said or wrote the words are somehow supposed to be “held responsible.”

What exactly does this mean? Are those on the Left suggesting that Sarah Palin should be held criminally liable for something she put on her PAC website? This reminds me about how metal groups in the late ‘80’s and early ‘90’s such as Judas Priest and Ozzy Osborne were blamed for their music influencing teenagers to commit suicide. I’m also reminded of when the role playing game “Dungeons & Dragons” was blamed for young people joining the Occult and even committing murder. As a teenager I listened to Judas Priest and Ozzy (and still do to this day) and played D&D and I can tell you that none of these things ever encouraged me to harm myself or others.

But in listening to the media, they seem to acknowledge that most individuals won’t respond violently to such messages; only a small minority of individuals would respond this way. If I am understanding correctly then, we should illuminate eliminate any rhetoric that might encourage an unstable person to respond violently even though most people are right thinking and reasonable.

So what might the MSM consider “overheated” because we need to know lest we be “responsible” for someone else’s actions. Might this be considered overheated:

“When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.”

Oh no, that’s a call to overthrow separate from the government and form a new independent government! Surely this is overheated rhetoric.

How about this:

“Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty, or give me death!”

Or maybe this:

“The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.”

These are all quotes from the founding fathers of this country (The Declaration of Independence, Patrick Henry, and Thomas Jefferson respectively). Merely reposting these words could reasonably inspire someone to take violent action against the government.

Perhaps I should apologize for reposting this as well as other content found on this site?

Well if this is what you are hoping for, hoping that we will “tone it down” at The Liberty Papers you will be very disappointed. I make no apologies for any content I or others have written on this site. We cannot nor will not be held responsible for any acts of violence that some might try to hold us responsible for.

We do not believe in initiating violence to further our political agenda. We all grieve for those who were harmed in this attack, hope that justice will be swift, and hope the perpetrator will be punished to the full extent of the law.

For anyone who would read this blog and believe that something we have written has inspired you to commit an act of violence, you clearly do not understand what we are all about.

With public attention focused on taxes, the deficit, gays in the military and nuclear arms reduction, little attention has been paid, so far, to the Tea Party’s most far-reaching move to remake American governance.

[...]

The proposal is sweeping, expressing with bold simplicity the view of the Tea Party and others that the federal government’s influence is far too broad. It would give state legislatures the power to veto any federal law or regulation if two-thirds of the legislatures approved.

The chances of the proposal becoming the Constitution’s 28th Amendment are exceedingly low. But it helps explain further the anger-fueled, myth-based politics of the populist new right. It also highlights the absence of a strong counterforce in American politics.

Well, so far, they haven’t strayed too far from the truth. Sure, they use the term “remake” where I would probably use “restore”, but the rest of the statement still stands. And, shock of shocks, the Times even gets the basic description of the Amendment right. But, alas, the truth quickly fades as the truthiness takes over.

What about those “anger-fueled, myth-based politics”? Well, the politics of limiting the Federal government are anger-filled, but this charge is leveled at us by the NYT to render our cause illegitimate. That’s where it rings false. We are angry because Washington is out of control. The list of abuses committed against freedom in the last twenty years needs no recitation here, but it culminated with a health-care reform law forced upon an American population that clearly and vociferously opposed it. Even today, job growth is stagnant in the face of a capricious and vengeful regulatory monster sitting on the banks of the Potomac ready to strike.

What about myth-based? The only things myth-based here is the notions of history held by the Times’ editorial board:

These flaws make the proposed amendment self-defeating, but they are far less significant than the mistaken vision of federalism on which it rests. Its foundation is that the United States defined in the Constitution are a set of decentralized sovereignties where personal responsibility, private property and a laissez-faire economy should reign. In this vision, the federal government is an intrusive parent.

The statement above is so ridiculous that any further ridicule from me would only distract you from its ridiculousness. I will, instead, only point out that if the New York Times’ editorial board not collectively slept through its eighth-grade civics classes, it would know that it just described the United States from its founding until the end of the Civil War.

Here, the NYT gets uncomfortably close to the truth, and so has to go scurrying back to the mythical founding of the United States it holds so dear:

The error that matters most here is about the Constitution’s history. America’s fundamental law holds competing elements, some constraining the national government, others energizing it. But the government the Constitution shaped was founded to create a sum greater than the parts, to promote economic development that would lift the fortunes of the American people.

The NYT board is deliberately ignoring the fact that the Barnett amendment, albeit crude, is a manifestation of the Founders’ belief that the States themselves should have representation in the Federal government. Before the 17th Amendment, it was the intent of the Constitution that the Senate represent the States, not the people (who were represented in the House). In reaction to the national trauma of the Civil War, the next half century featured a shift of power from the States to the Federal government.

The merits of the shift from a balance between the States and the Federal government to a dominant Federal government are open to debate, especially as we are seeing the faults of the dominant Federal government ever more clearly. However, the New York Times does not approach the issue from this reasonable position. Instead, they try to rewrite history to claim that it has always been this way.

This begs the question of why a once-august journalistic institution has devolved into a pathetic imitation of the Ministry of Truth. For that, we shall let the Times speak for itself:

In past economic crises, populist fervor has been for expanding the power of the national government to address America’s pressing needs. Pleas for making good the nation’s commitment to equality and welfare have been as loud as those for liberty. Now the many who are struggling have no progressive champion. The left have ceded the field to the Tea Party and, in doing so, allowed it to make history. It is building political power by selling the promise of a return to a mythic past.

This nation has always yearned for more government. Soon enough, they will be saying we have always been at war with Eastasia. Remember, the editorial board of the New York Times are siding with the government against you, and are making the truth a sacrificial lamb in the process.

But even as much as I have some major concerns about Ken Buck and dislike him personally, the Democrats are running some ads that I believe are lacking in historical context and misrepresent the founding principles of our constitution and our republic.

Here’s the first ad entitled “Different”:

This “radical” idea that the state governments would choose their senators instead of the voters is hardly a new idea conjured up by Ken Buck. If we accept the notion that Buck would “rewrite” the Constitution, he would merely be changing the way senators are selected back to the way the founders intended 223 years ago. It wasn’t until the 17th Amendment was passed in 1913 that senators were chosen by popular vote in each state. In fairness, the ad does mention that for “nearly 100 years” Colorado voters picked their senators. It seems to me that the Democrats are counting on the average historical ignorance of civics 101 of the average person to be outraged at such an “un-democratic” idea.

Now to the second ad entitled “Represent”:

The second ad repeats the “rewrite the Constitution” claim but goes even further “change the whole Constitution?” Repealing the 17th Amendment is hardly changing the whole Constitution.

And what about this scandalous idea that Ken Buck wouldn’t necessarily “represent” what Coloradans wanted and would “vote the way he wanted”? Is this really what we want – senators and representatives with no will of their own?

To the lady in the ad who says “If Ken Buck doesn’t want to listen to what we have to voice our opinion then why is he even running?” my response would be that if its up to each senator to poll his or her constituents on each and every issue, why do we even need senators at all? This is why we have elections. If your congress person or senator consistently acts contrary to your principles, vote for someone else on Election Day. If you have a problem with Ken Buck’s policy positions as I do, don’t vote for him.

Despite popular belief, our system of government is not a democracy but a republic based on the rule of law. The senate was designed to be a counter balance to the fickle whims of the majority of citizens. Prior to the 17th Amendment, senators were selected by state legislatures so that the states themselves would be represented at the federal level while the people were represented directly in the House of Representatives.

There are certainly some good arguments for repealing the 17th Amendment that I don’t believe are “radical” at all. For one, if the state legislatures picked the senators, perhaps there would be more reason to pay attention to government at the state level. How many people in 100 can name their senator and representative in their state legislature let alone have any idea about their voting records?

Also, because senators are chosen by popular vote, some argue that their loyalties are not so much with the states they are supposed to represent but the senate itself. As a result, its much easier for the federal government to blackmail the states via unfunded mandates and holding funds hostage if states pass laws the federal government disagrees with (ex: forcing all states to keep the drinking age at 21 in order to receive highway funding).

Certainly, the repealing the 17th Amendment wouldn’t be a panacea and there are probably some very persuasive arguments in supporting the 17th Amendment. No system of government is perfect even in its most ideal form.

The founders were keenly aware that majorities could be as tyrannical as any monarch or dictator. A more democratic government does not necessarily mean people have more liberty; the opposite is more likely the case.

This brings me to the question I want to pose to readers: what top 3 amendments would you make if you could and why?

Here are my top 3 in no particular order:

1. Rebalancing the Scales of Justice Amendment: The 4th 6th Amendment’s guarantee for the accused to have a court appointed [see comments below] lawyer is a wonderful idea but incomplete. Sure, the accused can be represented by a public defender but does not have nearly the resources available as the prosecution. My proposed amendment would go further than the 4th 6th Amendment and state that the accused would be guaranteed the same resources in his or her defense as the prosecution. For every tax dollar spent to prosecute a dollar would be made available for the defense (whether or not the accused uses a court appointed attorney). This amendment would also guarantee compensation for the wrongfully accused, hold prosecutors criminally and civilly responsible for withholding exculpatory evidence from the jury, and clearly state that a compelling claim of “actual innocence” (due to newly discovered evidence or technological breakthroughs) would be reason enough for a new trial for the previously convicted.

2. Term Limits Amendment: A single 6 year term for president, 2 terms for senators (keep the current 6 year term), 6 terms for representatives (keep the current 2 year term). These terms would be limited for consecutive terms only; if a president wants to make another run, s/he could do so after sitting out a term while senators and representatives would have to sit out a full 12 years (and make them deal with the consequences of their laws as private citizens for awhile) or run for a different office.

3. Accident of Birth Amendment: This would revise Article II, Section 1 removing the requirement that the president must be a natural born citizen and changing the requirement to match that of a U.S. senator. While this requirement might have made sense 223 years ago when the nation was getting started, we are now to a point to where we can do away with it. I don’t like the idea of disqualifying an individual for something s/he had absolutely no control over. Also, this would force the birthers to think about something else other than Obama’s birth certificate : )

Now it’s your turn.

Nullification is the civil disobedience of Federalism. Is it legal? No. After all, the Supremacy Clause and judicial review see to that. But it wasn’t legal for Rosa Parks to sit at the front of the bus, or for black students to sit at a “Whites-only” counter at Woolworth’s. Sometimes, the law is a ass. Sometimes, you need to disobey to make a point.

(…)

Viewed this way, nullification is less about disobedience as it is about changing policy. Nullification is a tactic in a wider strategy. It is a way to register unhappiness with federal dictates without necessarily going full-bore and threatening secession. Further, it is a way to demonstrate, by direct example, that changes in policy are preferable to the way Washington demands.

Taking this view of nullification, I don’t necessarily disagree with Brad on the value of state’s, and their citizens, weighing in on what they believe to be a usurpation of Federal power. After all, this is something that has a long and noble history in America. When President John Adams persuaded Congress to pass The Alien and Sedition Acts, Thomas Jefferson, who at that point was serving as Adams’s Vice-President, and James Madison worked together to draft and ensure the passage of the Kentucky and Virginia Resolutions, which were resolutions passed by the state legislatures of Virginia and Kentucky to condemn laws which Adams’s opponents viewed as both unconstitutional and near-dictatorial.

The resolutions — which you can read here, here, and here — are interesting in themselves because they contain one of the first post-ratifications statements by American leaders of what they believe the Constitution to mean, as this excerpt from the Kentucky Resolution of 1798 shows wonderfully:

2. Resolved, That the Constitution of the United States having delegated to Congress a power to punish treason, counterfeiting the securities and current coin of the United States, piracies and felonies committed on the high seas, and offences against the laws of nations, and no other crimes, whatsoever; and it being true, as a general principle, and one of the amendments to the Constitution having also declared, that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people,”—therefore, also, the same act of Congress, passed on the 14th day of July, 1798, and entitled “An Act in Addition to the Act entitled ‘An Act for the Punishment of certain Crimes against the United States;’” as also the act passed by them on the 27th day of June, 1798, entitled “An Act to punish Frauds committed on the Bank of the United States,” (and all other their acts which assume to create, define, or punish crimes other than those so enumerated in the Constitution,) are altogether void, and of no force; and that the power to create, define, and punish, such other crimes is reserved, and of right appertains, solely and exclusively, to the respective states, each within its own territory.

3. Resolved, That it is true, as a general principle, and is also expressly declared by one of the amendments to the Constitution, that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people;” and that, no power over the freedom of religion, freedom of speech, or freedom of the press, being delegated to the United States by the Constitution, nor prohibited by it to the States, all lawful powers respecting the same did of right remain, and were reserved to the states, or the people; that thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of speech, and of the press, may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use, should be tolerated rather than the use be destroyed; and thus also they guarded against all abridgment, by the United States, of the freedom of religious principles and exercises, and retained to themselves the right of protecting the same, as this, stated by a law passed on the general demand of its citizens, had already protected them from all human restraint or interference; and that, in addition to this general principle and express declaration, another and more special provision has been made by one of the amendments to the Constitution, which expressly declares, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press,” thereby guarding, in the same sentence, and under the same words, the freedom of religion, of speech, and of the press, insomuch that whatever violated either throws down the sanctuary which covers the others,—and that libels, falsehood, and defamation, equally with heresy and false religion, are withheld from the cognizance of federal tribunals. That therefore the act of Congress of the United States, passed on the 14th of July, 1798, entitled “An Act in Addition to the Act entitled ‘An Act for the Punishment of certain Crimes against the United States,’” which does abridge the freedom of the press, is not law, but is altogether void, and of no force.

That’s mighty strong language. Stronger, some would say, than the laws that a few states have passed since March challenging the Federal Government’s authority to require Americans to purchase health insurance. However, it’s worth noting what Madison and Jefferson were not doing, because as Madison acknowledged in his defense of the resolutions, there is no Constitutional authority granted to the states that would allow them to nullify a Federal law:

Nor can the declarations of either [the citizens or the legislature of Virginia], whether affirming or denying the constitutionality of measures of the Federal Government, or whether made before or after judicial decisions thereon, be deemed, in any point of view, an assumption of the office of the judge. The declarations, in such cases, are expressions of opinion, unaccompanied with any other effect than what they may produce on opinion, by exciting reflection. The expositions of the judiciary, on the other hand, are carried into immediate effect by force. The former may lead to a change in the legislative expression of the general will; possibly to a change in the opinion of the judiciary; the latter enforces the general will, whilst that will and that opinion continue unchanged.

And if there be no impropriety in declaring the unconstitutionality of proceedings in the Federal Government, where can be the impropriety of communicating the declaration to other states, and inviting their concurrence in a like declaration? What is allowable for one, must be allowable for all; and a free communication among the states, where the Constitution imposes no restraint, is as allowable among the state governments as among other public bodies or private citizens. This consideration derives a weight, that cannot be denied to it, from the relation of the state legislatures to the federal legislature, as the immediate constituents of one of its branches. . . .

Considering that this was written by a man who was both one of the principle authors of the Constitution and one of the authors of the Resolutions, it seems to me that it is fairly persuasive evidence that, whatever else the Tenth Amendment might mean, the Founders never intended to give the individual states the power to nullify state laws.

So, basically, that leaves “nullification” (and personally I don’t like the word because of it’s historical associations with secessionists and segregationists) in the category that Brad would put it; a method by which the citizens can, through their state legislatures and the Courts if necessary, petition Congress for a redress of grievances.

However, when nullification is discussed today, it isn’t the “civil disobedience” variety that Brad favors that’s being advocated. In his new book, Nullification: How to Resist Federal Tyranny in the 21st Century Thomas Woods essentially argues for a full-throated right on the part of the states to ignore Federal laws if they choose to do so:

Nullification is Thomas Jefferson’s idea, articulated most clearly in his Kentucky Resolutions of 1798, that if the federal government passes a law that reaches beyond the powers delegated by the states, the states should refuse to enforce it. Jefferson believed that if the federal government is allowed to hold a monopoly on determining what its powers are, we have no right to be surprised when it keeps discovering new ones. If they violate the Constitution, we are “duty bound to resist,” to quote James Madison’s Virginia Resolutions of 1798.

Now this is a vast simplification of the argument that Woods makes, you can get a better idea of what he means in this interview:

I have yet to read Woods’ book, and still want to, but it’s fairly clear that his argument suffers from the fact that there just isn’t any historical support for his idea that the Constitution grants states the right to essentially break Federal law by ignoring it if they believe that it is unconstitutional. Any reliance on the Virginia and Kentucky Resolutions, for example, is easily rebutted by Madison’s own admission that the Resolutions were expressions of opinion rather than something that had the force of law.

History after the Resolutions doesn’t really provide any support for Woods’ argument either. The most notable example came during the Nullification Crisis of 1832, when South Carolina purported to declare a Federal import tariff unconstitutional and took steps to prevent Federal agents from collecting tariffs on goods entering through the Port of Charleston. Though the matter was resolved, it set the nation down a road toward secession that resulted in the bloodiest war in American history. After the Supreme Court’s decision in Brown v. Board of Education, ten Southern states used the doctrine of nullification, and the related concept of interposition, to attempt to resist efforts desegregate school and refuse to enforce the Court’s decision. In Cooper v. Aaron, the Supreme Court held that such efforts were unconstitutional:

Article VI of the Constitution makes the Constitution the “supreme Law of the Land.” In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as “the fundamental and paramount law of the nation,” declared in the notable case of Marbury v. Madison, 1 Cranch 137, 177, that “It is emphatically the province and duty of the judicial department to say what the law is.” This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3, “to support this Constitution.” Chief Justice Taney, speaking for a unanimous Court in 1859, said that this requirement reflected the framers’ “anxiety to preserve it [the Constitution] in full force, in all its powers, and to guard against resistance to or evasion of its authority, on the part of a State . . . .” Ableman v. Booth, 21 How. 506, 524.

No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. Chief Justice Marshall spoke for a unanimous Court in saying that: “If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery . . . .” United States v. Peters, 5 Cranch 115, 136. A Governor who asserts a [358 U.S. 1, 19] power to nullify a federal court order is similarly restrained. If he had such power, said Chief Justice Hughes, in 1932, also for a unanimous Court, “it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases . . . .” Sterling v. Constantin, 287 U.S. 378, 397 -398.

In other words, if nullification of the type Woods advances actually existed, we would no longer live in a Federal system, but in something more closely resembling the Articles of Confederation. Since the Constitution was written to replace the Articles, it’s clear that the Founders never intended to give the states the power to decide for themselves what the Constitution means and to randomly choose to ignore Federal laws based on that interpretation. Therefore, Woods’ nullification is little more than a professorial fantasy.

In closing, I don’t necessarily object to the kind of “civil disobedience” nullification that Brad favors. Let’s just not pretend it has the force of law.

The business of the Town is still decaying, the taxes are not at all lessened, but continue very high — A great many of our industrious inhabitants are gone into the country, the burden now falls on a small number; and they less able to bear it than ever — This number is still decreasing; the rich complain of their rates, and some have moved and others are about moving into the country towns, where they are greatly eased. For my own part, I have a love for my native Town, but as my taxes are so large, I am resolved to move my family into the country.

That, of course, was June 1755, on a front-page letter to the Boston Gazette.

Today’s equivalent would be moving production of goods to low-cost business climates (Nevada, Tennessee, or offshore) rather than just a few towns away, but the economic laws are no different today than they were 255 years ago.

Quote from Samuel Adams: A Life by Ira Stoll [p.27].