What Were They Thinking?

We all suspect that the Founding Fathers were better-educated and/or wiser than ourselves, when it came to the history of governments, and the theories about how better to govern these Colonies. In examining the things they knew, leading up to the Declaration - and later, the Constitution - I came across this:

For if it [the unlawful act of government] reach no farther than some private men's cases, though they have a right to defend themselves ... yet the right to do so will not easily engage them in a contest ... it being as impossible for one or a few oppressed men to disturb the government where the body of the people do not think themselves concerned in it...

But if either these illegal acts have extended to the majority of the people, or if the mischief and oppression has light [struck] only on some few, but in such cases as the precedent and consequences seem to threaten all, and they are persuaded in their consciences that their laws, and with them, their estates, liberties, and lives are in danger, and perhaps their religion, too, how will they be hindered from resisting illegal force used against them, I cannot tell.

(John Locke, Second Essay Concerning Civil Government)

What he's saying is that a majority of the people are likely to revolt, just as our forebears did, when they perceive - as a majority - that they are threatened by government's action(s). The Founders certainly believed that the colonists, as a whole, were in jeopardy from British actions.

Now go read the headlines again; look at the Manhattan Declaration; see the list of complaints forwarded by Tea Partiers, and think again. Are we approaching such a time? Have we reached it? At what point is a consensus of "the majority" achieved? And who decides?

Discuss.

What Is The Constitution?

(A re-post, by request.)

by Orrin Hatch

On this day, [228] years ago, 12 state delegations approved the new Constitution of the United States and 39 of the 42 convention delegates signed it. They sent it to the states for ratification, the act that would make it the supreme law of the land. It is worth focusing on just what the Constitution actually is.

The Constitution opens by saying: “We the people . . . do ordain and establish this Constitution.” Nearly all Americans say the Constitution is very important to them and it requires that virtually all legislative, executive, and judicial officers, both state and federal, “shall be bound by oath or affirmation, to support this Constitution.” But what is this thing called the Constitution that the people established, that Americans say is so important, and that public officials swear to support?

The Constitution is the oldest written charter of government in use in the world today. Anyone who can read knows what the Constitution says. But words alone are just inkblots, and ordaining and establishing the Constitution was much more than simply putting some words on a page. Constitution Day would hardly be worth the name if it celebrated nothing more than a collection of words with no meaning. The Constitution we recognize today is more than an empty shell, it is more than what it says. The Constitution is what it means.

Think about judicial review, perhaps the most powerful thing that federal judges do in our system of self-government. In an appropriate case, judges must determine whether a statute is consistent with the Constitution. If they conflict, the Constitution wins. As Alexander Hamilton put it in The Federalist No.78, it is the duty of judges “to declare all acts contrary to the manifest tenor of the Constitution void.” But here we are back to the same question — what is “the Constitution” that judges use to conduct judicial review? What is “the Constitution” to which statutes must yield?

Charles Evans Hughes, who would later become Chief Justice of the Supreme Court, famously said about a century ago that the Constitution is “what the judges say it is.” Since judges cannot change the words of the Constitution, Hughes was really saying what today seems to be widely accepted, that the Constitution means whatever judges say it means. But if Hughes was right, then judges in effect become the Constitution and judicial review means that statutes must yield to judges.

But Hughes was wrong. The Constitution does not mean, it cannot mean, whatever judges say it means. If it does, then Hamilton’s reference to its “manifest tenor” makes no sense. A century before Hughes, Chief Justice John Marshall offered the opposite view in Marbury v. Madison, the case often credited with establishing judicial review. Marshall wrote that we have a written Constitution so that the limits on government power “may not be mistaken, or forgotten” and that the Constitution is “a rule for the government of courts, as well as of the legislature.” Judges are part of the government. If the Constitution means whatever government says it means, then government determines the limits on its own power. That would render the Constitution impotent and hardly worth the effort expended at the Constitutional Convention.

Marshall wrote that the Constitution represents “the intention of the people.” Intention is expressed through the meaning, not merely the form, of words. The Constitution cannot be the intention of the people if all the people did was choose some words without meaning. The Constitution could not continue to be the intention of the people if its meaning could be changed by anyone but the people. Quoting George Washington, the Rhode Island Constitution declares that “the constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all.” Empty words oblige no one. To be the Constitution, it must not only say what they said but it must mean what they meant.

The Constitution – its words and their meaning – was established by the people, can only be changed by the people, and is sacredly obligatory upon all of government, including judges. This is why the debate over judicial selection is really a debate over judicial power. It is a debate over whether the Constitution controls judges or judges control the Constitution, over what the Constitution really is, with nothing less than liberty itself at stake.

— Sen. Orrin G. Hatch is a former chairman of both the Senate Judiciary Committee and its Subcommittee on the Constitution.

The Cruz Crusade

The Cruz Crusade

 

By Alan Caruba

Back in May, in a commentary titled “Ted Cruz for President”, I took note of the reasons why he would be eligible to run for President in 2016, citing the opinions of legal scholars and others. The odds have just gone up that he will not only make a run for the office, but can win. He will have to do it, at this point, by overcoming the opposition of the elites in the Republican Party who have managed to lose the last two elections for that office.

I wrote, “As Solicitor General (for Texas), Cruz authored more than 80 U.S. Supreme Court briefs and argued before it 43 times, securing a number of landmark national victories defending U.S. sovereignty against the U.N. and the World Court, the Second Amendment, the constitutionality of the Texas Ten Commandments monument, the words ‘under God” in the Pledge of Allegiance, and other key decisions.”

In the early years of the American government, what was high on the list of priorities for the job of President was leadership. From Washington to Grant to Eisenhower, Americans voted for men who had demonstrated that quality in combat. They saw it in Ronald Reagan and they saw it in George W. Bush’s response to 9/11 and stuck with him when he took us to war in Iraq.

Ted Cruz, a freshman Senator, demonstrated that with extraordinary endurance as he gave voice to the many reasons the Affordable Care Act—Obamacare—is an attack on the lives and the livelihood of all Americans.

He has been attacked by the Republican establishment and even by some in the media you might consider friendly to his crusade in order to get Americans to understand how deleterious Obamacare is to our nation’s economy, to the free market—free enterprise system, to the relationship we take for granted with our personal physicians, and to the right to privacy that lies very much at the heart of our healthcare and political system.

I am not a legal scholar, but is obvious to me from my reading in American history that the Founders never envisioned that the Constitution would be misconstrued to say that the government has the right to tell us what we MUST PURCHASE and that, of course is what Obamacare does. When you take away the fundamental right to purchase or NOT purchase under penalty of a fine, you take away a fundamental freedom, you take away liberty.

Ted Cruz understands that and it is a wonder to me that everyone else does not understand it as well. It is true that the House of Representatives, controlled by the Republican Party, has passed a multitude of laws to repeal Obamacare. The most recent law would defund Obamacare while funding the government.

Because the Senate is controlled by Democrats, however, those laws die there. Indeed, the former greatest deliberative body in the world does not deliberate much anymore. It takes its marching offers from an offensive clique of men led by Harry Reid (D-NV). The widespread public rejection of Obamacare has a number of Democratic Party Senators, up for election soon, breaking with the Party to vote with Republicans on some bills.

Ted Cruz has given them a lesson in true leadership and in true courage.

A new generation of Americans is being required to learn the lessons of those first Americans who distrusted the tendency of power to become tyranny. In a book by Timothy Sandefur that will be published in January by the Cato Institute, “The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty”, he writes that “A government that enables a single tyrant or a powerful group of influential insiders to exploit power to benefit themselves would expose citizens to the same dangers of violence and oppression that would exist in a country ruled only by warlords and strongmen.”

We have been witnessing the tyrannical misuse of power by President Barack Obama through the instrument of Executive Orders, through the revision of the provisions of Obamacare that bypass the role of Congress, and, it can be argued, by the party-line vote that passed—unread—a 2,700 page act that has since ballooned to 27,000 pages of regulation, strangling and destroying one sixth of the nation’s economy, healthcare, as it destroys jobs and business growth in other sectors.

The reason the Tea Party movement came into being was a protest against Obamacare before it was enacted and resistance to it since. It is the Tea Party movement, as seen in those elected to office in the Senate and the House in 2010 that has been leading the fight to defund and repeal Obamacare.

Ted Cruz is leading a crusade that is composed of patriots.

© Alan Caruba, 2013

Thought for the Day

"The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce." ~ James Madison, father of the U.S. Constitution