Archive for the ‘Constitutional Rights’ Category

On Being American   1 comment

If you’re looking for a nationalistic post that celebrates the United States of America I hope to disappoint you.

I am an Alaskan raised by Americans, and I celebrate both the Declaration of Independence and the Constitution of the United States of America … circa 1830. But the United States of America today is a far cry from the the nation establish by the Founders. The Founders revolted against England for far less than modern Americans experience everyday.

Seriously, read the Declaration! For an eye-opening twist, read the list of grievances FIRST and then read the awe-inspiring opening. Go ahead. I’ll wait ….

You see what I mean? The federal government became King George a long time ago.

Yes, I’m kind of an anarchist. I see that our Founders did not establish a nation. They formed a cooperative body of individual states. I live in Alaska where almost every moment of our lives is dictated by faceless bureaucrats in DC at the behest of the folks who live in other states. This is no longer Jefferson’s America.

When did we decide it was a good idea for people living in Michigan to tell Alaskans how to live? Yeah, I know about the Civil War, but with all due respect, whether I can burn firewood to heat my home does not rise to the same level as whether I can own another human being. Slavery infringed upon human liberty. Burning firewood to heat my home infringes upon Conoco Phillips ability to make a profit.

Do we see the fundamental difference?

I’m only a passing anarchist. I believe individuals can govern themselves, but I think there needs to be some guidelines. Our Founders recognized this and that’s why they wrote the Articles of Confederation, which failed because it didn’t allow cooperation among the states and couldn’t be amended. Nothing engenders revolution like tyranny that cannot be changed.

Of course aren’t we there today?

In June, state delegates met quietly to discuss a convention of the states to propose amandments to the US Constitution. Thirty-four states have applied for a convention on the subject of a balanced budget. John Boehner is trying to figure out a way to deny it, but 33 states met to plan for it anyway.

I spent considerable time last year explaining how an amendments constitution is not a constitutional convention. I won’t revisit that. It”s a safety valve to prevent revolution when the federal government eats liberty. That”s why Boehner et all wants to weasel out of it.

He can’t ad he shouldn’t. We’re at a critical juncture for our country. If we do nothing, revolution will eventually result because Congress, the Executive branch and the Supreme Court all act as if we the people are subjects, not citizens. If we address this mess through this constitution safety valve, maybe we can restore liberty.

Or maybe not. We may be too far gone to return to our roots. That would be sad because the America of our Founders was a wonderful ideal and we could — and likely will — do a whole lot worse.

Another Good Day for Liberty at the SCOTUS   Leave a comment

Supreme Court Birth Control (2)

For the record, I’m a woman. I’ve been married nearly 30 years, I have two children spaced six years apart and my husband and I have sex regularly.

At no time in our 30 years together has our medical insurance covered contraception. For most of those years, our combined incomes have made us middle-middle class and during some of those years, we’ve been solidly lower-middle-class.

Yet, we somehow only have two children. The first one was born seven years after our marriage. The second one was born six years later. Both were planned. Yes, we use contraception to prevent pregnancy and yes, we pay for it ourselves. For the record, the contraception methods we’ve used do not permit conception and then chemically or mechanically abort a zygot (the beginnings of a human baby). We take responsibility for our own sexuality and for the children we produce through sharing that awesome experience with one another.

The world will not end of Hobby Lobby’s Christian owners are not required to pay for the abortificients of their sexually-careless employees. It won’t end if couples have to go on buying their own contraception. The birth rate won’t increase. Women will not be forced into domestic servitude. People will still be free to use contraception for the prevention of pregnancy.

All that’s happened is that the Supreme Court has recognized the right of people of faith to not participate in the murder of children. Now, if we can stop forcing me to pay for abortions through my federal income taxes ….

A Good Day for Liberty in Courts   Leave a comment

They get it right sometime

Supreme Court rules against Obama on recess appointments

Of course, it’s six years past and he’ll get to keep his unapproved appointments, so it really wasn’t a victory until the next president has to operate on the separation of powers.


New York Court Blocks Proposed Large Sugary Drink Ban

Nanny state takes a hit — probably not big enough to knock it out, but it looks good from here. If you don’t want to drink large sugary drinks, you don’t have to, but for those who do … ah, liberty!


High court strikes Massachusetts abortion “buffer zone”

The Supreme Court eliminates 35-foot rule, victory for anti-abortion activists. | M. Scott Mahaskey/POLITICOFree speech means speech that is free. And shouting from across the street is less effective than a quiet voice near to the door. Seems kind of strange that we have to have the Supreme Court explain what free speech is. Liberty, you know? The right to speak what’s on your mind even if others disagree so long as your speech does not result or advocate for the physical injury of someone.

Not a hard concept!


-Prosecutor Nullification vs. Jury Nullification   Leave a comment

The next time someone speaks up against jury nullification, ask their position on the FAR MORE COMMON prosecutor nullification.

via -Prosecutor Nullification vs. Jury Nullification.

The prosecutor is employed by the state. In Alaska, the judge is an appointed official subject to decadal voter retention — employed by the state. In many cases, the attorney is a public defender — employed by the state. In a trial, the only people who are not taking a paycheck from the same outfit that is prosecuted the defendant is the jury.

But the fact that most cases go to sentencing without ever being heard by a jury should concern us even more than that. An entire system conspires against the accused. We may think the public wants these laws that make certain activities criminal because our elected representatives enact the legislation, but that is not necessarily the case. If they knew that some of these laws would put their kids in jail for simple things like — for example — deciding to sleep in their car rather than drive home drunk — would they be that in favor of the law? But there’s no way to say it’s a bad law. Once it’s been enacted, good luck changing it, even if you know about it — until you get to the jury room and then you hold the power to nullify the law … assuming the case ever got to you.

Trimming SCOTUS Authority   Leave a comment

How in the world did we end up with a Supreme Court that can rule tyranny is constitutional?


  • Dred Scot
  • Plessy v. Ferguson
  • Affordable Care Act

Interestingly, the first two were later deemed unconstitutional by later courts, but we could have all have come to that conclusion easily enough without the SCOTUS telling us that. Clearly, keeping other human beings in slavery or in virtual slavery is unconstitutional.

So, since I’m throwing mud against a wall to see what sticks …

How about an Article V convention that proposes an amendment that requires that the Supreme Court base its decisions on the actual reading of the Constitution and their decisions can be overridden by state legislatures also operating on the actual reading of the Constitution?

What would be the outcome, do you think?

Amend Article V   Leave a comment

Yes, at the end of a series on amending the Constitution through a convention of the states to propose amendments, I am going to address changing the methods by which we amend the Constitution.

We have two methods. The only method that has ever been used is for two-thirds of each house of Congress to propose an amendment, which is then sent to the states for ratification.

The second method is for two-thirds of the states legislatures to call for a convention for the purpose of proposing an amendment (or amendments), which would again have to be ratified by the states. State legislatures have been taught to unnecessarily fear a “runaway convention” in which somehow same-sex marriage or repeal of the 2nd amendment becomes ratified.

The failure of the convention method to operate seemed like an unimportant matter when I first learned of it in college, but functionally it has given Congress a monopoly on all amendments. No amendment that Congress opposes, including necessary reforms of Congressional power, can be enacted if the states give all the power to reform Congressional power to Congress.

There have been a whole host of popular constitutional amendments that have gone nowhere in recent decades because of this monopoly on the power to amend the Constitution. Examples abound — balanced budget amendment, a line-item veto amendment, term limits, etc. — these might have been enacted if there had been a functioning alternative to the Congressional proposal method. That fact that one exists and we’ve thus far refused to use it doesn’t speak highly for the states as the guardians of liberty.

Cleaning up the wording in Article V so as to make it clear that this is not a constitutional convention but a convention for states to propose amendments would probably lay (some) those fears aside.

Of course, the successful exercise of an Article V convention would also do that. We fear what we have not done before.

Let’s do it!

Amendment Restoring Federalism   Leave a comment

The Founders feared concentrated powers and so created a federalist system.  Contrary to modern progressive spin, even the Federalists at the Constitutional Convention were not big government advocates (with the possible exception of Alexander Hamilton). They were federalists in that they believed the states, which formed the union, retained the strong position in the relationship and informed the “federated” government of its duties and obligations. That formulation of power — from states to DC and not the other way around — was the standard for about 80 years. We were not a nation, so much as a federation.

The term “federalism” has been demonized since the Civil War, relabeled “states’ rights” and usually forced to walk lock-step with slavery and the Confederacy. States’ right has been painted as evil and inherently abusive and anyone who questions that mindset is deemed “separatist”, “racist” or “unAmerican.”  The tactic has worked. The word “federalism” invokes passionate emotion in a day when so few Americans have any idea of the history of federalism or even of the Constitution.

Federalism is about states’ rights, yes! But it is also about individual rights. We are all, or could be, closer to our state and local governments than we are to the national government. Our Founders understood this and yet, for about a century, the federal government has increasingly sought to homogenize laws throughout all the states rather than allow for regional variations.

In 2011, the Supreme Court ruled unanimously in Bond v. United States that “by denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.”

And yet you need to look no further than the EPA regulations on “clean” air to see that the homogenization of laws throughout all the states violates the liberty of individuals living in Alaska. Ultimately, the federal overreach rests with an interpretation of the Constitution that our founders would not recognize.

The powers “reserved to the states” under the 10th amendment are functionally non-existent if the Constitution’s enumerated powers are infinitely capricious. The 10th amendment doesn’t tell us what powers belong to the states, but its message is clear — the federal government has limited and enumerated powers, the states have all the rest and the states are required to exercise vigilant enforcement to keep the federal government in its place.

Yet, in 1985, a 5-4 court ruled in Garcia v San Antonia Transit Authority that “state sovereign issues — are more properly protected by procedural safeguards inherent in the structure of the federal system than by judicially created limitations on federal power.”

In other words, the judiciary is unwilling to limit federal power so beg Congress to do it.

Does any of us really think Congress will limit the power of the federal bureaucracy? Mark Begich is my senator — he who advocated for a carbon tax that would give ultimate power over commerce.

Article V is the people’s means to force reform where reform is needed. The only other non-violent alternative to strengthening federalism is simply to emigrate to some other country and hope things will be better there. I think that has about as much chance of working out as Mark Begich representing the people of Alaska.

Amendment to Restore Commerce   Leave a comment

Randy Barnett, constitutional law professor at Georgetown University suggests a list of 10 proposed amendments to the United States Constitution that would constitutionally enshrine certain ideas based on states’ rights and free market libertarianism.

We’ve already looked at some of his proposed amendments. Restrictions on the Congressional power to tax, Congressional term limits, and the “repeal amendment” are examples.

Amendment 2 of his bill of federalism would limit the Commerce Clause, by overruling the current interpretation, making it clear that commercial activities that occur wholly within a state are not subject to Congressional legislation.

It would restore the original intent of the Commerce Clause and leave intrastate activity to be prohibited or regulated by the states, or be left completely free of any regulations as states may choose.

If the regulations of any state become too oppressive, it is much easier for citizens or businesses to move to a friendlier state than to leave the country.

The proposed amendment would expressly permit Congress the power to regulate interstate pollution and to address such national security matters as the possession of weapons of mass destruction.. It would also leave untouched the delegated powers of Congress to regulate wholly intrastate activities to enforce civil rights as authorized by the 13th, 14th, 15th and 19th amendments.

It only restricts the improper interpretation of the Commerce and Necessary-and-Proper clauses that have been applied to wholly intrastate activity.

It’s a great idea, but ….

Doesn’t the 10th amendment already make clear that the federal government may not stick its fingers into intrastate commerce? If they’re ignoring the 10th, how does adding another amendment make them any more likely to obey it?

Constitutional Tax Reform   Leave a comment

In November 2013, Congressman Jim Bridenstine introduced HJ Resolution 104 to repeal the 16th amendment. Bridenstine and his cosponsors, Ron DeSantis and Thomas Massie contend that the 4th amendment was negated by the 16th amendment. The 4th amendment acknowledges “the right of people to be secure in their persons, houses, paper, and effects, against unreasonable searches and seizures.”

Repealing the infamous amendment that created the national personal income tax is kind of a holy grail among conservatives. Even if you think repeal is unlikely, it still makes sense on principle. We can argue what should replace it … if anything … but the fact is that the 16th amendment shattered the Constitution, which required proportional taxation through the states, not an individual income tax that makes every income earning American a direct slave of the federal government.

The trio of Congressmen do not believe that abolishing the 16th Amendment would be a complicated process if their plan attracts the full support of the American people. House Joint Resolution 104 would eliminate the gift and estate taxes, taxes on investment earnings, and both personal and corporate income taxes. After the legislation gains approval there would be a two-year time period in which a new revenue system might be crafted.

The authors and supporters of House Joint Resolution 104 do not feel that knowing exactly how the 16th Amendment will be replaced has to be accomplished before repealing the amendment and abolishing the IRS. According to the Repeal 16 website, taking care of the “root problem” is the most important part of the equation. The website noted that before the 18th Amendment was repealed, ending the Volstead Act (prohibition), the federal government had not yet decided how to regulate alcohol.

“The 16th Amendment should be repealed, and the IRS should be eliminated. Viable alternative plans for raising revenue fairly to support constitutionally enumerated functions of the federal government have been proposed. As long as the 16th Amendment is in place and lobbyists dominate Washington, these alternatives will never be considered. The income tax code has become too complex for citizens to understand, and the annual time and expense required to comply with the income tax code has become intolerably burdensome.” Jim Bridenstine

According to the site “Repeal 16), The repeal and replace the Sixteenth Amendment approach is fairly simple, straightforward, and contains just three primary steps:

  • · Demand that every member of the House and Senate agree to co-sponsor the Repeal the 16th Amendment bill.
  • · Deliver that demand by writing, and emailing legislators, rallying friends, attending town-hall meetings.
  • · Engage in primary election activities against incumbents who choose to stand with the IRS and against we the people.

And, my own suggestion is, of course, for this to be a primary subject at an Article V convention of the states.

The immediate result of the repeal of the 16th amendment would be a return of the right of states to gather taxes in the way that they choose and to submit proportional payments to the federal government. How that would look would vary from state to state. If you’re okay with paying a state income tax, move to a state with an income tax. If you’re okay with paying a state sales tax, move to a state with a sales tax. If you would rather not pay taxes directly, you can advocate for your state to institute some other system. Alaska might just sell its natural gas to Japan and live off those proceeds, for example.

A secondary result would be to end revenue-sharing. That’s where the opposition would come in. But think about it! If the citizens of Alaska are no longer sending more than 1/3 of their income to the federal government, they might be willing to pay an income tax (or something else) to the state to receive tailored benefits that the citizens of individual states desire … or not, as the case may be. We do have the 13th largest oil reserve in the world, after all.

The federal government would still be funded, though likely at a substantially lower level. The jobs the federal government does now that are necessary (I’m willing to accept that there may be a few) can be done as effectively by state governments or … well, really, there’s a lot of stuff that can done by private industry and, if it is something people cannot live without, it will still exist, because people find a way to do what they cannot live without.

The major difference would be that the federal government would be beholden to the states for its funding, which would keep it in check … theoretically … if we remember what happens when we don’t keep our eye on it.

Repeal Amendment   Leave a comment

Randy Barnett, a constitutional legal scholar and professor at Georgetown University Law Center suggested we need a “repeal amendment” and a “Bill of Federalism” in order to return us to our constitutional roots.

The Repeal Amendment would give two-thirds of the states the power to repeal any federal law or regulation. Mark Levin’s book The Liberty Amendments offers this as well.

Such a proposed amendment would provide a targeted way to reverse particular congressional acts and administrative state regulations without relying on federal judges or permanently amending the text of the Constitution to correct a specific abuse.

The Repeal Amendment alone will not cure all the current problems with federal power. Getting two-thirds of state legislatures to agree on overturning a federal law will not be easy and will only happen if a law is highly unpopular.

Perhaps its most important effect will be deterring even further expansions of federal power. Suppose, for example, that Congress decides to nationalize private pension investments. Just as it must now contemplate a presidential veto, so too would Congress need to anticipate how states will react.

The Repeal Amendment would help restore the ability of states to protect the powers ‘reserved to the states’ noted in the 10th amendment. And it would provide citizens another political avenue to protect the ‘rights … retained by the people’ to which the Ninth Amendment refers. In short, the amendment provides a new political check on the threat to American liberties posed by a runaway federal government. And checking abuses of power is what the written Constitution is all about.

When I read it in Levin’s book, I felt it might cause undue confusion in the system, but maybe that was just his wording. Levin is a statist of the conservative stripe, so I’m always trying to figure out what new tangle of conservative red-tape he wants to promote now, but Barnett is a libertarian, so his reasoning is a bit more … well, reasonable.

The idea is to return states to the cats-bird seat where they were intended to be at the writing of the Constitution. It would allow states to strike down unconstitutional federal regulations and laws without requiring an amendment to the Constitution to address specific problems.

Remember what I said about the post-Civil War, the Progressive Era and Civil Rights amendments. These addressed specific issues through the Constitution, creating long-term unintended and negative consequences. The 18th amendment was recognized early as a bad idea and repealed through the 21st amendment, but it took 13 years. The 16th and 17th amendments have largely destroyed federalism by denying the states any substantive voice in Washington DC and that needs to be corrected.

Much that is wrong with our country today is the result of federal judges (who work for the federal government) interpreting the Constitution in ways it was never meant to be used. We can’t expect employees of the federal government to correct errors that benefit them and, yet, that is exactly what we’ve been doing.

Why are we surprised that it doesn’t work?

Something like the Repeal Amendment would provide the states with the means to push back against the federal government where it has overstepped its bounds without having to amend the Constitution every year. Such an apparatus could lead to the dismantling of much of the federal administrative state at the behest of the states as they take back the authority they wrongfully ceded to the federal government.


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