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“When the government fails to act neutrally toward the free exercise of religion, it tends to run into trouble.” Neil Gorsuch, Supreme Court justice

Gorsuch wrote a concuring opinion in Masterpiece Cakeshop v Colorado Civil Rights Commission and Justice Alito joined him.

Gorsuch stated that the decision hinged on the hostility of the Commission toward Phillips’ beliefs and on their failure to show that their “restriction on religion both serve(s) a compelling interest and (is) narrowly tailored” (Church of Lukumi Babalu Aye v Hialeah (1993)).

The Colorado Civil Rights Commission failed to “act neutrally toward Jack Phillips’ religious faith.” It allowed three other bakers to refuse a customer’s request that would have required them to violate their secular commitments, “yet it denied the same accommodations to Mr. Phillips when he refused a customer’s request that would have required him to violate his religious beliefs.” The Commission’s reasoning was the Phillips’ religious beliefs are “offensive”, in its judgement.

Gorsuch admits that he wrote this opinion mainly to address his two colleagues trying to suggest that the Commission could have acted neutrally toward Phillips’ faith when it treated him differently from the other bakers in a way consistent with the First Amendment.

“Respectfully, I do not see how we might rescue the Commission from its error.”

Mr. Jack argued that the cakes he requested reflected his religious beliefs and so the bakers could not refuse to make them just because they disagreed with his beliefs. The Commission ruled that the bakers didn’t refuse on the basis of his religious faith, but because his message was “offensive” to their own moral convictions.

How is that different from what Jack Phillips did when he refused to bake a wedding cake for a same-sex wedding? Phillips too offered to make other baked goods, including cakes, celebrating other occasions, but he would not design a wedding cake for a same-sex wedding regardless of the sexual orientation of the customer. He subsequently refused the request from the mother of one of the partners. The undisputed factual record shows that Phillips would not make a cake celebrating a same-sex marriage for a heterosexual customer and that he was no unwilling to sell other products to a homosexual customer.

“In both cases, the effect on the customer was the same: bikers refused service to persons who bore a statutorily protected trait (religious faith or sexual orientation). But in both cases, the bakers refused service intending only to honor a personal conviction. … the bakers knew their conduct promised the effect of leaving a customer in a protected class unserved. But there’s no indication the bakers actually intended to refuse service because of a customer’s protected characteristic. … all bakers explained without contradiction that they would not sell the requested cakes to anyone, while they would sell other cakes to members of the protected class (as well as anyone else).”

Gorsuch notes that Colorado law allows that “businesses are entitled to reject orders for any number of reasons, including because they deem a particular product requested by a customer to be “offensive”.  The Commission ignored that and judged Mr. Phillips’ intentions in denying service were “inextricably tied to the sexual orientation of the parties involved” and essentially “irrational.” But, somehow, the intentions of bakers in the Jack case were not “inextricably linked”.  The Commission presumed Mr. Phillips habored an intent to discriminate against a protected class in light of the foreseeable effects of his conduct, but it didn’t presume the same intention toward the bakers’ conduct in the Jack’s case.

“The Commission cannot have it both ways. [It] cannot slide up and down the mens rea scale, picking a mental status standard that suit its tastes depending on its sympathies. Either actual proof of intent to discriminate on the basis of membership in a protected class is required … or it is sufficient to “presume” such intent from the knowing failure to serve someone in a protected class.”

But no, the Commission appeared instead to condemn Mr. Phillips for “expressing just the kind of “irrational” or “offensive” message that the bakers in the Jack’s case refused to endorse.  You can agree with the Commission and consider Mr. Phillips’ beliefs to be irrational or offensive, or consider that he has misinterpreted the teachings of his faith. The Supreme Court has ruled same-sex marriage is a matter of constitutional right and various states have enacted laws that preclude discrimination on the basis of sextual orientation, but those bureaucratic judgments do not survive strict scrutiny under the First Amendment.

“In this country, the place of secular officials isn’t to sit in judgment of religious beliefs, but only to protect their free exercise. … Just as it it is the proudest boast of our free exercise of jurisprudence that we protect speech that we hate, it must be the proudest boast of our free exercise jurisprudence that we protect religious beliefs that we find offensive (Matal v Tam (2017); United States v Schwimmer (1929).”

Gorsuch goes on to say the Commission has tried to maneuver around its failure by claiming Jack asked for a cake with text while Craig and Mullins (the plaintives) sought a decorated cake and then has insisted that the Phillips’ case involved a wedding cake like any other, suggesting there’s no substantive difference between a wedding cake celebrating a heterosexual wedding versus a homosexual one. It’s all a means to deny the neutrality Jack Phillips was due under the law.

It’s irrational to argue that a cake with words conveys a message, but a cake without words does not. Wedding cakes are symbolic baked goods, signifying approval of a “specific system, idea (or) institution.” (West Virinia Bd of Ed v Barnette (1943). “That was precisely the approval Mr. Phillips intended to withhold in keeping with his religious faith.” In denying Mr. Phillips that choice while affording the bakers in Mr. Jack’s case the same choice, the Commission displayed a gross lack of neutrality. Gorsuch insists that the only reasonable course of action is both bakers to be treated the same. To some, all wedding cakes may appear indistinguishable, but to Mr. Phillips, that is not the case — his faith teaches him otherwise “and his religious beliefs are entitled to no less respectful treatment than the [other] bakers’ secular beliefs.”

Gorsuch further relies on the case of Smith, a Jehovah’s Witness who worked in a steel mill, accepting that the sheet steel he worked on might be used in munitions, but objecting to working directly on tanks. “The Court didn’t try to suggest that making steel is just making steel [or] that to offend his religion the steel needed to be of a particular kind or shape. Instead it recognized that Mr. Thomas alone was entitled to define the nature of his religious commitments … not a bureaucrat or judge ….”

Gorsuch confirmed that it is not appropriate for the US Supreme Court to tell Mr. Phillips that a wedding cake is just like any other without regard to the religious significance his faith may attach to it than it is for the Court to suggest that “for all persons sacramental break is just bread and a kippah is just a cap.”

That leaves only one way forward. The SCOTUS will reverse the judgment and hold the Commission’s order set aside. The Commission ought to think about this and use the SCOTUS reasoning in future cases to offer neutral reasons for their rulemaking. Gorsuch also stated that Phillips is entitled to judgment for the past six years facing unlawful civil charges.

Ouch! The State of Colorado may get hit in their pocketbook. And that might be what is necessary to make it clear that government cannot do these sorts of things to law-abiding citizens they happen to disagree with.

Part 4

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Found on Lew Rockwell

By Andrew Napolitano

The Ash Wednesday massacre at Marjory Stoneman Douglas High School in Parkland, Florida, seems to have broken more hearts than similar tragedies that preceded it. It was no more senseless than other American school shootings, but there is something about the innocence and bravery and eloquence of the youthful survivors that has touched the souls of Americans deeply.

After burying their dead, the survivors have mobilized into a mighty political force that loosely seeks more laws to regulate the right to keep and bear arms. The young people, traumatized and terrified with memories of unspeakable horror that will not fade, somehow think that a person bent on murder will obey gun laws.

Every time I watch these beautiful young people, I wince, because in their understandable sadness is the potential for madness — “madness” being defined as the passionate and stubborn refusal to accept reason. This often happens after tragedy. After watching the government railroad Abraham Lincoln’s killer’s conspirators — and even some folks who had nothing to do with the assassination — the poet Herman Melville wrote: “Beware the People weeping. When they bare the iron hand.”

It is nearly impossible to argue rationally with tears and pain, which is why we all need to take a step back from this tragedy before legally addressing its causes.

If you believe in an all-knowing, all-loving God as I do, then you accept the concept of natural rights. These are the claims and privileges that are attached to humanity as God’s gifts. If you do not accept the existence of a Supreme Being, you can still accept the concept of natural rights, as it is obvious that humans are the superior rational beings on earth. Our exercise of reason draws us all to the exercise of freedoms, and we can do this independent of the government. Stated differently, both the theist and the atheist can accept the concept of natural human rights.

Thomas Jefferson, who claimed to be neither theist nor atheist, wrote in the Declaration of Independence that all men are created equal and are “endowed by their Creator with certain unalienable Rights.” Such rights cannot be separated from us, as they are integral to our humanity. Foremost among our unalienable rights is the right to life — the right to be and to remain alive.

And that right implies the right to defend life — the right to self-defense. If I am about to assault you in the nose, you can duck, run away or punch me first. If I am about to strike your children, you can strike me first. If I am about to do either of those things with a gun, you can shoot me first, and no reasonable jury will convict you. In fact, no reasonable prosecutor will charge you.

The reason for all this is natural. It is natural to defend yourself — your life — and your children. The Framers recognized this right when they ratified the Second Amendment. They wrote it to ensure that all governments would respect the right to keep and bear arms as a natural extension of the right to self-defense.

In its two most recent interpretations of the right to self-defense, the Supreme Court characterized that right as “pre-political.” That means the right pre-existed the government. If it pre-existed the government, it must come from our human nature. I once asked Justice Antonin Scalia, the author of the majority’s opinion in the first of those cases, called the District of Columbia v. Heller, why he used the term “pre-political” instead of “natural.” He replied, “You and I know they mean the same thing, but ‘natural’ sounds too Catholic, and I am interpreting the Constitution, not Aquinas.”

With the Heller case, the court went on to characterize this pre-political right as an individual and personal one. It also recognized that the people who wrote the Second Amendment had just fought a war against a king and his army — a war that they surely would have lost had they not kept and carried arms that were equal to or better than what the British army had.

They didn’t write the Second Amendment to protect the right to shoot deer; they wrote it to protect the right to self-defense — whether against bad guys, crazy people or a tyrannical government bent on destroying personal liberty.

In Heller, the court also articulated that the right to use guns means the right to use guns that are at the same level of sophistication as the guns your potential adversary might have, whether that adversary be a bad guy, a crazy person or a soldier of a tyrannical government.

But even after Heller, governments have found ways to infringe on the right to self-defense. Government does not like competition. Essentially, government is the entity among us that monopolizes force. The more force it monopolizes the more power it has. So it has enacted, in the name of safety, the least safe places on earth — gun-free zones. The nightclub in Orlando, the government offices in San Bernardino, the schools in Columbine, Newtown and Parkland were all killing zones because the government prohibited guns there and the killers knew this.

We all need to face a painful fact of life: The police make mistakes like the rest of us and simply cannot be everywhere when we need them. When government fails to recognize this and it disarms us in selected zones, we become helpless before our enemies.

But it could be worse. One of my Fox News colleagues asked me on-air the other day: Suppose we confiscated all guns; wouldn’t that keep us safe? I replied that we’d need to start with the government’s guns. Oh, no, he said. He just meant confiscation among the civilian population. I replied that then we wouldn’t be a civilian population any longer. We’d be a nation of sheep.

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Found on Lew Rockwell

by Walter E. Williams

Hillary Clinton blamed the Electoral College for her stunning defeat in the 2016 presidential election in her latest memoirs, “What Happened?” Some have claimed that the Electoral College is one of the most dangerous institutions in American politics. Why? They say the Electoral College system, as opposed to a simple majority vote, distorts the one-person, one-vote principle of democracy because electoral votes are not distributed according to population.

To back up their claim, they point out that the Electoral College gives, for example, Wyoming citizens disproportionate weight in a presidential election. Put another way, Wyoming, a state with a population of about 600,000, has one member in the U.S. House of Representatives and two members in the U.S. Senate, which gives the citizens of Wyoming three electoral votes, or one electoral vote per 200,000 people. California, our most populous state, has more than 39 million people and 55 electoral votes, or approximately one vote per 715,000 people. Comparatively, individuals in Wyoming have nearly four times the power in the Electoral College as Californians.

Many people whine that using the Electoral College instead of the popular vote and majority rule is undemocratic. I’d say that they are absolutely right. Not deciding who will be the president by majority rule is not democracy. But the Founding Fathers went to great lengths to ensure that we were a republic and not a democracy. In fact, the word democracy does not appear in the Declaration of Independence, the U.S. Constitution or any other of our founding documents.

How about a few quotations expressed by the Founders about democracy? In Federalist Paper No. 10, James Madison wanted to prevent rule by majority faction, saying, “Measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.” John Adams warned in a letter, “Remember Democracy never lasts long. It soon wastes, exhausts and murders itself. There never was a Democracy Yet, that did not commit suicide.” Edmund Randolph said, “That in tracing these evils to their origin, every man had found it in the turbulence and follies of democracy.” Then-Chief Justice John Marshall observed, “Between a balanced republic and a democracy, the difference is like that between order and chaos.”

The Founders expressed contempt for the tyranny of majority rule, and throughout our Constitution, they placed impediments to that tyranny. Two houses of Congress pose one obstacle to majority rule. That is, 51 senators can block the wishes of 435 representatives and 49 senators. The president can veto the wishes of 535 members of Congress. It takes two-thirds of both houses of Congress to override a presidential veto. To change the Constitution requires not a majority but a two-thirds vote of both houses, and if an amendment is approved, it requires ratification by three-fourths of state legislatures. Finally, the Electoral College is yet another measure that thwarts majority rule. It makes sure that the highly populated states — today, mainly 12 on the East and West coasts, cannot run roughshod over the rest of the nation. That forces a presidential candidate to take into consideration the wishes of the other 38 states.

Those Americans obsessed with rule by popular majorities might want to get rid of the U.S. Senate, where states, regardless of population, have two senators. Should we change representation in the House of Representatives to a system of proportional representation and eliminate the guarantee that each state gets at least one representative? Currently, seven states with populations of 1 million or fewer have one representative, thus giving them disproportionate influence in Congress. While we’re at it, should we make all congressional acts be majority rule? When we’re finished with establishing majority rule in Congress, should we then move to change our court system, which requires unanimity in jury decisions, to a simple majority rule?

My question is: Is it ignorance of or contempt for our Constitution that fuels the movement to abolish the Electoral College?

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In President Trump’s not-State of the State address, he made a lot of promises. Some of them I agreed with and hope he accomplishes, but his “trillion dollar infrastructure bill” is a bad idea. Did we learn nothing from Obama’s multiple trillion-dollar stimuli bills that kept the economy dragging along at a blistering 1% growth every year of his eight years of ruin?

Nowadays, when a Congressional bill hits the modern president’s desk for an up-or-down vote, he typically asks, “How will this help my party gain votes?” and “What interest groups will this bring to my side?” There have been a couple of modern presidents who maybe paused to ask themselves, “Will this spending help the economy, or advance the nation’s interests?”

It probably surprises some, if not most people, to know that our first presidents approached spending bills very differently. The first question they usually asked was, “Is this spending constitutional?” If the answer was “yes,” they would then ask “Is it wise, will it benefit the nation, or will it gain votes?”

The early presidents viewed the Constitution as a binding document that separated the powers of government for a purpose. They argued (rightly) that tyranny, high taxes and government oppression can only be avoided if governmental power is decentralized. Thus Article 1, Section 8, of the Constitution restricted the power of Congress to spend taxpayer dollars to a limited number of items, mainly national defense.

Not surprisingly, then, early presidents adhered to the Constitution, even when it would have been politically expedient to do otherwise, James Madison was President in 1817 when Congress decided it was a good idea to spend fedral funds for internal improvements, such as the building and improving roads, canals, and waterways in the new nation. You can read the Constitution to discover that it does not grant Congress the authority to appropriate funds for roads and canals. If you read their extra-Constitutional writings, you will learn that the Founders recognized that improving highways was essential for economic development, but they believed that states or private companies should do the work. They didn’t think it was good government or just results when the people in Georgia could be taxed to build a canal in New York.

New York’s congressmen argued that federal funds could be used profitably in the national interest to build the Erie Canal. Since votes in the large state of New York were pivotal in many presidential elections, our early presidents had to decide whether to chase votes or follow the Constitution. Sometimes our presidents failed the test. I’m a great admirer of Thomas Jefferson, but as President he supported the construction of the National Road from Maryland to Illinois.

James Madison, who followed Jefferson as president, seemed to have supported the National Road, but he learned from the experience. He directly confronted the issue of federal aid for internal improvements in his next-to-last day as president. Congress passed what was labeled the Bonus Bill of 1817, which would have used federal funds to build roads and canals across the nation. Madison responded with a thundering veto:

“I am constrained by the insuperable difficulty I feel in reconciling the bill with the Constitution.”

Madison admitted the bill would probably help the country, but then he observed that “such a power is not expressly given by the Constitution . . . and can not be deduced from any part of it without an inadmissible latitude of construction and a reliance on insufficient precedents.”

The bill’s Congressional promoters argued that building roads and improving rivers at federal expense would “render more easy and less expensive the means and provisions for the common defense” to which Madison replied: “To refer the power in question to the clause ‘to provide for the common defense and general welfare would be contrary to the established and consistent rules of interpretation.” He added:

Such a view of the Constitution would have the effect of giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them, the terms ‘common defense and general welfare’ embracing every object and act within the purview of a legislative trust.

Madison concluded that twisting the General Welfare clause in this way “would have the effect of subjecting both the Constitution and the laws of the several States in all cases not specifically exempted to be superseded by laws of Congress.”

Remember, Madison was a chief architect of the U.S. Constitution. At the convention in Philadelphia in 1787, Madison sat in front of the presiding officer. He never missed an important speech, and he took copious notes on the proceedings. When he said that the General Welfare clause cannot be used to give Congress “a general power of legislation instead of the defined and limited one,” he was echoing the original intent of the Founders.

Congress might still have been surprised by Madison’s veto because earlier he had conceded that “establishing throughout our country the roads and canals . . . can best be executed under the national authority. No objects within the circle of political economy so richly repay the expense bestowed upon them.” Despite saying that, Madison’s veto response here shows he believed that the country was better off following the Constitution rather than twisting its meaning to secure more rapid economic growth. If we want federal road-building, the Constitution provides a means to amend it so as to permit such activities.

Madison’s principled veto of the Bonus Bill of 1817 set a precedent that lasted for generations. The Erie Canal never received federal funds, though it was still built by commercial interests and the State of New York. Despite this precedent, Congress tested the resolve of President Andrew Jackson with the Maysville Road Bill in 1830, which would have used federal funds to build a turnpike in Kentucky.

Jackson scrupulously followed Madison’s lead and vetoed the bill, arguing that the proposed turnpike might be economically sound, but if the country used federal funds to build a turnpike in Kentucky, “there can be no local interest that may not with equal propriety be denominated national.” He echoed Madison by adding, “A disregard of this distinction would of necessity lead to the subversion of the federal system.”

Madison and Jackson were also following George Washington’s advice in his Farewell Address. “[Avoid] the accumulation of debt, not only by shunning occasions of expense, but by vigorous exertions in time of peace to discharge the debts which unavoidable wars have occasioned, not ungenerously throwing upon posterity the burthen which we ourselves ought to bear.”

It took the United States government until Jackson’s presidency to fulfill Washington’s request and retire all its national debt. Jackson argued the new annual surpluses reflected the frugality exemplified by refusing to use federal funds for internal improvements. The government raised a small amount of revenue each year through tariffs, the sale of land, and excise taxes, especially on whiskey, but following the Constitution, the nation had limited spending, mainly for national defense—two wars with Britain and occasional frontier skirmish with Indians.

Explaining his veto of the Maysville Road, Jackson observed that on “the national debt we may look with confidence to its entire extinguishment in the short period of four years.” We were a nation “free from debt and with all her immense resources unfettered! What a salutary influence would not such an exhibition [of restraint] exercise upon the cause of liberal principles and free government throughout the world!”

James Madison, who lived to see the national debt retired, could point to his veto of the Bonus Bill as crucial in this achievement.

So here we are with $21 trillion in debt (each citizen owes more than $60,000) and our President wants to add another ONE TRILLION in debt. And it will be debt, because the economy is not producing enough to generate that sort of funding. It President Trump truly wants to different from other modern presidents, he should look back at the Founding generation presidents and commit to reducing the debt and freeing the market economy so that it can improve infrastructure. Government is the problem, not the solution. Get out of the economy’s way and the economy will handle it … just as it did back when the need was the Erie Canal.

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At this writing, it appears that the Electoral College has settled the matter in favor of the Constitution and Donald Trump will be the president … like it or not.

This entire electoral incident should warn us on just how insane the American elite has become. Presumably, they have access to the same Constitution that I have access to, so why is it that they seem unable to understand this very simple truth?

There has never been a national popular election for United State President. The Constitution provides for the states to elect the President and allows for states to decide what procedures to follow to do that. Theoretically, they could vary the procedures from state to state, but that isn’t the reality. Since 1836, the states have held statewide popular elections for President. Three states allow votes to be counted proportionally. The rest apportion electors according to the winnter of the statewide popular election. Additionally, 30 states require electors to vote with their statewide popular election. The media (and I suspect the public schools since I graduated) has put forth this fantasy of the national popular election, but it is a fantasy. It doesn’t exist. In fact, states should probably just stop giving their vote totals to the media until after the Electoral College meets. This might help with some people’s Electoral Delusional Complex.

On November 8, 2016, the voters in 51 states held popular elections (in accordance with the Constitution) and Donald Trump won 30 of those states. Hillary Clinton lost in a landslide. He may not be the best president we could have gotten. It’s entirely possibly he will not do what needs to be done. I suspect he’s better than Hillary would have been, but I don’t think that’s saying a whole lot. But he won the election and it’s time to move on.

BUT …

 

American elites are working to create a constitutional crisis as I write this, building up an immense head of steam that the Electoral College did not defuse.

Why? Because the Russians allegedly “intervened” in a US election. How did they do that?

They revealed the truth.

Yeah … shocking, right? How dare they!

But … wait … they told the truth and America’s elite overlords are upset about that?

 

Hmmm … maybe that tells us something about the elites that we really ought to pay more attention to.

The leaked emails were true and the truth they revealed ought to be huge news, talked about around every dinner table in America. Instead, the elites are trying to distract us with the revelation that RUSSIANS may have “interfered” with the election.

The inference is that the Russians did more than just reveal the truth at the worst possible time in the campaign for Hillary Clinton. I know people who are absolutely convinced that the Russians hacked the voting machines … even though that would be virtually impossible in 51 separate statewide elections, especially since some states use different systems at the district level … resulting in hundreds of different systems that would all need to be hacked. Yeah … can you say “Conspiracy Theory”?

But, truthfully, they are mostly upset that the American people learned the truth about Hillary Clinton from her own camp and then voted based on that truth.

 

I didn’t vote for Donald Trump or Hillary Clinton. My decision was made months before the emails confirmed what I already knew, that Hillary Clinton is a lying warmonger who hates ordinary American people. But, for half a second in the voting booth, I almost filled in the oval for Donald Trump because I feared Hillary Clinton might win. Why was I more worried about it than I had been since March? I’d read those emails. I suspect a lot of people who read those emails filled in ovals for Donald Trump … because they had seen the truth about Hillary Clinton and they were voting against her and all that she stands for.

Democracy is supposed to be about allowing the people to self-govern through the ballot box. This time around, we rejected a candidate who had revealed herself to be an elitist snob, warmongering liar and enough of us embraced a candidate some of us don’t like. When it was Barack Obama and Mitt Romney in 2012 there was no call to set aside the election results. Why? Because everybody … even the losers … accepted that the US system works and doesn’t need to be “fixed”, but also because most people recognized that Romney’s “49% of the electorate” comment was him opening his mouth to insert his foot by revealing himself to be an elite. So, why is it different now with Hillary?

 

I suspect a lot of Hillary supporters have refused to read the emails. Maybe none of our elites have read them. I did … well, a sizeable chunk of them. They were … damaging. If I’d liked Hillary before, I probably wouldn’t have liked her after reading them. And, I know people who did change their votes after reading them. The emails, because they were truth revealed, had that effect. Yet, the entire elite class, including nearly all major media, doesn’t seem to have read them. Or maybe they didn’t have that effect on them because they already knew that was the prevalent Democratic attitude toward the American people.

So, to my point of view, the Russians did us a favor by revealing the truth. They didn’t tell us their version of the truth. They released elitist emails that revealed the truth about the elites in their own words. So much more damaging than if the Russians had concocted lies.

 

Thos emails are a massive condemnation of American governance, especially in the Obama administration. The voters, now thusly informed, voted in their own better interests to pivot away from DC elites. I still doubt that Trump will “drain the swamp” or “make America great”, but I don’t fault my fellow voters for voting against Hillary. That is how democracy works … like it or not.

The Russians didn’t “interfere” with the election by enlightening the electorate with actual truth. Would we be having this conversation if the New York Times had released the information? I doubt it. We’d be excited to see real journalism back from the dark maze it has been wandering in. Can someone please lower a lantern into that sewer? Really, it would be wonderful to see the return of real journalism.

If you want to know what interference in an election looks like, go back and review what the elites have done to forestall the inaugaration of the people’s choice for President. Remember the riots? Remember the calls for Electoral College electors to disenfranchise the voters of their states and vote for Hillary? Do you hear the continued calls for Congress to step in and overrule the EC?

Yeah, THAT is interference in an election and you don’t have to love Donald Trump to recognize it.

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I hate Twitter debates because you really can’t say what you need to say in 140 characters. So, in lieu of that, I’m explaining it here, where I can make a reasoned, well-rounded point.

The Constitution was created by people who (mostly) saw themselves as citizens of their state of residence. Virginians didn’t see themselves as Americans. They saw themselves as Virginians. John Adams called Massachusetts his “country”. If you read the extra-Constitutional writers of the various Framers, you discover that almost all of them thought they were forming a federation similar to the Articles of Confederation with just a slightly stronger federal government. They expected the federal government to be subordinate to the states, not the other way around.

So they set up the Constitution to reflect that attitude on many levels. One of those points where they did this is elections for presidents. Popular elections were not popular in 1789. The technology wasn’t really up to it, but more than that, our Founders feared the “tyranny of the majority” — low-information voters who would vote according to promises by politicians scared the heck out of them. States were supposed to choose their own electors for the Electoral College which selects the President. Back then, it was mostly done by state legislatures. Today, it is mostly done by popular election. Although the media makes a big deal out of the NATIONAL popular vote, that is really an unConstitutional process. More than that, it doesn’t reflect actual reality.

Instead of a national election for the presidency, we have 51 statewide elections. Each state gets to make its own decision on how to choose electors, but for more than a century, most states have used the popular vote within their state to choose the electors from that state. 30+ states have laws that require electors to vote in accordance with the popular vote within their state.

Sadly, most states have no real teeth to this law, which emboldens people who are unhappy with the current outcomes of the 51 popular elections to try and convince electors to simply ignore the popular vote within their state and vote however they want. By this, they mean “vote our way”.

By the way, this has happened before approximately 157 times, but no faithless elector has ever swung the election result. Most states have simply replaced the elector with someone who understood what state they hail from.

So, maybe it will happen this time … but, I doubt it because the states in which Trump won the popular vote will simply nullify their faithless electors’ votes. It will also probably cause them to strengthen the costs to electors who actually violate their charge from the popular vote of their state.

I know that’s hard for people to hear who are on the losing side of an electoral contest, who believe they have a right to have their preferred candidate in the White House because they won the “national popular vote”. But there is no national popular vote as the Constitution stands. There are 51 statewide popular votes. And Trump clearly won those elections.

 

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The overwhelming message I got from progressives over the last eight years was that they had gained the upper hand in technology, economics, culture, and morality and that anyone who disagreed with them should just accept defeat and subjugation under the new majoritarian rule. Which, as one who considers herself a minority of one, pissed me off.

Which is why, even though I didn’t vote for Donald Trump, I was pleased to see the major upset of the political and media establishment. Pride goes before a fall. The prideful elites failed to notice that Barack Obama won with only a margin of 3% (2008) and 1.3% (2012), and thus came to believe they had a mandate to rule and influence the people by virtue of this supposed superiority, but were proven to be wrong by the very people they thought were too dumb to challenge them.

Make no mistake, Trump mostly is operating in inarticulate babble, but I am fine with that ultimately pushing out the refined propaganda techniques of the elites. Rather than pretending to be one of them, Trump cast himself as an everyman who cared about “the people” far more than the system and that resonated with “the people” who the system had disenfranchised for the last 30 years.

Do I have reservations about his agenda? Oh, yeah! But I applaud the elites being stripped of their pride and made to walk humbly for a while. You can see the new pecking order in how the Democrats are throwing rocks through windows and whining incessantly while Republicans are falling all over themselves to be let into Trump’s administration. A lot of stuck-up politicos got their arrogance handed to them November 8 … and that was a very good thing. Well worth the risks of a Trump presidency. It could hardly be worse than the Obama presidency.

Unfortunately, I don’t think our political class is the only group who is arrogant and in need of a trip down the stairs.

Americans pay lip-service to individual liberty, the cornerstone of our republic. Most of us haven’t got a clue what liberty means and they equate “defending” liberty with sending young men and women overseas to fight in wars against people who have no intentions of attacking us. How long can American remain exceptional if we only presume ourselves free and morally superior while demanding the government act in ways that are contrary to the nation’s founding ideals?

How can any president or Congress claim a mandate to rule when they disrespect the purpose of American government, which is to protect individual liberty?

There is belief among some quarters that the human race cannot be trusted with their freedom. We’re all of us, except the elite (of course), toddlers running with scissors. To protect us from ourselves, the elites seek to subjugate this nation that is so proud of its liberty. But how to go about it?

Force would probably fail. Once a people has tasted liberty, you can’t put the genie back in the bottle. The people tend to be willing to die to keep it … thus, the American Revolution. Resistance to overt suppression would spontaneous and organic. Such a program would create multitudes of martyrs and scores of new enemies devoted to ending the tyranny. Victory wouldn’t secure the peace, either, as such a government’s legitimacy would hang by a thread. Not even tyrants wish to live in fear of being deposed. They want peace too.

So, instead of utilizing conspicuous violence, suppose a group of would-be dictators found a way to trick a free people into lulling themselves into tyranny. In the name of freedom, they convinced a people to forsake their freedom and nudged them into a suicide pact on the promising of a better nation.

How would you do that? Well, first you would need to confuse people into thinking liberty is as simple as sharing in the promises of power. Convince them their right to vote and dictate the lives of others is more important than their individual right to think, speak, and act freely. Stand back and watch their lust for power make them regard liberty with fear. To add some more weight to the argument, suggest liberty is just another idea among many that must be balanced or even sacrifices for the sake of security, wealth, health, equality, or national greatness. Create some songs and pledges to play in the public schools so that children grow up believing it. Tell them stories, some mostly real with others made of whole-cloth, that teach these ideals. Be patient. Remember Rome wasn’t built in a day and neither is majoritarian tyranny.

I’m presenting a hypothetical that is really a creeping reality. Most of the American electorate has reached the point of fear of liberty. They’re certain that if people were free to do so, they would choose to live in a Mad Max universe. Thus, they trust that the promises of power can save them from the scary things of this world. They are willing to trade their liberty and trample on the liberty of others for the sake of security … or even just keeping the opposition party out of power.

Don’t believe me. Slightly more than 50% of the electorate voted for Hillary Clinton because they apparently liked that she wanted to involve the American military in more wars around the world … tie up their neighbors in more red-tape … called a large percentage of the other half of the electorate deplorable, mental midgets deserving of her supporters’ derision. Yeah, that would be forms of tyranny.

But please understand, Donald Trump is not promising liberty either. The closest anyone came to that was Gary Johnson, who mostly just said he wouldn’t add to the tyranny we already live under. The fact that we keep voting for these politicians ought to concern us because they show no signs of actually having read the Constitution. Yeah, you remember, that eight page piece of paper we were all supposed to read in high school?

Oh, Constitution be damned! The American people have come to accept a system of government that promotes authority over individual rights in opposition to individual moral standards, using political force and the might-makes-right power of the collective that overwhelms everything else.

As Ayn Rand wrote of the American founding,

“The most profoundly revolutionary achievement of the United States of America was the subordination of society to moral law. The principle of man’s individual rights represented the extension of morality into the social system—as a limitation on the power of the state, as man’s protection against the brute force of the collective, as the subordination of might to right.”

Two centuries after the noble experiment where the collective was restrained by individual rights, liberty and the United States are on the ropes now. We’ve become so enamored to the “popular vote” that we have forgotten our right to live freely. We are slowly committing suicide one election cycle at a time.

The tyranny of the majority has fallen victim to the hubris of all such kings and emperors. We see ourselves as sovereign, collectively possessing an authority above the Constitution and above the rights of individuals within society. Democratic law has become justified by the mere might of the majority. The definition of truth and justice are now to be decided by the majority’s authority. Might-makes-right now masquerades as justice, law and liberty.

Despite Donald Trump’s recent victory, he and the GOP have no mandate whatsoever to violate the rights of Americans citizens no matter how many people voted for them to do so. We cannot take for granted that America is exceptional just for being of, by, and for “the people.”

What makes America exceptional and gives any American president his mandate is not simply the blessing of a given majority but that President’s fealty to the Constitution with its presumption of American liberty. Any time the American government acts in opposition to its requirement to protect individual rights, it violates liberty.

It is up to those of us who love liberty to remind people of this reality. Liberty is the cornerstone of our free society. If we fail in this charge, we can expect American liberty to go the way of the recent American establishment, drowning in the wake of the majority’s momentary lust for power.

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This is Part 2 of a 2-part series.

Turning his mind from the Constitution and form of government, Jefferson hoped to explain the checks and balances of the federal system and also asked if perhaps the country should not be so attached to any one system

Jefferson knew that most foreigners did not understand how the United States worked and he attempted to explain the interaction to Major Cartwright.

With respect to our State and federal governments, I do not think their relations correctly understood by foreigners. They generally suppose the former subordinate to the latter. But this is not the case. They are co-ordinate departments of one simple and integral whole.

Jefferson rightly surmised that most foreigners though the states were under the authority of the federal government (which is how a national government works), but he was quick to correct this misunderstanding. Were he to suddenly be resurrected in the 21st century, he would quickly and probably forcefully remind us that our government was never supposed to involve the states kowtowing to the federal government. They were meant to be equal partners.

To the State governments are reserved all legislation and administration, in affairs which concern their own citizens only, and to the federal government is given whatever concerns foreigners, or the citizens of other States; these functions alone being made federal. The one is the domestic, the other the foreign branch of the same government; neither having control over the other, but within its own department.

Jefferson understood that the states were to focus on their own domestic matters while the federal government was only to function in matters with other countries or when states could not agree. He rightly states that the federal government is the foreign branch of the same government. Neither was supposed to have control over the other. I think this would be one of those times when Jefferson would want to amend the Constitution, if he could see how bloated and tyrannical the federal government has become.

There are one or two exceptions only to this partition of power. But, you may ask, if the two departments should claim each the same subject of power, where is the common umpire to decide ultimately between them? In cases of little importance or urgency, the prudence of both parties will keep them aloof from the questionable ground: but if it can neither be avoided nor compromised, a convention of the States must be called, to ascribe the doubtful power to that department which they may think best.

Jefferson foresaw conflicts and saw two solutions to them. One would be where the two parties just ignore when one oversteps on unimportant issues. That has not worked well fo us in the 200 years since Jefferson wrote the letter. His second option for dealing with overreach has never been used. We’ve never called a convention of the States to discuss whether doubtful power should be ascribed to the states or the federal government. Instead, the federal government has continually assimilated powers to itself and told the states to sit down and shut up. Jefferson, were he alive today, would be organizing committees of correspondence and militias in Virginia and urging Alaska and all the other states to do the same.

You will perceive by these details, that we have not yet so far perfected our constitutions as to venture to make them unchangeable. But still, in their present state, we consider them not otherwise changeable than by the authority of the people, on a special election of representatives for that purpose expressly: they are until then the lex legum.

Jefferson explained that the Constitution of the United States and the constitutions of the states were not set in concrete, but could only be changed by a special committee, elected by the people for the purpose of making changes. Until such a convention had been organized and met, the constitutions were considered the “law of laws.”

But can they be made unchangeable? Can one generation bind another, and all others, in succession forever? I think not. The Creator has made the earth for the living, not the dead. Rights and powers can only belong to persons, not to things, not to mere matter, unendowed with will. The dead are not even things. The particles of matter which composed their bodies, make part now of the bodies of other animals, vegetables, or minerals, of a thousand forms. To what then are attached the rights and powers they held while in the form of men? A generation may bind itself as long as its majority continues in life; when that has disappeared, another majority is in place, holds all the rights and powers their predecessors once held, and may change their laws and institutions to suit themselves. Nothing then is unchangeable but the inherent and unalienable rights of man.

Jefferson touches on something that we can go around and around on. Should constitutions be unchangeable? Should one generation bind the next to what was important to that earlier generation? That earlier generation is dead and dead things should not dictate to the living, Jefferson said.

But it should be noted that Jefferson considered rights and the powers that issue from them to be the same from generation to generation. So while subsequent generations can change the structure of government set out in the constitution, the inherent and unalienable rights of men remain the same.

You see, that’s where folks like me disagree with those who would be our rulers today. They’re fine with the current structure of government, but want our rights to be changeable based on what they think is best. Rights, to them, flow from the government. Jefferson and our founders saw rights as being inherent in the individual. I live, therefore, I have a right to an opinion and to state it, a right to practice my faith as I see fit, a right to bear arms, a right to security in my person, property and papers, a right to a fair trial, and a right to be unmolested in my efforts to support myself and my family (in so long as those efforts do not harm anyone else). I don’t live in that world anymore. I live in one where my rights can be taken away whenever the government decides they are inconvenient to the government or some group the government favors.

I object.