This post was originally one of the very first on this site, posted the day the blog was birthed in January of 2011. I thought it relevant to bring it forward as it has bearing on our current discussions and the upcoming election.
The liberal contingent in America holds itself up to be the best and brightest, the most compassionate and the rightful rulers of the unwashed masses. They offer universal health care, elimination of economic fluctuation via government regulation over industry (everybody just knows that capitalism and free markets product uncontrolled boom and bust cycles, don’t they?), massive entitlement programs and Keynesian spending under the guise of “promoting the general welfare” and promote the idea that they can legislate with impunity. To them, principles are situational and are for suckers and stodgy old conservatives. They view the Constitution of the United States as a “living document” that can be folded, stapled and mutilated to fit the current fad or flavor of the month, something not to limit and constrain government but to enable it.
They ignore two of the immutable laws of politics:
- Power is finite – political winds change in a representative republic; the political party in power today will not always be in power and,
- Any government with the power to provide for every whim also has the power to enslave.
The Political Amoeba
A rudderless, malleable political system, one not rooted in basic principles, is much like an amoeba. An amoeba moves in a seemingly random pattern, like the movement of particles suspended in a fluid called pedesis (sometimes known as Brownian motion) wandering around the pond devouring everything that looks like food. It feeds by enveloping its food target and then absorbing it. Anything that it perceives as food gets enveloped – a “kill them all and let God sort them out” approach.
The key to understanding malleability as a danger rests on the reliance of the American legal system on precedent and more specifically, the legal principle of stare decisis, a principle by which judges are obliged to respect the precedents established by prior decisions. Reliance of this principle of respect for prior decisions provides for a consistent legal patter, something that is necessary in maintaining a predictable legal system and a stable society. Citizens have the right to expect that behavior that is legal today will not be illegal tomorrow based on the current whim of the judiciary.
The danger with the concept of stare decisis is that when combined with an unstable, malleable view of legal principles, it can make bad law.
Stare Decisis and the Law of Unintended Consequences
One of the most egregious examples is found in the famous (or infamous) case law of Griswold v. Connecticut. From this we have Justice William O. Douglas creating a new “right” out of whole cloth by stating: “Specific guarantees in the Bill of Rights have penumbras [fringe areas], formed by emanations from those guarantees that help give them life and substance.”
Before Time Magazine became a leftist rag, they had this to say in June of 1965:
After three trips to the Supreme Court in 23 years, Connecticut’s archaic (1879) birth-control law was ruled unconstitutional 7 to 2—but in a judicial free-for-all that produced six opinions and a shaky new “right of privacy” concept that is bound to baffle judges for many more years.
All nine Justices denounced the only state law in the U.S. that banned the use of contraceptives by anyone, including married couples. It had been challenged by Yale Gynecologist C. Lee Buxton and Mrs. Estelle Griswold, executive director of the Connecticut Planned Parenthood League, who had been convicted ($100 fines) for dispensing contraceptives at a birth-control clinic in New Haven. “A very bad law,” agreed dissenting Justice Hugo Black. “An uncommonly silly law,” agreed dissenting Justice Potter Stewart.
The Constitution is utterly mute on the subject (emphasis mine – ed.), but Douglas heard echoes in the Bill of Rights (the first eight amendments): “Specific guarantees in the Bill of Rights have penumbras [fringe areas],” he said, “formed by emanations from those guarantees that help give them life and substance.” According to Douglas, “zones of privacy” emanate from the First Amendment’s “penumbra” right of association, the Third Amendment’s prohibition against the quartering of soldiers “in any house” without consent in peacetime, the fourth’s guarantee against “unreasonable searches and seizures,” and the fifth’s privilege against self-incrimination.
In addition, argued Douglas, the Ninth Amendment implies a right of privacy by providing that “enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” So does the 14th Amendment guarantee of due process of law. Said Douglas: “Would we allow the police to search the sacred precincts of marital bedrooms for tell-tale signs of the use of contraceptives? The very idea is repulsive.”
“Shocking Doctrine.” All these emanations failed to impress dissenting Justice Stewart, who could find no constitutional infringements whatever in the law. In what conceivable way, asked he, did Connecticut’s birth-control law violate the Third Amendment ban against quartering soldiers in private homes? How could a federal court use the Ninth Amendment to take away rights assigned to the people’s elected state representatives? “We are not asked in this case to say whether we think this law is unwise, or even asinine,” said Stewart. “We are asked to hold that it violates the United States Constitution and that I cannot do.”
Stewart’s solution: Let Connecticut citizens persuade their legislature to repeal the law.
From the same Time article:
Justice Black was equally aghast: “I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision.” Finding no such specific covering privacy, Black, who is often accused of scorning “judicial restraint,” proceeded to rake his brethren for imposing their subjective feelings on a legislature. Should the court continue this “shocking doctrine,” said Black, it will wind up as “a day-today constitutional convention.” (emphasis mine – ed.)
Meanwhile, lawyers can now spend years happily fighting over just what else the new right of privacy covers.
How prescient they were back in 1965…The SCOTUS rightly decided to invalidate a bad law but in the process opened a Pandora’s Box of opportunities for government to intrude in areas that never should have been opened to them.
The same issue arises with respect to Article I, Section 8, Clause 3, an enumerated power in the United States Constitution, commonly known as the Commerce Clause. It states that the United States Congress shall have power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”. Courts and commentators have tended to discuss each of these three areas of commerce as a separate power granted to Congress.
Dispute exists as to the range of powers granted to Congress by the Commerce Clause. As noted below, the clause is often paired with the final clause of Article I, section 8 (the Necessary and Proper Clause), the combination used to take a broad, expansive perspective of these powers. Many strict constructionists/traditionalists deny that this is the proper application of the Commerce Clause because it refers specifically to “the foregoing Powers.”
The Commerce Clause has been long used by government for all sorts of chicanery; however, it was not always so. From our country’s founding through the 1930s, courts ruled that the Commerce Clause actually was a limit on the ability of the Federal government to hinder the freedom of individuals. That changed in 1937 as Congress continued to push FDR’s New Deal legislation, legislation that increased the power of government far beyond what had ever been seen. The SCOTUS of the time enabled this expansion when it bowed to politics and simply abrogated its role of enforcing the Constitution’s limits on federal power.
Since 1937, Congress and the courts have continually expanded government via the Commerce Clause and that has resulted in less freedom for Americans. Now Congress believes everything it passes can affect commerce and therefore falls under its authority under the Commerce Clause. When questioned about the authority of the onerous, overreaching laws they’ve passed — laws like the Patient Protection and Affordable Care Act of 2010 (aka Obamacare), Wall Street reform, bank bailouts, takeovers of the suto, financial and student loan industry — members of Congress have cited the Commerce Clause of the United States Constitution.
Some well known liberal Democrat quotations among the conservative community are:
Fortney “Pete” Stark (former D- CA 13):
“I think that there are very few constitutional limits that would prevent the federal government from rules that could affect your private life. The basis for that would be how would it affect other people.” After the questioner asks what possible constitutional limits there are, then, if Obamacare can pass constitutional muster, Stark replies: “The federal government yes, can do most anything in this country.”
Nancy Pelosi (former Speaker of the House):
When asked where the Constitution authorized Congress to order Americans to buy health insurance–a mandate included in both the House and Senate versions of the health care bill–Pelosi dismissed the question by saying: “Are you serious? Are you serious?”
Pelosi’s press secretary later responded to written follow-up questions from CNSNews.com by emailing CNSNews.com a press release on the “Constitutionality of Health Insurance Reform,” that argues that Congress derives the authority to mandate that people purchase health insurance from its constitutional power to regulate interstate commerce.
Remember the amoeba?
Building the Prison
Liberals like to claim that this “malleability” of the founding principles is necessary to promote “freedom” in changing times and there is no possible way that the Founders could have ever looked forward 200 years as had the foresight to imagine the wonders and complexity of today. Quite the opposite, remember the two laws that were presented at the beginning?
Law 1: Power is finite – political winds change in a representative republic; the political party in power today will not always be in power. I have shown where conditional or situational interpretations of law and policy create both intended and unintended consequences. The incremental leftist lurch of the US government for the last 60 or 70 years has guaranteed that both sets of consequences will tilt in favor of liberalism. The federal bureaucracy and the inception of unions in public/government employment guarantee this liberal slant. Unions vote and give to Democrats by overwhelming margins and the bureaucracy moves to secure its own growth existence and by definition, will support the party that supports bigger government – the Democrats.
What if it isn’t always that way?
The American Left always likes to use Nazism to beat conservatives about the head and shoulders but it is a prime example of how political winds can change in a very short period of time.
Nazi Germany arose in the wake of the national shame, embarrassment, anger, and resentment resulting from the Treaty of Versailles (1919). Many voters, seeking an outlet for their frustrations, and an expression for their repudiation of parliamentary democracy, which appeared incapable of keeping a government in power for more than a few months, began supporting far right-wing and far left-wing political parties, opting for political extremists such as the Nazi Party, (Nationalsozialistische Deutsche Arbeiterpartei, NSDAP, National Socialist German Workers’ Party).
The Nazis promised strong, authoritarian government in lieu of effete parliamentary republicanism, civil peace, radical economic policy (including full employment), restored national pride (principally by repudiating the Versailles Treaty), and racial cleansing, partly implemented via the active suppression of Jews and Marxists, all in name of national unity and solidarity, rather than the partisan divisions of democracy, and the social class divisiveness of Marxism.
The Nazi Party claimed that through the Treaty, the Weimar Republic’s liberal democracy, the traitorous “November criminals” had surrendered Germany’s national pride, by the inspiration and conniving of the Jews, whose goal was national subversion and the poisoning of the German blood.
From 1925 to the 1930s, the German government evolved from a democracy to a de facto conservative–nationalist authoritarian state under war hero-President Paul von Hindenburg, who disliked the liberal democracy of the Weimar Republic, and wanted to make Germany into an authoritarian state. In the federal election of 1928, when the economy had improved after the hyperinflation of the 1922–23 periods, the Nazis won only 12 seats. Two years later, in the federal election of 1930, months after the US stock market crash, the Nazi Party won 107 seats, progressing from ninth-rated splinter group to second-largest parliamentary party in the Reichstag. After the federal election of 1932, the Nazis were the largest party in the Reichstag, holding 230 seats.
In 4 short years, Germany transformed from a liberal (in the classical sense of liberalism) democracy to an autocratic Nazi abomination. I’m sure that there were Jewish Germans who supported the themes of civil peace, full employment and restored national pride. I’m sure that they never imagined in their worst nightmares that only 4 years into the future, they would be stripped of their rights as citizens and sent to the ovens in the camps at Auschwitz and Dachau.
Law 2: Any government with the power to provide for every whim also has the power to enslave.
The pillars of Marxism and communism promise equality and security as long as citizens cede total allegiance to the state. This also entails complete and total subjugation of individual freedom and self determination to the will of the government in exchange for some sort of mythical utopia where we will live in bliss together. The problem with this is that government is never a dispassionate entity, governments are made of people and people are fallible and often corrupt. One of the examples of a government’s power to enslave can be seen in China during Mao’s rule.
Mao Zedong, founder of the People’s Republic of China, qualifies as the greatest mass murderer in world history, an expert who had unprecedented access to official Communist Party archives said yesterday.
Speaking at The Independent Woodstock Literary Festival, Frank Dikötter, a Hong Kong-based historian, said he found that during the time that Mao was enforcing the Great Leap Forward in 1958, in an effort to catch up with the economy of the Western world, he was responsible for overseeing “one of the worst catastrophes the world has ever known”.
Mr. Dikötter, who has been studying Chinese rural history from 1958 to 1962, when the nation was facing a famine, compared the systematic torture, brutality, starvation and killing of Chinese peasants to the Second World War in its magnitude. At least 45 million people were worked, starved or beaten to death in China over these four years; the worldwide death toll of the Second World War was 55 million.
Mr. Dikötter is the only author to have delved into the Chinese archives since they were reopened four years ago. He argued that this devastating period of history – which has until now remained hidden – has international resonance. “It ranks alongside the gulags and the Holocaust as one of the three greatest events of the 20th century…. It was like [the Cambodian communist dictator] Pol Pot’s genocide multiplied 20 times over,” he said.
Between 1958 and 1962, a war raged between the peasants and the state; it was a period when a third of all homes in China were destroyed to produce fertilizer and when the nation descended into famine and starvation, Mr. Dikötter said.
His book, Mao’s Great Famine; The Story of China’s Most Devastating Catastrophe, reveals that while this is a part of history that has been “quite forgotten” in the official memory of the People’s Republic of China, there was a “staggering degree of violence” that was, remarkably, carefully catalogued in Public Security Bureau reports, which featured among the provincial archives he studied. In them, he found that the members of the rural farming communities were seen by the Party merely as “digits”, or a faceless workforce. For those who committed any acts of disobedience, however minor, the punishments were huge.
State retribution for tiny thefts, such as stealing a potato, even by a child, would include being tied up and thrown into a pond; parents were forced to bury their children alive or were doused in excrement and urine, others were set alight, or had a nose or ear cut off. One record shows how a man was branded with hot metal. People were forced to work naked in the middle of winter; 80 per cent of all the villagers in one region of a quarter of a million Chinese were banned from the official canteen because they were too old or ill to be effective workers, so were deliberately starved to death.
Any government with the power to provide for every whim also has the power to enslave. Vesting more and more power and resources in a centralized government is building, brick by brick and law by law, a prison of our own design.
But luckily, even amoebas respond to stimuli…
Removing the Bars and Restraining the Beast
The founding document of our Republic contains 4,543 words, the Declaration has 1,458. If you figure an average of 500 words to an 8.5 X 11 page, that’s 9 pages for the former and 3 for the latter. The key foundational documents for creation and governance of the Republic of the United States total 12 pages. Compare that to a total of 2,409 pages/184,672 words for the health care “reform” bill.
It is instructive that it takes more pages of documents to file a 1040 long form tax return than to establish a government. If this doesn’t illustrate the intent of the Founder’s for limited government and how far we have deviated, nothing will.
We have the power to change. Modern American liberalism bears no resemblance to the classical liberalism of 50 years ago or the current definition in Western Europe of today. Its seductive siren call is based on socialist/Marxist/communist beliefs that are being “soft sold” to pliable minds conditioned by 60 years of nanny state intrusiveness to believe that a little socialism is a harmless thing – that America has always been a little socialist and it is the government’s responsibility to take care of unpleasant or difficult life situation…to provide for our every need. Socialism is like a creeping terminal disease, it starts as the death of a single cell and eventually metastasizes to consume and kill the entire body.
We must reject this idea. The people of this country must get back to the ideas that this nation was founded upon. We must trust ourselves and elect representatives who believe the same. Clear and constrained legal concepts must be applied because, as Thomas Jefferson said, “The government is best which governs least”. Simplicity, combined with constrained government yields more freedom.
With the birth of every new agency, czar, law and regulation, a little liberty dies.
We must stop building the prison of our own design.