"Freedom of Speech is a Great Idea But We're in a War"

Senator Lindsey Graham (R-SC):



Senator Graham is 1 of 99 reasons to repeal the 17th Amendment.

Update: Allahpundit reminds us "this guy might have ended up as Attorney General under President McCain."

The Commerce Clause

Reason TV explains how the Constitution's commerce clause was corrupted:



It's no coincidence that the Supreme Court corrupted the commerce clause only after a majority of justices were confirmed by a post-17th Amendment Senate. This is even more evidence that the 17th Amendment destroyed the Constitution's delicate balance of power between the three branches.

Judge Napolitano At Mises

This is just too good to not post. Judge Napolitano teaches Constitutional Law at Mises University:

Freedom Watch with Judge Napolitano

Judge Napolitano's Freedom Watch has recently debuted on television. The Patriot's Network has the show in full, but here's a short clip from the second show.



You can watch the first show on Youtube here, and you can watch the second show on The Patriot's Network.

Justice Stevens Announces Retirement

The original Constitutional design of the Senate helped to limit the ability of politicians to place their party before their duty. State legislatures could oversee their representatives far better than the electorate, and they ensured that their senators would prevent as much as possible the centralization of power in Washington. Confirmation processes were less partisan and less prone to political grandstanding because they were concerned with the nominees' actual record rather than scoring political points. They also wanted to make sure that any appointees at least understood that the federal government was limited.

The 17th Amendment changed all that. Now the Senate is full of grandstanding politicians who care more about their party than anything. That won't change regardless of what party is in power. The only way to change that is to repeal the 17th Amendment.

Federalism, Not "States' Rights"

I've alluded to this before, and in light of the association of "states' rights" with unpopular ideas, I definitely think it's a good idea to use the more accurate term "Federalism". Gary Wood has a great post on why "Federalism" is a better fit:

We must understand states’ don’t have rights but an obligation to use their governing power to defend their citizens’ rights whenever federal power oversteps its enumerated obligations. We are not secessionist, nor are we abolitionists but rather restorationists devoted to our original meaning and the foundational strength of the 9th and 10th Amendments combined with an acceptance of personal responsibility.

We honor the federal laws as supreme laws of the land when they are pursuant to, and in keeping with, the U.S. Constitution while we oppose all efforts for federal laws and mandates beyond their granted powers no matter what moral clothing they are dressed in. Unconstitutional law, even if clothed in good intention, is still bad law and the states are obligated to check it, and declare it as such. If an unconstitutional law is so universally good as to benefit the general welfare of all citizens in all states let the processes of Article V be invoked. Until such time we stand by the duty of states’ powers to protect us for many unconstitutional laws and mandates that began with good intentions have crippled our economy and usurped authority far beyond original meaning.

Let every member of every organization supporting state sovereignty and federalism cleanse the language so our opponents cannot easily attack the wrong target. Should they target federalism and the original meaning we can defeat them with truth. Freedom is not outdated, federal government is an agreement among the people of different sovereign states, the 10th Amendment has never been repealed, and virtue is still necessary for securing our posterity’s future rights to life, liberty, and the pursuit of happiness.

The common usage of the term "rights" is engaged when people discuss an abuse of power. If someone had the power to do some wrong to me, and they did so, we say that they violated my "rights". Likewise, when the federal government has the power to do something it doesn't have the authority to do, we say that the federal government violated someone's "rights". But these terms are so misunderstood now that too many people find it acceptable for the federal government to overstep its authority as long as it is accomplishing something they consider good. The problem is that a limited federal government is good, and allowing it to become unlimited in order to feed the poor, or provide health care to children, or criminalize/decriminalize abortion still allows it to violate its authority, of which it has none in those areas.

The original Constitutional Senate was the protector of federalism because it provided a constant pressure to keep federal power limited. That's why those who favored unlimited, centralized power needed to have it removed. And that's why the only way to return to a Constitutionally-limited government is to repeal it.

The Spirit of Jefferson Lives in Virginia

The ability of states to judge the Constitutionality of an act of Congress originally lay in the authority of state legislatures to appoint Senators who would restrain the House from passing unconstitutional legislation. (Though nullification was discussed even before the Constitution became law, once the Senate was properly in place, Senators worked to preserve decentralization while still fighting for good ideas, such as abolition, etc., with nullification being just a threat. Yes, it's an oversimplification.) Repealing the 17th Amendment would make the threat of nullification unnecessary because states would nullify unconstitutional acts before they ever became law. Repealing the 17th Amendment now would also create a Senate which would, over time, work to gradually reduce unconstitutional infringements on our liberty. This would be so because Senators who did not fight for their states would not be reappointed by the state legislature. As it is, ridiculous personalities and party theatrics are how Senators get elected and re-elected now. And their single-minded purpose is to preserve power for their party and perpetuate the party system.

Hat tip: Tenth Amendment Center

Judge Napolitano's The Constitution & Freedom (Complete)

This is a great program by Andrew Napolitano. He explains the history of the Constitution, and includes how the 17th Amendment removed the impediment to centralization of power.

Good stuff!

It's Too Late To Apologize

Good, clean fun with the Founding Fathers:



Hat tip: Hot Air

Judge Napolitano's "The Constitution & Freedom: The Legislature"

Great explanation by Judge Napolitano:



Hat tip: Minnesota Chris

Clarence Thomas: How to Read the Constitution

As important as our Constitution is, there is no one accepted way of interpreting it. Indeed, for some commentators, it seems that if they like or prefer a particular policy or conduct, then it must be constitutional; while the policies that they do not prefer or like are unconstitutional. Obviously, this approach cannot be right. But, it certainly is at the center of the process of selecting judges. It goes something like this. If a judge does not think that abortion is best as a matter of policy or personal opinion, then the thought is that he or she will find it unconstitutional; while the judge who thinks it is good policy will find it constitutional. Those who think this way often seem to believe that since this is the way they themselves think, everyone must be doing the same thing. In this sense, legal realism morphs into legal cynicism. Certainly this is no way to run a railroad, not to mention interpret the Constitution. . . .

Let me put it this way; there are really only two ways to interpret the Constitution -- try to discern as best we can what the framers intended or make it up. No matter how ingenious, imaginative or artfully put, unless interpretive methodologies are tied to the original intent of the framers, they have no more basis in the Constitution than the latest football scores. To be sure, even the most conscientious effort to adhere to the original intent of the framers of our Constitution is flawed, as all methodologies and human institutions are; but at least originalism has the advantage of being legitimate and, I might add, impartial.

It's sad that we're so far away from debating what the original intent was; we're just debating on whether it's even relevant.

Restoring American Federalism

Judge Napolitano talks with Kevin Gutzman and Thomas Woods on what can be done to restore Constitutional rule:

The Constitution Is Still the Law

Great speech from Catherine Bleish in St. Charles, Missouri:



The Constitution is still the law of the land, even if the government refuses to follow it.

Hat tip: Tenth Amendment Center

Missouri Supports the Constitution

A United States soldier explains the Constitution at a town hall meeting in Missouri to a standing ovation:



This is the kind of thing that gives one hope!

Hat tip: Hot Air

Limited Government Gaining Popularity?

Michael Boldin says so:

Madison on Group Identity Politics

Federalist 10:

By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.

...

As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. As long as the connection subsists between his reason and his self-love, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves. The diversity in the faculties of men, from which the rights of property originate, is not less an insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of government. From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results; and from the influence of these on the sentiments and views of the respective proprietors, ensues a division of the society into different interests and parties.

The latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society. A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good. So strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts. But the most common and durable source of factions has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society. Those who are creditors, and those who are debtors, fall under a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. The regulation of these various and interfering interests forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of the government.

No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. With equal, nay with greater reason, a body of men are unfit to be both judges and parties at the same time; yet what are many of the most important acts of legislation, but so many judicial determinations, not indeed concerning the rights of single persons, but concerning the rights of large bodies of citizens? And what are the different classes of legislators but advocates and parties to the causes which they determine? Is a law proposed concerning private debts? It is a question to which the creditors are parties on one side and the debtors on the other. Justice ought to hold the balance between them. Yet the parties are, and must be, themselves the judges; and the most numerous party, or, in other words, the most powerful faction must be expected to prevail. Shall domestic manufactures be encouraged, and in what degree, by restrictions on foreign manufactures? are questions which would be differently decided by the landed and the manufacturing classes, and probably by neither with a sole regard to justice and the public good. The apportionment of taxes on the various descriptions of property is an act which seems to require the most exact impartiality; yet there is, perhaps, no legislative act in which greater opportunity and temptation are given to a predominant party to trample on the rules of justice. Every shilling with which they overburden the inferior number, is a shilling saved to their own pockets.

It is in vain to say that enlightened statesmen will be able to adjust these clashing interests, and render them all subservient to the public good. Enlightened statesmen will not always be at the helm. Nor, in many cases, can such an adjustment be made at all without taking into view indirect and remote considerations, which will rarely prevail over the immediate interest which one party may find in disregarding the rights of another or the good of the whole.

The inference to which we are brought is, that the causes of faction cannot be removed, and that relief is only to be sought in the means of controlling its effects.

...

From this view of the subject it may be concluded that a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths. Theoretic politicians, who have patronized this species of government, have erroneously supposed that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions.

A republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking.

...

It must be confessed that in this, as in most other cases, there is a mean, on both sides of which inconveniences will be found to lie. By enlarging too much the number of electors, you render the representatives too little acquainted with all their local circumstances and lesser interests; as by reducing it too much, you render him unduly attached to these, and too little fit to comprehend and pursue great and national objects. The federal Constitution forms a happy combination in this respect; the great and aggregate interests being referred to the national, the local and particular to the State legislatures.

...

The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States. A religious sect may degenerate into a political faction in a part of the Confederacy; but the variety of sects dispersed over the entire face of it must secure the national councils against any danger from that source. A rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the Union than a particular member of it; in the same proportion as such a malady is more likely to taint a particular county or district, than an entire State.

I bring this up now because it is important to point out that the Founders were aware of the danger of special interest groups and that people would divide themselves up by group identity, whether that was by race, gender, class, sexual orientation, religion, or any other identity. The Founders knew that this would be the death of a nation. (Here's a fun cartoon making the same point.) The destruction of state autonomy is what elevated identity politics to the national level. The only way to guard against mob rule is to restore states' rights to their proper Constitutional place.

So Obama appeals to Hispanics, women, business interests, Christians, and gays, and Republicans appeal to business interests, women, Christians, gays, and Hispanics. And, of course, each blames the other for crass political maneuvering. But discerning people need to be able to see through cheap political theatrics and support a Constitutionally-limited federal government. All politicians have to engage in appeals to special interest groups to some degree (it's hard to get elected without votes). But remember that policy is the ends, and politics is the means. Too many people get those backwards. With Democrats calling public debate "terrorism", this is more important than ever.

The Problems With Barnett's Bill

Barnett's Bill has ten clauses, and none of them involve repealing the Seventeenth Amendment.

1. Repealing the income tax: This is the first one, and it is the one people are most likely to support.

2. Limiting the necessary and proper clause: It's a good idea to limit it, and Barnett's proposal deals with some of the technical language the Supreme Court has created in order to twist the clause into its current meaning. But without dealing with the Court's "power of declaring what the law is, ad libitum, by sapping and mining slyly and without alarm the foundations of the Constitution", the real problem is not addressed. This would have been the place to deal with Jefferson's critiques.

3. Unfunded mandates: Unfunded mandates give states more freedom than "funded" mandates. It's really very simple to see why. Since the money always comes from the same place, a "funded" mandate is merely a requirement that the money be raised in a particular way while an unfunded mandate gives the state the flexibility to raise the money in any way the people see fit. Don't let the words used to label these things deceive you into thinking they're something they're not.

4. Limiting the treaty power: Barnett's proposal again deals with some of the technical issues without addressing the real problem. Most of theses limitations were addressed by the original structure of the Constitution, which was distorted by the Seventeenth Amendment. For example, the original Constitution would have allowed states to protect their own sovereignty because the Senate, which ratified treaties and appointments, including judicial appointments, belonged to the states. Limitations of power must be dealt with structurally. Power isn't limited by merely writing the words "only good laws can be passed". The written word doesn't protect anything, and can actually be (mis)interpreted by a court to mean anything. The best protections are structural.

5. Unlimited money in politics: Constitutions are really good at establishing a framework for making decisions but not so good at actually making those decisions. The Constitution's protection of speech and property did not stop the government from limiting those freedoms before, and, without better structural safeguards, merely saying that the government is limited will not make it so. Many of the principles Barnett is expounding are good, but his proposals don't address the real problems.

6. The power of the states to limit federal power: unless I'm missing something, this is actually really stupid. Since three-fourths of the states can amend the Constitution anyways, this doesn't seem to do anything.

7. Term limits: The politicians aren't the problem. This country needs better voters. Until people start voting better, there can be no solution, political or otherwise.

8. Balanced budget: unless you're reading closely, you'll miss the line-item veto Barnett grants the Executive. The Executive branch is way too powerful already, and granting a line-item veto is a really bad idea. I'm actually in favor of removing the Presidential veto altogether. The veto was Hamilton's idea, with disastrous results.

9. The expansion of the judiciary: This is a no-good, really-bad, horrible idea. The people's rights are protected by the legislature,not the judiciary. When the people believe the judiciary protects their rights, they stop caring about them and start voting themselves largess from the public treasury instead of voting to protect their rights. The judiciary cannot protect individual rights, but it can sure pretend to do so. Don't buy it.

10. No judicial activism: since most of these amendments put the judiciary in charge of interpreting them, it's a bit like putting the fox in charge of protecting the chicken coop. Who watches the watchmen?