Category Archives: Federalism

UPDATED: Three Branches of Colluding Quislings

Barack Obama, Constitution, Federalism, Founding Fathers

Pray tell when have the “two other branches” that are supposed to check the presidency, ever done anything but collude with the executive?

One gets the impression that Jonathan Turley, Shapiro Professor of Public Interest Law at George Washington University, thinks that “the expansion of executive power,” to which he has once again testified on Capitol Hill, was a feature of the Barack Obama presidency only.

Turley did, however, clarify that “this problem didn’t begin with President Obama,” and that he “was critical of his predecessor President Bush as well,” although “the rate at which executive power has been concentrated in our system is accelerating.”

“Frankly,” warned Turley, “I am very alarmed by the implications of that aggregation of power.”

Turley is also irked by the fact that “the two other branches appear not just simply passive, but inert in the face of this concentration of authority.”

But when have Congress and the judiciary ever done what the Founding Fathers promised the constitutional scheme would compel them to do?

The truth is that the Constitution gave us three branches of colluding quislings. It was in the cards.

UPDATE: Should the Federal Constitution be ratified, there would be “no checks, no real balances,” thundered Anti-Federalist Patrick Henry.

UPDATE II: Conned About Marriage, Constitution And ‘States’ Rights’ (Constitution’s About Process)

Conservatism, Constitution, Federalism, Founding Fathers, Gender, Homosexuality, Law, The Courts

“Conned About Marriage, Constitution And ‘States’ Rights'” is the current column, now on WND. An excerpt:

The ban on the ban is unconstitutional.

This was the gist of broadcaster Mark Levin’s angry tirade against the humdrum, and certainly predicable, decision of a federal judge to strike down “Oklahoma’s voter-approved ban” on gay marriage.

At the center of conservative contretemps are similar decisions in California, New Mexico and Utah, following on which U.S. District Judge Terence Kern had “determined that Oklahoma’s constitutional amendment” violated the 14th Amendment’s Equal Protection Clause. It stipulates that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Broadly speaking, WND’s Alan Keyes concurred with Levin, alluding to the Constitution’s 10th and Ninth Amendments by which “the judges and justices of the federal judiciary are forbidden to … deny the antecedent rights retained by the people.”

Indeed, “the prevailing view in 1791,” observed The Honorable Robert T. Donnelly, former chief justice of the Supreme Court of the state of Missouri, “was that the national government had only delegated powers and that reserved to the people was an undefined sphere of non-government within which people may not be interfered with by government.”

But that was then.

In voiding “voter-approved law,” Justice Kern has resorted to perfectly proper 14th Amendment judicial activism. Deploying the Equal Protection Clause of the 14th Amendment, Kern nullified the 10th. It specifies that, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

As expressed in the once-impregnable 10th Amendment, the Constitution’s federal scheme has long since been obliterated by the 14th Amendment and the attendant Incorporation Doctrine.

What does this mean?

If the Bill of Rights was intended to place strict limits on federal power and protect individual and locality from the national government—the 14th Amendment effectively defeated that purpose by placing the power to enforce the Bill of Rights in federal hands, where it was never intended to be. …

… Either way, the freedoms afforded by federalism are no longer because American federalism is no longer. …

… Conservatives as astute as Mr. Levin, Esq., ought to quit misleading their readers and listeners about the restoration of a constitutional structure that has suffered death by a thousand cuts, long before the dreadful cur Obama appeared on the scene. …

Read the complete column. “Conned About Marriage, Constitution And ‘States’ Rights'” is now on WND.

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UPDATED I (1/24): American constitutional federalism is about process, rather than what law you like or don’t. The process is clear. The Courts were never meant to tell people how to run their homes and communities. It’s a column I’ve been wanting to write for a while. It’s quite disturbing how little people understand about a structure/scheme that is no longer and that was intended to protect liberty. The 14th is a real problem, as it killed the 10th.

UPDATE II: Facebook thread:

Todd Frank: The post-civil war Republicans did not think several things through when they drafted the 14th amendment. That said, there still has to be some sort of remedy when states themselves trample on the rights of the individual short of giving the US government carte-blanche to do whatever they want to us.

Ilana Mercer : Todd Frank, you make a good point. But just about every state had itself a constitution with a bill of rights.

POTUS Quits Pretending US Has A Constitution

Barack Obama, Constitution, Fascism, Federalism, Welfare

With my pen and phone I will free thee from want, promised the president. While I prefer not to pretend, as conservatives do, that the U.S. is still a constitutional republic; Obama could at least be polite about the poor thing, the Constitution, that is.

“We are not just going to be waiting for legislation in order to make sure that we’re providing Americans the kind of help that they need,” President Obama told reporters before a meeting with his Cabinet Tuesday. “I’ve got a pen and I’ve got a phone.”

Don’t the rules specify that you are supposed to wait on legislation?

UPDATED: Quacking Over Ducksters As Freedoms Go POOF

Constitution, Crime, Criminal Injustice, Federalism, Founding Fathers, Government, Homeland Security, Law, Race, Racism, Regulation

“Quacking Over Ducksters, As Freedoms Go POOF” is the current column, now on WND. An excerpt:

“While the nation fretted over the ouster of one Duckster from the parallel reality of a TV reality show, more of the protections enshrined in the Fourth Amendment of the U.S. Constitution evaporated.

Just after Christmas, district-court Judge William Pauley ruled that the privacy protections afforded by the Constitution were relative freedoms, not absolutes ones. As such, Fourth-Amendment rights had to be calibrated against a government’s need to maintain a database of records that would (putatively) prevent future terrorist attacks. …

… This is the inglorious history of American freedom and federalism. In the rare event that the Supreme Court refuses to play along (as nicely as plaything Justice John G. Roberts did for ObamaCare)—there is always a perfectly legal, extra-constitutional, quasi-legislative, quasi-executive, quasi-judicial, “independent” regulatory commission or executive agency to kill off or override constitutional protections.

A “civil liberties officer,” for example.

The nice men in periwigs who came up with the Fourth Amendment were recklessly naive to imagine that branches of a government, each of whose power is enhanced when the power of the other branches grows, would serve to check one another. The idea of a judiciary that would police the executive as an arm of a self-correcting tripartite government was worse than naive.

As “luck” would have it, legislation that flouts the Fourth Amendment was previously in place to provide Pauley with all the positive-law backing the judge needed to justify an anti-constitutional ruling. To wit, the grounds upon which the New York jurist dismissed this ACLU (American Civil Liberties Union) case against the NSA were, primarily, “that bulk collection was [already] authorized under existing laws allowing ‘relevant’ data collection to be authorized by secret US courts.”

Here you have the essence of modern-day, Managerial-State America. Natural law, common-law and Constitution have been nullified; buried under the rubble of legislation, statute, precedent, ad infinitum, rights having long-since been outsourced to the “better” judgment of bureaucrats and hired “experts.”

In this case, to Eric Holder’s Department of Justice. …

Read the complete column. “Quacking Over Ducksters, As Freedoms Go POOF” is on WND.

JOIN THE CONVERSATION:

• At the WND Comments Section. Scroll down and “Say it.”

• On my Facebook page.

• By clicking to “Like,” “Tweet” and “Share” this week’s “Return To Reason” column.

If you’d like to feature this column, WND’s longest-standing, exclusive paleolibertarian column, in or on your publication (paper or pixels), contact ilana@ilanamercer.com.

UPDATE (1/3): Someone is guilty of a performative contradiction. In any event, I’m glad I have not lost the reader who claims he is lost to me. From the COMMENTS @ WMD:

Nys Parkie
• 12 hours ago

Mercer lost me. Was a fan. Now her libertarian squeamish mish-mash of words only offend me. Her article on hunting cut the cord. I, as a conservative libertarian only have this response. Let me live as I choose and don’t demonize me for it. Maybe you (Her) is some type of PETA Vegan in disguise, I don’t know. Hate your mirror and not me.

Reply
Spyker May Nys Parkie
• 10 hours ago

Nys..,

You cannot chastise Ilana for your lack of command of the national language of the USA. She uses no words not from a good dictionary – the only “mish-mash” is the pancake between your ears.

As far as being ‘offended’ – kindly consider carefully what is ostensibly ‘arrogance’ and what is de facto personal insecurities.

To follow Ms Mercer demands no greater effort than reading through ATLAS SHRUGGED in a week…