Category Archives: Federalism

UPDATED: What Would John Randolph Of Roanoke Have Said?

Barack Obama, Conservatism, Federalism, Founding Fathers, History, Individualism Vs. Collectivism, States' Rights, The State

Obama’s remarks at Roanoke, Virginia, July 13, 2012, were more than a faux pas.

With these remarks, Obama has outed himself as a most odious collectivist, who believes that government predation is a condition for production:

There are a lot of wealthy, successful Americans who agree with me — because they want to give something back. They know they didn’t — look, if you’ve been successful, you didn’t get there on your own. You didn’t get there on your own. I’m always struck by people who think, well, it must be because I was just so smart. There are a lot of smart people out there. It must be because I worked harder than everybody else. Let me tell you something — there are a whole bunch of hardworking people out there. (Applause.)
If you were successful, somebody along the line gave you some help. There was a great teacher somewhere in your life. Somebody helped to create this unbelievable American system that we have that allowed you to thrive. Somebody invested in roads and bridges. If you’ve got a business — you didn’t build that. Somebody else made that happen. The Internet didn’t get invented on its own. Government research created the Internet so that all the companies could make money off the Internet.

That snot Obama uttered these words in a place carrying the name Roanoke. I’m probably in a minority, but the place name makes me think of John Randolph of Roanoke, the great Southern agrarian, radical proponent of the states’ rights doctrine. John Randolph would have driven the parasite Obama off the commonwealth with force, if need be:

“Randolph was especially critical of the commerce clause and the general welfare clause of the Constitution. He predicted that the great extension of the power of centralized government would someday occur through these legal avenues. Time has proven him correct.” John Randolph of Roanoke [was] an eccentric genius, unwilling to admit the slightest compromise with the new order. Randolph feared the results of excessive centralization and the impersonality of a government too far removed from the varieties of local experience. Discussing the House of Representatives, he asked: ‘But, Sir, how shall a man from Mackinaw or the Yellow Stone River respond to the sentiments of the people who live in New Hampshire? It is as great a mockery — a greater mockery, than it was to talk to those colonies about their virtual representation in the British parliament. I have no hesitation in saying that the liberties of the colonies were safer in the custody of the British parliament than they will be in any portion of this country, if all the powers of the states as well as those of the general government are devolved upon this House.'”
“Russell Kirk makes Randolph’s attitude completely clear when he writes, ‘For Randolph, the real people of a country were its substantial citizenry, its men of some property, its farmers and merchants and men of skill and learning; upon their shoulders rested a country’s duties, and in their hands should repose its government.’ It is John Randolph who developed much of the political framework later brought to fruition by John Calhoun. The primary emphasis in that framework as it developed rested upon the doctrine of states’ rights, a position not without validity. Indeed, an earlier biographer of John Randolph, the almost equally eccentric and irascible Henry Adams, has suggested that the doctrine of states’ rights was in itself a sound and true doctrine: ‘As a starting point of American history and constitutional law, there is no other which will bear a moment’s examination.’
Randolph was especially critical of the commerce clause and the general welfare clause of the Constitution. He predicted that the great extension of the power of centralized government would someday occur through these legal avenues. Time has proven him correct.” (“American Federalism: History,” by George Charles Roche III)

UPDATE (July 18): The Law by Frédéric Bastiat:

When successful, we would not have to thank the state for our success. And, conversely, when unsuccessful, we would no more think of blaming the state for our misfortune than would the farmers blame the state because of hail or frost. The state would be felt only by the invaluable blessings of safety provided by this concept of government.

UPDATE II: A Romp Down Memory Lane With Justice Roberts

Bush, Constitution, Federalism, Founding Fathers, Healthcare, Justice, Law, The Courts

HERE are excerpts from “A Romp Down Memory Lane With Justice Roberts,” now on RT.

Is John G. Roberts Jr. no more than a smooth operator, I wondered on September 15 2005.

I began tracking the now infamous Justice Roberts a month earlier, around the time he was exciting admiration from gay-rights activists for winning “Romer vs. Evans” for them. The Los Angeles Times, at the time, noted that “Romer vs. Evans” had “struck down a voter-approved 1992 Colorado initiative that would have allowed employers and landlords to exclude gays from jobs and housing.”

Gay activists still consider the decision Roberts won for them the “single most important positive ruling in the history of the gay rights movement.” Special pleading not being this column’s “thing,” arguments from and against so-called gay rights did not sway me much.

Rather, I urged readers to pay attention to Roberts’ efforts against the private property and freedom of association of Coloradans. “When property is rendered insecure,” said Edmund Burke, “so is liberty.”

Alas, Roberts’ (pro bono) work comported with 14th-Amendment jurisprudence, aspects of which violate private property rights and freedom of association. Simply put, to the extent that the Constitution coincides with the natural law, it is good. More often than not, it has buried natural justice under the rubble of legislation and statute.

My choice for the Supreme Court of the United States, back when President Bush was pushing the goofy Harriet Myers, was Justice Janice Rogers Brown. An originalist, Justice Brown is also black. Pigment, however, only works in favor of candidates of the Left.

“Today’s senior citizens blithely cannibalize their grandchildren because they have a right to get as much ‘free stuff’ as the political system will permit them to extract.” This was just one of Justice Brown’s many admirable utterances. (Today’s brazen cannibals would object to Brown’s maligning as vociferously as the obese derided this writer for telling the truth about their fat and flaccid icon, Citizen Karen Klein.) …

… But, here’s the thing that unsettled so about Roberts’ performance during confirmation proceedings. Or so I wrote on September 15, 2005:

“He seems to be all about the moves” …

READ the complete column. “A Romp Down Memory Lane With Justice Roberts” is now on RT.

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

JOIN THE DISCUSSION—AND DO BATTLE FOR LIBERTY:

• At the WND and RT Comments Sections.

• By clicking to “Like,” “Tweet” and “Share” “Return To Reason” on WND, and the “Paleolibertarian Column” on RT.

UPDATE I: “A vast new federal power to ‘tax'” has been birthed by the philosophical successor to chief justice of the United States, John Marshall, the “intellectual progenitor of federal power”:

No one can know the true motivations for the idiosyncratic rationale in the health-care decision written by Marshall’s current successor, John Roberts. … Perhaps Chief Justice Roberts really means what he wrote – that congressional power to tax is without constitutional limit – and his opinion is a faithful reflection of that view, without a political or legal or intra-court agenda. But that view finds no support in the Constitution or our history. It even contradicts the most famous of Marshall’s big government aphorisms: The power to tax is the power to destroy.
The reasoning underlying the 5-to-4 majority opinion is the court’s unprecedented pronouncement that Congress’ power to tax is unlimited. The majority held that the extraction of thousands of dollars per year by the IRS from individuals who do not have health insurance is not a fine, not a punishment, not a payment for government-provided health insurance, not a shared responsibility – all of which the statute says it is – but rather is an inducement in the form of a tax.

“The logic in the majority opinion is the jurisprudential equivalent of passing a camel through the eye of a needle. The logic is so tortured, unexpected and unprecedented that even the law’s most fervent supporters did not make or anticipate the court’s argument in its support. …”

UPDATE II (July 6):

From: J
Sent: Friday, July 06, 2012 11:49 AM
To: Ilana Mercer
Subject: Recent article

Your article today was excellent.

Most notably the part about how Roberts answered the question posed by the Senator about the administrative state….. so true. That’s our biggest problem in this country because half of all “conservatives” are for it. Very strange how he steered around the question.

J.

Let’s Break-Up And Break Free, Says BAB Contributor

America, BAB's A List, Federalism, Founding Fathers, History, Liberty, Nationhood

Barely a Blog (BAB) contributor Myron Pauli has an Independence-Day message of freedom: Let’s break-up and break free. If you haven’t gotten his drift, on this Independence Day—Dr. Pauli recommends doing away with the supersize version of the United States of America, as this will do wonders for liberty. Hear hear! (Myron’s bio is below. It’s packed with his usual flare. Perhaps Myron’s highest achievement, however, is his teenage daughter. Dr. Pauli is the most devoted single dad I know.)

DO WE NEED TO HAVE A “UNITED STATES OF AMERICA”? Of course, our Founders asked questions like that – but nowadays, to ask is even borderline treason making one a racist, terrorist, or psychotic. So much for the Land of the Free. But I will ask it anyway!

Other Empires have devolved – USSR being the best recent example. I don’t want to get caught up in detailed nuances but it can be done – so we can have 20 to 50 “countries” instead of one. OK – the 2 Dakotas and Montana can be the Republic of Northland. It will not be a superpower – but not everyone has to be #1. The Danes, Swiss, and Costa Ricans sleep soundly even if China, France, and Israel have more powerful armies. Is China about to invade Northland, anyway?

In fact, the “Federal” Government of the 1787 Constitution was not created (dismissing the Articles of Confederation as more of a Congressional coffee klatsch) to ward off imminent attack from Frederick the Great. Much of the impetus came from the corruption and ineptitude of the 13 states which quickly slid into “banana republic” governments. The soldiers of the Continental Army were stiffed and would have staged a coup if not for General Washington. Fiat paper money was shoved into circulation (sounds like today!). Debts, foreclosures, and contracts were negated by demagogic mobs that controlled the local legislatures. If someone in Rhode Island owed money to a creditor in Virginia, forgetaboutit!

If, when debts were not repudiated, gangs like Shays Rebellion put pressure to do so. Goods flowing from Maryland to New Jersey risked getting the “TSA treatment” from goons in Pennsylvania or Delaware. It was with that mess in mind that people like Franklin joined up with quasi-monarchists like Hamilton and supported a national government with LIMITED powers to restrain the states from the hanky-panky they were sliding into. An indirectly elected national government with limited powers could serve as a check-and-balance on the two-bit state demagogues. Franklin recognized this in his famous 17 September 1787 speech – that it would serve the cause of liberty for some time until the people will have grown corrupted.

Even 100 years after, advocates of limited government had a champion in Grover Cleveland, but by 1896, there was an electoral choice between the Plutocratic Imperialists of McKinley and the Currency Debasers of Bryan.

The country has grown but government has grown more and liberty has shrunk. The price of keeping Wyoming safe from an invasion from India currently includes SWAT teams raiding chemo patients for pot plants and bureaucrats from 3000 miles away scanning algebra test scores.

If we did break up, we run the risk of DC turning into Zimbabwe and Mississippi becoming Klan land, but there might be some restraint on the states due to economic competition. If Texas and North Carolina wanted racial, second-class status for Asians, their universities and engineering companies would become a laughing stock. The higher Massachusetts raises taxes, the more people would emigrate to New Hampshire.

But it might not go all that smoothly. What would prevent a combination of Mexico and California from invading an Arizona that attempted to enforce immigration restrictions? Would a power-hungry New York megalomaniac (Bloomberg) attempt to coerce Connecticut as well?

The danger is not as likely to come from China or India or Russia or some bucktoothed Afghan Pushtuns, but from North American Huey “Kingfish” Longs.

Franklin supported the Constitution, but warned that it “can only end in Despotism, as other forms have done before it, when the people shall become so corrupted as to need despotic Government, being incapable of any other.” One can also add Jefferson’s quote: “experience hath shown, that even under the best forms of government those entrusted with power have, in time, and by slow operations, perverted it into tyranny.”

The TSA, the SWAT Teams, the endless undeclared wars, the out-of-control deficits, the drones and constant surveillance – this was not forced on us by Germans or Martians but what WE HAVE DONE TO OURSELVES. Local corruption might be preferred to national or international corruption, but it is still evil.

So my preference is summed in one word – small may not always be beautiful, but it’s better for liberty.

**
MYRON PAULI, Ph.D., grew up in Sunnyside Queens, went off to college in Cleveland and then spent time in a mental institution in Cambridge MA (MIT) with Benjamin Netanyahu (did not know him), and others until he was released with the “hostages” and Jimmy Carter on January 20, 1981, having defended his dissertation in nuclear physics. Most of the time since, he has worked on infrared sensors, mainly at Naval Research Laboratory in Washington DC. He was NOT named after Ron Paul but is distantly related to physicist Wolftgang Pauli; unfortunately, only the “good looks” were handed down and not the brains. He writes assorted song lyrics and essays reflecting his cynicism and classical liberalism.

Anticipating A Turn of The Health-Care Screw

Federalism, Healthcare, Individual Rights, Law, The Courts

Nothing short of a total repeal of Obama care will do, because such a repeal will amount to nothing more than a “do no more harm” injunction. However, even in the unlikely event that the SCOTUS deals a set back to Obama’s politburo of proctologists in the waiting, and repeals the hulking bill–we are still screwed, as we currently labor under a costly, unwieldy “patchwork of indemnity insurance arrangements, managed care, private payment, and charity.” Free market incentives are not exactly robust in the current Third-Party system.

Until tomorrow, Amy Howe anticipates the health-care decision, “In Plain English,” at the SCOTUS Blog:

Once the Court does turn to health care, there are four questions before it. Three of those questions revolve around the “minimum coverage” provision, popularly known as the “individual mandate.” Of course, the question keeping the White House, Congress, and everyone else in the country on pins and needles is whether the mandate – which would require virtually all Americans to buy health insurance by 2014 or pay a penalty – is constitutional: can Congress, using its power under the Constitution to regulate commerce between the states, make people buy health insurance? (More detailed Plain English discussions of the substantive issues in the case, including the individual mandate, are available at this link.)

But before the Court can decide whether the mandate is constitutional, it must first decide whether it can even rule on this question at all. The potential obstacle to the Court’s review of the mandate is the Anti-Injunction Act (AIA), an 1867 law that prohibits lawsuits to challenge a tax until the tax has actually gone into effect and needs to be paid. At least one lower court has concluded (and the federal government once even argued) that the “penalty” which would be imposed on someone who doesn’t buy health insurance under the mandate is a “tax”; therefore, this line of reasoning goes, someone who believes that the mandate is unconstitutional cannot bring a lawsuit making that argument until after the mandate actually goes into effect in 2014.

If the AIA applies to the lawsuit over the mandate, then the Court cannot consider the challenge to the mandate even if both the federal government and the states challenging the law want the Supreme Court to decide the case. So if at least five of the nine members of the Court were to conclude that the AIA does apply to the mandate, that would be the end of the matter. The Court would not discuss, much less rule on, whether the mandate is constitutional, nor would there be any reason for the Court to weigh in on what parts of the law, if any, can survive if the law is unconstitutional – the “severability” question. Instead, the Court would skip straight to the fourth and final question, dealing with the constitutionality of a provision that expands eligibility for Medicaid, the state-federal partnership that provides health care to the poor.

What the Court will in fact decide about the AIA obviously remains to be seen tomorrow. After the oral argument in March, most Court watchers believed that the Court would not regard the AIA as a bar to reviewing the mandate. But if that issue went the other way, that decision would postpone a decision on the mandate until well after the presidential election – which might be an appealing option both for political reasons and if the Court is having a hard time coming up with a majority to resolve the mandate issue.

At least for tomorrow, all that anyone will really be interested in with regard to the AIA is the Court’s bottom line: can it review the mandate issue or not? If it agrees with both sides that it can, all eyes will then turn to that constitutional question. Most Americans care about the bottom line: is the mandate constitutional? Even if the Justices disagree on the reasoning, the mandate would still survive.

If the mandate does survive, then the Court’s work is almost done; all that would be left would be the Medicaid issue, which we will discuss in a moment. But if at least five Justices vote to strike down the mandate, then the Court will have to decide what other parts of the law, if any, fall with it. On this “severability” question, the Court will again have several options. It could allow all of the rest of the ACA to stay in place; it could conclude that the rest of the law must go too (as the states have argued); or it could settle on a middle ground – for example, as the federal government argued, by striking down the provisions that are inextricably linked to the mandate but allowing the others to go into effect.

Finally, as long as the Court doesn’t conclude that the entire ACA must fall, it will have to resolve one more issue: does another provision of the Act violate the Constitution because it effectively coerces the states, requiring them to comply with the ACA’s expanded Medicaid eligibility requirements or risk losing all of the money that they receive for Medicaid from the federal government? The lower court agreed with the federal government that it does not, and the Justices seemed to be leaning that way at oral argument. But as we saw on Monday when the Court announced its decision in the Arizona case, the oral argument is not always a foolproof predictor of how the opinion will turn out.

So check back tomorrow; we’ll have our first reporting on the decision as soon as it is announced, and then we’ll break it down into Plain English as soon as possible after that.