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.

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.

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.

The Sweet Sounds of Secession

Constitution, Homosexuality, Law, States' Rights, The State

Contra broadcaster Mark Levin, the healthiest and most intuitive response to deep-seated unhappiness—political or personal—is not to hold a constitutional convention, but to leave; to exit the abusive relationship.

In Utah, it was U.S. District Judge Robert Shelby who did the honors of striking down “Utah’s voter-approved law defining marriage as between a man and a woman.”

In response, a “constitutional attorney” named Joe Wolverton spoke stirringly about secession:

The federal government does hundreds of things every day that are not in the “contract,” so states have the right to rescind it, he said.

“We are absolutely within our right to secede from a political union that no longer answers to the demands of liberty and justice,” he said.

Wolverton also went after elected officials who he says have betrayed the country.

“Have we elected traitors? Yes we have, absolutely. Both parties continue to grow the federal government and burden the states and the people.”

Mark Levin has trashed secession but looks to the states for salvation:

To reclaim the republic, Levin and his listeners look to the states and their role in the amendment process, as stipulated in Article V of the Constitution. Never mind that the states, contrary to the mistaken predictions and hopes of the Constitution makers, have never initiated a constitutional amendment; and never mind that even in the event that the states demand a constitutional convention, there is no mechanism to compel Congress to act.

The great constitutional scholar James McClellan was no “neo-confederate.” Yet even an ardent defender of the Constitution as McClellan conceded that, sadly, “the Framers relied on the good faith of Congress for the observance of the requirement” and that “there was no way to force Congress to act.” (“Liberty, Order, And Justice: An Introduction to the Constitutional Principles of American Government,” p. 310.)

Levin and his listeners are deluded if they think that from the “free” states—all four of them (New Hampshire, Colorado, South Dakota and Alaska)—will come our salvation. The legislatures of two-thirds of the states have to unite to call on Congress to hold a national Constitutional convention for the purpose of amending the dead-letter Constitution.

Incidentally, as a libertarian, I want to keep the state out of marriage altogether. “In furtherance of liberty, Uncle Sam’s purview must be curtailed, not expanded. On this score, let our gay friends and family members lead the way. Let them solemnize their commitment in contract and through church, synagogue and mosque (that will be the day!).”

UPDATED: Liars at Labor (40,000 New Reasons For More Joblessness)

Economy, Labor, Law, Regulation

As a more realistic index of unemployment, we’ve always reported the U-6 unemployment index, which includes the unemployed and people who would like to work but who have not looked for a job recently, as well as those involuntarily working part-time. But at 13.1 percent, the U-6 is overly optimistic. The “actual unemployment rate is 37.2 percent.”

Via Washington Examiner:

David John Marotta calculates the actual unemployment rate of those not working at a sky-high 37.2 percent, not the 6.7 percent advertised by the Fed, and the Misery Index at over 14, not the 8 claimed by the government.

Marotta, who recently advised those worried about an imploding economy to get a gun, said that the government isn’t being honest in how it calculates those out of the workforce or inflation, the two numbers used to get the Misery Index figure.
Sign Up for the Paul Bedard newsletter!

“The unemployment rate only describes people who are currently working or looking for work,” he said. That leaves out a ton more.

“Unemployment in its truest definition, meaning the portion of people who do not have any job, is 37.2 percent. This number obviously includes some people who are not or never plan to seek employment. But it does describe how many people are not able to, do not want to or cannot find a way to work. Policies that remove the barriers to employment, thus decreasing this number, are obviously beneficial,” he and colleague Megan Russell in their new investors note from their offices in Charlottesville, Va.

MORE.

UPDATE: Here are 40,000 new reasons for more unemployment. These lousy laws will also make you an outlaw, if violated.

Conservatives Adopting Lefty Language About ‘Income Inequality’

Business, Capitalism, Conservatism, Economy, Federal Reserve Bank, Individualism Vs. Collectivism, Private Property, The State

A more meaningful index than “income inequality”—it implies that income equality is the thing to strive for, heaven help us!—would be the correlation between the increasing balance sheets of the central banks of the world and so-called increasing wealth discrepancies.

Conservatives rarely argue the morality of capitalism and individual liberty. If they do debate, it is about the utility of freedom to the common good. The entire impetus of Republican-Party operatives is to keep up with the issues the Democrats introduce to distract from the destructive effects of galloping statism. So if the latter decry “income inequality,” the former affirm that they too worry themselves sick over whatever it is the Democrats are droning on about.

Today, Fox News reported gravely that the “World’s richest 85 people have as much as bottom half the population.” Similarly, this Townhall.com writer assures his readers that “Inequality is a Conservative Issue.”

“The Capitalist Professor” George Reisman is having none of it. He writes “In Defense of Business Fortunes and the Destructive Effects of Imposing Economic Equality,” at www.twitter.com, @GGReisman:

1. A fortune is accumulated by means of earning a high rate of profit on capital and heavily saving and reinvesting it year after year.

2. The high rate of profit is achieved by introducing newer, better products or producing existing products at a lower cost.

3. Sooner or later, competition brings down a high rate of profit to the general level. To go on earning it, further innovation is necessary.

4. For example, to maintain its high rate of profit, Apple has had to repeatedly improve its products and introduce several major new ones.

5. Had Apple stood still, its initially very profitable products, made obsolete by competition, would now be selling at huge losses.

6. The high profits are generally invested in the means of producing the very kind of products in which the innovations take place.

7. For example, Apple’s profits are invested in the expanded and improved production of Apple’s products.

8. Thus, business fortunes under capitalism represent ever better, less expensive products produced with capital constituted by those fortunes.

9. The fortunes originate in profits and are used as capital. Both ways they serve the general buying public. They also pay wages and salaries.

10. The existence of fortunes under capitalism benefits everyone in his capacity both as a buyer of products and seller of labor.

11. Imposing economic equality requires the confiscation of high profits. It would abort the earning of fortunes and stifle economic progress.

12. Advocates of economic equality know nothing about profits, innovation, or capital. They believe that wealth is a pile of consumers’ goods.

13. The capitalists, whom they depict as fat men, allegedly have too much of this pile. Some of it must be given to the starving masses.

14. Thus, imposing economic equality is also a policy of seizing capital in order to consume it—eating the seed corn and being impoverished.

15. Advocates of economic equality are wilfully ignorant of economics. They are fueled by envy and resentment, biting the hands that feed them.

16. Socialism/Communism is their philosophy. Stalin and Mao are their heroes. Famine, slave labor camps, and mass death are their legacy.