What kind of America allows the President to grant waivers to laws passed by Congress?

That is not a rhetorical question.

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Stop thinking that this discussion is merely about ObamaCare. You’re getting caught up in the noise. We all are. We think that this is about politics.

Clear your head and think about some things that actually matter. Think about that one history teacher who got through to you that year that you finally grasped how special America is. Think about that indescribable feeling deep in your soul when you look at our beautiful flag as you listen to the national anthem.  Think about the people who paid horrible prices so that they could hand over the American Experiment to us, from Crispus Attucks to the Marines who lost their lives in Afghanistan last week.

Think about whatever it takes for you to get to that state of mind where you are in awe of American Exceptionalism.

Clear your mind and think about the majesty and importance of the US Constitution.

Find your patriotic center.

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This doesn’t have a damned thing to do with ObamaCare.

We talk about how it is “unfair” that the President is granting waivers on ObamaCare to certain corporations and groups, which is true.  But this is so much more fundamental than that.

The United States Congress passes a law, and the President of the United States gets to select who has to follow that law.

In that situation, is there any law?  Is that how your United States of America works?  Not mine, brother.

This is so much bigger than arguments over Interstate Commerce Clause overreach.  This is a fundamentally illegal and unconstitutional affront to our American Ideals.

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What was tyranny again? Someone please remind me. I want to recognize it when I see it. The Declaration of Independence told me that I was supposed to look out for that sort of thing.

You see a lot of people in America who will self identify as “liberal”, but in almost all cases those people are in fact the opposite of liberal.  The general understanding of the definition of “liberal” in America has changed greatly over the years and now means authoritarian.

This reality and the widespread misunderstanding of it have bothered me for a long time.  In fact, while re-reading portions of F.A. Hayek’s incredibly good The Road to Serfdom a few weeks ago, I saw that Hayek himself addressed it.

When I first read Hayek’s classic, which contends that all collectivist systems ultimately descend into tyranny, I was initially confused by his use of the word liberal to describe people that I would more properly label as libertarians.  My confusion was based upon the reality that the word liberal got hijacked in America by people who are most decidedly not liberal.  In the 1956 preface to the book, Hayek addresses this directly:

The fact that this book was originally written with only the British public in mind does not appear to have seriously affected its intelligibility for the American reader.  But there is one point of phraseology which I ought to explain here to forestall any misunderstanding.  I use throughout the term “liberal” in the original, nineteenth-century sense in which it is still current in Britain.  In current American usage it often means very nearly the opposite of this.  It has been part of the camouflage of leftist movements in this country, helped by the muddleheadedness of many who really believe in liberty, that “liberal” has come to mean the advocacy of almost every kind of government control. I am still puzzled why those in the United States who truly believe in liberty should not only have allowed the left to appropriate this almost indispensible term but should even have assisted by beginning to use it themselves as a term of opprobrium.  This seems to be particularly regrettable because of the consequent tendency of many true liberals to describe themselves as conservative.

In other words, let’s stop playing along with their self-congratulatory but demonstrably false labeling.

When someone self-labels as a liberal, ask that person if they support ObamaCare or the takeover of the student loan program, for example.  If they answer affirmatively, you should calmly but firmly communicate to them that liberal is an inappropriate word to describe their ideology and that the more correct term is authoritarian or, even better, statist.  Mark Levin has returned the word statist to the lexicon and it is absolutely the most correct word to use when describing the American Left.  They do not believe in individual liberty.  What they do believe in is massively increased centralized control over the lives of the American people.  That is the opposite of freedom.

In my case, I am a lowercase-L libertarian conservative, and I am far more correctly described as a [classical] liberal than any American so-called liberals.  Unlike the American Left, I do believe in individual liberty, whereas they see us all as livestock living on their government collective.

In a recent interview on C-SPAN (video follows post), Sunstein provided a glimpse into the dishonest thought processes required of those who follow this Living Document constitutional philosophy.  (For a more in-depth look at this dangerous philosophy, please see a previous post titled Living Document Tyranny).

From the video:

Some conservative legal thinkers like Justice Scalia and Justice Thomas think that the Constitution means what it originally meant.  That means we should understand the document by going into a kind of time machine and capturing the public understanding of the public that ratified the document a century or more than a century ago.  So that is a very distinctive approach, it would involve quite radical changes in our existing Constitutional understandings and Justice Thomas is entirely clear on that.  Uh, he’s voted to overrule the Supreme Court’s own precedents, uh, over twenty times.

This guy is actually mocking the suggestion that the Constitution “means what it originally meant”.  A brilliant satirist like Iowahawk could not even make this stuff up, folks.  And let’s not forget that this guy is a “respected” academic who is one of the President’s inner circle of advisors.

Anyone familiar with Sunstein and his ilk know that while they deftly wrap up their smoke and mirrors in an elitist Ivy League shroud, when the rubber hits the road they are nothing more than a group of pseudo-intellectuals who are so ideologically driven that the ends always justify the means.  The typical modus operandi of this small group of self-labeled elitists involves contorting the language of the Constitution in pursuit of an ever more powerful central government.  But in cases like this interview of Sunstein they out themselves as either woefully ignorant (have you ever heard of the Federalist Papers, “professor”?) or dishonest (we’ve heard of the Federalist Papers, “professor”!).

The US Constitution is not an ancient, carbon dated archaeological relic.  There is no shortage of supporting documentation for the Originalist (e.g. only legitimate) interpretation of the document.  But true to form for people like Cass Sunstein and Barack Obama, they routinely and arrogantly act as if history started the very moment that they walked up to the scene.  I call it the College Sophomore Syndrome, but apparently some people never outgrow it.  Perhaps it requires getting out into the real world and getting a real job…

In fact, applying my favorite analogy for Originalism, I have little doubt that if Sunstein’s mortgage company approached him with the argument that they were increasing the duration and interest rate of his loan because of some vague language in the contract about managing the account, he would push back and would righteously point to the contract’s words as important, expecting those words to be understood in the same manner as when he signed his name.  Yet when it comes to the US Constitution he pretends that the words mean nothing because they were written with a feather pen.

A time machine?  Cass Sunstein is an outright ideological idiot.

Further, when criticizing Justice Thomas for voting ”to overrule the Supreme Court’s own precedents  over twenty times”, Sunstein seems to be suggesting that once the high court makes a decision it is carved in stone and should never be re-examined.  Based upon that position, it is safe to assume that he would have liked to see decisions like Dred Scott and Plessy v. Ferguson stand.

They are an American wannabe Politburo seeking ever more control over the lives of Americans.

Let’s stop beating around the bush here.  Let’s dispense with the notion that the Left respects the Constitution at all.  In fact, statists like Cass Sunstein and Barack Obama do not view the Constitution like you and I do.  It goes well beyond how we choose to interpret it and goes to the core of what that document means.  I view the US Constitution as the second greatest political document ever created by man – the first being our Declaration of Independence.  This incredible document has made possible the greatest country and standard of living in the history of the world, all because it properly constrained government from interfering with our life, liberty, and pursuit of happiness.  The rugged individualism of Americans is unstoppable unless overly encumbered by intrusive government, and the entire purpose of our Constitution was to restrain government from asserting the level of control over the lives of its citizens that the well-educated founding fathers saw throughout history.

In clear constrast with our historical American understanding of the role of government and its necessary restraint by the Constitution, Cass Sunstein and his intellectual henchmen simply view the US Constitution as a problem, a hindrance, a roadblock to their progressive agenda.   They see a set of words that must be bent, folded, and mutilated in order to make possible their government-loving, liberty-loathing ideological agenda.  They constitute an American wannabe Politburo seeking ever more control over the lives of Americans.

Sunstein goes on to commend retired Justice O’Connor for ignoring the Constitution at times, something that’s always popular with the D.C. cocktail circuit, then finishes with this whopper:

So this is a big split between literal conservatives and those who believe that the Constitution’s best interpretation is very dramatically different from what we now have.

He speaks the truth here but his truth is a photo-negative of our historic self-evident truths.

Comrade Sunstein and his co-conspirators have so successfully perverted the role of the federal judiciary – and their unrestrained reinterpretation of the Constitution – that they feel comfortable dismissing as antiquated the very notion of simply reading the text and other works like the Federalist Papers.  What matters to them is social engineering, and they will let nothing stand in the way. 

History will lump anti-constitutionalists like Cass Sunstein in with people like Benedict Arnold.  This is far from unreasonable as both men openly and arrogantly attacked the American Experiment.

The idea of a Living Constitution, also called the 21^st Century Constitution, necessarily rests on the intellectually weak position that the words of our country’s charter do not mean what they say.  Proponents of the concept will condescendingly and matter-of-factly argue that times have changed and that the Constitution needs to change with them, but contrary to the claims of such revisionists, our Constitution is by no means immutable.  The very clear amendment process is there for that very purpose and has been utilized seventeen times since the ratification of the Bill of Rights.

However, the process of proposing amendments in Congress and convincing the legislatures of three-fourths of the states to ratify the changes is too slow – and too thoughtful – for the statists.  This process – the only legal way to change the Constitution – gives the people and their elected representatives time for deeper consideration of the issues and potential ramifications.  It seems obvious that the framers intentionally made this method of change a cumbersome process in order to avoid succumbing to the fickle nature of people in a democratic system.

For a number of years I have used a mortgage analogy to try to explain Originalism and why it is the only legitimate Constitutional philosophy.  When you purchased your home, you entered into a voluntary contract with the company that loaned you the money for the house.  Contained in that contract is language explaining the terms of the agreement as well as specific details like your length of loan and the interest rate.  As with any legal contract, the words contained therein are to be interpreted and understood in the manner originally used and with their original understanding.

Now imagine that your bank contacted you with some changes to your agreement.  The letter they send you states that because the language in the original mortgage contract contains some arguably vague language related to their “management of the account”, they have now reinterpreted that to mean that they can increase your mortgage rate and are exercising that right, increasing your monthly bill by several hundred dollars.  You would angrily, and correctly, reject that manipulation and dishonesty, but that is exactly what proponents of a Living Document Constitution are attempting.  They are playing clearly dishonest word games to increase their power over your life, and you should reject their approach just as you would reject your bank trying to change the agreed upon terms.

In his Imprimis article, Judge Markman focuses on six main points, but in an attempt to keep this post short I will focus only on the three points that I often use when arguing against this dangerous Living Document philosophy.  Please read Markman’s entire article; the additional points that he makes with respect to political issues and trans-nationalism are also extremely important.

Dismissing the Constitution

The main MO of the Living Document cult involves getting activist (i.e. unfettered by the Constitution) judges appointed to federal courts in order to, as Mark Levin says, constitutionalize the progressive agenda.  These dishonest judges, including the President’s recent replacements on the high court, routinely disregard the text of the Constitution in pursuit of a progressive statist agenda.

From Markman’s article:

Proponents of a “21st century constitution” or “living constitution” aim to transform our nation’s supreme law beyond recognition—and with a minimum of public attention and debate. Indeed, if there is an overarching theme to what they wish to achieve, it is the diminishment of the democratic and representative processes of American government. It is the replacement of a system of republican government, in which the constitution is largely focused upon the architecture of government in order to minimize the likelihood of abuse of power, with a system of judicial government, in which substantive policy outcomes are increasingly determined by federal judges. Rather than merely defining broad rules of the game for the legislative and executive branches of government, the new constitution would compel specific outcomes.

Yes, the forms of the Founders’ Constitution would remain—a bicameral legislature, periodic elections, state governments—but the important decisions would increasingly be undertaken by courts, especially by federal courts. It will be the California referendum process writ national, a process by which the decisions of millions of voters on matters such as racial quotas, social services funding, and immigration policy have been routinely overturned by single judges acting in the name of the Constitution—not the Framers’ Constitution, but a “constitution for our times,” a “living constitution,” resembling, sadly, the constitutions of failed and despotic nations across the globe.

Clearly there are instances when the federal courts should overturn the “will of the people”, but only in cases where legitimate constitutional rights are being violated.  However, manufacturing new so-called rights to be pushed down from Big Brother in pursuit of a political agenda is egregiously dishonest.

State Action

Rand Paul was right.  Though people like to think of the ignorant and bigoted segregated lunch counters when they attempt to justify the feds telling businesses what they can do, the reality of letting them get their big government foot in the door involves dangerous consequences like federal control of colleges and other private institutions.  Interestingly, this debate always comes back around to Hillsdale College – the publisher of Imprimis.  Another issue of Hillsdale’s publication, written by their president, details the history of the college’s successive changes in order to keep the administration of their institution out of the hands of the statists in our federal bureaucracy. You will find it quite enlightening.

As a warning, Markman quotes Harvard Professor Mark Tushnet, a proponent of the living document agenda, showing exactly how extreme these people are:

“The state-action doctrine contributes nothing but obfuscation to constitutional analysis. It works as a bogeyman because it appeals to a vague libertarian sense that Americans have about the proper relation between them and their government. It seems to suggest that there is a domain of freedom into which the Constitution doesn’t reach. We would be well rid of the doctrine.”

That thinking belongs in a totalitarian society, which is what these people seek even if they are naïve about that ultimate reality.

The Privileges and Immunities Clause

Before we continue, a brief discussion of the American Constitutional definition of rights is in order.  Broadly speaking, all of the concepts that people espouse as being “rights” can be cleanly divided into two groups: Positive and Negative rights.

Negative rights are the set of rights that most of us would agree are legitimate rights under our system and our historical view of rights.  Exercising these rights simply requires that government stay out of your way but otherwise need do nothing for you.  For example, you do have a right to free speech but no other person or entity is required to give you a megaphone or a radio show or even a soapbox on which to stand.  That part is up to you, and if you fail to succeed in exercising your free speech rights you have no one to blame but yourself.  Similarly, we have the right to keep and bear arms, but buying a firearm is up to you.  Negative rights consist of the right to pursue life, liberty, and happiness without compelling anyone to assist you or fund your rights.  If you fail to catch up with the happiness, go look in the mirror for your culprit, and leave the rest of us alone.

Conversely, positive rights, so beloved by statists like President Obama, are in fact not rights at all in the historical American sense.  They are simply wealth redistribution programs facilitated by government.  These non-rights would include such good sounding ideas as a right to a living wage or the right to have another American subsidize your lifestyle, for example paying for your health care.  In the historical American sense, these so-called rights are simply theft.  They consist of dressing up the act of using government to force more successful people to subsidize the lifestyles of those who are simply less successful than others.  This has been rightly called a soft tyranny.

Judge Markman does an excellent job of addressing abuses of the 14^th amendment’s Privileges and Immunities Clause in his Imprimis essay.  This amendment, passed after the American Civil War, was intended to force the states to recognize the genuine civil rights of non-white citizens.  The relevant text of that amendment is fairly clear:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.

Markman argues that the Living Document crowd has tried to expand the application of the 14^th amendment’s Privileges and Immunities clause to include pushing controls and regulations down to the states that have absolutely nothing to do with the legitimate “privileges and immunities” of American citizens.

Although a considerable amount of federal judicial authority has since been achieved over the states through interpretations of the due process clause of the 14th Amendment, many proponents of a 21st century constitution seek additional federal oversight of state and local laws. Their strategy in this regard is to refashion the privileges or immunities clause as a new and essentially unlimited bill of rights within the 14th Amendment. The practical consequences of this would be to authorize federal judges to impose an ever broader and more stultifying uniformity upon the nation. Whatever modicum of federalism remains extant at the outset of this century, considerably less would remain tomorrow.

Markman’s next point relates back to our earlier discussion of negative versus positive rights.  Markman quotes community organizer Barack Obama showing his allegiance to this dangerous school of thought when he criticized the Warren Court for not being radical enough, saying that “generally the Constitution is a charter of negative liberties, says what the states can’t do to you, says what the federal government can’t do to you, but it doesn’t say what the federal government or the state government must do on your behalf.”

Though Markman has a more thoughtful response to this, I would simply respond by saying that the government does not have to do anything for you other than protect your legitimate rights and otherwise stay out of your way.  Markman’s response to Obama’s dangerous view of the Constitution was spot on:

President Obama is correct. The Framers’ Constitution defines individual rights in terms of what the government cannot do to you. For example, the government cannot inflict cruel and unusual punishment, and therefore the individual has a constitutional right not to be subject to such punishment; the government cannot engage in unreasonable searches and seizures, and therefore the individual has a constitutional right not to be subject to such searches and seizures, and so forth. By contrast, the Framers’ Constitution does not guarantee rights to material goods such as housing, education, food, clothing, jobs, or health care—rights that place a related obligation upon the state to obtain the resources from other citizens to pay for them.

In short, those who espouse a living document approach to the US Constitution are in fact supporting no constitution at all, supplanting the rule of law with the rule of man, and naively believing that judges can be trusted to rule over us benevolently.

The policies and philosophy of the American Left consistently demonstrate that they view us not as free individuals but instead as livestock living on their government collective.  I categorically reject that and intend to fight their anti-freedom, and frankly anti-American, agenda until it is thrown into the dustbin of history.  Again.

It does beg the question: how many times does statism have to fail before mankind accepts that it is both immoral and unworkable?

Who is John Galt?

Statists have a racket going that too few people seem to have figured out.  Though many Americans oppose Obama and his allies based upon specific policy issues, they continue to be naïve about the tactics of these genuine enemies of freedom.  These power-hungry people seek to destroy our historical institutions and principles in order to remake America under an immoral collectivist ideology, but they must acquire more power over our lives and over the states in order to succeed.  As ridiculous as it sounds, their modus operandi involves the simple act of intentional failure.  While their consistent use of this approach demonstrates their low view of the intelligence of Americans, their success with this tactic suggests that they are on to something.

How To Seize More Power By Failing

Step 1: Intentionally let a problem become a “crisis” by either refusing to enforce laws or by enforcing laws that only worsen the situation.

Step 2: Insult every American’s intelligence by pretending to ride in on a white horse to save us from the problem that was in fact intentionally created by the same group of egregiously dishonest con men.

We see this simple statist pattern repeatedly in America, and astute readers may realize that this tactic is right up Saul Alinsky’s alley.  This approach has certainly been co-opted at times by statists in the GOP, but it is now the default MO of the Democrats in their relentless assault on American limited constitutional government.

The Broken System

The Broken System approach involves refusing to enforce good laws that would help solve a particular problem.  The statist knows that the problems associated with non-enforcement will ultimately snowball into something that he can label as a crisis, therefore nothing that could help the problem will be attempted or permitted.  When the problems predictably fester into something that can no longer be ignored, the statist demonstrates Obama-like audacity by claiming that “the system is broken.”  Remember, the statist has refused to enforce laws that would help the problem because he is using his own intentional failure to seize more power and freedom from the people he undoubtedly sees as ignorant proles.

The Broken System fallacy is perfectly displayed in the illegal immigration debate. We have enough laws on the books to close the border, deport those here illegally, and severely punish those who employ illegal aliens.  But the plain truth is that the statist has no intention of enforcing those laws.  The purported failure of those “mean” laws is intended to be used as a vehicle for the Left’s agenda to “fundamentally remake” our country into something that the founding fathers would not recognize.

The President opposes the Arizona law not out of concerns about racial profiling but instead because he knows that the law will work.  If Americans see the Arizona law working, they will reject Obama’s call for a full amnesty, which he euphemistically refers to as Comprehensive Immigration Reform.

Exactly why does the President oppose the Arizona law?  Ignore his rhetoric; Barack Obama is always selling some new snake oil.  The President opposes the Arizona law not out of concerns about racial profiling but instead because he knows that it will work.  If Americans see the Arizona law working, they will reject Obama’s call for a full amnesty, which he euphemistically refers to as Comprehensive Immigration Reform.  Don’t ever forget that so-called Comprehensive Immigration Reform is nothing less than utter capitulation and amnesty.  Why does the President of the United States want this?  He simply seeks the vote inflation that comes with stamping out another 10 or 20 million poor and uneducated citizens.  It’s all about power to the statist.  They are willing to throw anyone and anything under the bus along the way.

Saved by the Antagonist

Another statist tactic involves passing laws that severely undercut the free market system.  When the economics play out just as anyone could predict, the statists claim that this “unencumbered free market” is out of control and that greedy corporations must be reined in.  They write restrictive new regulations that always seem to have special rules and exemptions for people and companies that donate money to these politicians.  Once again, the very people whose actions caused the crisis in the first place claim that they are here to save us.  This statist tactic very clearly played itself out in our debate over socialized medicine.

Government at many levels, though mostly the federal level, put so much onerous legislation and protectionism in place with regard to medical care that the system could not function properly.  Laws against purchasing insurance across state lines, refusal to rein in the trial lawyers (who positively own the Democrat party), and government imposed mandates on coverage constructed an artificial environment that was most decidedly not a free market.  Then, completely true to the original plan, when this system predictably fails to provide reasonably priced health care the statist steps in to take the system over, castigating the “greedy” companies that the statist claims caused the problem.

Another example of the Saved By The Antagonist approach is the housing crisis and subsequent financial meltdown.  On the front-end, the government and rabble-rousers like our current President strong armed financial institutions into making bad but politically correct loans to people who previously would not have qualified for a loan.  On the back-end, they used their control of Fannie Mae and Freddie Mac to require that a certain percentage of purchased loans be so called sub-prime loans, creating a huge market for these bad loans.  Our financial crisis was clearly created by our federal government’s policies, but now people like the deeply corrupt Senator Chris Dodd – who has been called “the Senator from Countrywide Mortgage” – claim that it was all greedy bankers and that the people who really caused this are going to fix it with more market-skewing regulation.

Think about the reality of what is happening.  Imagine an old western movie.  A bad guy rides in to town, shoots the place up, and storms out of town after robbing the bank.  Then he pauses in the woods to change horses and clothes and rides into town telling the people how he can save them from such future problems if they just let him take charge of everything.  Our politicians do not even bother to change disguises when they pull this game with us.

Let’s learn from their failures, even the unintentional examples.  When they fail, we should replace them rather than giving them more power.  Let’s throw them out in November and hold their replacements’ feet to the fire every single day.

When a President nominates a judge for the Supreme Court or an important lower federal court, discussions immediately begin about litmus tests for acceptability.  Historically the issue has typically revolved around the nominee’s position on abortion.

The Wikipedia entry titled Litmus Test (politics) makes a common mistake that I hope to correct here, which is conflating issue positions with judicial philosophy.  They are two very different concepts and one largely supersedes the other.  The Wikipedia entry’s error is in attempting to equate a nominee’s position on abortion with support for strict constructionism, portraying them as equivalent litmus tests.  The comparison is inherently flawed because the former is simply a position whereas the latter is a philosophy.  In fact, in most cases the philosophy should form the position.

After successfully stepping back from an issue-based perspective to a philosophy-based perspective it becomes obvious that there is only one litmus test that matters when it comes to a nominee to a federal court.  That question is does this individual subscribe to the philosophy of originalism?  If not, that person is wholly and inherently unqualified to sit on a court that acts as the final arbiter on issues of Constitutionality.  No other questions are required.  An Originalist simply argues that the United States Constitution means what it says, while the diametrically opposed so-called Living Document crowd argues that the text can (and should) be finagled to achieve desired results.

When Bill Clinton was still President I started using a home mortgage analogy in an attempt to explain my Constitutional philosophy while making the case that it is the only perspective that makes sense.  Over the last year or so I have heard the best talk radio host in America present essentially the same analogy, and it is a good one.

If your bank contacted you to let you know that they had decided to increase your interest rate, you would categorically reject this change in the terms of the agreement.  You would sensibly point to the words in the contract and would expect those words to mean what they say.  You would not be impressed with claims by your bank that some vague wording about their management of the account has now been decided to construe an ability to change the rules.  You would once again point to the words in the mortgage paperwork.  Even if they made the argument that increasing your interest rate would allow them to provide mortgages to the less fortunate, you would tell the greedy banker to take a hike.

[Keep thinking like the angry consumer against whom the bank is trying to play word games!]

The Commerce Clause

[The Congress shall have power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;

When the federal government – or one of its leftist myrmidons – tells you that the commerce clause (Article 1, Section 8, Clause 3) gives it the power to regulate every single aspect of your life, you should sit down and spend some quality time with your Constitution.  Ask yourself with a clear head why the founding fathers would have taken the time to get so very specific in Article 1, Section 8, which includes the enumeration of powers like coining money and running the post office, if they were granting wide ranging powers to regulate at will by including a grant of power to regulate commerce “among the several states”.  Ask yourself if those preeminent guardians of liberty would agree that those words legitimately confer the power to regulate your light bulbs or toilets or, most recently, to grant the federal government the new power to make health care decisions for you.  The obvious answer, known even by those in the living document crowd, is that the founding fathers intended no such thing and would be appalled at the success of the commerce clause based power grab.

Lawyers and politicians who recklessly bend and misrepresent the words of the Constitution in an attempt to contort them into something that will achieve their desired political agenda are no different than a slimy lawyer redefining the definition of the word is.  They are egregiously dishonest and selfish, regardless of the results of their judicial activism.  In fact, they are a danger to the future of the republic.

So, in summation, my Supreme Court Litmus Test is really quite simple:

Does the Constitution mean what it says?

I wrote most of this before President Obama nominated Elena Kagan to replace John Paul Stevens on the high court.  Though Ms. Kagan has no judicial experience whatsoever –certainly Mr. Obama’s clumsy attempt at a stealth candidate – an intelligent observer should know that the President would never consider nominating a judge who subscribes to Originalism.

Not being an Originalist, Elena Kagan is categorically unqualified to sit on the Supreme Court.

UPDATE: Last night my son and I listened to Friday night’s Mark Levin show podcast on the way to little league practice (I always listen to them a day or two later) and Mark was talking about Originalism as well.  Further, pointing out that Ms. Kagan seems to be uniquely unqualified to be a justice – she has never been a judge nor argued a case before an appellate court – Levin calls on the GOP Senators to filibuster her nomination.  We all know that they do not possess the cojones for that.

The consistent and continuing energetic opposition to ObamaCare in the face of its forced passage poses an interesting question.  Is it ever acceptable for the federal government to force unpopular and unwanted legislation or rulings down to the states and the people?  Given that this is a limited government that allegedly governs only with the consent of the governed, is that the sort of thing that we tolerate in America?  In fact there are situations in which this is legitimate, but certainly not in the broad and dangerous way being demonstrated by the freedom loathing Marxists now running our government, who view the American people as a simple-minded herd of cattle living on their government collective.

When the founding fathers crafted the US Constitution they were faced with the challenge of creating a system that attempted to balance a very legitimate fear of an abusive central government with the reality that the weak Articles of Confederation had been an utter failure.  To address these observed shortcomings while remaining true to the underlying principles of the American Experiment and its Declaration of Independence, the proposed Constitution delegated very specific powers to certain branches of the nascent federal government.  Additionally, providing a balance to the long list of powers and limitations in the Constitution, the Bill of Rights listed specific protected rights of the people and related limitations on government.  Making a final point, they underscored this underlying limited-government philosophy with the all too often ignored 9^th and 10^th amendments, which make it crystal clear how limited the central government was intended to be.

The founding fathers clearly believed that the biggest threat to liberty came from a powerful central government and that most issues should be handled by the several states.  In most cases this is a prudent approach.  But if the central charter of our government involves a commitment to individual rights, what can that federal government do – and what should it do – when the truly fundamental rights required for that civil society are being violated?

After the American Civil War, slavery was finally prohibited in America with the ratification of the 13^th amendment.  However, contrary to the principle so eloquently stated in our founding document that “all men are created equal”, the non-white citizens of many states continued to live as second class citizens, lacking voting rights and the ability to run for elected office.  In short, the states were depriving many American citizens of rights that our system claimed to champion.  At the same time, these very states wished to count these people for purposes of congressional representation.  This unacceptable chasm between the inherent rights so clearly spelled out in our founding documents and the contrasting reality faced by many Americans living without those rights drove the next amendment to our Constitution.

In response to egregious violations of Americans’ individual liberties including acts such as the Black Codes, which were attempts by some states “to control the labor, movements and activities of newly-freed slaves”, the 14^th amendment was proposed to the states.  The first clause of the 14^th amendment demands that the citizens of all states enjoy the constitutional rights of American citizens:

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.

When the racist Democrats in many southern states would not protect the legitimate constitutional rights of some of their citizens, the federal government rightly stepped in many times.  Most recently, when the Supreme Court declared Chicago’s handgun ban to be unconstitutional in McDonald v. Chicago, they leveraged the 14^th amendment’s privileges or immunities clause.  In both examples the federal government contended that Americans have inherent constitutional rights and that not even the states can violate those unalienable rights.

I provided these as legitimate examples of what you could rightly call guidance from above, in which the federal government is playing its appropriate (post-14^th amendment) role in protecting our liberties – even from the states.  Put simply, we have a basic constitutional template for certain rights and privileges and the 14^th amendment was passed in order to ensure that the states play by these rules.  While there is certainly no shortage of abuses of the 14^th amendment, this legitimate use of what is commonly called Incorporation is in clear contrast with the dangerous and egregiously dishonest manipulations of the Commerce Clause used to justify limitless power grabs by the Obama administration.

The Commerce Clause:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

Seriously, that is the entirety of the commerce clause that is being used by statists to gut the Constitution.  You truly have to be a destructive wordsmith capable of skillfully warping the language in order to bend that short clause into the idea that Congress can regulate everything it sees fit, as evidenced by the Obama administration’s contention that the commerce clause gives them the power to force Americans to purchase health insurance.  From the utterly indefensible Wickard v. Fillburn to the current attempts by the Left to control more of our lives, the commerce clause has been abused by tyrants for decades in pursuit of more power.  While reasonable people can see that the intent was to encourage commerce among the states, the left makes the case that any product made can be regulated if it is bought or sold, even if it never crosses state lines to become interstate commerce!  In addition to countless far less benign abuses, this clause is actually used to legitimize Congressional control of the amount of water in your toilet.

In his excellent opinion in US v. Lopez, Justice Clarence Thomas perfectly points out the danger of embracing such an expansive view of the commerce clause:

if taken to its logical extreme, would give Congress a “police power” over all aspects of American life. Unfortunately, we have never come to grips with this implication of our substantial effects formula. Although we have supposedly applied the substantial effects test for the past 60 years, we always have rejected readings of the Commerce Clause and the scope of federal power that would permit Congress to exercise a police power; our cases are quite clear that there are real limits to federal power.

Accepting the Left’s interpretation of the Commerce Clause means that absolutely nothing is outside the legitimate control of the federal government.

Standing in stark contrast to the legitimate protection of constitutional rights, that is nothing less than tyranny from above.

The title of this post makes the provocative statement that liberalism is not simply wrong, it is inherently immoral.  To examine this argument we must first define some terms.

Though they are often lumped in with each other as the same thing, the fact is that liberals and democrats are not necessarily the same thing.   Liberalism is a freedom-loathing philosophy, whereas the Democrat party is simply the vehicle that statists use in an attempt to force their flawed anti-freedom agenda on the rest of America.  It is very important to note that liberalism is not different in kind from the other slave-to-the-state “isms”.  It is simply different in degree.  Liberalism shares an anti-individual agenda with its cousins of socialism, collectivism, Marxism, Maoism, etc.  It is simply a watered down version of statism that the left feels is palatable enough to ease otherwise freedom-loving Americans into living under a soft tyranny.  All of these anti-freedom ideologies, including rank and file liberalism, involve a reverence for centralized control that is anathema to historical American freedoms.

As many have noted, and Mark Levin so eloquently pointed out in his fantastic book, the best umbrella term to use when describing all of these immoral leftist “isms” is statism.  Statists (when I use that term I absolutely include people like the President and every single member of his party in Congress) believe that you are not a free individual but are instead owned by the State.  Virtually all of their harmful entitlement programs and wealth redistribution schemes are premised on an un-American and unconstitutional view of the appropriate relationship between the government and the individual.  One simply cannot believe that the government has the power to take over your health care choices, even forcing you to purchase health insurance under penalty of law, without accepting the implicit premise that we are all just livestock living on the government collective.  In the eyes of Barack Obama and Nancy Pelosi, you are just another cow living on the government farm and you will be milked according to the whims of nameless, faceless statist bureaucrats who genuinely believe that they know better than you.  Even worse, they do not give a rodent’s posterior about the people they claim to represent.  They simply seek the power that flows from increased government dependency.  Does anyone really believe that Barack Obama cares about the quality of any American’s health care?  If you do, you are simply a naïve, Kool Aid drinking myrmidon… or a loser who just wants someone else to subsidize your lifestyle.  In either case, this quote from Sam Adams is for you:

If ye love wealth better than liberty, the tranquility of servitude than the animated contest of freedom, go from us in peace. We ask not your counsels or arms. Crouch down and lick the hands which feed you. May your chains sit lightly upon you, and may posterity forget that you were our countrymen!  – Samuel Adams

In a rather long post that I wrote last fall titled On Taxes and Socialism, I put it this way:

I mentioned earlier that I believe collectivism to be inherently immoral regardless of the results of an implementation of that system.  Churchill once said that “the inherent vice of capitalism is the unequal sharing of blessings; the inherent virtue of socialism is the equal sharing of misery.”  In practice these results have proven to be true time and time again.  To Churchill’s first point, we will always have an unequal sharing of “blessings” when those blessings are based upon a free market meritocratic system, but we also always have incredible opportunity to better ourselves.  But Churchill’s second point properly points out that the results of socialism are better for a few people at the expense of everyone else.  In this sense collectivism is immoral because it turns the entire system upside down, structuring things to be best for and most conducive to the needs of the least productive, least successful, and all too often least ambitious among us.   Often lost in the debate is the sad fact that often the mere reality of government involvement results in a worse situation for all involved, including the unavoidable creation of less ambitious people with no incentive to work harder.

Socialism is immoral because at its core, once you strip away the camouflage of false compassion, it requires an acceptance that the government owns you, that when the rubber hits the road you are simply a number, and that if you are more productive than most other people you will be regarded as a cash cow to be milked for what some group of statists considers The Common Good.  You can dress that up in the “party dress” of alleged compassion but it remains un-American and immoral.

Statism (i.e. liberalism) is immoral.  Independent of debates on spending or the size of government or even Constitutionality, statism is inherently anti-freedom and anti-American.  I know not what course others may take; but as for me I choose to fight these statist elitists, their myrmidons, and their immoral slavery to the state until the end.  To do anything less would be cowardly, un-American, and a slap in the face to the people throughout our history who laid down their lives for the idea that is America.

There is no doubt that wresting control of Congress away from these power-drunk government-loving statists will clearly be a good thing, and no sane person would suggest anything less than a full-bore attempt to win every possible seat.  Frankly, the future of the Republic depends on it.  But perhaps simply being close enough to a 50/50 split would be a better long-term result for the GOP as long as they can still obstruct the statist agenda of Obama and his minions.  While controlling at least one half of Congress would go a long way toward stopping Comrade Obama’s frantic rush toward socialism, let’s not forget that undoing the damage done by this administration is going to require control of the White House.  Even a lame duck Obama wields a difficult-to-override veto and there is no chance of gaining a two-thirds majority of both houses in 2010.  Our primary goal is to remove the most radical President in US history from office after one term, and being the minority party in 2012 would allow the GOP to adopt a different position as complete outsiders.

Rasmussen makes some other points about Evan Bayh’s retirement and the Scott Brown election that are worth watching as well.  But his point about the strategy of remaining the minority party has some real merit.  The perfect solution would be a 50/50 split in the Senate, which would give the dumbest man in politics something to do, and perhaps being down only a vote or two in the House would suffice.  A second term for the least qualified, most radical President in history would likely be the death knell of American Exceptionalism and may also be the final nail in the statist-built coffin for the American Experiment, a liberty first philosophy in which the freedom-loathing Mr. Obama simply does not believe.