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.

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?

Once it becomes automatic to more skeptically analyze the arguments that people make, it becomes quite apparent that there is no shortage of people who stubbornly hold beliefs based on fallacious logic.  Though a seemingly harmless result like believing in ghosts or psychics is often the outcome of such flawed reasoning, it ceases to be entertaining when one absorbs the reality that nation-changing decisions are being made on the basis of what amounts to illogical half-thinking.  American politics and punditry are rife with examples of logical fallacies that are routinely utilized to skew our perspectives.  More often than not the results are unwise, ill-informed decisions with long lasting unintended consequences.

The slick and relentless utilization of one such logical fallacy, the false dichotomy, is a key part of an attempted wholesale destructive change to the historical American philosophical view of the proper relationship between the State and the Individual.  The SGU list referenced above defines a false dichotomy as “arbitrarily reducing a set of many possibilities to only two”, in other words claiming that there are only two choices in situations where multiple alternatives exist.  An argument can be made that statists long ago perfected an art form implementing this particular logical fallacy, and this flawed logic is regularly on display during our ongoing great debate about the socialization of health care in America.

Those who have debated the so-called Health Care “Reform” now being foisted upon an unwilling American populace have seen this false-choice tactic employed time after time.  Virtually every socialized medicine debate of any depth or duration will ultimately demonstrate the last-ditch logical fallacy that underpins proponents’ fierce support for any piece of legislation that manages to be labeled as health care reform.  Even after yielding on cogent criticisms involving costs and historical government inefficiency, proponents of socialized medicine quite often fall back on one consistent but intellectually bankrupt response:

“Doing nothing is not an option.”

That statement encapsulates the knowingly dishonest statist myth that there exist only two choices in this debate.  The arguments from many supporters of socialized medicine strive to reduce the debate to one of choosing between massively increased governmental intrusions into our health care system or simply leaving the status quo in place.  As employed in this case and in many other proposals from American progressives, that classic false dichotomy argument attempts to force people into choosing between socialism or inaction, soft tyranny or nothing.  Various counterproposals have been discussed at great length in many other places, but it is safe to say that the collection of alternative ideas from conservatives including tort reform, portability, easing of mandates, and interstate sale of health insurance certainly constitutes a middle ground that does not conform to the dishonest false dichotomy presented.

In Atlas Shrugged the author admonished readers to check their premises in order to ensure that the things that are “known” are not built on false ideas or flawed logic.  Unfortunately, much of what many people “know” is often based upon sets of rationalizations and positions that too many of those people intellectually cemented in place long ago, never to be reexamined.  In the current health care debate this phenomenon is often demonstrated when people continue to repeat the allegation that 46 million Americans cannot get health insurance even though that claim has been consistently proven to be flawed and deceitful.  Clever politicians are very adept at contriving proposals based upon flawed premises, always subtly manipulating the public in the direction of increased government power. 

Public opinion polls continue to show increasing opposition to any government health care plan.  At the same time there is a frantic partisan push in the Senate to get this egregious bill passed, including Landrieu-like bribes being thrown around to buy votes.

It is clearer than ever that the sole aim of so-called health care reform legislation is to significantly increase government power over the lives of its subjects.  Nothing else makes logical sense.

[I originally posted this on my other blog but decided to cross-post it here as well]