"Elastic Clause" Misunderstood

Editorial Published D&C 3/7/11

In a recent letter, the writer, alluding to the constitutionality of "Obamacare", asserted that the so-called "elastic clause" of the Constitution grants the federal government power to do whatever it deems "necessary and proper"--clearly a colossal misunderstanding of our founders' intent.

I suspect this misguided writer also believes that the "supremacy clause" grants unlimited power to the federal government, and that, therefore, executive, judicial and congressional authority "necessarily and properly" trump "constitutional supremacy".

If the writer's assumption that unbridled federal power is somehow constitutionally defensible, then why bother having a Constitution at all? Why don't we all just obediently submit to federal will in all matters and be done with America's noble experiment in constitutional governance?

Obamacare's "individual mandate" is a gross violation of the Commerce Clause, and we continue to tolerate such perversions at our own peril.

Jim Delaney
Greece

A Quick Look at "Original Intent"

Rather than routinely adding more of my opinions to the millions already ignored out there, over the past year I have been slowly diverting more of my focus to better understanding the original meaning of the Constitution, the very pillar of our experiment in republicanism.

As a result of that effort, I have come to appreciate that only with a clearer, uncorrupted understanding of our guiding principles can we more easily distinguish revionist interpretations from those which fully comport with our founders' intent.  

Frankly, since taking this self-help tack, I have, sadly, discovered a mountain of disinformation and misrepresentation in the news media and blogosphere alike.

Some of our own politicians--especially on the left--who have taken the oath to preserve, protect and defend the Constitution are among the worst offenders. Whether it is deliberate or simply born of ignorance, the revisionism emanating from all levels of government and media is truly breathtaking and a serioius threat to our Republic.

To help me see through these countless misrepresentations of our Constitution, I've taken the time to research and to briefly write about the “Commerce Clause”, “Necessary and Proper Clause”, the “Supremacy Clause”, the 2^nd and 10^th Amendments, Term Limits and Judicial Review. Tackling these intensely interesting topics has broadened my understanding of our founders' intent and meaning and has, I believe, made me a more responsible and critically thinking citizen. Though it's only a start, I have at least now been able to delight in making it harder for revisionists--on the left and the right--to get away with their arrogant misrepresentations with impunity.

This time, I'm very briefly tackling the principle of “original intent”, what it means and how we determine what it is. Caution:  this is only introductory and most certainly not intended to be a comprehensive treatment of the subject. But, like I said, it's a start, and I hope it's helpful to the reader as well.

As noted in previous posts, the principle of “judicial review” has long ago given way to “judicial activism”, “judicial revisionism” and, today, relatively unbridled “judicial supremacy”. Among too many jurists today, familiarity with case law alone and a proclivity for advancing political and social engineering agendas has, in whole or in part, supplanted their fidelity to the Constitution.

In the words of Thomas Jefferson, the Supreme Court and its appellate network have evolved into a “judicial oligarchy”, quite at odds with their original role as “faithful guardians of the Constitution” and woefully incompatible with the bedrock principle of constitutional supremacy.

So, just how do we determine original intent and meaning, this to prevent our further straying from the founders' republican plan of governance? And how do we detect misrepresentations?

In his book, “Original Intent”, David Barton lists10 tactics which “historical revisionists” continue to routinely employ in order to misrepresent history and to misinterpret the Constitution in order to advance their political agendas. And while none of these tactics will surprise the reader, these disreputable and thoroughly unprincipled practices bear repeating here: "the use of patent untruths; overly broad generalizations; outright omissions/misquotations; insinuations and innuendos; impugning morality; presenting fiction as though it were fact; the use of psychohistory/psychobabble; failure to account for etymology (changes in the meanings of words); and the absence of primary source references." More than I want to get into here, but very well-worth perusing in Chapter 16 of his book. 

In “The Original Constitution”, Robert Natelson assures us that “we can reconstruct most of the original Constitution's meaning with clarity and confidence” if we become familiar with period historical records and 1787 law. More specifically, he tells us we should familiarize ourselves with the words of both the framers and the ratifiers which he respectively refers to as the Constitution's drafters and makers, and to rely on Bacon's Abridgment or Jacob's New Law Dictionary to capture the actual and prevailing meanings of their words.

The drafters (framers), 55 in number, wrote and explained the document to the 1,648 state ratifiers who, based upon the latter's understanding of the document as explained to them by the drafters, adopted it, Rhode Island being the last state to ratify in May 1790 . Thus, how ratifying conventions (the makers), representing “we the people” in the several states, understood the intent and meaning of the Constitution as explained to them by the framers is referred to as “original understanding” and is, of course, centrally important to our understanding the Constitution.

Natelson tells us to bear in mind that undergirding the Constitution are these guiding principles with which all founders, both framers and ratifiers alike, were in agreement: liberty, natural/unalienable rights of individuals; effective, decentralized, limited, republican (responsible to the people)  government; fiduciary government (meaning a government acting in good faith and honestly on behalf of the people). And always remember that intent and meaning are predicated upon these inviolable principles.

Within the context of 1787 law and the prevailing rules of legal interpretation, the founders agreed that "to properly construe original meaning one would need to construe the meaning as a reasonable and involved person at the time and under those conditions peculiar to that moment would have done so," relying heavily on how the ratifiers/makers—not the framers/drafters—interpreted the meaning.

Why the heavier reliance upon the ratifiers' understanding? How supportive the state ratifiers were of adopting the Constitution hinged upon their own understanding of the document as presented and explained to them by the framers whose herculean and single-minded task it was to persuade the States to join the new-found republican union. Thus, the ratifiers' understanding of the Constitution is absolutely essential to achieving “original understanding”.

Also, to accurately construe meaning, scholars rely upon the principle of “equitable construction”, meaning that when a document's wording appears to conflict with the intent of the framers, that the latter, that being the intent, once correctly and objectively deduced, holds sway. Obviously, this requires considerable due diligence and no small amount of intellectual integrity.

Then there's the rule of construction known as “designatio unius est exclusio alterius'” (naming one thing implies the exclusion of the other) which is a time-honored means of construing the makers' intent. In his book, Barton clearly illustrates this rule with this example: if your wife tells you to pick up lettuce, tomatoes, and onions at the store, this means to the exclusion of celery and pudding. (Very importantly, this also means that 'enumerated powers” are just that—inclusive only of those expressed powers and exclusive of all others.)

Most critically, when exercising any of the rules of construction, it must be accompanied by objectivity and judgment and, again, the exercise must be purposefully aimed at accurately exposing the makers' intent, and not of advancing one's personal political predilections—surely a very tall order and, for many jurists, lawyers and politicians today, an apparently insuperable and superhuman task.

Henry Monaghan, in “Our Perfect Constitution”, warned that attorneys and jurists, often without an adequate historical perspective, tend to “subordinate good facts to a good argument”, all in an effort to coax a faulty meaning from the Constitution merely in order to win their case or argument. This, of course, can lead to corrupted case law and specious precedents upon which subsequent rulings are erroneously based. So much for the incorruptibility of case law and the misplaced glory and overblown sacrosanctity of stare decisis. (Nothing like piling error on error, huh?)

In the absence of ratifying documentation as in the case of Delaware, New Jersey and Georgia, each of which fairly quickly adopted the Constitution with little discussion, one must remember that the Federalist framers normally went to great lengths to educate, allay the misgivings of, and to win over state ratifiers. They were quintessential marketers and exerted every effort to ensure ratification. Thus, in these particular states where there is a paucity of ratification records, scholars can correctly assume that the framers' explanations accurately reflected these ratifiers' understanding of the framers' meaning and intent. Makes sense.

We should also bear in mind this cautionary note by David Barton: trying to construe original meaning from materials generated after full adoption of the Constitution (May 29, 1790) and the Bill of Rights (December 15, 1791) will inevitably lead to error and misinterpretation. (And the litany of revisionist case law since ratification would seem to fully bear that out.)

Underscoring the importance of construing original intent and meaning, and much to the dismay of "living and evolving constitution" adherents, it is vital to recall John Dickinson's words: “ We are not forming plans for a Day, Month, Year or Age, but Eternity.” In other words, it is the obligation of judges to keep times in tune with the Constitution, not to keep the Constitution in tune with the times. (Not sure where I read that, but there it is.) Thus, adhering to a so-called “living consititution” approach inherently violates our framers' intent. Thus, only by our dutifully relying on the application of the interpretive principles described above can we effectively counteract corrosive revisionism and the corrosiveness of a "living constitution" mindset.

Also, as Barton explains in his book, the framers uniformly understood that “judicial review” was necessarily limited to judging the constitutionality of a law against the “specific, self-evident wording of the Constitution itself”—in other words, “constitutional supremacy” should always trump “judicial supremacy”. Obviously, that formula has not been dutifully applied in today's world of activist/revisionist jurisprudence.

In Federalist #81, Hamilton noted that “there is not a syllable in the Constitution which directly empowers the national courts to construe the laws according to the spirit of the Constitution.” And James Kent similarly explained that the Judiciary could compare a law only to “the true intent and meaning of the Constitution,” the abiding concern of the framers being that if the judges were allowed the latitude of interpreting the more ethereal meaning, aka “spirit”, of the Constitution “they risked imputing any meaning they might personally desire in order to reflect their own prejudices and values.” Thus, having often insisted that true patriots should dutifully and carefully abide by the spirit, meaning and intent of the Constitution, I now stand corrected. It is now clear that to objectively and accurately deduce the original meaning and intent of the Constitution, divining the spirit of the Constitution should be left to the clairvoyant. Lesson learned.

Unsurprisingly, the framers specifically forbade the judiciary becoming policy-makers or legislators. To wit, Rufus King warned that “judges must interpret the laws; they ought not to be legislators”, thus eclipsing the power of Congress, the people's house. To the framers, the unsettling outcome of such judicial overreach would be public convulsion and possible disintegration of the union. In fact, Jefferson warned “that the dissolution of our federal government is in the constitution of the federal judiciary;...working like gravity at night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped.” Prophetic.

Obviously, that is where we are today. Imputing court rulings and revisionist case law to the Constitution itself is a serious divergence from the inviolable constitutional role framers had reserved for the judiciary. As such, it constitutes a clear and present danger to constitutional order. And though Jefferson held that the people are the ultimate authority in our republican system of governance, David Barton soberly observed that “today the so-called 'tyranny of the majority' has [now] been replaced by the 'tyranny of the minority'”, referencing many instances of majority electoral rulings being imperiously overturned by activist courts, something never dreamed of or intended by the founders. (The court's overturning California's voters on the issue of gay marriage is an instructive example of serious judicial overreach.) To underscore his point, Barton went on to say that “a foreign observer in modern America today would likely conclude that the President and Congress have taken oaths to uphold the Court's opinion of the Constitution.” Heck, most Americans themselves have begun to share that view as well. And, of course, it is this sorry state of affairs which must be remedied if our carefully crafted of-for-and-by-the-people Republic is to survive. When we grant supremacy to a demonstrably corruptible ruling elite we violate original intent and expose ourselves to tyranny.

Since each branch of government is enjoined to uphold the Constitution as the supreme law of the land, and bearing in mind that each branch of government is inherently empowered by the framers to exercise judicial review, James Wilson asserted that the President can “refuse to carry into effect an act that violates the Constitution.” So too Congress. So too the States, the immediate fiduciary representatives of the people. Jefferson noted that “both magistracies [Executive and Judicial branches] are equally independent in the sphere of action assigned to them.” And with respect to Congress, Luther Martin declared “a knowledge of mankind and of legislative affairs cannot be presumed to belong in a higher degree to the Judges than to the Constitution.” Jefferson further explained that “each of the three departments has equally the right to decide for itself what its duty  is under the Constitution without any regard to what others may have decided for themselves under a similar question.” Point: the Constitution and “we the people”, not the Judiciary nor any other branch or level of government, constitute the supreme law of the land. When government laws, edicts, rulings violate the people's understanding of the Constitution, those acts are null and void. (Note: this underscores the applicability and constitutional authority of both the 9^th and 10^th Amendments.)

Thus, a fundamental truth none of us should forget is that the founders rejected the notion that the judiciary is the final arbiter of what is and is not constitutional. Truth be told, we the people, the ratifiers of the Constitution and the republic we created, are, absolutely and without question, the final arbiters of what is and is not constitutional. Never, ever forget that.

More to the point, Lincoln asserted that “if the policy of the whole government is to be fixed by decision of the Supreme Court,...the people will have ceased to be their own masters” which, of course dovetails with Hamilton's assertion that of the three branches, “the Judiciary is beyond comparison the weakest” which, of course, was by design.

Though seemingly self-evident, it's important to note that the Court may rule on the constitutionality of a law, thus “voiding” it, but it cannot nullify it, that is to say prevent its enforcement. (Andrew Jackson made that clear when he forced Cherokees to move west in defiance of the Supreme Court. To paraphrase Jackson, "Well, they made the ruling. Now let them enforce it.") Also, it is axiomatic that an unconstitutional court ruling is inherently without force. Point: the President and Congress have not taken oaths to uphold the Court's opinion as to what is and is not constitutional. So, in that sense, neither the Courts nor any other branch of the federal government may abrogate or otherwise lawfully ignore the people's will. Ultimate power ultimately resides squarely with the people. Period.

Like other constitutional scholars, Barton counsels that the solution to stemming the degeneration of our republican system of governance is the resurgence of an educated, morally grounded electorate which is able and willing to differentiate between virtuous candidates of character with fidelity to the Constitution and those who are only loosely attached to basic moral and constitutional principles. He also warned that our pellmell slide toward democracy, aka “mobocracy”, or majority rule on the basis of feelings rather than timeless Constitutional principles and laws, must be reversed with all deliberate speed or we lose it all.

Jefferson warned that “if a nation expects to be ignorant—and free—in a state of civilization, it expects what never was and never will be.” Thus, it is incumbent upon each of us to familiarize ourselves and others with original intent.

Chief Justice John Jay counseled that “every member of the State ought diligently to read and to study the constitution of his country...By knowing their rights, they will sooner perceive when they are violated and be the better prepared to defend and assert them.” Toward this end, it is crystal clear to me that we should each strive to be thoroughly familiar with the Constitution, never delegating that civic duty to revisionists, scholarly though they may appear to be, or attorneys all of whom have been schooled on case law rather than the clear meaning and intent of the Constitution itself. Again, though it requires some level of diligence on our part, understanding the Constitution is NOT rocket science. Why? Because the framers never intended it to be so. It's a relatively straightforward document, the people's guide to republican governance.

Noah Webster warned that “when a citizen gives his suffrage [his vote] to a man of known immorality he abuses his trust [civic responsibility]; he sacrifices not only his own interest, but that of his neighbor; he betrays the interest of his country.” Lesson: we must cast aside our political party-first blinders and allow the clear meaning and intent of the Constitution to inform our viewpoints and our selection of candidates to represent us.

Samuel Adams warned that “a state of indolence, inattention and security...is forever the forerunner of slavery.”

Daniel Webster cautioned that “I apprehend no danger to our country from a foreign foe...Our destruction, should it come at all, will be...from the inattention of the people to the concerns of their government, from their carelessness and negligence.”

Finally, Pres. Garfield counseled that “...the people are responsible for the character of their Congress. If that body be ignorant, reckless, and corrupt, it is because the people tolerate [it].” Wow! He certainly has aptly described the horrifically unpleasant state of political affairs in which we find ourselves today. Some of the asinine, dismissive and ignorant statements about the Constitution uttered by some of our DC reps have been particularly unsettling and offensive.

Ultimately then, folks, the fate of our constitutional republic--our individual liberties--rests solely upon our willingness to actively and knowledgeably participate in our political process, and to insist that we all remain faithful to the Constitution. And, frankly, save for the Tea Party and Nullification Movements today, we've been blowing it big time.

Nullifying Judicial Overreach

Especially since 1895, the federal judiciary's role has shifted from that of ensuring “constitutional supremacy” to that of “judicial supremacy”, surely, a dangerous role shift which must be remedied.

Originally tasked with reviewing federal and state laws to ensure comportment with the Constitution, it has become disturbingly clear that the federal judiciary has dramatically strayed from its constitutional role envisioned by the founders.

Without question, this foundational shift has dramatically altered the balance of power between the states and people on one side and the central government on the other, a carefully crafted balance which the framers had intended as a permanent and essential arrangement. As a result, the scope and power of the judiciary and, in turn, that of Congress and of the Executive Branch have profoundly expanded well beyond the limits intended by the framers.

In a letter to a friend in 1820, Thomas Jefferson asserted that “judicial review” had become a “dangerous doctrine”, further warning that if unelected judges are permitted to be the “ultimate arbiters of all constitutional questions” at both the federal and state levels that a “despotism of judicial oligarchy” would surely ensue, resulting in the inevitable dissolution of the Republic.

Even Alexander Hamilton, no fainthearted proponent of a strong central government, warned that “the Courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body.”

He went on to counsel that while an unconstitutional act of a legislature is null and void, so too is an unconstitutional act of the Supreme Court. And since the Constitution is the creation of the people, he further asserted that the Supreme Court must “measure all legislative acts against the will of the people” as set forth in the original Constitution. So, it is clear that he viewed the court with a lingering sense of apprehension and doubt as well. Why?

Like Jefferson and his fellow founders, Hamilton well-understood the immutability of human nature and that man's proclivity for self-aggrandizement would always pose a threat to constitutional order. Thus, the framers intended that while the Supreme Court should be properly empowered to review legislative law, its strict fidelity to the original meaning and intent of the Constitution should always supersede all other obligations or personal biases. Obviously, a very tall order and, very likely, an unachievable goal for mere mortals. And so it has proven to be over the years.

The truth is that for all their perspicacity and diligence, the founders failed to fully and properly address the possibility of an overzealous judiciary. To wit, the only obvious checks imposed were as follows: 1) the appointment procedure involving both the President who nominates judges and the Senate which either consents to or disapproves those appointments; 2) Art III Sec 2 which empowers Congress to restrict the court's jurisdiction—which has rarely been attempted; 3) Congressional impeachment of judges for “treason, bribery, or other high crimes and misdemeanors”, though the willful or erroneous interpretation of the original meaning of the Constitution was not considered grounds for removal. Clearly, a yawning loophole. Precisely why this oversight was somehow permitted is, frankly, mystifying.

Strangely, the framers seem to have assumed that somehow these mortals, imbued with a fervent reverence for the Constitution, would steadfastly adhere to a strict interpretation of the Constitution in all their deliberations, stoically and nobly resist political influences and selflessly ignore their own social, ideological and economic predilections. Tragically, over the years this oversight has resulted in a litany of gratuitous judicial opinions quite at odds with what Jefferson described as the “honest meaning [of the Constitution] as contemplated by the people of the United States at the time of the [the Constitution's] adoption...” In fact, in too many instances, judicial opining has morphed into judicial legislating.

Firmly believing that the Constitution should at all times be strictly interpreted, Jefferson unambiguously counseled that “on every occasion of construction, let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.” This approach is, of course, in direct conflict with the more contemporary concept of a “living and breathing Constitution” which, by its very nature, permits whimsical or otherwise subjective and transformative interpretations of the original Constitution. In modern parlance, we call this case law. With the discomforting specter of a living constitution evolving in the future, Jefferson admonished that “our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction” as our contemporary living constitution adherents have done so.

Compounding the seriousness of this matter, the absence of a Constitutionally-mandated standard of qualifications for judges was never included in the Constitution. As a result, history has shown that the judicial depth and constitutional motivations of many justices over the years have often been anything but stellar.

And where are we today?

Chew for a moment on these disturbing words of Gov. Hughes who served as Chief Justice from 1930 – 1941 during the heyday of the increasingly discredited New Deal: “We are under a Constitution, but the Constitution is what the judges say it is.”

Wowee! Thomas Jefferson's worst fears realized. And, yes, folks, that's where we are today.

Clearly, the Supreme Court is out of control and has been in need of some serious reigning in for some time now. As to a remedy, who better to consult on this matter than Mr. Jefferson himself who, in the early 19^th century recommended the crafting of an amendment which would empower either Congress or the state legislatures (or both) to have veto and removal power over the Supreme Court. It was his view that the opinions of the Supreme Court should be subject to “some practical and impartial control,” and that empowering a combination of federal and state authorities would accomplish that important goal.

However, we all know that a constitutional amendment process can be painfully deliberate, and, in the interim, much judicial mischief can be inflicted on the country. So, what's the appropriate intervening solution to judicial overreach and error?

Very simply, nullification.

My advice is to urge State representatives and Attys General to prepare themselves and the citizens of their States for some honest to goodness pushback of the 10^th Amendment genre by letting the Supreme Court know that “we the people”—not the courts—are the final arbiters of what is and is not constitutional, My belief is that the threat of nullification alone may suffice to restrain judicial activism until a much needed and carefully crafted amendment is adopted.

In short, until an amendment is place, all unconstitutional laws, opinions and executive orders must and ought to be subject to immediate State review and nullification. For example, since SCOTUS has gratuitously ruled against the States on Obamacare's "individual mandate', the States are now duty-bound to interpose—and should do so unhesitatingly.

For a start, a copy of this post is being mailed to Atty Gen Cuccinelli of the great State of Virginia, the home and resting place of Thomas Jefferson, for the Atty Gen's generous and thoughtful attention.
But, this is only a start. All Attys General should be urged to summarily nullify both the "individual mandate" as well as ANY unconstitutional laws/edict/orders/ruling issued by DC.

Obamacare: Stop the Hand-Wringing and Nullify!

Recently, two federal judges ruled in favor of Obamacare while a federal jurist in Virginia ruled against it. Huh? One must seriously question whether or not these guys are all reading the same Constitution I have before me.

In any event, I honestly cannot fathom nor can I abide all the needless hand-wringing and drama over the constitutionality of Obamacare. Of course it's not constitutional! Going forward then, exactly what's the most likely end game of the 20 or so Attorneys General who are suing the Administration over this latest federal intrusion in our lives?

First off, when our political system fails us, we should all remember that in the final analysis "we the people" are the final arbiters with respect to what is and what is not constitutional. Also, under the 9th and 10th Amendments, the States are implicitly within their constitutional authority to simply nullify any unconstitutional federal law, ruling or regulation. I won't mince words here: anyone who disputes this assertion either is not an objective student of the Constitution or of American history, or is driven by an alien ideological agenda altogether.

Moreover, the feds are supreme only insofar as their laws and rulings do not exceed their clearly defined enumerated powers. Thus, the expansive liberal  view of "federal supremacy" is laid bare for all but the willfully blind and politically-motivated to easily see. As Alexander Hamilton asserted, the Supremacy Clause "expressly confines supremacy to laws made pursuant to the Constitution." That, of course, applies to both federal and state laws.

It should be axiomatic that we always look to the Constitution and to the words of both the framers and the ratifiers for a clear, concise and accurate understanding of what properly constitutes Federal and State powers, a division of authority which was never intended by the framers to change over time. And reliance upon case law alone should NEVER, EVER be one's window on the original meaning, spirit and intent of the Constitution. Peering through that soiled window merely encourages further corruption and revisionism, thus further imperiling the framers' masterpiece of republican self-governance.

Happily for us all, understanding the clear meaning of the Constitution is NOT rocket science. If it were, we'd all have a convenient and pardonable defense for either not reading it or simply violating it. Thus, we should all do ourselves and our country a favor and take the time to actually read the Constitution as well as the words of James Madison, Alexander Hamilton, Thomas Jefferson, George Mason, Benjamin Franklin et. al. framers whose wisdom and instructive commentary are as relevant today as they were when written. (And, again, don't forget that the ratifiers' debates are also essential to achieving an uncorrupted and more complete understanding of the Constitution.)

As Thomas Jefferson wisely advised, "On every question of construction, let us carry ourselves back to the time whent he Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying to what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."

Thus, do we really need unelected black-robed "super legislators", a derisive term ascribed to Supreme Court jurists by fellow Justice Brandeis during the New Deal, telling us what any objective student of the Constitution already knows, that being that Obamacare, and more specifically the "individual mandate", is manifestly unconstitutional? No, not really. So, why all the costly litigating and fuss? Frankly, it's insulting but, on a more sober note, it's also genuinely alarming. My concern here is that all this State-initiated litigation may be but a prelude to yet another surrendering of our liberties by the States. And if that's the end game of these Attorneys General, then we should retire from the field of play and begin earnestly pushing for nullification and civil disobedience.

So, here are the big questions for me: if the Supreme Court imperiously rules against the States or the people on Obamacare--or on any other clear-cut constitutional issue--then what should the States do? Slavishly roll over and play dead yet once again, the Constitution and "we the people" be damned? Sadly, that's pretty much been their inclination for the last 100+ years. But, alas, enough is enough!

In a word, self-imposed State servility must cease! If the Republic is to survive, the States must be fully prepared to interpose between the feds and the people of their states, thus restoring the proper co-equality of State and Federal authority. Nothing less can any longer be tolerated if the Republic is to survive.

At long last, constitutional order must be placed on a path to fullest restoration if we are to preserve the greatest achievement in self-government the world has ever known. Trite though it may sound, the States and "we the people" really do need to stand up if we are to see this constitutional restoration to fruition.

Finally, we should all carefully read the Constitution and INSIST that your State leaders defend our Constitutional rights, the judicial circuses and their insufferable overreach be damned. And if the States and the courts fail us yet again, then, of course, our founders unequivocally counseled that it is "we the people" who are duty-bound to "take such measures to redress the injury to the Constitution as the exigency may suggest and prudence justify." In other words, it is left to us to take appropriate action to restore constitutional order.

Timid hand-wringing in the face of judicial overreach is unacceptable, irresponsible and self-defeating.

HR 4946: Pushing Back Against Federal Overreach

In a recent column, Cal Thomas took note of a hopeful congressional development, a rarity these days in government: in league with Reps Bishop (UT), Manzullo (IL), Chaffetz (UT) and Rooney (FL), Rep. Tom Cole (R-OK) introduced HR 4946, the 10th Amendment Regulatory Reform Act, which would grant legal standing to specific state executive leaders (Governor, Lt. Governor or Attorney General) or legislative leaders (Speaker, Majority Leader, or Minority Leader) to directly challenge in federal court regulations issued by federal administrative agencies. Finally!!!!

On March 25, 2010, the bill was referred to the Subcommittee on the Constitution, Civil Rights & Civil Liberties. Of course, how soon the bill will get out of subcommittee and be favored with a floor vote in both the House and Senate is anyone's guess. But, as Cal Thomas says, “it's a start.”

In light of George Soros' recent public advice to Obama to circumvent a Republican-dominated House by issuing executive orders and encouraging his regulatory bureaucrats to implement rules to advance his socialist agenda over the next two years, as well as reports that other far-left Obama supporters, stung by the GOP takeover in the House, are providing similar advice to the White House, Rep. Cole's legislative effort is, indeed, timely.

Coupled with the GOPs “Pledge to America” which will require specific constitutional justification for each bill introduced in Congress before being voted on, could it be that some semblance of constitutional order on the Hill might actually be forthcoming in the months ahead? Though much depends upon the GOPs virtue and integrity, we can certainly hope these actions mark at least a modest return to constitutional governance.

To justify passage, para 7 of the bill pointedly states that “The Executive Departments and Agencies of the Federal Government often promulgate regulations contrary to the spirit and letter of the 10th Amendment. ” As poignantly, para 9 states that “It is the responsibility of Congress to safeguard the 10th Amendment and to recognize that it is as vital and valuable today as on the date of its ratification." Nothing like hitting 'em between the eyes. Yes, indeed!

If passed, the law would provide that whenever a federal agency proposes a rule for public comment, a designated State official may file a legal brief challenging its constitutionality at which point that challenge must be prominently posted by the proposing agency on its website. And if, despite the legal challenge, the agency still intends to implement the rule it must, within 15 days of the challenge's posting, issue a legal opinion as to why the proposed rule does not violate the 10th Amendment. A state designated official may then commence legal action in district court to invalidate the rule. Further, the bill calls for expedited review of the district court's ruling in the US Court of Appeals. How did we do without such a law for so many years?

So, while this bill does not impose an especially onerous requirement on federal agencies, it does compel those agencies to exercise due diligence, political caution and appropriate restraint before inadvertently or willfully attempting to overstep their constitutional authority. In short, it attempts to keep those agencies in check and truer to their constitutional limitations.

And what of blatant executive overreach, per se, occasioned by imperial Presidential executive orders? Well, suffice it to say that the Republican Congress still possesses the power of impeachment and the purse. And given the deep and growing public distrust toward the White House's current occupant and his socialist coterie, articles of impeachment is no longer unthinkable.

Let's hope that the threat of impeachment alone will be enough to restrain Obama's imperiousness, failing which another epic constitutional crisis for the country may well be in the offing. But, if impeachment is what it takes to properly restore the balance of power in DC, then in the immortal words of G W Bush, "Bring it on!"

Postscript: HR 4946 died in committee; reintroduced as HR 455 on 1/26/11 which also died in committe; reintroduced as S 1842 on 11/10/11, but dies in committee

The Midterms: A Reality Check

I simply can't shake my anxiety. Yes, the Republicans garnered historical gains in the House, and Conservatives have made important inroads in the body politic, but, as alluded to in my previous post on the subject, I am no less worried now than I was before the midterm elections. Here's the unfettered reason why.

In union with the Democratic Socialists of America (DSA) and the Communist Party USA (CPUSA), the Democratic Party's Congressional Progressive Caucus (CPC) and the Congressional Black Caucus (CBC) still comprise a plurality of House Democrats, and until January 2011 they remain in control of many
key House committee chairmanships.

Organized around the socialist principles of social and economic justice, among the leftist groups supporting or otherwise closely linked with CPC/CBC are MoveOn.org, Americans for Democratic Action, NAACP, ACLU, LULAC, Rainbow/PUSH Coalition, La Raza, Hip Hop Caucus, Human Rights Campaign, Organizing for America, successor to the Obama for America organization, and the Association of Farmworkers Opportunity Programs, most of which were participated in the October 2nd "One Nation Working Together" leftist rally in DC. (And, of course, media propagandists conveniently ignored the radicalism of the rally's participants and sponsors which included the Communist Party USA.)

Keeping in mind that in an on-going effort to recruit new members, the DSA describes itself as "part of an international movement fostering solidarity across national borders in order to construct an
alternative to the current order" and that "as residents of the most powerful capitalist nation, we recognize that our greatest act of international solidarity is to build a vibrant, multicultural left in the United States," is it really so difficult to understand why so many knowledgeable and patriotic Americans are and ought to be profoundly concerned?

And when one understands that Barack Obama's grandfather, Stanley Dunham, picked Frank Marshall Davis, a CPUSA member, as his grandson's mentor and proxy father, and that the liberal talk radio host, Ed Schultz, Mr. Bombast himself, described Van Jones as a "great patriot", shouldn't it be crystal clear to any but the willfully ignorant that the members of these Caucuses--as well as a plethora of prominent media and other political types--are, indeed, clear and present dangers to us all?

On November 2nd, among the congressional cockroaches representing New Yorkers in Washington were "Hons" Yvette Clarke (11), John Hall (19), Maurice Hinchey (22), Carolyn Maloney (14), Jerrold Nadler (08), Charles Rangel (15), Jose Serrano (16), the insufferable Louise Slaughter (28), and Nydia Valazquez (12). Apparently through divine intercession alone, Hall lost his bid for re-election this time around; however, the nest of NYS vermin gnawing at the Republic's foundations in DC remains essentially intact, and the CPC/CBC still constitute an alien and menacing force in the House and in the nation.

Among the other more notable...quislings...in DC are lispy Barney Frank (Mr. Meltdown), Jim McDermott (Baghdad Bob), Pete Stark ("the federal government can do anything it wants"), Nancy San Fran Pelosi ("we have to pass it before we can see what's in it"), Ron Dellums, Sheila Jackson Lee, John Conyers, closely and unashamedly associated with the CPUSA and the DSA since 1982, and the inimitably noxious Maxine Waters. In the Senate are Senators Bernie Sanders (VT), who at least admits to his DSA affiliation, and Tom Udall (UT).

With the midterm defeat of 26 so-called moderate Blue Dog Democrats, the Democratic Party leadership and much of its rank and file have been effectively hijacked by the Republic's enemies within. Of late, this is precisely why I've been referring to the Democratic Party as the Democratic Socialist Party. No sense deluding myself or you. After all is said and done, I'd rather be an accurate detractor than a wishful thinker.

And here's the acutely painful irony. What's the cause of this once venerable party's transformation and takeover by the radical left? Sadly, the culprits are those millions of American voters out here who remain utterly clueless, willfully ignorant, in cahoots or simply in denial . And therein lies the fundamental cause of our nation's growing peril, our Republic's Achilles heel, if you will.

Obviously, this time I'm not attempting to be gentle in my criticism of these vermin. When someone is at my throat and threatening my country's very existence, pulling punches is an infuriatingly simple-minded and worthless indulgence I can no longer justify.

Though to some readers, this may appear an indelicate and scurrilous indictment of the Democratic Socialist Party, one should be mindlful that it is through the DSAs own odious behavior and  its own well-documented alien affiliations which have indicted them. I'm but a messenger drawing your attention to the unsettling facts. And, sadly, noone can authoritatively and honestly refute, dispute or otherwise disprove what I have said here. Authentication is readily accessible for us all to see.

So, again, we must remain vigilant and seriously engaged! The struggle to restore the Republic has only begun. If we are to restore constitutional order and traditional American values, Conservatives and their Republican allies must exert a herculean grassroots effort to educate and win over an unwitting electorate which has become its own worst enemy.

Ultimately, of course,Conservatives must be as successful in  transforming the Republican Party as the extreme left has been in transforming the old Democratic Party. Such a transformation would be well-worth the effort.

GOP "Tsunami": A Word of Caution

After toiling 17 hours at the polling site and with five hours of sleep under my belt, I have groggily awakened to reports of a national GOP sweep of historical proportions. And thank God for that.

But, perhaps I'm just too hard to please, or far more cynical than even I thought I was capable of being, for, in truth, I have to say that I am decidedly unimpressed by the so-called GOP electoral "tsunami". Nonplussed and troubled would be more accurate. Though the biggest sweep since 1938, if my memory serves me, I still harbor some serious concerns.

While the Rand Paul and Mark Rubio upsets were particularly sweet, the Reid victory over Angle in Nevada, me-first Murkowski's apparent write-in victory in Alaska, Jerry Brown's thumping of Meg Whitman in California, and obscenely arrogant Boxer's win over Fiorina provided particularly disturbing counterpoints to the celebratory mood. And for me anyway, the disquieting closeness of many of the elections themselves, even in those races where GOP candidates "won", were alarmingly revealing.

Yes, the gubernatorial and state legislative sweeps were hopeful signs of a grassroots resurgence of republicanism which will surely benefit the GOP (re-districting) and the country in the future, but the lingering concern to me is the incredibly gigantic number of Americans--MILLIONS OF THEM--who again cluelessly voted for their Democratic Socialist overseers. To any thinking American who really wants his country back, this has to be an acutely troubling realization.

So, while I am pleased that conservative Tea Party winners may prove to be an influential countervailing political force on the Hill who might even be capable of helping to substantively shape the GOP agenda, of intense concern to me is the fact that our government and its suffocating bureaucracy is still dominated by unvetted neo-Marxist czars and other ruthlessly committed Progressives who are still capable of perpetrating terrible damage over the next two years. Thus, the GOP resurgence simply doesn't provide the solace or sense of security for which I had hoped. (NB: having lost only 3 of their 80 members in this election, the radical congressional Progressive Caucus is still very much in charge of a notoriously uncompromising Democratic Socialist Party which will continue to exert unrelenting pressure on Obama, already ideologically compatible with the Caucus's aims, to reject accommodation and to push for more socialist programs and policies one way or the other.)

What will the GOP-dominated House do to live up to our expectations after December? Indeed, what can they do? God only knows. But, to prevent the GOP's implosion and yet another toxic Progressive resurgence in 2012, it absolutely behooves the GOP establishment not to violate our trust yet once again. No more accommodating Progressivism either within or without its ranks, no more mindless "going along to get along", and absolutely NO more compromising on principle. (During my formative 70's negotiating experience with Communists in Asia, I quickly learned that compromising with tyrants is viewed by them as appeasement; thus, even when done in good faith, compromising will invariably prove to be counterproductive and utterly unredeeming.)

Long overdue and carefully targeted congressional investigations covering a plethora of Progressive corruption, blatant constitutional violations and executive overreach MUST go forward with professionalism, dignity and determination. At long last, Progressive vermin must be drawn into the light of public scrutiny and exposure. Of course, the GOP must be sure that the public fully understands what is happening and why; that the investigations are not merely vengeful politically-motivated witch-hunts, but restorative remedies to what has been an out-of-control federal government. Though these critically important probes will be cynically and predictably characterized by the Democratic Socialist Party as mean-spirited politics as usual, in the interests of the Republic they must go forward with all deliberate speed.

Among the other promises contained in the "Pledge to America", the GOP must uncompromisingly follow-through with its pledge requiring that all legislation contain a citation of constitutional authority. Such would be an effective way of restoring some semblance of constitutional order, failing which that order will be fundamentally no better after December than it was before the GOP "sweep".

And since the House is in charge of originating revenue bills, the GOP must cripple implementation of Obamacare and work toward a common sense reform of health care before more serious damage is done to the best health care system in the world. To avert economic collapse, reformation of Medicare, Medicaid, and Social Security--but also Tax Reform and reigning in the Federal Reserve--must also be courageously pursued.

In short, the GOP's responsibility is nothing short of GARGANTUAN! And, frankly, I'm not at all confident they're up to the challenge. In any event and come what may, the GOP must start treating American voters--even the hard-boiled and unwitting leftists among us--as adults. We must no longer be lied to, placated with giveaways we can no longer afford, and mislead with meaningless rhetorical pablum designed merely to get the party elites re-elected. With our country on political and economic life support, much depends upon the wisdom, sobriety, courage and, above all, principle of the GOP. And, frankly, we'd all better get it right this time, or it really will be all over.

Oh, yes, and no bailouts for the People's Republic of California or New York! They voted for Socialist dominion, so let them solve their self-inflicted socialist malaise themselves. We must now insist that both state and federal governments get their houses in order by unleashing the vibrant laboratory of innovation which the free exercise of state sovereignty so beautifully provides.

Finally, the GOP must allow common sense, constitutional order, public trust and personal responsibility dictate its course of action going forward. In essence, then, it is our civic duty to ensure this GOP sweep is not yet another pyrrhic victory.

My suggestion: remain as vigilant and engaged as ever!

"Let us therefore rely upon the goodness of the Cause, and the aid of the supreme Being, in whose hands Victory is, to animate and encourage us to great and noble Actions. The Eyes of all our Countryment are now upon us, and we shall have their blessings, and praises, if happily we are the instruments of saving them from the tyranny mediated against them." George Washington