The Darkness At The End Of The Tunnel

     Starting in 2007, I wrote a series of essays collectively titled “The Mask Slips” at the late, lamented Eternity Road website. They concerned the steady erosion of an idea that decent Americans would have thought unassailable: a human being’s right to life. I argued that that idea was being attacked at its most vulnerable margins: abortion and euthanasia.

     Attacks on a moral-ethical idea at its tender margins should always be closely scrutinized. Often they’re harbingers of a larger campaign to invalidate the idea altogether – not in a logical sense, but as a premise from which ordinary people reach other conclusions and decisions. For the most important moral and ethical ideas are not logically provable. They can be undermined, worn away by gradual incursions until they’ve become historical curiosities, obiter dicta.

     Just yesterday, I received an email from a reader of one of my books:

     The premise of The Death Cults is difficult to overlook because you're not simply examining particular movements or ideas, you’re organizing them around a much larger question: what happens to a civilization when the value of human life itself becomes negotiable?
     I found that framing particularly interesting.
     What stood out to me is that the book seems less concerned with cataloguing individual threats than with identifying the common principle you believe connects them. That makes the argument much more ambitious than the title initially suggests.

     I was thrilled. Someone had actually grasped my point. That’s a rare thing these days. Yet it was exactly that point that motivated me – along with copious chivvying from my friend Pascal – to compile the essays that became The Death Cults into a separate publication.

     The common principle, of course, was hostility to the right to life. I saw each of the several “marginal attacks” as excrescences of that hostility. I believed that the attacks were converging, such that the human right to life would eventually be discarded as a moral premise. I still do believe it.

     But all that is prefatory. Attacks on the right to life are part of a bigger picture. How big? Pour yourself another cup of coffee and read on.

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     There has hardly been a more valuable voice added to America’s national discourse than Constitutional scholar and law professor Jonathan Turley:

     Pennsylvania state representative and Democratic Socialist Chris Rabb is the latest Democrat to reaffirm his alliance with virulent antisemite Hasan Piker. What is most notable, however, is his attack on establishment Democrats as “institutionalists,” a new label reflecting the radical agenda for changing our constitutional system. It is a term that is now in vogue on the far left by those who want to tear down our institutions and scrap our Constitution.
     Across the country, attacks are growing on Democrats and independents who are viewed as insufficiently radical. Those of us who continue to celebrate the Madisonian democracy as creating the most successful and stable republic in history are now “cultists” and “institutionalists” who are trapped in “nostalgia.”
     The Democratic Socialists of America (DSA) have drawn support from many who want a literal revolution. DSA Steering Committee member Cliff Connolly declared on one podcast that they are “famous for” “Our hatred of the United States Constitution.”

     Please read it all. It put me in mind of an observation by one of the greatest minds of the Twentieth Century:

     The craving for power which characterizes the governing class in every nation is hostile to any limitation of the national sovereignty. – Albert Einstein

     The Founding Fathers convened in Philadelphia in 1787 to define a national government. As I’ve said before, to define is to delimit: to say what the thing being defined is and is not. The Constitution was the Founders’ attempt to do exactly that. They had history, John Locke, and Adam Smith for guidance.

     History told the Founders what will follow when The State is unrestricted. Adam Smith, in his Theory of Moral Sentiments, codified men’s half-formed sense for right and wrong. John Locke united theory with practice in delineating the concept of a right and whence it originates. The Constitution, together with the original Bill of Rights, was the Founders’ attempt to reify those ideas. Those documents set out, in clear and specific terms, how the national government would be determined and what it must and must not do.

     The modern Left, through its political arm the Democrat Party, seeks to eliminate those documents as working principles. Of course! The Left aspires to be “the governing class.” Therefore they’re “hostile to any limitation of the national sovereignty.” The incursions they’ve made so far have been grievous, such that another few decades of marginal chipping-away might just lead to a de facto “retirement” of the Constitution. But they’re impatient. They want the remaining limitations to fall now.

     Professor Turley says it plainly:

     The media eagerly publishes these radical views, such as the New York Times column, “The Constitution Is Broken and Should Not Be Reclaimed,” in which Ryan D. Doerfler of Harvard and Samuel Moyn of Yale call for the nation to “reclaim America from constitutionalism.”
     Brown University’s Corey Brettschneider called the Constitution a “dangerous document” that is driving this “threat to democracy.”
     George Washington law professor Mary Anne Franks condemned the “cult of the Constitution” that has been defended to advance “white male supremacy.”
     Now, to support our constitutional system is to be an “institutionalist,” a pejorative term that is as bad as being an “oligarch” in the new revolutionary lexicon.

     If the Constitution should fall, whether de jure or de facto, all legal protections for Americans’ individual rights will fall with it.

* * *

     Just as we saw in compiling the attacks on the right to life, the marginal attacks on Constitutional constraints have been elements in a converging assault on constitutionalism itself: the thesis that there must be a Supreme Law that binds governments as clearly and absolutely as moral precepts bind men. It’s foolish to think that there could be any other terminus. It’s even more foolish to imagine that the men driving those attacks are innocent of that aim.

     “When a man shows you who he is, believe him,” said poet Maya Angelou. The men of the American Left have shown us who they are, and by implication where they’re headed. This is no time for decent Americans to say to one another that “They don’t really mean it.”

Planned Chaos

     No, I’m not thinking of the book by Ludwig von Mises, though it is somewhat relevant. I have in mind the mushrooming portents of violence-to-come that’s presaged by these stories:

• Fourth-Generation Warfare
• DonaldTrumpWatch website tracks Trump donors.
• Activist group plans post-election chaos.
• Anti-Trumpers plan mass resistance.
• The AntiFa Industry At Work.

     There’s a great deal of consistency in the reporting on this subject. What frightens me in particular is that there’s a general consensus that the results of the election will not matter. Even in the event of a landslide Biden victory – not particularly plausible, but let’s allow the possibility – disruptions and violence intended to induce President Trump to leave office will follow. Homeowners known to have supported the president will be targeted for arson. Individuals who’ve been seen wearing Trump-supporting T-shirts, hats, or buttons will be assaulted when they leave their homes. Aggressions far beyond the usual “cancel culture” BS will be rampant.

     Chaos is coming. The Left is going all in. And no: You really don’t have enough ammo.

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     For a long time – at least three decades and probably longer – two periodicals have been regarded as the flagship publications of the American Left: The Nation and The New Republic. As a rule, when a major opinion piece breaks in either one, you may take it as written that it proclaims an element of Leftist doctrine. That makes this New Republic article a matter for widespread dissemination and discussion.

     Before I excerpt the most relevant portions of the article, I shall say this: I have several copies of the article saved, including some on removable media. It cannot be taken from me by any hacker. I will not permit The New Republic’s editors any post facto mealy-mouthed “We were only kidding” nonsense. If you would care to read the whole thing, then regardless of whatever The New Republic does or its preferences to the contrary, all you need to do is tell me so.

     Now to the critical excerpts. Please read them all, with attention.

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     Having won a clear Electoral College victory, Trump has taken the opportunities he has been given to nominate three [Supreme Court Justices]. Senate Republicans have been approving them through the process the Constitution set out. They acted strategically to hold one of those seats open. You will not find in the Constitution a prohibition against doing so, or, for that matter, any suggestion that the court should be evenly balanced between the appointees of two political camps or parties that didn’t exist at the Founding and that aren’t intrinsic features of our political order.

     Republicans haven’t flouted the constitutional order. They’ve made use of it. Things haven’t gone wrong because a system that was humming along fine until recently has been damaged in some fundamental way. The system is humming along essentially as it always has with increasingly dire results. The crisis is not that the American constitutional system is broken but that the American constitutional system is working—perhaps not as the Framers intended but, as a legal and administrative matter, mostly as it was designed to....

     Those in the center giving a thought to court-packing now are considering “constitutional hardball not to win the game,” as Jurecic and Hennessey write, “but to get to a place where the cycle of retaliation and politicization can be ended.” But if it’s possible—granted, a very large if—why shouldn’t the game be won? We’ve seen multiple periods of one-party dominance in our history; we’ve also seen defeated political parties wither and die. Why shouldn’t the Republican Party join them?...

     The American left should work toward abolishing the Constitution someday—either for a new document or a new democratic order without a written constitution....

     This and this alone was the genius of the Founders and Framers: not a special capacity for principled compromise and not extraordinary foresight or a collective wisdom sure to endure through the ages, but rather the force of their will. That is what it takes to break from an empire; that is what it took to cobble a nation together out of states with divergent economic and sociopolitical interests. And as we approach the close of a year in which we’ve fought bitterly over what we should claim from our history and what we should take from these men, it seems probable that we should try to inherit at least their audacity—whatever spirit convinced them they possessed the consciences and the intelligence to create not only a new country but a kind of society new to the world.

     Do we have any less a right to do so? It is beyond debate that we are their moral superiors; after over two centuries of democratic experience here and of observing the democracies that have bloomed across the globe, we know infinitely more about the institutions that they built and democratic governance than they did. They declared themselves the tribunes of a public that they defined and delimited for their convenience. On the day we as a people finally rise beyond narrow faction and above the power of capital ⁠to make ourselves a new republic, it is certain that we will do better—securing for truly all Americans not only a framework of now familiar political freedoms but a framework of economic rights rooted in the notion that democratic values and a revulsion for arbitrary, unchallenged authority should shape more than just our system of government. Until then, a half-measure: If it is given the opportunity, the Democratic Party—without hesitation, guilt, or apology—should pack the Supreme Court to its advantage.

     The author’s name is Osita Nwanevu. We might well ask where he and his antipathy to the American Constitutional order were born.

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     Some time ago, I wrote:

     Few politicians, whatever lip service they give to the Constitution, are happy to be constrained by it. This is because by its very existence the Constitution expresses a small set of rules which together constitute the principle of republican government:

• There must be a Supreme Law;
• It must be easy to refer to and to comprehend;
• All other law must conform to it.

     Compare that to the principle of democratic / majoritarian government:

• A majority can make and enforce whatever laws it wishes at any time.

     ...and to the principle of authoritarian government:

• What the Fuhrer decrees shall be the whole of the law.

     The typical politician who owes his office to a democratic process, and who wants to remain in that office for as long as possible, will chafe under the constraints of the Constitution. He'll seek ways to circumvent it in matters that permit him to pander to his constituency. If pressed, he'll make excuses:

• "This is something the Founding Fathers didn't foresee."
• "The amendment process takes too long and doesn't always work."
• "The crisis is far too urgent; we have to act now, regardless of Constitutional constraints."

     Those are the most popular excuses. No doubt there are others.

     The republican principle, of which the Constitution is the American expression, is the only protection Americans have from tyranny, whether majoritarian or autocratic. What freedom we still retain is ours because our politicians haven't yet worked up the collective courage to defy the Constitution in certain particulars. However, they get closer to discarding it completely with every passing day.

     Nwanevu prefers majoritarian government – government in which there are no recognized rights: i.e., no recognized constraints on what the government may do to you. The sole barrier against that sort of rule by the mob is the proclamation of a Supreme Law. Nothing else will serve. But power-lusters, angry about having their schemes thwarted or delayed, will always chafe under such a principle. Nor does it matter whether they’re really well-intentioned. They always think they are:

     It is beyond debate that we are their moral superiors; after over two centuries of democratic experience here and of observing the democracies that have bloomed across the globe, we know infinitely more about the institutions that they built and democratic governance than they did. [Nwanevu again]

     What they want is power:

     Those who have seized power, even for the noblest of motives soon persuade themselves that there are good reasons for not relinquishing it. This is particularly likely to happen if they believe themselves to represent some immensely important cause. They will feel that their opponents are ignorant and perverse; before long they will come to hate them...The important thing is to keep their power, not to use it as a means to an eventual paradise. And so what were means become ends, and the original ends are forgotten except on Sundays. [Bertrand Russell]

     Unbounded, unconstrained power always culminates with the slaughter of the opposition. There are no known exceptions.

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     As I said above, when a major opinion piece breaks in either The Nation or The New Republic, it proclaims an element of Leftist doctrine. Those periodicals are wholly owned propaganda mills for the Left and never, ever deviate from the line the Left’s kingpins have adopted. There was a time when that was not so. Indeed, I remember when no other than Michael Kinsley, as reliable a left-liberal as has ever lived, conceded in the pages of The New Republic that the right to keep and bear arms is an individual, Constitutionally guaranteed right. He wasn’t happy about it...but he conceded it. However, that time is long past.

We now know what the Left has planned,
And what the chaos is intended to further.

     All the masks are off. Indeed, they burned to ash in the fires that have consumed large portions of formerly great American cities. There is no longer any excuse for saying, whether to others or to yourself, that “they mean well.” That could not be further from the truth.

     Prepare accordingly. And pray.

“Millions Would Die!”

     The Senate Judiciary Committee hearings on the nomination of Judge Amy Coney Barrett to the Supreme Court have been a farce...just as any sensible person familiar with the Democrats’ tactics would have expected. But one thing in particular sticks out as deserving of extended commentary.

     Senate Democrats are pretending to be petrified over the potential fate of the Patient Protection and Affordable Care Act, better known as ObamaCare. Would Justice Barrett vote to overturn ObamaCare? appears to be the central question of the day. “Millions would die!” came the cry. How? Ostensibly, because ObamaCare makes medical care affordable to those millions, and without it they’d die from some untreated condition.

     There’s absolutely no substantiation for the Democrats’ claim...and that doesn’t matter in the slightest.

     Whenever a legislature enacts a policy that affects many millions of people, there will be some who benefit from the policy, some who are unaffected by it, and some who suffer because of it. This is certainly the case with federal legislation affecting medical insurance. Because of ObamaCare:

1. Some Americans became able to afford medical insurance that improved their conditions;
2. Some Americans were unaffected;
3. Some Americans lost insurance plans they valued, and found ObamaCare’s alternatives unaffordable or otherwise unacceptable.

     Consider that third group. Surely some of the persons in it went on to die of untreated conditions. I don’t know how many; in all probability, no one does. But I’m certain there were some fatalities among persons who lost their medical insurance and were unable to purchase replacements. Moreover, that was a foreseeable consequence of a federal mandate that applied to all medical insurance plans.

     But we didn’t hear the “millions would die” objection back in 2009. Why not?

     Think about that while I start a pot of decaf.

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YOUR MUSICAL INTERLUDE:

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     It seems unnecessary to say this, but (as is my wont) I’ll say it anyway: They who benefit from a policy will always oppose the repeal of that policy. Damned few federally imposed policies have no beneficiaries. Even fewer have no victims. If the proponents can concentrate attention on the putative beneficiaries while deflecting attention from the putative victims, they can score in the public relations arena. Similarly, when the policy is attacked, its defenders must strive to concentrate attention on the policy’s beneficiaries, whom the repeal of the policy would make “victims,” and deflect it from the policy’s victims, who would be the beneficiaries of its repeal.

     So: stipulate, entirely for the purposes of argument, that “millions would die” in the event that the Supreme Court were to find ObamaCare unconstitutional. What about those who would once again have access to medical insurance that ObamaCare’s mandates destroyed? How many of them are there – and how many of them are suffering and dying because of ObamaCare?

     “If you like your plan, you can keep your plan,” Barack Hussein Obama most unctuously intoned. It was a lie; we know that now. But it was Obama’s way of persuading us that no one would suffer because of ObamaCare. It would be a pure benefit, untainted by any detriment to any American.

     Even left-leaning Politifact deemed that a lie.

     ObamaCare has had many victims. Some were persons who lost insurance plans they could not replace. Others were persons whose finances took a heavy blow from ObamaCare’s escalation of insurance costs and deductibles. We should have known it would be that way from the general principle enunciated in the first segment. Some of us did, but faint were the cries that “millions would die” back then. All we heard, courtesy of the mainstream media, was that millions would be able to afford medical insurance for the first time ever: ObamaCare’s putative beneficiaries.

     This is what happens when a legislature sets policies for millions of citizens.

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     It’s possible that the Founding Fathers sensed the dangers inherent in allowing Congress to create nationwide policies of ObamaCare’s sort. Article I, Section 8 certainly does not give Congress the power to do such things. Indeed, the powers the Constitution grants to Congress are very narrow. They deal mostly with war and foreign affairs, while allowing Congress a few “positive” powers that were deemed unavoidable at that time (e.g., the establishment of post offices and post roads).

     Very little federal legislation of the century behind us would pass strict Constitutional scrutiny. More than ninety percent of it was passed under a perversion of either the taxing power or the Commerce Clause. But select any particular instance of it, and you would find that it has both beneficiaries and victims – who would exchange places were the legislation repealed.

     The promoters of Congressional omnipotence don’t want you to think about that. They’ll scream that you’re heartless, that “millions would die” were Congress’s powers once again confined to Article I Section 8. They’ll probably rhapsodize about the “General Welfare” clause...but they won’t bother to define “general welfare,” much less “the general welfare of the United States.” Neither will they answer this question:

“If the consequences of this policy prove detrimental to the general welfare, will you admit that you were wrong and vote to repeal it?”

     We seldom hear that question asked of any sitting legislator at any level. Whether that’s because it’s not being asked, or because the media won’t permit us to hear about what follows, is a subject for another screed.

Now The Fun Begins

     As had been predicted, yesterday President Trump announced his nomination of Seventh Circuit Court of Appeals Judge Amy Coney Barrett to the Supreme Court seat vacated by the recent death of Ruth Bader Ginsburg. And – as has been predicted – leftists’ heads are exploding from coast to coast.

     Of course, we must expect leftists’ heads to explode when they don’t get their way. That’s become par for the course in these United States. As the late Ruth Bader Ginsburg was regarded as a secure vote to preserve such anti-Constitutional atrocities as the Affordable Care Act and Roe v. Wade, the prospect of having Ginsburg’s replacement be a firm Constitutionalist was a heavy blow.

     They probably expected President Trump to nominate a judicial conservative. But a Catholic! And just look at her family: she really means it! That’s nothing less than the roof falling in on them. That would put six professed Catholics on the Court. Catholics are the last people in America it’s okay to discriminate against! How can you take that away from us? This nomination must be defeated!

     However, while anti-Catholic bigotry is alive and well in these United States, it still speaks in whispers. Arguments against the Barrett nomination, therefore, must be couched in terms compatible with the non-discrimination pose the Left strives to maintain. (Shut up with your nonsense about discrimination against white men. That’s not racism; that’s justice.)

     The Democrats’ standard-bearers are of course horrified that the last particle of Obama’s “legacy” is threatened by the Barrett nomination:

     Senate Minority Leader Chuck Schumer, D-NY, declared a vote for Barrett as "a vote to strike down the Affordable Care Act and eliminate protections for millions of Americans with pre-existing conditions."

     "By nominating Judge Amy Coney Barrett to the Supreme Court, President Trump has once again put Americans’ healthcare in the crosshairs," he said, adding he would "strongly" oppose her nomination.

     He also accused Trump and McConnell of "shamelessly rushing to fill Justice Ginsburg’s seat less than 40 days before a presidential election."

     "Justice Ginsburg’s dying wish was that she not be replaced until a new president is installed. Republicans are poised to not only ignore her wishes, but to replace her with someone who could tear down everything that she built," he said. "This reprehensible power grab is a cynical attack on the legitimacy of the Court."

     And also:

     Remarkable, this unwillingness to allow that the Affordable Care Act, which the Court has chipped away several times, just might be unConstitutional in its entirety, an exercise of a power never granted to Congress. But that’s the Left for you. Though it grants no stature to the victories of the Right, which it will assault a outrance, the Left insists that its victories, no matter how they were achieved, must be regarded as “irreversible.”

     We also have the spectacle of this New York Times column by Elizabeth Breunig:

     Roman Catholicism does not readily distinguish between public and private moral obligations. In the thought of John Locke, one of liberalism’s earliest architects, willingness to make that distinction was critical to participation in a tolerant society. “Basically,” the political theorist Jean Bethke Elshtain wrote in a 1999 essay, “Locke drew up a strong civic map with religion within one sphere and government in another. A person could be a citizen of each so long as that citizen never attempted to merge and blend the two.” Locke notably excluded Catholics from the religions meriting toleration because he suspected they could not be trusted to leave their faith in the appropriate sphere....

     Roman Catholic schools have warred bitterly over their exemption from anti-discrimination employment statutes, scoring a win in a case argued before the Supreme Court as recently as this summer. Catholic hospitals have found themselves embroiled in court battles for refusing to perform or even discuss abortions, regardless of state or federal law. And, perhaps most famously, the Little Sisters of the Poor, an order of Catholic nuns that operates nursing homes for low-income seniors, fought the Affordable Care Act’s contraception mandate all the way to the Supreme Court, and won.

     In each case, Catholic institutions have asked for exemptions to various laws, citing the First Amendment.

     Whether consciously or otherwise, Breunig has produced an anti-Constitutional argument. One of the most important purposes of the Constitution's constraint-by-specification of the powers of the federal government was to keep it out of the way of private convictions, as far as possible. Under an unconstrained government, there cannot be freedom of religion – unless, that is, “freedom of religion” is defined to occur solely within the confines of the skull. Inasmuch as the earliest European settlers came to North America in pursuit of freedom to practice their faiths, the irony is enormous.

     John Hinderaker pierces to the heart of the matter:

     The Democrats object to Amy Barrett because she is not a left-winger dedicated to perpetuating the Court as a liberal super-legislature, which is the only sort of justice they want. That is why they object to her, but they hate her because she is a Christian. The extent of anti-Christian bigotry on the left is astonishing, given that until recent years the U.S. was widely described as a Christian country. No longer.

     There will be a great tumult as the Senate undertakes Barrett’s confirmation hearings. It won’t be pleasant to watch...but fortunately, it won’t be necessary. We already know where the Senate Democrats stand. Government-controlled health care and unrestricted, unregulated abortion at any point during gestation are the hills they’re prepared to die on. Let’s hope the Republican caucus gives them a fine funeral, concluded with a fanfare of trumpets.

The Democratic Delusion (UPDATED)

     There are probably very few persons alive and awake at this time who aren’t aware that Supreme Court Associate Justice Ruth Bader Ginsburg has passed away. The emphasis this places on the importance of the presidential election cannot be overstated. In short, President Trump has the opportunity to replace a left-liberal justice with a right-conservative one. I doubt he’s going to let it pass him by, nor should he.

     But hearken to the most recent emission by the odious Senator Charles Schumer (D, NY):

     Senate Minority Leader Chuck Schumer, D-N.Y., tweeted his own statement that "[t]he American people should have a voice in the selection of their next Supreme Court Justice.

     "Therefore, this vacancy should not be filled until we have a new president,” Schumer added, using same phrase that McConnell employed denying federal judge Merrick Garland a confirmation hearing after the passing of Justice Antonin Scalia in 2016.

     Oh, really? I have but one question: Why?

     The Senate deferred action on the Garland nomination because at that time, the White House was in Democrat hands while the Senate was majority-Republican. It was an appropriate exercise of discretion in a split-control situation. The election of Hillary Clinton would have made it impossible to avoid a straight up-or-down Senate vote on Merrick Garland. The loss of the Senate majority to the Democrats would have had the same effect. But the election of Donald Trump and the GOP’s retention of the Senate majority would – and did – put the Garland nomination in a different light, one where the Senate could reasonably allow the incoming president to put forward a different nominee.

     Today, there is no split-control situation. The White House and the Senate are both Republican-dominated. It is reasonable for the president to submit a nominee to the Senate for its advice and consent. It is also reasonable for the Senate to act or not act on such a nomination in its own good time. What President Trump will do, and what Majority Leader McConnell will do, we shall soon see.

     But on a larger and more important point, Schumer’s nonsense about “the American people” deserving “a voice” in the selection of the nominee is contrary to the Constitutional design. Such a “voice” is expressed through their selections of Senators and President. With both those institutions in Republican hands, it is wholly within reason that the president should put forward the nominee of his choice, and leave what follows to the Senate.

     Schumer’s demand is a restatement of the democratic delusion: the notion that everything about the federal government “should” be decided by a majority vote of the citizenry. The Founding Fathers wanted buffers between the highest federal officials and the public to keep majority passions at bay, thus dampening the influence of the events of the moment and the machinations of demagogues. The Constitution explicitly – and quite justly – separated the Supreme Court from popular decision making, just as it originally separated the Senate and the presidency from them.

     Yes, the design has been tampered with: in my opinion, completely unwisely. But what remains still insulates the Supreme Court from “democratic” passions and the events of the moment. As we speak here of the body that rules on the Constitutionality of the laws proposed and passed by the elected legislators of these United States, that is exactly as it should be.

     In closing: Note that the Democrats have never had a problem with using the courts – or the Court – to rule against majority sentiment when that was the Democrats’ preference. On many occasions a Democrat-dominated Supreme Court has ruled in a fashion that contradicted the opinion that prevailed among American citizens. Miranda v. Arizona is one notable example; another is Kelo v. New London. Should the Left ever again acquire control of the Court, we may be sure that such decisions will again be issued in such circumstances.

     UPDATE: This has been making the rounds:

     Kinda hits home, doesn't it?

Get Your Outrage Faces On, Ladies

     ...because I’m about to tell you something you don’t want to hear.

     I’ve argued in the past – and I have not been refuted – that there is no “right” to vote. No such “right” can be justified on natural-law grounds. More, it is flatly contradicted by laws that limit who may vote and under what conditions – laws that have commanded near-universal acceptance since the earliest origins of voting.

     Today, our favorite Bookworm joins the fray:

     People are beginning to notice that the new leaders on the left are female. As a woman myself, some might think that I would find this a gratifying sign of progress in America. I don’t. I find it a worrisome thing because these women are driven by pure emotionalism, which has been channeled over the last few decades, especially at colleges, into a sense of perpetual victimhood and a deep hatred for America and her constitutionally-based institutions.

     My theory is that the 19th Amendment, which gave women the right to vote, was a mistake. It wasn’t a mistake when women were given weren’t so angry but for the last few years, thanks to academia, and its evil spawn in K-12 education, the media, and Hollywood, women have marinated in anger. For those who embraced that toxic marinade and emerged as Democrats, Progressives, Democrat-Socialists, or whatever name they give their leftism, it’s destroyed them.

     These modern leftist women are not the people who got the vote 100 years ago. They have become a different creature altogether, and not the kind that should be trusted anywhere near power.

     Bookworm’s argument is a utilitarian one. Even if I find her logic questionable, it is qualitatively appropriate. If the franchise is an awarded privilege rather than a right – a position I think she and I commonly hold – then awarding or withholding it on utilitarian grounds is appropriate. It’s been treated that way for centuries. Indeed, it’s the only way to treat the matter.

     However, the question of what utilitarian grounds are appropriate remains to be addressed. Let us frame the question in Constitutional terms:

What basis for awarding the franchise would best serve the purposes set forth in the Constitution of the United States?

     We begin.

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     Let’s start from the Preamble to Constitution:

     We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

     (I went to some effort to preserve the links in the above. No, they don’t appear on the parchment of the original Constitution; the Founders’ grasp of HTML was exceedingly weak. All the same, please follow them.)

     While it was acknowledged that the preservation of the consent of the governed required that the officials of the United States should largely be chosen through an electoral process (NB: Not necessarily purely by popular vote, as was made plain in the segments concerning the election of federal Senators and of the President and Vice-President), it was also agreed that there had to be limits on the use of the vote: both as regards which citizens may vote and for what purposes the vote could be used. Imperative statements in the Constitution, both in its original text and as amended, are immune to repeal or modification by popular vote; they can only be addressed through the amendment procedure set out in Article V. This applies both to direct attempts to change the terms of the Constitution and to indirect attempts via popular referenda. The Constitution could not validly be deemed “the supreme Law of the Land” (Article VI) were its terms vulnerable to the franchise.

     Under the federalist conception of American government, the federal government’s powers were defined by the Constitution. The several states were expected to produce subsidiary constitutions, which in time all of them did. Again, the powers of the state governments were supposed to be defined by those charters. To define, as I have said before, is to limit: That which conforms to the terms of the definition is separated from that which is outside its terms – and in constitutional practice any powers other than those defined are reserved, as Amendment X plainly states.

     Hearkening back to the Preamble’s statement of purposes, it can credibly be argued that extensions of the franchise that have occurred since 1787 have been detrimental to those purposes. However, I would not limit us to the extension of the franchise to women as granted under Amendment XIX. I would go much, much further.

     The vote is a form of authority. Robert A. Heinlein has compared it to the Rods and the Axe of Roman heritage:

     Major Reid paused to touch the face of an old-fashioned watch, "reading" its hands. "The period is almost over and we have yet to determine the moral reason for our success in governing ourselves. Now continued success is never a matter of chance. Bear in mind that this is science, not wishful thinking; the universe is what it is, not what we want it to be. To vote is to wield authority; it is the supreme authority from which all other authority derives—such as mine to make your lives miserable once a day. Force, if you will! -- the franchise is force, naked and raw, the Power of the Rods and the Ax. Whether it is exerted by ten men or by ten billion, political authority is force."
     "But this universe consists of paired dualities. What is the converse of authority? Mr. Rico."
     He had picked one I could answer. "Responsibility, sir."
     "Applause. Both for practical reasons and for mathematically verifiable moral reasons, authority and responsibility must be equal -- else a balancing takes place as surely as current ‘flows between points of unequal potential. To permit irresponsible authority is to sow disaster; to hold a man responsible for anything he does not control is to behave with blind idiocy. The unlimited democracies were unstable because their citizens were not responsible for the fashion in which they exerted their sovereign authority... other than through the tragic logic of history. The unique ‘poll tax' that we must pay was unheard of. No attempt was made to determine whether a voter was socially responsible to the extent of his literally unlimited authority. If he voted the impossible, the disastrous possible happened instead -- and responsibility was then forced on him willy-nilly and destroyed both him and his foundationless temple."

     Applause, indeed. If the voter cannot be held responsible for his use of the franchise, he must not have it. But how could any republic enforce those terms upon millions of voters?

     The Founders decided to leave the problem to the state governments, each of which enacted requirements for wielding the franchise. As far as I can tell from my research, they arrived at a single solution.

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     The original conception of the franchise was that it should apply solely to persons with a substantial tie to the locale in which they live: i.e., the ownership of real property. It was wisely conceived and worked well, absent any laws against non-whites owning real property. Here’s the great Isabel Paterson on the subject:

     To form a true and workable federation, the component states must cede the attribute of sovereignty of the border. But they must retain a legitimate control over admission to the state's body politic, to preserve their political entities. This is the power to admit to the franchise. Race, color, or previous condition of servitude are irrelevant. They ought not to be considered disqualifications. The correct qualifications lie in local residence and allegiance and real property. Only in these requirements can a moral principle be found. If the franchise calls for qualification at all, it is clearly conditional, not absolute. So far as the conditions are practical, they must relate to the function of the instrument. The action is that of measured extension from a permanent base, so it must be attached to immovable local property. Liquid capital will not do. These qualifications are moral as well as material, being all within the competence of the individual; a responsible person can fulfill them by his own choice and efforts. But it is absolutely necessary that the power to designate qualifications should also be in the state. If the Federal government has power to fix or alter any particular, even negatively, it has the ultimate full power of fixing all requirements by particulars. And a defect running through the whole structure is much more grave than a localized error. [Emphasis added by FWP.]

     Miss Paterson regarded federal interference in the states’ power to award or withhold the franchise as a supremely grave error. She notes in particular the pernicious effects of Amendment XVI:

     Interference in this manner is by decomposition. It was forty years before the decomposition of the bases became fully apparent; but it made the next attack possible, when a national function was nullified, by the income tax amendment. Previously no direct or personal tax could be laid except in proportion to the population. Then the action would be equated in every voter and representative. If a tax were proposed, each would know that he must pay a proportionate share; while if any region were to receive an extra share in expenditure (as in river or harbor works, etc.), its influence would be greatly outweighed by that of the other areas....But when the Federal government could mulct a wealthy state in taxes disproportionate to the population, to buy out a poor state by expenditures disproportionate to the population, the equation vanished. The mass-inertia veto was lost. (The weight, the interest, thereafter took effect in unbalance, as uncompartmented liquid ballast surging from side to side, dislocated mass.)

     [FWP: Note that Miss Paterson’s reasoning applies equally well to every form of income taxation, whether implemented at the federal, state, or any other level. But that’s a discussion for another time.]

     Reimplemented for the 21st Century, a franchise founded on the ownership of real property might work thus: your franchise is tied to the name on the receipt for your property taxes. If you paid property taxes on your residence during the current year, you’ll be mailed a ballot -- one ballot; otherwise, not. This would avoid all questions about the enfranchisement of men versus women, white versus black, and so forth, while simultaneously eliminating the voting power of the non-self-supporting and transients of every kind. It would also tend to exclude persons on welfare or other forms of government-provided support, as such persons are unlikely to own real property.

     Is it normally the case that the payer of residential property taxes is a man – i.e., a male human being? Why yes, it is. So what? If he were so inclined, he could give the ballot to his wife, his ten year old daughter, or his dog. The point is that the franchise has been limited to persons who have invested in the district and would therefore bear the consequences of any decisions made by its elected officials. Escaping those consequences would require him to change his residence, a protracted procedure fraught with several complexities and difficulties.

     I can see no valid arguments for the enfranchisement of persons without that substantial tie to the district which would be affected by their votes. As for persons who rent rather than buy their homes: Sorry, dude. You want a say in how things will be run around here? Buy some land. What’s that? You say you can’t afford it? Well, then we who have committed ourselves to the financial support of the district through our property taxes are indisposed to afford you any say in local affairs.

     I could go on, but I think I’ve established my position clearly enough. Let the arguments begin – and no slinging of insults, or I’ll put you on the banned list. Only evidence and reason will pass muster in the comments section here.

Legitimate Authority And The Wuhan Virus “Crisis”

     One of the most valuable books in my collection is Robert Higgs’ magnum opus Crisis and Leviathan. Higgs, a scholar of many parts, agreed that the swelling of governments could not be fairly attributed to any single cause. His purpose was to delineate the role of crisis in enabling America’s federal government to exceed its Constitutional authority – and he did a yeoman’s job of it.

     The problem is that once a government has successfully asserted a particular authority, it partakes of a “force” that’s got a momentum like unto Juggernaut’s carriage: tradition.

     “This is the way it was done” easily morphs into “This is the way it has always been done.” The progression is straightforward, as people tend to emulate methods that have demonstrated an adequate degree of success. “Success,” of course, is contextual: it depends on criteria whose selection can be rather dubious. Those criteria sometimes undervalue the costs involved in attaining the “success” goal. Sometimes they omit consideration of the costs entirely.

     Over time, “this is the way it has always been done” undergoes its own transformation: into “this is the way it must be done.” That’s the peculiar effect of tradition, reinforced by another effect that’s generally well understood but difficult to keep in mind: “The victors write the history books.”

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     The late Poul Anderson observed, in his novel The People of the Wind, that the phrase “legitimate authority” hides somewhat more debatable meanings. “Legitimacy,” he wrote, derives from tradition; “authority” derives from force. And indeed, in most societies those are the true inner meanings of "legitimate authority."

     Tradition tends to amplify both the perception of an authority as legitimate and the amount of force the government can marshal to assert it. Consider the federal government’s seizure of the authority to regulate what Americans put into their bodies. That authority is instantiated in the Food and Drug Administration, a branch of the Department of Health and Human Services.

     The FDA has existed for over 113 years. Where did the federal government get the authority to regulate what we ingest? There’s nothing in the Constitution of the United States that would nod toward such an authority. But how many Americans would be disposed to listen to the Constitutional argument against it? How many would be willing to consider its abolition?

     The usual response to anyone who dares question the FDA is that it’s “necessary.” Necessary to whom? By what standard? At what cost, and to whom? Those questions are almost never addressed. As for Thomas Sowell’s sharp thrust, “Compared to what?” virtually no one even thinks to mention it. As for Constitutionality, in these days of post-Constitutional government in which a Speaker of the House of Representatives said openly — to a gaggle of reporters with live cameras and microphones — that “Congress has the power to do anything,” who dares to argue that?

     Through the “logic” of tradition, the FDA has attained governmental immortality, despite being the plainest imaginable example of a usurped authority our Founders never even contemplated, much less granted. And it is but one of a myriad examples I could cite.

---

     Constitutionalism was a radical departure from previous governmental schemes. A Supreme Law written out in plain English, to which all other law must conform, was intended to prevent usurpations of un-granted authorities and to put a brake to the progression of “this is the way it's always been done” into “this is the way it must be done” that had afflicted previous societies. Yet owing to successive governmental usurpations of authorities never granted — some, indeed, that had been expressly forbidden — that were not challenged at the time, we have lost the protections of America’s Constitutional tradition. From that perspective, what's happened to us is largely “our fault.”

     But crises have a way of throwing new light on a situation. The major crises Robert Higgs narrates in Crisis and Leviathan — the Great Depression and two World Wars — persuaded many Americans that certain extra-Constitutional authorities could be justified by the need to meet the exigencies of the moment. Today the dynamic is reversed: many are questioning the sudden and severe seizure of many authorities never granted, such authorities being deemed “necessary” because of the Wuhan virus. If we're lucky, the discussion won't be confined to professional talking-heads this time; it will penetrate to private citizens who will understand the gravity of the subject. We shall see.

     (See also David L. Burkhead’s essay on this subject.)

Discretionary Authorities

     One of the perennial problems for analysts and commentators on public policy is the existence – or non-existence – of legislative accommodations for discretion on the part of an executive. For example, a law drawn to provide for a hypothesized need must provide for the decision that the need has arisen. What would be appropriate then must not begin until then. For another example, a law drawn to resolve some current need with appropriate action must also allow for the time after resolution. The action that ameliorates a troubled period is usually inappropriate after the trouble is past. However, it’s usually not left to the legislature to recognize those transitions. That responsibility is normally placed in the hands of the executive branch – by law.

     That automatically awards a degree of discretion to the executive that many persons – especially legislators – find disturbing. Yet in our era it’s become a consistent practice: effectively unavoidable.

     Problems for public comprehension arise when the extent of the executive’s discretionary authority is unknown. For example, the Trump Administration has levied tariffs on imports from various countries. Tariffs are a form of taxation under the Constitution, which would seem to put that power in Congress’s demesne. But legislation on the subject could easily include a clause granting the president discretion over the imposition of tariffs and their severity. The precise wording of the legislation is what matters in determining the legality of President Trump’s actions...but the general public is unlikely to know the particulars.

     Just yesterday, FOX News contributor Andrew Napolitano railed against the Trump Administration’s tariffs as unConstitutional. Yet current federal law on tariffs speaks otherwise:

SEC. 232. SAFEGUARDING NATIONAL SECURITY.
     (a) No action shall be taken pursuant to section 201 (a) or pursuant to section 350 of the Tariff Act of 1930 to decrease or eliminate the duty or other import restriction on any article if the President determines that such reduction or elimination would threaten to impair the national security.
     (b) Upon request of the head of any department or agency, upon application of an interested party, or upon his own motion, the Director of the Office of Emergency Planning (hereinafter in this section referred to as the "Director") shall immediately make an appropriate investigation, in the course of which he shall seek information and advice from other appropriate departments and agencies, to determine the effects on the national security of imports of the article which is the subject of such request, application, or motion. If, as a result of such investigation, the Director is of the opinion that the said article is being imported into the United States in such quantities or under Such circumstances as to threaten to impair the national security, he shall promptly so advise the President, and, unless the President determines that the article is not being imported into the United States in such quantities or under such circumstances as to threaten to impair the national security as set forth in this section, he shall take such action, and for such time, as he deems necessary to adjust the imports of such article and its derivatives so that such imports will not so threaten to impair the national security.
     (c) For the purposes of this section, the Director and the President shall, in the light of the requirements of national security and without excluding other relevant factors, give consideration to domestic production needed for projected national defense requirements, the capacity of domestic industries to meet such requirements, existing and anticipated availabilities of the human resources, products, raw materials, and other supplies and services essential to the national defense, the requirements of growth of such industries and such supplies and services including the investment, exploration, and development necessary to assure such growth, and the importation of goods in terms of th6ir quantities, availabilities, character, and use as those affect such industries and the capacity of the United States to meet national security requirements. In the administration of this section, the Director and the President shall further recognize the close relation of the economic welfare of the Nation to our national security, and shall take into consideration the impact of foreign competition on the economic welfare of individual domestic industries; and any substantial unemployment, decrease in revenues of government, loss of skills or investment, or other serious effects resulting from the displacement of any domestic products by excessive imports shall be considered, without excluding other factors, in determining whether such weakening of our internal economy may impair the national security.
     (d) A report shall be made and published upon the disposition of each request, application, or motion under subsection (b). The Director shall publish procedural regulations to give effect to the authority conferred on him oy subsection (b).

     The phrases national security and economic welfare in the above effectively award the president complete discretion over the imposition of tariffs and the rates to be imposed. Judge Napolitano should be aware of that. Apparently he isn’t – and in his ignorance he’s made a false, misleading statement about President Trump.

     In another part of Judge Napolitano’s statement, he condemns President Trump’s use of funds allocated to “the military” for the construction of the wall along the southern border. In Napolitano’s eyes, this is a usurpation of Congress’s power of the purse. But the allocation of funds to military expenditure places discretion over the actual use of those funds in the hands of the Commander-in-Chief: i.e., the president. Besides that, walls and other barriers have obvious military applications. Judge Napolitano has no more standing to condemn this application of military funds than he would to condemn the purchase of shovels for digging trenches. So once again, a respected commentator has misled the public...hopefully out of ignorance, though for a retired federal judge that doesn’t seem like a respectable claim.

     I could go on about this sort of thing. When Congress wants to bind the executive branch to a rigidly specified course of action, it legislates in the language required for that purpose. Congress has chosen not to do any such thing in the two areas above. Critics of Trump Administration policies might decry the relevant legislation – and the relevant portions of Article II of the Constitution – as much as they please. The discretion President Trump has exercised was left to the president in the clear language of the law, including the Supreme Law that created his office and defines his powers.

The Border, The National Emergency, And The President

     President Trump has followed through on his promise that, if necessary, he’ll declare a national emergency to get the border wall built. Congress has forced his hand with the spending bill, which he must have felt he could not veto without doing more harm than good. I’m concerned about the bill’s “poison pills,” but perhaps Trump is counting on their blatant infringement of the executive branch’s Constitutionally assigned powers to prevail in the courts.

     However, Mark “Mad Dog” Sherman notes that the screeching from the Left has already begun:

     Representative Alexandria Ocasio-Cortez said she will introduce a bill with fellow Democratic Representative Joaquin Castro to stop President Donald Trump’s planned emergency declaration. New York’s Ocasio-Cortez, who was speaking on Instagram, didn’t provide specifics but Castro previously said he’d offer a joint resolution.

     There are several facets to the declaration of emergency and the reactions to it. Not the least of them is this one: A presidential declaration of national emergency cannot make, overturn, or modify an existing law. Neither can it abridge a recognized right, with certain exceptions permitted for “cases of Rebellion or Invasion” (e.g., habeas corpus). What it can legitimately do is (re)allocate federal resources, including personnel, to specific priorities: a perfectly legitimate use of executive power. As it's the president’s Constitutional duty to "take care that the laws be faithfully executed," this is entirely within his purview, and no Congressional emission or court ruling can legally affect it.

     Let the socialists in Congress chatter and whine. They can do nothing except beclown themselves. I hope Trump is aware of that. I hope he's also aware of this: the bill he's just signed is the Republican Congressional caucus's statement that “We want no part of this border security business. If we support you, we lose our Chamber of Commerce supporters. If we oppose you, the conservative base will attack us. So we're throwing it into your lap, Mr. President. Excuse us as we pusillanimously exit stage right.”

     Are there any actual spines available for transplanting into Republican politicians?

Quickies: The State Of The Union Address

     He shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both Houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper; he shall receive ambassadors and other public ministers; he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States. [Constitution of the United States, Article II, Section 3]

     The president’s duties, as indicated by the citation above, do include informing Congress about “the state of the union.” However, the relevant clause does not specify how that duty is to be performed: neither how often, nor where, nor by what means. Moreover, the “tradition” of a public State Of The Union Address, delivered in person and orally to a joint session of Congress, is far younger than most people believe: proto-fascist Woodrow Wilson began the “tradition” in 1913.

     Thus, Nancy Pelosi cannot “cancel” this presidential duty, as has been suggested by some commentators. President Trump can simply select an alternate means of conveying the information to Congress that he believes Congress should receive.

     The presidential duty of informing Congress about the state of the union derives from several characteristics of the early United States:

• News relevant to the entire nation took several weeks to circulate, rather than being instantaneous;
• Sessions of Congress were far shorter then than now, typically only a few weeks per year;
• A Representative or Senator had to make a difficult overland journey to attend a session;
• The president was the only federal official whose official duties were continuous.

     Today a formal State Of The Union Address is a relic, something that could easily be disposed of with no adverse consequences. Presidents use it mainly for televised publicity, self-congratulation, and to whip up support for their personal legislative agendas. There would be a lot less Sturm und Drang about it were presidents to return to the Nineteenth Century practice of submitting a written summary to Congress and letting it go at that.

     Mr. President: How about doing it via an email? You have an email-address list of all those clowns on Capitol Hill, don’t you? Just a thought, mind you.

Quickies: Are We Forgetting Fundamentals?

     It seems so. Either that, or we’re being deliberately miseducated about them. The following “tweet,” by a legacy media functionary, is what’s currently stuck in my craw:

     [The tweet image above was provided by Mike Hendrix.]

     It’s possible that this...person has no agenda. As he works for NBC, that’s dubious, but we must allow for the possibility. But do you think he’s ever read the Constitution of the United States?

     ARTICLE V: The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate. [Emphasis added, as the Framers knew very little HTML]

     The presence of that clause in Article V, the Amendment Article, excludes the equal representation of the states in the Senate from the possibility of amendment. This is beyond dispute. The Senate, in other words, was created to guarantee that each state would have a voice in the Senate equal to any other state. The electoral system for choosing a president reinforces this oft-neglected aspect of the Constitution: it was intended to protect the small states from abuses perpetrated by the large ones.

     The phrase “checks and balances” should come to mind at this point. My Gentle Readers have no doubt been muttering that phrase for some time already. Lesser intellects might consider suing their civics teachers.

     The Framers knew full well what they were doing. The very last passage of the Constitution emphasizes the importance of the states as elements in the Constitutional design:

     ARTICLE VII: The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

     The Constitution was conceived and ratified as a compact among the states. The states retained nearly complete internal sovereignty. Their equal representation in the Senate was intended, in part, to preserve that sovereignty, the exclusions in Article I, Section 10 being the sole exceptions. This aspect of the Constitution’s design is sometimes cited as an argument for a state’s power to nullify federal laws on the grounds of federal overreach.

     The federal government has done many unConstitutional and extra-Constitutional things since the Wilson Administration. Some of them have been undeniable encroachments on state sovereignty. (Where, for example, is Congress given the power to legislate a federal penal code? But that’s a subject for another day.) This latest talk – of amending a part of the Constitution explicitly protected against amendment! — merely indicates how far Americans’ knowledge of the deliberately designed-in features of our Union has slipped.

     Perhaps I should hold classes.

Start Your Saturday Off Enraged

     A quickie, but important all the same:

     Here is the USA Today column cited in the video. Read it.

     To me, the most significant part of the news announced above is that Eric Swalwell (D, Lunatic), as brash as he seems, is the tip of an iceberg. He has backers in both Houses of Congress. They are unconcerned with the Constitution or anything else. They want our guns, and they’re willing to make us criminals to get them. Neither are they under any illusions that a nationwide gun confiscation would “reduce crime.” That’s no part of their concerns.

     Rope. Lamppost. Congressvermin. Some assembly required – and the time has come to begin it.

     (Applause to CM Blake for finding the video above.)

A Game With No Rules

     [The following two pieces first appeared at Eternity Road in November, 2011. In light of the mountain of evidence accumulating to the effect that we have a “Deep State” that has conspired, and is still conspiring, to nullify the 2016 election of Donald Trump to the presidency, they struck me as unusually relevant to today. -- FWP]

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     Imagine the following: A friend asks you to play a game with him. He gives it a name you've never heard before -- perhaps Fizzbin -- but assures you that you'll love it. Inasmuch as you've trusted him for a long time, you agree and ask, "What's the objective?"

     He grins and says, "Well, there isn't one, really. Mostly just to play."

     That comes as something of a surprise, but, resolved not to be too easily daunted, you ask, "What are the rules?"

     He produces a second grin, a bit more sheepish than the first, and says, "There aren't any. You can do whatever you like."

     Does that strike you as a game anyone could or should "play?" With no objective, there's no way to win, lose, draw, or conclude the game. With no rules, there's no limit to what you or your opponent can do to each other. There's no right, wrong, legal, illegal, better, worse, loser or victor. What's the point? Indeed, how does it qualify as a "game?"

     No, Gentle Reader, your Curmudgeon isn't just wordspinning for the sake of consuming a few excess pixels. He's describing the federal government of these United States.

     Remember when Nancy Pelosi, then the Speaker of the House of Representatives, was asked for the Constitutional authority behind ObamaCare? Remember her response? That was a pretty good illustration of the "rules" our federal government, the most powerful instrument of coercion that exists in the world today, operates under. A couple of days later, Pelosi actually elaborated on her response: she said that in her opinion, Congress has the power to do anything: to make law of any kind, on any subject, and to whatever effect it likes.

     That came as quite a surprise to your Curmudgeon. The surprise wasn't that Pelosi would believe such a thing, but that she would say it into an active microphone. However, after some time to ponder it, he realized that Congress has operated under those no-rules rules for a long time already -- and that We the People have acquiesced to it with hardly a peep.

     You might reply, "Well, yeah, but if they do something we really dislike, we can always boot their sorry asses out of their seats at the next election." Are you sure about that? Even if we discount the 95% rate of recidivism re-election among incumbent federal legislators, what's to prevent an omnipotent Congress from passing a "law" to the effect that, "owing to the ongoing emergency," elections for Congress must be suspended for the foreseeable future? At least two liberal Democrats, one of them a state governor, have suggested exactly that course of action.

     Governor Perdue later attempted to pass her remark off as "hyperbole." But another, even more prominent Democrat has made an even more revealing statement:

     We are reminded of what Bill Clinton said on 11 March 1993,

     "We can't be so fixated on our desire to preserve the rights of ordinary Americans . . . ."

     Bill Clinton then said on 12 August 1993,

     "If the personal freedoms guaranteed by the Constitution inhibit the government's ability to govern the people, we should look to limit those guarantees."

     Clinton was the president of the United States when he said those things. He never after bothered to qualify them, let alone retract them. They're the clearest possible explication of the dangers of a government which claims to have interests of its own.

     Star Parker issues a plaintive cry in her column of this morning:

     Is it not sad that the most fundamental aspects of our ability to live as a free people boil down these days to how nine Supreme Court justices choose to read and interpret a word or phrase?

     Is it not sad that most basic violations of individual liberty are not intuitively obvious to so many citizens and members of Congress?

     Or perhaps even sadder, that liberty may no longer be the objective?

     For a permanent political class which sees itself as the government and the rest of us as its subjects, liberty is no part of its objectives. Execpt, of course, for the State's "liberty" to do whatever it pleases with us, with our money and property, and with our futures.

     Therein lies the rub. The federal government is no longer, in Franklin D. Roosevelt's words, a "people's government." It is no longer, in Abraham Lincoln's words, a government "of the people, by the people, and for the people." It is a supralegal entity, unbound by any principle of law or justice, that sees the rest of us as no more than fodder for its own interests.

     Lawrence Auster has discoursed on this phenomenon. He sees it as being independent of party or ideology, as well. Recent history appears to support his view.

     It might be a while longer before a federal hegemon dares to attempt the overt suspension of Constitutionally prescribed elections, or the unabashed dismissal of a right guaranteed in the Bill of Rights. But let us not doubt that, in a Congress which allows a Nancy Pelosi to remain seated within it, the potential exists. Another thing recent history tells us is that sooner or later, such a potential will be actualized.

     Private Americans, who wish only to be free, cannot win this game with no rules. Neither can we withdraw from it. We can only end it. It's become highly unlikely that we can do so via the ballot box; the political class has rigged that element of the game in its own favor, and will fight to the death against any attempt to cleanse it.

     It's time to look at one another and ask the hard questions.

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     Part 2: Where Are The Officials?

     Imagine the following:

• During a Major League Baseball game, an outfielder climbs over the fence and stands among the fans to catch what would otherwise have been a home run...and nothing is done about it.
• During a National Football League game, a linebacker pulls out a billy club and uses it to beat the opposing quarterback unconscious...and nothing is done about it.
• During a National Hockey League game, a player slashes an opponent across the neck with his stick, decapitating him...and nothing is done about it.

     Unimaginable, right? Even if those games were among the most exciting ever played -- and given that the officials allowed the tactics described, they just might be -- the fans wouldn't stand for it. Such behavior is what the officials are there to prevent, or to penalize when it happens. Were the officials to turn a blind eye to such deeds, the games would no longer be baseball, football, and hockey as the fans understand them. Game attendance and home viewership would swiftly decline to a few sociopaths.

     (Rollerball aficionadoes might disagree, but your Curmudgeon is trying to make a point here.)

     The rules are the game. The rules define how victory is determined, The rules prescribe what must, may, and must not occur. The rules also state what's to be done with those who violate the rules.

     And with that, your Curmudgeon comes to his critique of the Constitution of the United States and our supposed attachment to it.

     A law of the usual sort specifies not merely what's mandatory or illegal, but also the penalty to be imposed on those found to have violated the law. Thus, the citizen is put on notice that should he dare to defy the law and be convicted under it, he will suffer a specified exaction from his life, liberty, or property. Granted that some laws allow judges and juries "sentencing discretion," the requirement that a valid law must incorporate a statement of the consequences for its violation goes back to the Magna Carta.

     The Constitution, "the Supreme Law of the Land" (Article VI, second paragraph), evaded those requirements. That's a major part of what's wrong with the Constitution. Worse yet, the Constitution never explicitly states whose duty it is:

• To determine when a violation of Constitutional law has occurred;
• To determine who is responsible for that violation and bring him (or them) to book;
• To impose and enforce the Constitutional penalty.

     If the Founders believed that the federal courts would answer those needs, they omitted to consider that the courts, themselves a branch of government, could easily enter into alliance with the other branches and either refuse to acknowledge Constitutional violations, or collaborate in their defense. "The least dangerous branch" could turn into a refuge for extra-Constitutional rationalization and exculpation -- just as it has. If the Founders placed the whole burden of "Supreme Law Enforcement" on the electoral process, their faith in elections was terribly excessive. Despite their expressed fears, it would appear that they didn't fear democracy enough.

     It's in the nature of things that a government cannot be obliged to restrain itself. Any constraints placed on it must be imposed and enforced from outside. Quis custodiet ipsos custodes? as we used to say in ancient Rome.

     As matters stand, there is only one agency capable of punishing a violation of the Constitution, and therefore of restraining the federal government: the people in arms. But We the Supposedly Sovereign People have refrained from any such enterprise. Whether we've disavowed the responsibility, or have become flaccid, or have been bought off, we have scamped our duty to enforce the Supreme Law of the Land against those who have progressively shredded it: our political class.

     Perhaps it was inevitable. Perhaps the peace and plenty we accumulated under limited Constitutional government has lulled away our will. Perhaps it was too soothing a drug to resist. Only the results matter.

     The Game With No Rules is as it is because the only officials there can ever be -- We the People -- have called no fouls, sent no players to the penalty box, issued no "red cards." Instead of marching against the usurpers of power and the infringers of our rights, ejecting them from their places of power, tarring and feathering the routiniers and hanging the ringleaders from District of Columbia lampposts pour encourager les autres, we've shrugged, murmured "well, what can we do, anyway," and allowed them to continue. Indeed, we've returned them to office far more often than not.

     But taking up arms to defend our Constitution and the principles it enshrines is so dangerous. We could get hurt -- maybe killed! Don't we have police and an army for that sort of job? Besides, some of those violations are popular. Who are we to oppose something so many people approve, just because it's a Supreme Law Violation? Just trust in the electoral process; things will work out in the end, you'll see.

     Thomas Jefferson noted in the Declaration of Independence that "all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed." That tendency to preserve the multiply flawed known rather than risk the unpredictable unknown -- to prefer the devil we know to the devil we don't -- has its base in both history and good sense: few revolutions have produced successor regimes that were objectively better than the ones they toppled. But at what point do the evils become insufferable? What will we do about it, sheep that we've become, when that point is reached?

     More anon.

What They Will Never Do

     As just about everyone in the English-speaking world already knows, late last night the Senate passed the tax reform package on a party-line vote, 51-49. (Tennessee’s Senator Bob Corker was the lone Republican to vote against it.) The bill includes provisions that not everyone will like – it will hurt homeowners in high-tax states such as New York and California – but it achieves several important things, including the repeal of the “individual mandate” provision of ObamaCare. There will be a joint House-Senate conference to resolve differences in the chambers’ bills. I predict that the most important features will survive.

     The reduction of tax rates is one of the few steps Congress is willing to take in the name of limiting the federal government. It’s highly indirect. It doesn’t usually have any significant effect on the rate of growth in government. But at least it gestures toward the notion – widely though foolishly held – that what we earn by our labor is our rightful property.

     What Congress is absolutely unwilling to do is actually shrink the federal Leviathan. Nor will the tax reform bill result in any such shrinkage.

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     You might have read coverage of the fusillades over the bill in which various Democrats complained that it would “increase the debt.” Republican arguments that reductions in tax rates are usually followed by economic growth that results in higher federal tax revenues get no respect from them. But that’s a pretty thin cover for the Democrats’ real objection to lowering tax rates. They’ve never been sincerely concerned about the national debt. They certainly weren’t concerned about it during the Obama years.

     The Democrats don’t want you and me thinking that our income is ours, to be disposed of as we, not they, prefer. Any suggestion of that sort terrifies them. It implies a limitation on their power, if not by Constitutional provision then by ethical principles.

     No federal court has ever challenged the unlimited power of Congress to tax. Indeed, income tax rates as high as 91% have passed muster when challenged in court, usually on the holding that Congress’s taxing power, being explicitly delegated by Article I, Section 8, is beyond the reach of the judiciary. Ironically, an important event of the Constitutional period involved an implicit limitation on Congress’s power to tax. Here’s the relevant clause of the Constitution as it was ratified:

     The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

     Specificity was a particular concern of the Framers. Compare and contrast the version of the Taxation Clause above with the following, which was proposed in its place:

     The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises; to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

     Did you spot the difference? If not, look at the punctuation marks after the word Excises in each version. A semicolon says that what precedes it is independent of what follows. A semicolon would separate the taxing power from the specific purposes for which taxation was authorized. It would have authorized Congress to collect taxes for any reason or none.

     Gouverneur Morris wanted the semicolon. Others among the Framers, James McHenry prominent among them, argued against it. As the American Revolution was largely a revolution in opposition to taxation and in defense of property rights, the comma was maintained.

     But if taxation is licit only for the legitimate purposes of Congress, then we must know what those purposes are.

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     If you haven’t read Article I, Section 8 of the Constitution recently, that’s where the legitimately delegated powers of Congress are specified. The Framers intended to limit Congress to those powers and no others. In the two centuries and more since the ratification of our Supreme Law, the federal government has chiseled away at its limitations under a variety of rationales. Yet the combination of that section and the Tenth Amendment should have left no doubt whatsoever that if it isn’t explicitly delegated to Congress in Article I, Section 8, then Congress has no power to do it.

     Yet when Nancy Pelosi, Speaker of the House during the crossfire over ObamaCare, was asked what Constitutional provision authorizes Congress to legislate on medical insurance, she indignantly replied that “That is not a serious question.” But it was quite serious. That she wasn’t willing to answer it doesn’t change that. Her problem, of course, is that the answer is “None.”

     Pelosi is on record as saying that Congress’s power is unlimited, owing to the General Welfare clause. Constitutional scholar Richard Epstein has demolished this claim, noting in particular that the phrase isn’t the “general welfare,” which is so ambiguous as to be meaningless, but the “general Welfare of the United States,” which is much more specific. As if amplification were needed, there’s the eighteenth clause of Article I, Section 8:

     To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

     If Congress’s power were truly unlimited, what purpose would that clause have served? In the exercise of unlimited power, no imaginable enactment could fail to be “necessary and proper!”

     But unlimited power is what every statist wants – and the Democrats are ur-statists. But let’s not categorically exclude the Republicans from that characterization.

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     I predict that if the final bill to emerge from the conference committee is reasonably close to the one passed by the Senate, there will be an increase in the rate of American economic growth that will add substantially to federal revenues. I also predict that no matter what those revenues might be, Congress will overspend them, adding to the national debt.

     There’s no amount of money that can’t be overspent. Congress’s fatal power:

     To borrow Money on the credit of the United States;

     ...amplified to infinity by the Federal Reserve system, guarantees it. The object of any particular expenditure will be the exercise of an anti-Constitutional power nine times out of ten. Yet no court will rule against such an exertion of power.

     What Congress will never do is concede that there are any limits to its legislative powers. To do so would deprive federal legislators of what they prize above all other things: power. It would also deprive them of the ability, via “earmarks” and other devices, to purchase the votes they need to remain in office.

     The tax reform act will probably be good for American citizens. It will probably increase federal revenues enough to be “revenue neutral” or better. But the debt is guaranteed to increase even so. Remember the pattern of the Reagan years:

Fiscal Year	Federal Receipts, $Billions	Federal Expenditures, $Billions	Annual Deficit, $Billions
1980	517.1	590.9	73.8
1981	599.3	678.2	79.0
1982	617.8	745.8	128.0
1983	600.6	808.4	207.8
1984	666.5	851.9	185.4
1985	734.1	946.4	212.3
1986	769.2	990.5	221.2
1987	854.4	1004.1	149.8
1988	909.3	1064.5	155.2
1989	991.2	1143.7	152.5
1990	1032.0	1253.2	221.2

     [The above figures were taken from the Statistical Abstract of the United States, 2001 edition.]

     If you can look at the table above, which shows federal revenues growing swiftly but federal expenditures rising even faster, and still persuade yourself that “tax rate reductions cause the debt to grow,” you and I don’t share a common understanding of arithmetic, much less of political dynamics. My point is made: Congress will spend every dollar it gets and quite a few more. What else could we expect from a body that claims unlimited power over everything?

     They won’t relinquish that power by their own act. It must be taken from them...and a “balanced budget amendment” won’t do it. The completion of that thought is left as an exercise for my Gentle Readers.