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JAMES MADISON


The natural cure for an ill-administration, in a popular or representative constitution, is a change of men.

Alexander Hamilton, Federalist No. 21, 1787

Real Rebels and the Counter Revolution

Think ofAmerica’s Founders.  These were real rebels.

Sam Adams agitated against the imposition of taxes.  He penned the petitions which brought forth the rallying cry “No taxation without representation!”  While avoiding violence he led the effort to organize resistance to tyranny.  He founded the Committee of Correspondence inMassachusetts and inspired its spread to the other colonies.  He organized boycotts of British goods and the public trial of the British soldiers involved in the Boston Massacre.

In a world of divine right kings where the common man was a pawn to be exploited and demeaned James Madison made these revolutionary statements, “The powers delegated by the proposed Constitution to the federal government are few and defined.  Those which are to remain in the State governments are numerous and indefinite.”  And, “An ELECTIVE DESPOTISM was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others.”

Patrick Henry did more than say, “Give me liberty or give me death.”  Before the Revolution, as a member of the Assembly in Virginia he led in the formation of a resistance movement against the tyranny of the British crown.  During the Revolution he served in the Continental Congress that passed the Deceleration of Independence.  After the Revolution he was not afraid to stand up against the desire of many to impose a Constitution without a Bill of Rights leading in the fight to maintain the greatest amount of individual liberty and the strongest limits to the central authority possible under the new Federal Government.  As if he could see the convolutions which currently threaten to swallow the Republic Mr. Henry reminded us at the beginning of our national experiment in limited government, “When the American spirit was in its youth, the language of America was different: Liberty, sir, was the primary object.”

Today the world is turned upside down.  The so called radical rebels of the sixties now own or control most things including the government.  The anti-establishment has become the establishment and the silent majority is being told to remain silent while this progressive minority transforms our nation into what their collectivist programmers have taught them it should be.  And yet they still see themselves as the rebels fighting a faceless bureaucracy for freedom never realizing they have met the enemy, and they are them.

All of this made me think about my old friend the professional revolutionary and something hit me.  He has always considered himself a rebel.  And considering he has made a living out of being a spokesman for the movements dedicated to destroying theAmericawe have always known that kind of made sense at one time. 

But in reality he is now and has consistently in the past loyally spouted the logical progression of the anti-American, anti-capitalist garbage that many of the teachers at our good old public High School tried to shove into our young skulls full of mush.  He also sounds exactly like all of our contemporaries who have spent a lifetime drinking at the well of the Corporations Once Called the Mainstream Media. Though they see themselves as deep thinkers it has always been obvious they receive their programming, their news and views from the major networks, and the transcripts in the print media.  They spout the same anti-traditional values pro-socialism talking points time after time.

Their representatives have spent decades chipping away at the America we love in the movies, on television, and in songs.  They have gained control of one component of society at a time: education, the media, the board room, the Congress, and finally the White House.   Through patience and planning they have gained control of the entire federal government and the elites of most areas of society.  Therefore I cannot see why we should continue referring to them as rebels merely because they see themselves that way.  When you listen to their current spokesmen such as the Daily Show, Bill Maher, or any of the MSNBC line up they come off as so hip and so cutting edge when in fact they agree 100% with the current administration and its collectivist anti-life New Age agenda.  What’s rebellious about that?  That’s like saying Pravda was a radical spokesman for change when they parroted whatever the leaders of the formerUSSRhad to say.

Today my friend the professional rebel is actively helping recruit and train the brown shirt Occupy troops?  They may rail against Wall Street but that same Wall Street promotes and funds the very people these protesters vote for.  Someone is being used for something, but they never seem to wake up to ask, “Why should we pay no attention to the man behind the curtain?”

I can no longer consider myself a conservative.  What is there left to conserve?  I am a radical and a rebel, because I advocate for limited government, personal liberty, and economic freedom.  These 1960s retreads who continue to advocate for the progressive collectivists who have won their revolution and now occupy the seats of power are faux rebels: organizational apparatchiks spouting the party line.

Look at how revolutionary some of our real rebels still sound today:

Sam Adams said, “The Constitution shall never be construed… to prevent the people of the United States who are peaceable citizens from keeping their own arms.” And “The liberties of our country, the freedom of our civil constitution, are worth defending against all hazards: And it is our duty to defend them against all attacks.”  He also said, “Our contest is not only whether we ourselves shall be free, but whether there shall be left to mankind an asylum on earth for civil and religious liberty.”

Patrick Henry said, “Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are inevitably ruined.”  And, “We are not weak if we make a proper use of those means which the God of Nature has placed in our power… the battle, sir, is not to the strong alone it is to the vigilant, the active, the brave.”  When thinking of his most famous statement we should keep it in context and recall the whole quote, “Is life so dear or peace so sweet as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take, but as for me, give me liberty, or give me death!”

So the next time the nightly faux news shows are filled the antics of the faux rebels demonstrating for more government power, or the next time one of your relatives or old friends wants to fill your ear with their oft repeated mantras for the collectivist establishment tell yourself, “This is the time for real rebels and the counter revolution.”

And if pointing out the transparent hypocrisy of the faux rebels of today should ever be considered too rebellious for the faint of heart let me share one more quote from Patrick Henry, “If this be treason, make the most of it!”

Dr. Owens teaches History, Political Science, and Religion for Southside Virginia Community College.  He is the Historian of the Future and the author of the History of the Future @ http://drrobertowens.com © 2012 Robert R. Owens drrobertowens@hotmail.com  Follow Dr. Robert Owens on Facebook or Twitter @ Drrobertowens

The Constitutional Moment

The Wall street Journal

FEBRUARY 1, 2011

Judge Vinson introduces ObamaCare to Madison and Marshall.

 

‘If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

Federal Judge Roger Vinson opens his decision declaring ObamaCare unconstitutional with that citation from Federalist No. 51, written by James Madison in 1788. His exhaustive and erudite opinion is an important moment for American liberty, and yesterday may well stand as the moment the political branches were obliged to return to the government of limited and enumerated powers that the framers envisioned.

As Judge Vinson took pains to emphasize, the case is not really about health care at all, or the wisdom—we would argue the destructiveness—of the newest entitlement. Rather, the Florida case goes to the core of the architecture of the American system, and whether there are any remaining limits on federal control. Judge Vinson’s 78-page ruling in favor of 26 states and the National Federation of Independent Business, among others, is by far the best legal vindication to date of Constitutional principles that form the outer boundaries of federal power.

At the heart of the states’ lawsuit is the individual mandate, which requires everyone to purchase health insurance or be penalized for not doing so. “Never before has Congress required that everyone buy a product from a private company (essentially for life) just for being alive and residing in the United States,” Judge Vinson writes.

Congressional Democrats and the Obama Administration justified this coercion under the Commerce Clause, so it is fitting that Judge Vinson conducts a deep investigation into its history and intent, including Madison’s notes at the Constitutional Convention and the jurisprudence of the first Chief Justice, John Marshall. The original purpose of the Commerce Clause was to eliminate the interstate trade barriers that prevailed under the Articles of Confederation—among the major national problems that gave rise to the Constitution.

The courts affirmed this limited and narrow understanding until the New Deal, when Congress began to regulate harum-scarum and the Supreme Court inflated the clause into a general license for anything a majority happened to favor.

In a major 1942 case, Wickard v. Filburn, the Court held that even growing wheat for personal use was an activity with a substantial economic effect on interstate commerce, thus justifying federal restrictions on the use of agricultural land meant to prop up commodity prices. It wasn’t until the William Rehnquist Court, a half-century later, that the Justices began to recover some of the original limits, notably in the Lopez (1995) and Morrison (2000) cases.

Yet even in its most elastic interpretations, the Commerce Clause applied only to “clear and inarguable activity,” Judge Vinson writes, the emphasis his. It never applied to inactivity like not buying health insurance, which has “no impact whatsoever” on interstate commerce. He argues that breaching this frontier converts the clause into a general police power of the kind that the Constitution reserves to the states. As the High Court put it in Lopez, obliterating this distinction would “create a completely centralized government.”

The Administration contends that not purchasing insurance—inactivity—is really activity, because everyone will eventually need medical care and their costs will be transferred to the insured. But Judge Vinson dissects that as a “radical departure” from the Constitution and U.S. case law. It is “not hyperbolizing to suggest that Congress could do almost anything it wanted,” he writes. “Surely this is not what the Founding Fathers could have intended.”

He notes that no one can opt out of eating any more than they can from the medical system, so return to the Wickard example of wheat: “Congress could more directly raise too-low wheat prices merely by increasing demand through mandating that every adult purchase and consume wheat bread daily, rationalized on the grounds that because everyone must participate in the market for food, non-consumers of wheat bread adversely affect prices in the wheat market.”

Unlike Judge Henry Hudson in Virginia, who also found ObamaCare to be unconstitutional, Judge Vinson addresses the Administration’s fallback argument that the Constitution’s Necessary and Proper Clause justifies the law even if the Commerce Clause doesn’t. He writes that this clause “is not an independent source of federal power” and “would vitiate the enumerated powers principle.” In other words, the clause can’t justify inherently unconstitutional actions.

Judge Vinson also went beyond the Virginia case in striking down the entire ObamaCare statute—paradoxically, an act of judicial modesty. Democrats intentionally left out a “severability” clause if one part of the bill was struck down, and the Administration repeatedly argued that the individual mandate was “essential” to the bill’s goals and mechanisms and compared it to “a finely crafted watch.” Judge Vinson writes that picking and choosing among thousands of sections would be “tantamount to rewriting a statute in an attempt to salvage it.”

***
We take a measure of vindication in the decision—David Rivkin and Lee Casey, the lawyers who argued the Florida case, first suggested in these pages that the individual mandate was unconstitutional. Judge Vinson’s learned opinion has put down a Constitutional argument that will reverberate all the way to the Supreme Court.

Congress Rediscovers the Constitution

The Wall Street Journal JANUARY 4, 2011.

The House Republican majority has said it will require members to cite the specific authority for any bill they introduce.

By ROGER PILON

If the new Congress to be sworn in on Wednesday is the tea party’s cardinal achievement so far, its most symbolic achievement will come on Thursday, when the first order of business in the House will be a reading, aloud, of the Constitution. That event alone will not bring us any closer to limited government. But it will help get a debate going that for too long has been dormant.

Already, House Democrats are lining up to ridicule a closely related rule that the Republican majority has said it will adopt, requiring members to cite the specific constitutional authority for any bill they introduce. “It’s an air kiss they’re blowing to the tea party,” says Barney Frank, outgoing chairman of the House Financial Services Committee. Henry Waxman, outgoing chairman of the House Energy and Commerce Committee, all but dismissed any role for Congress in assessing the constitutionality of its actions: “Whether it is constitutional or not is going to be whether the Supreme Court says it is.”

As a legal matter, Mr. Waxman is right; at least since Marbury v. Madison in 1803, the Supreme Court has had the last word on what the Constitution authorizes Congress to do. But well before that, and long after, members of Congress took it upon themselves to have the first word, often citing their oath of office.

In 1794, for example, James Madison, the principal author of the Constitution, rose on the House floor to object to a bill appropriating $15,000 for the relief of French refugees who had fled to Baltimore and Philadelphia from an insurrection in San Domingo. He could not, he said, “undertake to lay [his] finger on that article of the Federal Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents.” The bill failed.

Throughout the 19th century, members of Congress and presidents alike rejected legislation because they believed there was no constitutional authority to enact it. The bedrock presumption of our polity, they understood, was individual liberty. The Constitution gave the federal government the authority to pursue certain limited ends, like national security and ensuring free interstate commerce, but otherwise left us free to pursue our ends either through the states or as private individuals. It did not authorize the federal government to provide us with the vast array of goods and services that today reduce so many of us to government dependents.

Thus the first question the new Congress should ask of any proposed law is: Does the Constitution authorize us to pursue this end? If not, that ends the matter. If yes, the second question is: Are the means we employ “necessary and proper,” as constrained by the principles of federalism and the rights retained by the people that are implied by a government of enumerated powers? In essence, the Constitution is no more complicated than that. It was written to be understood by ordinary citizens.

How, then, did modern constitutional law get so complicated and federal power so expansive? One reason is that several provisions in the Constitution were written broadly to allow for contingencies. But those provisions were never meant to open the floodgates to boundless congressional power. The presumption was that any political redress of unexpected problems would be done with due deference to the larger structure, aims and principles of the document. This brings us to the main reason Congress leapt its constitutional bounds: a fundamental shift in the climate of ideas.

Early 20th-century Progressives, inspired by European social democracies, rejected the Constitution’s plan for limited government, advocating social engineering schemes instead. Rule by government experts was the order of the day. As people and politicians succumbed to those ideas, especially in the states, courts would often block the schemes in the name of constitutional liberty. When Progressives later took their agenda to the federal level, however, and the Supreme Court continued to block it, President Franklin D. Roosevelt unveiled his infamous plan to pack the court with six new members.

The threat cowed the court, which in a pair of 1937 decisions (Helvering v. Davis and NLRB v. Jones & Laughlin Steel Corp) essentially gave Congress the power to redistribute and regulate at will, eviscerating the very foundation of the Constitution: the doctrine of enumerated powers. A year later, in U.S. v. Carolene Products, the court reduced property rights and economic liberty to second-class status under the Constitution. And in National Broadcasting Co. v. U.S. (1943), it allowed Congress to delegate ever more of its vastly expanded legislative powers to administrative agencies in the quickly expanding executive branch.

Now that one-party rule has ended in Washington, we’ll see President Obama use these agencies to bypass Congress and promote his progressive agenda. On Dec. 23, for example, the Environmental Protection Agency announced a schedule for setting greenhouse gas standards for power plants and oil refineries over the next two years, notwithstanding that Congress has rejected cap-and-trade legislation. The Obama administration has also quietly issued regulations providing for the end-of-life counseling that the Senate rejected when it passed ObamaCare. Expect far more of this in the next two years.

The 112th Congress will have its hands full simply monitoring what the more than 300 federal agencies are up to. But if the new members want to get to the root of the problem—if they want to start restoring limited constitutional government—they’ll have to do far more.

First, they’ll have to keep the debate focused on the Constitution, not simply on policy or practicality.

Second, they’ll have to reject without embarrassment the facile liberal objection that the courts have sanctioned what we have today, and thus all a member need do when introducing a bill is check the box that says “Commerce Clause,” “General Welfare Clause” or “Necessary and Proper Clause.”

If these clauses in the Constitution enable Congress to enact the individual health-insurance mandate, then they authorize Congress to do virtually anything. The Supreme Court was wrong in allowing Congress to exercise power not granted it by the Constitution, and courts today are wrong when they uphold those precedents—even if they’re not in a position today to reverse them until Congress takes greater responsibility.

Third, Congress has to start taking greater responsibility. Congress must acknowledge honestly that it has not kept faith with the limits the Constitution imposes. It should then stop delegating its legislative powers to executive agencies. Congress should either vote on the sea of regulations the executive branch is promulgating or, far better, rescind or defund those regulations, policies and programs that never should have been promulgated in the first place (rescission may not be possible during the next two years, but defunding is). And of course Congress should undertake no new policies not authorized by the Constitution.

This is all a tall order, and it will take years. But the alternative—our Leviathan state, which recognizes no limits on its power—is simply unconstitutional.

Mr. Pilon is vice president for legal affairs at the Cato Institute and publisher of the Cato Supreme Court Review.

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