Archive for January, 2011

For the record, I did NOT want to be right about this.  I really didn’t.

From the Politico:

Representative Bob Brady of Pennsylvania told The Caucus he plans to introduce a bill that would ban symbols like that now-infamous campaign crosshair map.

“You can’t threaten the president with a bullseye or a crosshair,” Mr. Brady, a Democrat, said, and his measure would make it a crime to do so to a member of Congress or federal employee, as well.

Mr. Brady, you are not a member of the aristocracy.  Words cannot hurt you, and the actions of a lone wackjob do not entitle you to greater protections those left to the people you serve.

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It’s bad enough when someone is shot.

Make the victim a political figure, and the chatterati and the self-righteous get bent completely out of shape, and start to consider how depriving some people of their rights is a good thing.

I think it is horrible that a pathetic loser nutjob decided to reach out and touch fame by going to a Tuscon Safeway where Representative Gabrielle “Gabby” Giffords was meeting with constituents. 

I think it is reprehensible that a partisan eagerness to assign blame started before she entered surgery. 

The Palin-Derangment Syndrome suffers couldn’t wait to lay this at her doorstep, recalling her Facebook page on which she had “picked her targets” in the last campaign, of which Representative Giffords was one.  The denouncements rang out loud and numerous, connecting the two.  And then reminders that Sarah Palin, a Republican wasn’t the only one to use such a practice, but then, some reminders that the Democratic Leadership Committee had used the practice in 2004, and that the Democratic Congressional Campaign Committee, under the leadership of Chris Van Holland had posted a similar map earlier in the same year as Palin’s map.  And the denunciatory tweets slowed.

Then, we found out about the shooter’s channel on youtube, on which he posted rambling, incoherent texts about “conscious dreaming” general hatred of the government, and lists among his favorite books Mein Kampf and The Communist Manifesto.  Now the usual suspects started to get quiet.  Maybe it was because it was hard to denounce the eeeeevvvvviillll Reich Wingers for their hate-filled vitriolic speech when you’re busy scrubbing your website and pushing things down the memory hole that are so obviously hypocritical that even your regular readers would have a hard time not seeing how foolish you look.  And the wave of snarky tweets slowed, and the raised hands pointing fingers were slowly and quietly lowered.

But the slow rumble continued.  Discussion of “motives” and “filters” and “vitriolic speech” continued.

And when Pima County Sheriff Clarence Dupnik finally held his presser later in the day, it was a public relations consultant’s nightmare.  He was rambling, repetitive, and dismissive of those who shared the podium with him, but despite it being an ongoing investigation, one in which he claims the shooter did not act alone, the Sheriff chose not to miss an opportunity to wave the bloody shirt, and vilify those who say things he doesn’t like:

In case you missed it, here is the money shot:

“But again I’d just like to say that when you look at unbalanced people, how they respond to the vitriol that comes out of certain people’s mouths about tearing down the government, the anger, the hatred, the bigotry that goes on in this country is getting to be outrageous. And, unfortunately, Arizona I believe has become sort of the capital. We have become the Mecca for prejudice and bigotry.”

Never let a friend’s tragedy go to waste.  Politicize everything.

Not surprisingly, the Sheriff is…wait for it…a Democrat.   And not just any Democrat, he is one who announced that he would not enforce a law duly passed by his state’s legislature.  When those charged with enforcing the law announce that they will not, the result is lawlessness.  I’m not surprised he’s upset about anger toward the government.  His determination that his judgement superseded that of the legislature is exactly the kind of usurpation that many Americans are fed up with.  But his tactless and ill-timed rant only joins a larger chorus repeated by the chatterati and the sanctimonious hand-wringing self-appointed cognoscenti about how speech that opposes certain government policies and those who advance them is “hate speech“, and the speakers must be held accountable for what those who hear them might do.

The problem is that these people don’t stop in illustrating what they don’t like.  They frequently skip past a meaningful analysis, and happily skip into the fields of their own hate, which they frequently turn around and heap in great piles at the feet of the objects of their own scorn and derision.  And in succumbing to their impulses to point fingers and delude themselves about their own innate goodness, they forget very important things.

Speech is an expression of thought.  It can be saintly and inspiring.  It can be venomous and painful.  It can comfort.  It can edify.  It can cause laughter.  It can educate.  It can repulse.  But unfortunately, our society continues to grow in the belief that among our many blessed freedoms is a freedom not to be offended, and like most pernicious lies that make some of us feel better, we not only believe in this freedom not to be offended, we believe that it trumps other freedoms.

This freedom to not be offended has been the starting point for state-sanctioned discrimination against those who exercise their freedom to perform actions consistent with their Christian faith.   But the progressives, who want to believe that they really can make everyone else conform to what they believe is “better behavior” have not been happy with this application of a non-existent right.  And that’s why attacking speech they don’t like is so important.  They have to paint it as “hate speech”, usually in hateful terms of their own.  They have to portray it as pejoratively as possible, and do their own fear mongering about the potential ill-effects, creating the mental image of grisly murders of government officials at the hands of stooge-like listeners to talk radio and viewers of FOX news, because if some weak-willed person was programmed by these “hate merchants” and did just that, then it would only highlight the need step forward, and shut down these voices of dissent, if only for the preservation of the republic.  This is of course, antithetical to the very concept of personal responsibility, another concept that they dislike, and attack on many fronts with specious arguments, and meddling certainty and entitlement.  But in working so hard to create at “nightmare scenario” that hasn’t yet happened, they overlook something very fundamental:

We were intended to have the right to criticize government.  We were intended to have the right express discontent, anger, and yes, even rage at those who ran afoul of us while serving in our names.  This right is fundamental to a free society, because a society that would criminalize speech would criminalize thought in the same act.  And criminalizing thought that opposes the current government, its officials, or its policy is to kill the genius of America, because all freedoms would be forfeit to whomever was strong enough, or powerful enough to determine what thoughts and what words are criminal.  Progressives cannot make better men through the enacting of laws that determine what speech, and by inevitable extension, what thoughts are correct, no more than such laws will make people more “civil”.  You might force these things to be the only expression allowed, but to do so will be to foment resentment, and only lead to a boiling ugliness seeking an outlet. 

People’s thoughts are the only things that they will ever be able to truly call their own.  You may not like them when they are expressed in words, but they aren’t yours to restrain, chain, squelch, or suppress.  If they have merit, then they will find an audience that values them.  If they do not, then their value to society will be low, and they will be treated accordingly.

Tragedies often move people to action.  Remember that you are dealing with people who never let a crisis go to waste and who are sensitive to all hate but their own.  There is no reason to surrender freedom for security when it comes to speech, especially since one will not lead to the other.  There are valid reasons why people are “anti-government’, or more accurately “anti-the-current-government” these days, and your birthright and the sanctity of your thoughts are not subject to their tender sensitivities.

UPDATE:  The Freedom Loving Left Is Already Hard At Work.  Facts Don’t Matter.  The Constitution Doesn’t Matter.  What They Want Is All That Matters.

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My friend Rutherford’s latest post crows on and on about the skewing of the Constitution and original intent by the evil/stupid Tea Party and the members of Congress they elected and their coming epiphany brought on by opening of the 112th Congress with a reading of the Constitution. 

 His criticisms/snark were rooted in an interview given by Yale Political Science and Constitutional professor Akhil Reed Amar by noted tool and distorter Keith Olbermann.  I’m going to link the interview, only because I want readers to understand what Professor Amar actually said, and not what Rutherford simplistically paraphrased. I’d also like to have it clearly understood what I am talking about when I call little Keefie out on some particularly bold hypocrisy…or at least it would be bold hypocrisy if I honestly thought he knew he messed it up.   I doubt very much that he has ever read the Federalist Papers or the Anti-Federalist Papers.  I can’t imagine anyone capable of doing so having the patience to help him grok some of the fairly nuanced points, and if left to his own devices, he would likely sprain,if not break his lips while struggling with the big words. 

 While it isn’t an accident that he used the word that he did, I think the choice of word enhances the misunderstanding that he advocates in favor of.  Anyway, here is the link to the video.  Don’t sweat it.  Its seven minutes, but for purposes of this post, it is actually seven minutes that matter.

Ready?  Good.

I’ll start with a little skewing that Keef does on his own.  For someone who delights in droning on about how it is important to understand words, and criticising others for inserting words that aren’t there, he starts out with a little use of a word that wasn’t used at the beginning of the clip when he talked about the Framers writing in legislative powers “both vague and specific”.  The problem is that the enumerated powers are not “vague and specific”, nor did the authors of the Federalist Papers that his expert cites, or their opponents the Anti-Federalists, consider them to be or refer to them as powers “both vague and specific”.  Instead, they referred to these powers as “general”, and it makes a difference. 

 A statute is general when it operates uniformly on all persons and things of a class and such classification is natural, reasonable, and appropriate to the purpose sought to be accomplished.  A law that is vague is indefinite, uncertain, and not susceptible to being understood.  Laws are overturned for being vague.  Still, I expect no better than that from a Cornell AG school grad.  That’s why he has a TV show watched faithfully by tens and not a real job.

But, moving on, the professor first talks about the founders being the liberal nationalists of their day, and being true revolutionaries, implying a link to, and then declaring that they were the liberal democrats of their era because they were revolutionaries.  This is the mix of the truth and a lie that is more pernicious than an outright lie. 

It is true that they were revolutionaries.  Never before had a western nation been formed without the auspices of a King.  Never before had a nation existed that put so much stock in the rights of an individual and the citizen’s right to overthrow a government that reached so far as to usurp authority over those rights to the degree of rendering them moot.  However, to say that they were the liberal democrats of their day is falsely self congratulatory, and not borne out by the facts of what they held dear, and what they valued, which was demonstrated in how they lived.

A liberal democrat is characterized by a secular humanist worldview, even when they don’t know what that means. This outlook embraces the ideal that man is the only possible source for his own salvation (“We ARE  the ones we’re looking for.”) and generally regards the world through a philosophy that says that there is no problem that government shouldn’t be the solution to.  That is how we have gotten to the point of special welfare (assistance in the form of benefits and entitlements for some, paid for by others, and distributed and administered by government), and the idea that it is actually “general welfare”.  It is also how we have gotten to the point where the federal government has gained dominion over our light sockets and toilet tanks. They can also often be found so supportive of the right of free exercise of Christianity (which is, in fact a religion, and therefore subject to Constitutional protection) that they threaten and actually engage in litigation to prevent it in public fora in defense of the recently discovered Constitutional rights of non-believers to not be “offended” by such displays.

In contrast, a majority of the founders were not just religious people, but Christians, a fact demonstrated by the reasons for migration to the continent itself, especially in New England, and the fact that many states had officially recognized  and endorsed certain sects of Christianity, even after the passage and ratification of the First Amendment, and the calling on the God of Christianity in official government meetings and procedures, such as the Constitutional Convention itself, where the document was debated and took form, to the official proclamations of Thanksgiving and Presidential Inauguration Speeches.  They also would have been horrified at the idea of a Federal government having anything at all to do with basic education, or the idea of forfeiture of private property for a “common economic good”.  They valued individual freedom, and at the same time adhered to a religiously-informed moral codification of law based on the perceived benefits to society, rather than seeking the creation of new rights without serious thought being given to whether it conferred any benefit to society at all.

This back patting continued through a cursory review of all the amendments being the work of these liberal democrat-like figures throughout our history.  This presumably includes the noble 18th Amendment, which of course took liberties away from Americans, which is something that liberal democrats like to do, like when they decided to take away their right NOT to buy health care, or the right to buy their kids Happy Meals with toys in them.  But those are individual rights that really don’t matter, right?  After all, those “revolutionary liberal democrat-like” founders would be all in favor of an intrusive government and the policies of “nudge”, right?  Let’s ask Thomas Jefferson:

 “I know of no safe depository of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but inform their discretion.”

Oh, snap.

The professor moves on to point out that (surprise!) the Framers had actually intended for the federal government to be able to levy taxes, because the Constitution mentions it FOUR TIMES!!!!! ZOMG!!!!!11!  He and Keith had a good chuckle about that, because those silly Tea Partiers don’t believe that the government has that right, which is all well and good, except I wasn’t aware of this being a “mainstream” Tea Party point.  I thought the point of Taxed Enough Already wasn’t that the Federal government didn’t have the power to tax, but instead that they believed that the taxes paid were exorbitant, especially in light of the fact that Federal taxation is only a piece of the taxation puzzle for Americans, who also frequently pay taxes to states and municipalities as well, in the form of income taxes, sales taxes, property taxes, business taxes, personal and real property taxes, gasoline taxes, real estate transfer taxes, workman’s compensation taxes, 911 taxes, library taxes, ect.   This was something foreseen by those eeeeeeevvvviiilll Anti-Federalists, by the way, as presented by “Brutus” in paper VI:

The general government is to be vested with authority to levy and collect taxes, duties, and excises; the separate states have also power to impose taxes, duties, and excises, except that they cannot lay duties on exports and imports without the consent of Congress. Here then the two governments have concurrent jurisdiction; both may lay impositions of this kind. But then the general government have supperadded to this power, authority to make all laws which shall be necessary and proper for carrying the foregoing power into execution. Suppose then that both governments should lay taxes, duties, and excises, and it should fall so heavy on the people that they would be unable, or be so burdensome that they would refuse to pay them both — would it not be necessary that the general legislature should suspend the collection of the state tax? It certainly would. For, if the people could not, or would not pay both, they must be discharged from the tax to the state, or the tax to the general government could not be collected. — The conclusion therefore is inevitable, that the respective state governments will not have the power to raise one shilling in any way, but by the permission of the Congress. I presume no one will pretend, that the states can exercise legislative authority, or administer justice among their citizens for any length of time, without being able to raise a sufficiency to pay those who administer their governments.

Now I will admit that the Federal government does not exert direct control over the ability of individual states to tax…yet.  But it does have a say in the spending priorities of the states because of the way that it distributes money…often with strings that require the establishment and maintenance of various programs, which restricts the ability of individual states to independently choose their spending priorities at times when their budgets are hurt by falling tax revenues due to bad economies or high tax rates, or both.  This is actually far more insidious because it is one more usurpation of the authority of the individual states.  This problem also took an unforeseen turn because of the fact that bulk of federal taxes are raised by permanent taxes on income, which was not contemplated by the taxing language to which Amar refers, as it specifically names duties, imposts, and excises.  Income taxes were infrequent and temporary measures,  most often enacted to pay for wars, and legislated back out of existence when those wars were complete.  It was only with a government lead by a progressive man with a progressive agenda, and a government that grew at the cost of freedom from intrusion, that we were given the gift of a permanent income tax, enacted to afflict “just the wealthy”, but somehow needing to grow beyond that restriction in a very short period of time.

Keef then guided Professor Amar into a discussion of the Necessary and Proper Clause as a rebuttal to those wacky Tea Party members who see the enumerated powers as being a strict concept.  Keef’s derision focused on the lack of word “expressly” in the 10th Amendment and Madison’s fight to keep it out of the 10th Amendment.  This is where the concept of nuance, which liberal democrats use to support facetious assertions, actually makes a difference.  Because Keef referred to the enumerated powers being “both vague and specific”, rather than “general and specific”, he is more likely to interpret the Necessary and Proper clause as giving government the authority to do what ever it deems necessary to give effect to powers it divines from the general powers set forth in Article I, Section 8, because, as he states, they are “vague”.  Professor Amar made specific reference to Hamilton’s exposition on the Necessary and Proper clause in the Federalist 33 and Madison’s explanation in the Federalist 44.  But let’s look at all of what they said in these papers, because while certain members of Congress have subscribed to the view that government can do whatever it wants, as some of the Anti-Federalists feared, Hamilton and Madison didn’t see it that way, or at least presented a very different interpretation into their work.  First, Hamilton and the Federalist 33:

What is a power, but the ability or faculty of doing a thing? What is the ability to do a thing, but the power of employing the MEANS necessary to its execution? What is a LEGISLATIVE power, but a power of making LAWS? What are the MEANS to execute a LEGISLATIVE power but LAWS? What is the power of laying and collecting taxes, but a LEGISLATIVE POWER, or a power of MAKING LAWS, to lay and collect taxes? What are the proper means of executing such a power, but NECESSARY and PROPER laws?

This simple train of inquiry furnishes us at once with a test by which to judge of the true nature of the clause complained of. It conducts us to this palpable truth, that a power to lay and collect taxes must be a power to pass all laws NECESSARY and PROPER for the execution of that power; and what does the unfortunate and culminated provision in question do more than declare the same truth, to wit, that the national legislature, to whom the power of laying and collecting taxes had been previously given, might, in the execution of that power, pass all laws NECESSARY and PROPER to carry it into effect? I have applied these observations thus particularly to the power of taxation, because it is the immediate subject under consideration, and because it is the most important of the authorities proposed to be conferred upon the Union. But the same process will lead to the same result, in relation to all other powers declared in the Constitution. And it is EXPRESSLY to execute these powers that the sweeping clause, as it has been affectedly called, authorizes the national legislature to pass all NECESSARY and PROPER laws. If there is any thing exceptionable, it must be sought for in the specific powers upon which this general declaration is predicated. The declaration itself, though it may be chargeable with tautology or redundancy, is at least perfectly harmless.

So far, so good.  You’d have to be able to devise a tax and a means to levy it to establish post offices, to raise and support armies, to provide and maintain a navy…yes these are general powers, as they do not dictate the means by which the government is to do so.   Hamilton went on to characterize the concern that raised the question over the clause in the first place, and to assert his belief that those wily states would somehow choke the life from the Federal Government, rather than the other way around:

But SUSPICION may ask, Why then was it introduced? The answer is, that it could only have been done for greater caution, and to guard against all cavilling refinements in those who might hereafter feel a disposition to curtail and evade the legitimate authorities of the Union. The Convention probably foresaw, what it has been a principal aim of these papers to inculcate, that the danger which most threatens our political welfare is that the State governments will finally sap the foundations of the Union; and might therefore think it necessary, in so cardinal a point, to leave nothing to construction. Whatever may have been the inducement to it, the wisdom of the precaution is evident from the cry which has been raised against it; as that very cry betrays a disposition to question the great and essential truth which it is manifestly the object of that provision to declare.

Hamilton then recognized the final authority in any matter undertaken by the government as the ultimate limitation on the exercise of this power:

But it may be again asked, Who is to judge of the NECESSITY and PROPRIETY of the laws to be passed for executing the powers of the Union? I answer, first, that this question arises as well and as fully upon the simple grant of those powers as upon the declaratory clause; and I answer, in the second place, that the national government, like every other, must judge, in the first instance, of the proper exercise of its powers, and its constituents in the last. If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.[Emphasis Added]

Which is a far cry from elected officials who go to town meetings and tell righteously pissed constituents that they do not know what they are talking about, that they don’t understand, that government can do almost anything in this county, or they don’t care about the Constitution.

So what did Madison have to say in the Federalist 44?

The SIXTH and last class consists of the several powers and provisions by which efficacy is given to all the rest. 1. Of these the first is, the “power 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. “Few parts of the Constitution have been assailed with more intemperance than this; yet on a fair investigation of it, no part can appear more completely invulnerable. Without the SUBSTANCE of this power, the whole Constitution would be a dead letter. Those who object to the article, therefore, as a part of the Constitution, can only mean that the FORM of the provision is improper. But have they considered whether a better form could have been substituted? There are four other possible methods which the Constitution might have taken on this subject. They might have copied the second article of the existing Confederation, which would have prohibited the exercise of any power not EXPRESSLY delegated; they might have attempted a positive enumeration of the powers comprehended under the general terms “necessary and proper”; they might have attempted a negative enumeration of them, by specifying the powers excepted from the general definition; they might have been altogether silent on the subject, leaving these necessary and proper powers to construction and inference. Had the convention taken the first method of adopting the second article of Confederation, it is evident that the new Congress would be continually exposed, as their predecessors have been, to the alternative of construing the term “EXPRESSLY” with so much rigor, as to disarm the government of all real authority whatever, or with so much latitude as to destroy altogether the force of the restriction.

So far, so good.

It would be easy to show, if it were necessary, that no important power, delegated by the articles of Confederation, has been or can be executed by Congress, without recurring more or less to the doctrine of CONSTRUCTION or IMPLICATION. As the powers delegated under the new system are more extensive, the government which is to administer it would find itself still more distressed with the alternative of betraying the public interests by doing nothing, or of violating the Constitution by exercising powers indispensably necessary and proper, but, at the same time, not EXPRESSLY granted. Had the convention attempted a positive enumeration of the powers necessary and proper for carrying their other powers into effect, the attempt would have involved a complete digest of laws on every subject to which the Constitution relates; accommodated too, not only to the existing state of things, but to all the possible changes which futurity may produce; for in every new application of a general power, the PARTICULAR POWERS, which are the means of attaining the OBJECT of the general power, must always necessarily vary with that object, and be often properly varied whilst the object remains the same.

This is a weak argument to anyone who has ever seen a complete set of the United States Code in print, or the Code of Federal Regulations in print.

Had they attempted to enumerate the particular powers or means not necessary or proper for carrying the general powers into execution, the task would have been no less chimerical; and would have been liable to this further objection, that every defect in the enumeration would have been equivalent to a positive grant of authority. If, to avoid this consequence, they had attempted a partial enumeration of the exceptions, and described the residue by the general terms, NOT NECESSARY OR PROPER, it must have happened that the enumeration would comprehend a few of the excepted powers only; that these would be such as would be least likely to be assumed or tolerated, because the enumeration would of course select such as would be least necessary or proper; and that the unnecessary and improper powers included in the residuum, would be less forcibly excepted, than if no partial enumeration had been made. Had the Constitution been silent on this head, there can be no doubt that all the particular powers requisite as means of executing the general powers would have resulted to the government, by unavoidable implication. No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it is included. Had this last method, therefore, been pursued by the convention, every objection now urged against their plan would remain in all its plausibility; and the real inconveniency would be incurred of not removing a pretext which may be seized on critical occasions for drawing into question the essential powers of the Union.

So if they had left it out, that power would still be implied, or the general powers would mean nothing at all. Put another way, the ends expressed in the general powers make the means necessary anyway.  Which leaves me to wonder aloud if those “means” and ends wouldn’t be subject to a greater scrutiny whenever employed if the Constitution had been silent on them.  But more interestingly, Madison posits about what if Congress abuses this power:

If it be asked what is to be the consequence, in case the Congress shall misconstrue this part of the Constitution, and exercise powers not warranted by its true meaning, I answer, the same as if they should misconstrue or enlarge any other power vested in them; as if the general power had been reduced to particulars, and any one of these were to be violated; the same, in short, as if the State legislatures should violate the irrespective constitutional authorities. In the first instance, the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts; and in the last resort a remedy must be obtained from the people who can, by the election of more faithful representatives, annul the acts of the usurpers. [Emphasis Added.]

Now isn’t that an interesting concept?   Voting out the usurpers and annulling their acts…like a record ouster in a midterm election and the nearly immediate introduction of a bill to repeal an act that was the product of chicanery, backroom deals, and forced into a vote without adequate time to review all 2000+ pages, in violation of promises of transparency and plenty of advanced time to read and study it?  Naaaaaaaaaaa.  That’s just “relitigating the past.”

And then there is this little tidbit from him regarding the other safeguard against such overreach:

The truth is, that this ultimate redress may be more confided in against unconstitutional acts of the federal than of the State legislatures, for this plain reason, that as every such act of the former will be an invasion of the rights of the latter, these will be ever ready to mark the innovation, to sound the alarm to the people, and to exert their local influence in effecting a change of federal representatives. There being no such intermediate body between the State legislatures and the people interested in watching the conduct of the former, violations of the State constitutions are more likely to remain unnoticed and unredressed.

Except that states can no longer recall their representatives in Congress, because they no longer represent the states. (Thanks Progressives and the 17th Amendment!)  This argument is also more than a little bit facetious in that in representing much smaller constituencies, state governments are a heck of a lot more accountable to their citizens than a Congress where Representatives can position themselves for “safe seats”, thus insulating themselves from the consequences of certain votes, and Senators who represent so many people that they can afford to completely ignore close to half of them without any negative repercussions at election time.  However, it does indicate that he, as one of the authors and architects of the text, fully contemplated state governments that had much more power than what they have today. 

I would not be completely honest if I only examined the Federalist view of the subject, and for that reason, I will quote some of what our friend “Brutus” (thought to be New York Judge, and Constitutional Convention Delegate Robert Yates) had to say on the matter of the Necessary and Proper clause.   From paper I :

This government is to possess absolute and uncontroulable power, legislative, executive and judicial, with respect to every object to which it extends, for by the last clause of section 8th, article 1st, it is declared “that the Congress shall have power 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 office thereof.” And by the 6th article, it is declared “that this constitution, and the laws of the United States, which shall be made in pursuance thereof, and the treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution, or law of any state to the contrary notwithstanding.” It appears from these articles that there is no need of any intervention of the state governments, between the Congress and the people, to execute any one power vested in the general government, and that the constitution and laws of every state are nullified and declared void, so far as they are or shall be inconsistent with this constitution, or the laws made in pursuance of it, or with treaties made under the authority of the United States. — The government then, so far as it extends, is a complete one, and not a confederation. It is as much one complete government as that of New-York or Massachusetts, has as absolute and perfect powers to make and execute all laws, to appoint officers, institute courts, declare offences, and annex penalties, with respect to every object to which it extends, as any other in the world. So far therefore as its powers reach, all ideas of confederation are given up and lost. It is true this government is limited to certain objects, or to speak more properly, some small degree of power is still left to the states, but a little attention to the powers vested in the general government, will convince every candid man, that if it is capable of being executed, all that is reserved for the individual states must very soon be annihilated, except so far as they are barely necessary to the organization of the general government.


How far the clause in the 8th section of the 1st article may operate to do away all idea of confederated states, and to effect an entire consolidation of the whole into one general government, it is impossible to say. The powers given by this article are very general and comprehensive, and it may receive a construction to justify the passing almost any law. A power to make all laws, which shall be necessary and proper, for carrying into execution, all powers vested by the constitution in the government of the United States, or any department or officer thereof, is a power very comprehensive and definite [indefinite?], and may, for ought I know, be exercised in a such manner as entirely to abolish the state legislatures. Suppose the legislature of a state should pass a law to raise money to support their government and pay the state debt, may the Congress repeal this law, because it may prevent the collection of a tax which they may think proper and necessary to lay, to provide for the general welfare of the United States? For all laws made, in pursuance of this constitution, are the supreme lay of the land, and the judges in every state shall be bound thereby, any thing in the constitution or laws of the different states to the contrary notwithstanding. — By such a law, the government of a particular state might be overturned at one stroke, and thereby be deprived of every means of its support.

And from XI:

Most of the articles in this system, which convey powers of any considerable importance, are conceived in general and indefinite terms, which are either equivocal, ambiguous, or which require long definitions to unfold the extent of their meaning. The two most important powers committed to any government, those of raising money, and of raising and keeping up troops, have already been considered, and shewn to be unlimited by any thing but the discretion of the legislature. The clause which vests the power to pass all laws which are proper and necessary, to carry the powers given into execution, it has been shewn, leaves the legislature at liberty, to do every thing, which in their judgment is best. It is said, I know, that this clause confers no power on the legislature, which they would not have had without it — though I believe this is not the fact, yet, admitting it to be, it implies that the constitution is not to receive an explanation strictly, according to its letter; but more power is implied than is expressed. And this clause, if it is to be considered, as explanatory of the extent of the powers given, rather than giving a new power, is to be understood as declaring, that in construing any of the articles conveying power, the spirit, intent and design of the clause, should be attended to, as well as the words in their common acceptation.

After reading the arguments of both sides, and spending much time pondering them against the backdrop of the history that has transpired since, I have a few closing thoughts.

1.  I do find it ironic that Rutherford, who has always poo-pooed any arguments in the past regarding original intent that are rooted in the Federalist Papers, sees fit to line up behind the Professor’s reference to the Federalist Papers, and Keef’s invoking Madison’s reflection on not expressly defining the enumerated powers and preventing the implication of them by fighting to keep the word “expressly” out of the 10th Amendment.  You’re either in or you’re out, and if you’re in, then you need to examine all of it.

2.  I think that the Federalist Papers are an invaluable tool in determining “what the Framers really meant”, because you have the architects and authors telling you in their own words what they meant.  Of course, this means that it is a lot harder to allege that the general enumeration of powers was “vague”, and therefore can mean what ever you want them to.  Madison and Hamilton both clearly envisioned limitations on those powers, and the right of the people to check and remove politicians who disregard such notions.

3.  Knowing what they intended doesn’t mean that there is no potential for usurpation and excess by the Federal Government.  While Hamilton and Madison appeared to have difficulty countenancing such a state of affairs, they also had designed a system in which the states had their own representation in Congress, and could therefore respond to and block attempted encroachment on their power.  The movement to ratify the 17th Amendment, relying on somewhat specious arguments and a population that did not adequately understand all the checks and balances built-in to the Republic, set forth a case for greater “democracy” and “accountability” as a means to fight corruption and removed this particular check without contemplating or proposing an adequate replacement.  At the same time, Anti-Federalists, such as “Brutus” clearly foresaw the temptation that would inspire politicians to dissemble and read sufficient ambiguity into their powers that didn’t exist for those who conferred it,  until, as predicted, nothing rests outside of their considerable power.

4.  Yes, Virginia, the Constitution really did anticipate that the states, and not the federal government would have the bulk of the power over our daily lives.  That was why they had all the emphasis on limited government, and only listed a certain number of enumerated powers…powers that ironically coincided with the perceived weaknesses in the previous Articles of Confederation.  This is not an accident.  Nor is it an accident that these powers very much embody what is necessary to take a collection of sovereign governments and allow for an effective defense and economy. If the states were meant to be merely subservient subdivisions of a central government, then there would have been no limits on the federal government’s power as drafted, and the principle architects would not have expressed the belief that the states could end the federal government.

5.  The Anti-Federalist Papers give a good understanding of what the intent underlying the Bill of Rights was, because the various parties and delegations had the courtesy to pinpoint what they perceived as weaknesses in the Constitution with regard to the individual liberties that they had so jealously guarded from a king.

6.   Rutherford’s remarks about Boehner “being his own man” sound very silly indeed, coming as they do from a Harvard Grad who refuses to do some of the hard work of citizenship for himself and READ these documents, so that he doesn’t have to rely on the interpretation of really really smart people like Keith “Spittle-Flecked” Olbermann.

7. Anyone who gets excited about such a shallow examination of such a deep topic, and gushes about a “living, breathing Constitution” needs to read this over and over and over again until they understand it.

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With the Federalist Papers, I marveled at the intellect of the Framers.

And now, as I read the Anti-Federalist Papers, I marvel at their prescience. From “Brutus”, Paper VI:

Besides, in the very clause which gives the power of levying duties and taxes, the purposes to which the money shall be appropriated, are specified, viz. to pay the debts, and provide for the common defence and general welfare.”[1] I would ask those, who reason thus, to define what ideas are included under the terms, to provide for the common defence and general welfare? Are these terms definite, and will they be understood in the same manner, and to apply to the same cases by every one?

No one will pretend they will. It will then be matter of opinion, what tends to the general welfare; and the Congress will be the only judges in the matter. To provide for the general welfare, is an abstract proposition, which mankind differ in the explanation of, as much as they do on any political or moral proposition that can be proposed; the most opposite measures may be pursued by different parties, and both may profess, that they have in view the general welfare; and both sides may be honest in their professions, or both may have sinister views. Those who advocate this new Constitution declare, they are influenced by a regard to the general welfare; those who oppose it, declare they are moved by the same principle; and I have no doubt but a number on both sides are honest in their professions; and yet nothing is more certain than this, that to adopt this constitution, and not to adopt it, cannot both of them be promotive of the general welfare.

It is as absurd to say, that the power of Congress is limited by these general expressions, “to provide for the common safety, and general welfare,” as it would be to say, that it would be limited, had the constitution said they should have power to lay taxes, &c. at will and pleasure. Were this authority given, it might be said, that under it the legislature could not do injustice, or pursue any measures, but such as were calculated to promote the public good, and happiness. For every man, rulers as well as others, are bound by the immutable laws of God and reason, always to will what is right. It is certainly right and fit, that the governors of every people should provide for the common defence and general welfare; every government, therefore, in the world, even the greatest despot, is limited in the exercise of his power. But however just this reasoning may be, it would be found, in practice, a most pitiful restriction. The government would always say, their measures were designed and calculated to promote the public good; and there being no judge between them and the people, the rulers themselves must, and would always, judge for themselves.

Remember this, as the administration argues that the individual mandate is a tax, and that the smarter Democrats (that’s like saying “King of the Retards”) have claimed that the authority for Obamacare lay in the general welfare clause.

And here’s to you, Robert Yates, a/k/a “Brutus”, for sounding an alarm that was not adequately responded to.

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So principles only matter when standing for them gets you nothing? And once again, they only want to talk about half the budget equation…the emphasis on not paying for what they buy, rather than deciding NOT TO BUY WHAT THEY CAN’T AFFORD. But then when you believe that it is all the government’s money, rather than the money of them what earns it, then its easy to see how they think that their only tool is a checkbook, rather than a red pen to cross things out of the budget.

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First up on the delusional hit parade, The Fresh Prez of Bill Ayers, commenting on his return to DC to loiter in the Oval Office until his next photo-op or vacation, when asked about what he would be facing upon his return:

THE PRESIDENT:  Well, I mean, I think that there’s going to be politics. That’s what happens in Washington. They are going to play to their base for a certain period of time. But I’m pretty confident that they’re going to recognize that our job is to govern and make sure that we are delivering jobs for the American people and that were creating a competitive economy for the 21st century; not just for this generation but the next one. 

“Our job is to govern”…yes, and that would be by actually pushing the last Congress to actually pass a budget instead of engaging that shameful progressive legislative orgy before passing out of town…and into different jobs.  Governing is not forcing through a wish-list of legislation proposed to and rejected by the American voter.  If the Repubs really did get the message, and understand that this is their very last chance, I suspect that the President will actually witness governing first hand.  And I don’t think he’ll much like it.

And so my expectation, my hope is that John Boehner and Mitch McConnell will realize that there will be plenty of time to campaign for 2012 in 2012, and that our job this year is to make sure that we build on the recovery. We started to make good progress on that during the lame duck, and I expect to build on that progress when I get back. All right?

Given that arrogance and condescension are part of his general MO, it doesn’t surprise me that he is so supportive of what transpired in the lame duck session.  The truth is that the campaigning will require Boehner to do the right things with the full understanding that the Left and the legacy media (but I repeat myself) will vilify and attack them regardless of what he does.  But those people didn’t elect him.  If he stands firm, even to the point of a government shutdown to help the left come to terms with its shameful spending problem, then he will have successfully campaigned, and President Can’tIJustEatMyWaffle knows it.  Unfortunately, with McConnell, it would require him to somehow discover a spine that up to this point, he has never had.  The House is going to take the lead, and I hope the freshmen make sure the lines are clearly drawn, and that they make the Left own every last bit of their thieving redistributionist agenda.

Our second contestant on “What is the weather like on your planet?” is Slate magazine’s Michael Kinsley.  Normally, I would avoid mocking the brain-damaged out of sense of basic decency, but for some reason, the Left keeps treating Kinsley as if he is an honored spokesman, and when what such spokesmen say is irredeemably stupid, scorn and derision are appropriate responses.  When I saw this piece of “deep thought” on Politico, I couldn’t resist.

But a letter to the editor in the Economist a couple weeks later offered a truly original idea, which would work here as well as in Japan: let children vote. Or rather, extend the franchise to children, but let parents vote on their underage children’s behalf. In effect, parents would get an extra vote for every child. How would this solve the entitlement problem? It wouldn’t, directly. But it would revise the allocation of political power to more closely reflect who has the most at stake. It would reward long-term thinking rather than short-term thinking. Right now seniors are all-powerful because they vote in such large numbers, while young people must rely on the good will of their parents and grandparents to protect their interests. Every politician invokes “our children” as the most important consideration on every issue, and then, having done so, is free to ignore them.

I am the last person to cheer for Social Security and Medicaid/Medicare, but after understanding the “Complete Lives” philosophy that undergirds the entire Obamacare travesty, this seems to dovetail a bit too nicely for my comfort.  Of course, it would be an idea that the Left would look at, because it conforms to their basic belief that government needs to be involved in the lives of people, and especially children, because children who grow up under the guiding hand of the state don’t find the same level of objectionability to that guiding hand continuing to meddle in their lives as it picks their pockets when they grow up, as do children who were actually raised, provided, and cared for by their families.  But then, when you’re brain-damaged, its easy to pretend that people who have none of society’s burdens and not of its responsibilities it have the all-important “skin in the game” simply because they will one day grow up get older.  Almost as easy as it is for them to pretend that they are all about “long-term thinking” as they spend future generations into slavery.  Of course, the cynical side of me says that this is all just hand-wringing theatre, and what is driving this is the realization that the Left is having a harder time maintaining of base of voters that it can take for granted, so more votes that could be manipulated would be a good thing.  I wonder if they were to get such a measure if they then might recognize the President’s addresses to school children as blatant political acts?

A Constitutional amendment enacted during the Vietnam war, when young people were killing and dying for a democracy they couldn’t participate in, sets the voting age as 18. But the exact wording makes this an upper limit.(“The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age”). Congress could lower the voting age further in federal elections without amending the Constitution again. States may set the voting age in state elections, but not in federal ones. What the courts would make of a law that gave teenagers the right to vote and then immediately took it away and assigned it to their parents, we can only imagine. But it surely would not go over well with teenagers themselves.

But of course, payment was being tendered for the right, and it is difficult to make the case that if you are old enough to defend the country, then you should have the right to vote for the leaders of the country that you might be expected to die for.  In the case of younger children, the argument is actually that extending the right to vote to them is perpetuating the pox already afflicting society where we have extended rights and privilege without expecting corresponding responsibility in return.   And if we gave them this right and then took it away, “it would not go over well”?  Seriously?  It does not go over well when I tell my boys that it is time for bed, either, but as an adult, and a parent, I have the right to determine an appropriate bedtime and the responsibility to make sure that they go to bed and get enough rest.  This perspective reflects the same kind of limp-wristed parenting that the state uses to justify taking toys out of Happy Meals…the parent who just cannot say “No.”

Is the average teenager responsible enough to deserve the most precious right of citizenship—the right to vote? Can we count on them to study the issues and the candidates, discuss and weigh them, and exercise this solemn privilege with the care it demands? Oh, probably not. But how about the average adult?

And the coup de grace…the admission that there are a large number of adults who fail to take their right to vote seriously…they would be the ones who were chanting “YES WE CAN!” and talking about how “stupid” Sarah Palin is without ever once giving a serious thought to Obama’s qualifications as they pulled the lever for him.   It is an odd thing to emphasize, but in a political philosophy that often takes the simplest concepts and turns them around 180 degrees, it was probably a safe bet.  Hell, I imagine that even he thinks he was talking about us, and not the Left’s own voters, and in the end, displays the trademark wisdom of the Left: 

“If you think something is broken, you better give it your best effort, and make sure that it is broken.”

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When perusing the internets this afternoon, I stopped at the Politico.  Their “Arena” feature in the sidebar featured the question “Is Obama right on Michael Vick?”  The expanded topic was two paragraphs long, but the essence of what the President said was really in the second paragraph:

Sports Illustrated’s Peter King, who first reported the conversation, said Lurie told him: “The president wanted to talk about two things, but the first was Michael … he said, ‘So many people who serve time never get a fair second chance. He was … passionate about it. He said it’s never a level playing field for prisoners when they get out of jail. And he was happy that we did something on such a national stage that showed our faith in giving someone a second chance after such a major downfall.”

Was it right for Obama to voice his opinion on Michael Vick’s career?

In and of itself, I don’t have a problem with this topic or assertion.  I’ve had clients who have served their time and kept to the straight and narrow after they have gotten out, despite the difficulties that exist for ex-cons getting honest work.  I’ve even helped a few get their voting and firearms rights restored, without concern that they were going to do bad things with either of them.  That is NOT to say that like the President, I believe that Vick was the right person to make this statement with, not because I feel his crimes were unbelievably heinous, or because of any dislike for the man.  It’s because I think that a talented athlete like Vick, who is still in shape and probably still in his prime was going to find work, in his field, with some team in the NFL.

This is of course to say nothing of what it says for the President’s priorities.   In a time when the unemployment rate is as high as it has been in decades, and it was crucial for the White House to strike a deal that extended unemployment benefits for thousands of Americans again, why was it crucial to use Michael Vick to highlight the difficulty that ex-cons have in finding work?  In a time when government has already given the impression to millions of Americans who have worked hard, obeyed the law, and lived within their means that they have to pay the freight for millions who did not, this has to hit a sour note, once again leaving the jobless in this category with the impression that their government has yet again shoved them to the back of the line.  But more importantly, I think it demonstrates the fundamental misunderstanding that the President has with regard to the office he currently occupies, namely that he had to attach himself in some way to the actions of others in order to highlight something that he believes is a correct result.  I can’t help but to think that if he was truly serious, it would have not been too difficult for him to have his staff select some ordinary ex-cons…not star NFL quarterbacks who could resume careers as star NFL quarterbacks, but guys who also made mistakes, and did their time, but perhaps had skills that were average, and who truly faced disadvantages in seeking jobs after serving their time.  The Presidency is one hell of a bully pulpit.  A choice like this could highlight the idea of second chances, and also give shouts out not to NFL franchise owners, but to owners of small businesses who might really be taking a chance in hiring an ex-con as a welder, a mechanic, a CAD tech, a plumber, etc.  That would go much farther in assuring the average person that the concern was genuine, and not a headline, or an opportunity rub shoulders with wealthy and famous people.  And then if he still felt it was necessary, he could always solicit the participation of Vick and his boss in a photo-op with the average ex-cons and business owners, thus sharing the spotlight with those who might not otherwise have the opportunities of his intended examples. 

On of the responses to the question in the sidebar at the Politico was interesting.  It was from Brian Katulis, Senior Fellow at the Center for American Progress, who said “President Obama, a Christian, not surprisingly believes in redemption.”

This set me back on my heels a bit.  I’m not going to dwell on the “Obama as a Christian” thing.  The best I could do is speculate, and frankly, it isn’t a brand of navel gazing that I’m eager to rush into at this time.  What bothered me more was the use of “Christian” and “redemption” in the comment.  I’m troubled because it is a statement that begs for clarification.   I admit, I went back to what the President allegedly said, and the apparent emphasis he used, and I went and re-read Mr. Katulis’ statement.  While I think it would be safe to interpret Mr. Katulis as meaning that he felt Vick had been redeemed, but I was unclear on who he seemed to think had done the redeeming.  I’m not sure I would have pontificated on the President’s belief, based on what was reported of the conversation.

While there are a number of examples that have little to do with the concept of Christian redemption, some of which fully contemplate the idea that a person can “redeem themself” in the eyes of others, and in the sense that we often see the concept employed with regard to those who have been involved in scandals, one could certainly believe that if Vick really has seen the errors of his ways as opposed to simply stopping because he got caught, then it certainly is possible that Vick could redeem himself in the eyes of critics, even if the Humane Society will never ask him to be a spokesperson for them.  However, if we are talking about a Christian belief in redemption, this cannot be what we are talking about, because Christian redemption is not something that an individual can attain by themself.  It actually requires a redeemer.

Redemption is mentioned in a few places.  Ruth was redeemed by Boaz, who bought back the land of his kinsmen, Ruth’s dead husband, and in so doing took her as his own wife, sparing her from social stigma and poverty that was the reality for young widows in her day.  It is likely also where we get the modern-day meaning of redeeming real property in foreclosure, but if we are going to speak of Christian redemption, then we should understand that it is a different concept again, as foreshadowed in Job 19.  Job was a man with faith that would make even the most devout believer seem lacking in trust in comparison.  God allowed Job’s faith to be tested.  His fortune was taken from him.  His children killed in the blink of an eye.  His body afflicted, and his wife even turned against him, exhorting him to abandon his integrity, and curse God.  And then, as if he wasn’t having a bad enough time, his friends showed up and then began to tell him how all this misfortune was his own doing.  But Job continued to cling (not bitterly) to his faith, and kept his focus on the eternal.

 25 For I know that my Redeemer lives,
      And He shall stand at last on the earth;

 26 And after my skin is destroyed, this I know,
      That in my flesh I shall see God,

 27 Whom I shall see for myself,
      And my eyes shall behold, and not another.
      How my heart yearns within me!

 This was one of several instances of the foreshadowing of Christ in the Old Testament, as he is The Redeemer. 

While Luke mentioned the redeemer, it is actually in Galatians chapter 3 where the concept of Christ’s redemption is explained:

10 For as many as are of the works of the law are under the curse; for it is written, “Cursed is everyone who does not continue in all things which are written in the book of the law, to do them.”[a] 11 But that no one is justified by the law in the sight of God is evident, for “the just shall live by faith.”[b] 12 Yet the law is not of faith, but “the man who does them shall live by them.”[c]
13 Christ has redeemed us from the curse of the law, having become a curse for us (for it is written, “Cursed is everyone who hangs on a tree”[d]),that the blessing of Abraham might come upon the Gentiles in Christ Jesus, that we might receive the promise of the Spirit through faith.

Having demonstrated that Christian redemption comes from the sacrifice that he freely gave to free us from a standard that we could never hope to meet on our own…a gift of grace that is beyond price, but given with nothing more than admission of sin, belief in Christ, and admitting him as a savior.  And this is why I struggle with Mr. Katulis’ statement.

Did he mean that Jeffrey Lurie had redeemed Vick?  

Well, he could mean that Lurie bought Vick’s talent back into a place where it could be used and appreciated?  Perhaps, but that would be a reliance on someone other than Christ, and would thus have nothing to do with the Christian concept of redemption.  It also wouldn’t be for Mr. Lurie to forgive Vick’s sins, although he could perhaps mitigate the consequences while Vick is in his employ.

Did he mean that Vick had redeemed himself by paying his debt to society, and rejoining it? 

 Maybe, but if he had, then he was referring to redemption through oneself…a secular concept, not a Christian one.  The statement leaves me with the impression that unless there is more unstated to complete the thought, he is wrong.

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