May 26, 2019

Progressives Want to Revive FDR’s Undemocratic Court-Packing Idea

judgeandgavelReeling in horror over President Trump’s nomination of Brett Kavanaugh (or whomever Trump may have picked) to replace retiring Justice Anthony Kennedy on the Supreme Court, there are now a slew of progressive liberals calling for implementation of one of the most undemocratic ideas in the history of the Democratic Party: FDR’s “court-packing” scheme. Roosevelt responded to the Court striking down some parts of the New Deal by proposing Congress pass a law to allow him to add a new justice to the Court for every current justice over seventy years of age.

The bill was ultimately struck down by the Democrat-controlled Senate in 1937, but only after both the Social Security Act and National Relations Labor Act were ruled constitutional by the Court earlier that year. Opponents of the New Deal specifically or expansion of federal power through SCOTUS in general view these decisions as somewhat coerced by the threat of Roosevelt’s court-packing proposal.

Whether that’s true or not really misses the point. Seeking to achieve political goals through Supreme Court rulings rather than the constitutional amendment process—when those goals involve the federal government undertaking new powers—amounts to acquiring power without the consent of the governed. It’s ironic that it is again supporters of the “Democratic” Party who are advocating avoiding a vote on their proposals.

Read the rest at Foundation for Economic Education…

Tom Mullen is the author of Where Do Conservatives and Liberals Come From? And What Ever Happened to Life, Liberty and the Pursuit of Happiness? Part One and A Return to Common Sense: Reawakening Liberty in the Inhabitants of America.

Jefferson and Madison: Regulating Immigration a Power “No Where Delegated to the Federal Government”

immigration_constitutionPresident Trump announced his second nomination to the Supreme Court on Monday. Perhaps as forward in the minds of conservatives as preserving the right to keep and bear arms, expressly protected from federal infringement by the Second Amendment, is how the new justice might rule on the Trump administration’s various immigration policies, decried by the left as “fascist!” and supported by the right as the federal government’s “constitutional duty.”

Yet, federal regulation of immigration is a power both Thomas Jefferson and James Madison maintained was “no where delegated to the federal government.” And since no amendment has granted that power since they made that argument in 1798, it is exercised by the federal government without the consent of the governed, legitimized only by the same kind of “activist Court” conservatives condemn when it sanctions federal power they don’t like.

First, to the document itself. Conservatives make two arguments for the Constitution somehow delegating this power. One is completely spurious; the other more plausible, but ultimately without merit. The first argument is the power is granted with the words, “To establish an uniform Rule of Naturalization,” in Article I, Section 8. But “naturalization” concerns only who can become a citizen of the United States, not who can visit, work or live as a permanent alien. When pressed, even most reasonable immigration hawks will concede this.

The second argument concerns the first paragraph of Section 9, which reads, “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.” The reasoning here is that since the federal government is prohibited from banning migration (immigration) or importation (the slave trade) only until 1808, it must be granted the power to do so after 1808.

This is the same backwards reading of the Constitution – that anything not prohibited to the federal government must be within its powers – that conservatives scream bloody murder about on almost any other issue. It is true that for individuals possessing an inalienable right to liberty, a law which prohibits, for example, certain activity on Wednesdays and Fridays does not restrict individuals from that activity on any other days of the week. That is a correct legal interpretation for laws pertaining to individuals.

However, the Constitution is not a set of laws pertaining to individuals and the federal government does not have an inalienable right to liberty. On the contrary, the Constitution is written with the assumption the federal government has no power not delegated to it. The Tenth Amendment was ratified to ensure that point wasn’t lost. Therefore, just because certain powers are prohibited to the federal government by one or another clause of the Constitution, one cannot assume that any power not prohibited is granted. Only powers explicitly delegated are within the federal government’s purview. Strict constructionists go so far as to point out the words “expressly delegated” were used in many of the ratifying conventions, “expressly” left out by Madison in drafting the Tenth Amendment because he thought it unnecessary.

Read the rest at Foundation for Economic Education…

Tom Mullen is the author of Where Do Conservatives and Liberals Come From? And What Ever Happened to Life, Liberty and the Pursuit of Happiness? Part One and A Return to Common Sense: Reawakening Liberty in the Inhabitants of America.

The Supreme Court Has Destroyed Consent of the Governed

us-supreme-courtAs Americans celebrated the 242nd anniversary of their secession from Great Britain, references to the Declaration of Independence ratified on July 4, 1776 were many. But while the left reminded us “all men are created equal” and the right reminded us that all inalienable rights come from our Creator, far too little attention was paid to another phrase in Jefferson’s famous preamble: “deriving their just powers from the consent of the governed.” Judging from the way most Americans talk, almost no one remembers how that consent is supposedly obtained.

Hint: It isn’t from voting in elections, but that’s what most Americans seem to believe. According to this narrative, representatives are elected democratically, and by casting one’s vote, one consents to whatever legislation the representatives who win the election choose to pass, or whatever executive actions the elected president chooses to take. In the aftermath of Obamacare’s passage, surrogates for President Obama often justified that new federal endeavor with the quip, “That’s why we have elections.” Conservatives employ the same reasoning when their candidates win.

That raises the question: Why did the framers bother with Sections 8, 9 and 10 in Article I, Sections 2, 3 and 4 in Article II, or Sections 2 and 3 of Article III? Why did they include Article V at all?

The answer is that the aforementioned sections define the list of powers the people were consenting to, all others being reserved to the states or the people, while Article V was provided as the one and only means for the people to consent to any new powers. Put another way, any power exercised by the federal government that is not among those delegated in the Constitution is power exercised without the consent of the governed.

Read the rest at Foundation for Economic Education…

Tom Mullen is the author of Where Do Conservatives and Liberals Come From? And What Ever Happened to Life, Liberty and the Pursuit of Happiness? Part One and A Return to Common Sense: Reawakening Liberty in the Inhabitants of America.