December 15, 2018

Obama race speech confirms Zimmerman trial dangerous to Bill of Rights

TAMPA, July 21, 2013 — President Obama made a speech on Friday that liberals are calling courageous and conservatives are criticizing as race-baiting and divisive. Whether it was prudent from a political perspective or not remains to be seen. How it makes conservatives or liberals feel is irrelevant.

The important and ominous part came near the end, where Obama floated his ideas on what the government should do.

First, Obama recognized what big government supporters would see as “the problem.”

“Traditionally, these are issues of state and local government. The criminal code and law enforcement is traditionally done at the state and local levels, not at the federal levels.”

No, Mr. President, the prosecution of murder and theft isn’t done at the state and local levels because of “tradition.” It’s done at the state and local levels because the U.S. Constitution does not delegate any power to the federal government that could remotely be interpreted to allow it to prosecute someone for murder or theft.

That means that no one ever consented to giving the federal government that power.

To ensure that those who don’t understand this wouldn’t exercise the power anyway, a Bill of Rights was ratified that leaves no room for confusion:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The architects of the $4 trillion federal monster have traditionally circumvented this troublesome “obstacle” by claiming that new powers they want to grant the federal government (without amending the Constitution) are actually part and parcel of “regulating interstate commerce,” although the high priests in black robes recently pulled off a novel innovation in ruling Obamacare a tax.

Courts have made some inroads into the reservation of this power to the states or the people when crimes such as kidnapping or murder have included travel across state lines. But so far, murders that do not involve what federal courts liberally interpret as “interstate commerce” have remained within the sole jurisdiction of the state or local governments.

This is more than just a formality. When one is accused of the highest of crimes and presumed innocent until proven guilty, it matters which government is authorized to prosecute. The most local government and a jury of one’s peers have the greatest interest in preserving local justice and keeping the local peace. They are less likely to be motivated by political or other factors. We saw this in the Zimmerman case, where the local prosecutor declined to prosecute based upon lack of evidence.

Then, the president weighed in, prompting the Governor of Florida to override the Sanford District Attorney’s decision not to prosecute. The local police chief was fired for refusing to charge Zimmerman with a crime.

It’s not as if the Sanford police or district attorney are “pro-defendant” or reluctant to prosecute criminals. If there was a shred of credible evidence of Zimmerman’s guilt, they would have indicted him. It’s the exception rather than the rule that the law enforcement community decides not to prosecute. It’s even more unusual for a lead detective to testify that he believes a defendant’s story, but that’s just what eventually happened in the trial.

Zimmerman’s supporters, likely motivated by political correctness, feel an obligation to qualify their support of the verdict with statements indicating that Zimmerman “may have acted irresponsibly” or “made mistakes” like following Martin after the police dispatcher told him not to.

But there is no evidence that Zimmerman did any of these things. No one seems to be considering the possibility that Zimmerman didn’t do anything wrong at all.  Yet, that’s what the evidence seems to suggest. That’s why a police detective, normally biased against believing anyone, made the unusual statement that he believed Zimmerman’s story.

This whole fiasco has been a demonstration of the wisdom of reserving the power of prosecuting most crimes to the states or local governments. They certainly aren’t perfect, but they don’t bring the additional political baggage that the federal government would bring to exercising this power.

The federal government isn’t any less racist in its administration of justice, either. If you need proof, visit a federal prison. If you conclude that blacks make up 13% of the inmates, you need glasses, remedial math lessons, or both. Most are non-violent drug offenders, prosecuted for breaking laws that were originally passed to target specific racial groups.

Mr. Obama has every right to express his opinion on any matter as a private citizen. But when he says “I think it would be useful for us to examine some state and local laws,” alarm bells should immediately ring. Just who is “us” and what does “examine” mean? If he is talking about the federal government having any influence over power reserved to the states or people, he’s just continuing the ongoing assault on the Bill of Rights.

Libertarianism, anyone?

Tom Mullen is the author of A Return to Common Sense: Reawakening Liberty in the Inhabitants of America.

The Tenth Amendment Run Amok?

In between “gotcha questions” and the Pawlenty-Bachman slurfest, an interesting discussion actually occurred during the Fox News presidential debate staged in Iowa on Thursday night (8/11/2011). It concerned Tim Pawlenty’s quite valid criticism of Mitt Romney’s role in expanding government healthcare in Massachusetts. During Romney’s term as governor, he signed into law a state healthcare plan that served as the basis for what is popularly known today as “Obamacare.”

Romney replied with a defense based upon the Tenth Amendment to the US Constitution, saying Massachusetts passed a law that was right for Massachusetts, but President Obama forced a “one size fits all solution” on the entire nation, usurping the powers reserved to the states or the people.

Calling him a “constitutional expert,” panelist Chris Wallace asked Congressman Ron Paul whether the states “have a constitutional right to make someone buy a good or a service just because they are a resident.” Paul replied,

“No, the way I would understand the Constitution, the federal government can’t go in and prohibit the states from doing bad things and I would consider this a very bad thing. But you don’t send in a federal police force because they’re doing it and throw them into court.”

Rick Santorum replied that this argument represented “the Tenth Amendment run amok” and paraphrased Abraham Lincoln saying “the states don’t have the right to do wrong.” He argued that the United States is a nation built upon moral laws, implying that he would support the federal government overriding the state government if an action of the state violated those moral laws.

So, what moral law does “Romneycare” violate and should the federal government step in and intervene?

For libertarians, many aspects of both Romneycare and Obamacare violate the moral law of non-aggression. It initiates force against individuals who have not aggressed against others by forcing them to buy a product. It forcibly steals their money to buy healthcare for other people. It forces them to pay for a government-run “exchange” which distorts the market and privileges government-connected health insurers.

Whether most conservatives see it from this perspective is not clear – they rarely make arguments based upon rights, rather than results. But Rick Santorum believes Romneycare is immoral, by whatever moral standard he is using.

So, let’s assume Romneycare does violate an underlying moral law that precedes government and violates the rights of the individuals in Massachusetts. As a libertarian, I certainly agree that it does. I also agree (and I don’t get to say this much) with both Rick Santorum and Abraham Lincoln that “the states don’t have the right to do wrong.” Violation of the rights to life, liberty, and property are wrong regardless of whether they are perpetrated by federal, state, or local governments.

But that’s not what Congressman Paul said. Paul did not assert the state government had any rights. He said the federal government does not have the power to override the states on this issue. This is a crucial distinction to make if one wishes to understand the Tenth Amendment and why violating it has been the chief cause of the national crisis we find ourselves in today.

The Declaration of Independence states that governments derive their just powers from the consent of the governed. It doesn’t talk about government rights because they do not exist. Governments don’t have rights. Only people have rights. Governments are invested with specific, limited powers by the people who establish them. Those powers originate in the people and are delegated to the government for the purpose of securing their rights, as the Declaration also states. If a power is not specifically delegated to the government, the government cannot exercise it. To do so is to exercise power without the consent of the governed.

For the men who declared independence from Great Britain, the consent of the governed was the only way to reconcile government power with liberty. The government was only allowed to exercise power the people agreed to delegate to it. The powers enumerated in the Constitution are those which have this consent, given through the representatives who drafted and ratified it.

Many libertarians today reject the idea that a majority vote can substitute for the consent of the individual. Therefore, they reject all government as the exercise of arbitrary power. Even those who do not hold this view must recognize that calling ratification of the Constitution by majority votes in the state legislatures “consent of the governed” still requires an extremely elastic definition of the word consent. But at least there is some argument to be made that the powers delegated in that document were agreed to by the people.

There is no argument to be made that powers not delegated in the Constitution have the consent of the governed. That is why there is an amendment process; so new powers can be delegated to the federal government if a majority of the states truly wish to do so.

The powers delegated to the federal government deal primarily with issues outside the states. Power is delegated to create armies and navies to defend the republic against invasion. Power is delegated to regulate interstate commerce, which was intended merely to prevent protectionism between the states. There is no power delegated there allowing the federal government to regulate anything within the states. As Thomas Jefferson said, “I believe the States can best govern our home concerns, and the General Government our foreign ones.”[1]

What does all of this have to do with Romneycare? It means Ron Paul was right. The government doesn’t have the power to “prevent the states from doing bad things.” Why not? Because the people of those states never consented to give the federal government that power. The federal government exercising powers not delegated to it, even to repeal a bad law, is not substantively different from Russia or China interfering in the legislative process of a state. Exercising power without the consent of the governed is tyranny, regardless of who perpetrates it.

There is always desire to allow the federal government to exercise this power on those rare occasions when it is actually overriding a bad state law, instead of writing bad laws of its own. As Kevin Gutzman documents in his book, The Politically Incorrect Guide to the Constitution, the states originally had a lot of internal laws that people today might not necessarily agree with. Some of the states had state religions. The Massachusetts Constitution originally required people to attend religious instruction. While libertarians would vehemently disagree with those laws, allowing the federal government to interfere is not the answer. Once that Pandora’s Box is opened, you are on the road to a $3.8 trillion a year federal government with a $14 trillion debt and $100 trillion in unfunded liabilities. Exercising non-delegated powers was the train it rode in on.

As I’ve said before, the Constitution itself was an enormous expansion of government power at the time. But even its delegation to the federal government of vast new powers  had limits. Today, no limits are recognized. If the federal government can ever be fixed, those limits have to be restored. Individuals, local governments, and state governments all do bad things. But a federal government with unlimited power is not the answer. We’ve tried that for the past one hundred years. Not only is it time to start enforcing the Constitution’s limits on federal government power; it’s time to start imposing new ones.


[1] Jefferson, Thomas Letter to Justice William Johnson June 12, 1823 from Jefferson Writings Literary Classics of the United States  edited by Merrill D. Peterson pg. 1476

Tom Mullen is the author of A Return to Common Sense: Reawakening Liberty in the Inhabitants of America.