December 15, 2018

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.

Newsweek: As Congress and Trump Grind to a Halt, the Government Rumbles On

gettyimages-642093036 Newsweek

Donald Trump in the East Room at the White House on February 16, 2017 in Washington, DC.MARIO TAMA/GETTY

President Trump spent the weekend embroiled in yet another Twitter skirmish, this time with retiring Republican Senator Bob Corker. Trump may even have suffered a rare defeat on his own turf, based on Corker’s hilarious rejoinder about someone missing their daycare shift at the White House. If Trump has a soul, even he laughed at that one.

But many blame this kind of drama as a major contributing reason to Trump “not getting anything done” so far during the first year of his presidency. Even those on the blood-in-their-eyes, Trump-hating left make this criticism. One would think they’d be glad he’s not getting anything done, but apparently, a government not doing anything is even worse for them than one doing things they don’t like.

If only “not getting anything done” were true. The Pentagon goes on waging war, uninterrupted by elections, supposed gridlock, or even “government shutdowns.” War has become the normal state, with “an act of Congress” required to stop it, rather than start it.

Domestically, all of Washington’s unconstitutional regulatory agencies have hummed along without pause. The FDA is still driving up prescription drug prices by keeping thousands of generics off the market. The TSA is still violating the 4th Amendment millions of times per day while virtually never discovering dangerous items brought on board, even during their own tests. And the Social Security Administration goes on cutting checks as if it didn’t have tens of trillions in unfunded liabilities.

Read the rest at Newsweek…

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.

Without Rand Paul It Isn’t a Debate, Trump or No Trump

Republican presidential candidate Sen. Rand Paul, R-KY, addresses the Sunshine Summit in Orlando, Fla., Saturday, Nov. 14, 2015. (AP Photo/John Raoux)

Republican presidential candidate Sen. Rand Paul, R-KY, addresses the Sunshine Summit in Orlando, Fla., Saturday, Nov. 14, 2015. (AP Photo/John Raoux)

The big news from last Thursday’s Republican Presidential Debate on Fox News was the absence of what Meghan Kelly called, “the elephant not in the room.” Thanks to the ongoing feud between her and front runner Donald Trump, the latter was not on the stage. In what was largely treated as a footnote, Rand Paul was.

Several media have asserted the debate was more substantive without Trump, the issues having more space in the absence of his overpowering personality and the likely attention that would have been paid to his controversial style. But it wasn’t Trump’s absence that made this debate more substantive. It was Rand Paul’s presence. Without him, the last spectacle wasn’t a debate at all.

Debate moderators are television people. They are interested in whatever makes the best television and gets the highest ratings. The debate moderators on Thursday, echoing the larger media narrative, continually pushed the establishment vs. anti-establishment theme. That’s certainly a phenomenon in this election cycle, but it really means nothing in terms of policy.

The whole purpose of this exercise is to determine the difference, if any, between the candidates seeking the presidency. Without Rand Paul, there isn’t a difference to determine, not even with Trump. Trumps style might be different, but he’s a lot more like an establishment Republican than the media narrative would have one believe.

Read the rest at The Huffington Post…

 

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.

No Hillary, Donald et al, The President’s First Job is Not to Keep Americans Safe

n-CONSTITUTION-large570The Democratic debate on Saturday proved one thing: powerful interests that transcend the political parties have an agenda. That’s the only explanation for the talking point mindlessly repeated by virtually all of the presidential candidates in both parties: “It is the first job of the president to keep Americans safe.”

Maybe it’s a slogan that’s been thrown around in Council on Foreign Relations meetings or some other gathering of the wonderful people who make all the decisions for us rubes. But wherever it came from, it was certainly no coincidence Americans heard it from virtually every candidate, Democrat or Republican, during the past two debates. It would have been only slightly spookier if they heaped effusive praise on Raymond Shaw.

More important than it being creepy and patronizing is that it’s completely wrong. The first job of the president is not to keep Americans safe. It is to defend their liberty.

 

Read the rest at The Huffington Post…

 

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.

Earth to Bill Maher: Edward Snowden isn’t the crazy one

GREENWALD-largeTAMPA, January 21, 2014 – Bill Maher interviewed journalist Glenn Greenwald following President Obama’s speech on Friday in which the president discussed his proposals to reform the NSA. Greenwald is the journalist who first reported on the information released by Edward Snowden on the government’s domestic surveillance activities.

While Maher was respectful of Greenwald and, to some extent, Snowden, he went out of his way to smear some of Snowden’s claims about the government’s activities as “completely nuts.” He also found it necessary to take a shot at Ron Paul, who wasn’t even involved in the issue at hand.

For Maher and too many likeminded people, anyone who doesn’t view the government as a benevolent force for good is a tinfoil-hat-wearing kook who believes all civilian life is the target of a massive conspiracy involving the government, secret societies, aliens, etc. Thus Maher’s retort, “Everyone in the government isn’t out to get you.”

That’s what’s known as “framing the debate.” You’re either with Bill Maher and President Obama or you’re with the kooks. You may also be somewhere in the middle, where Maher apparently places Snowden. It completely ignores the many other perspectives one might have, including that of most libertarians.

Libertarians don’t believe that the people who work for the government are evil. It’s the institution of government itself, a monopoly on the use of force that can martial the resources of the entire nation. That kind of power is dangerous even when used by good people with good intentions.

Read the rest of the article at The Huffington Post…

Obama’s proposed NSA reforms prove he doesn’t understand checks and balances

utah datacenterPresident Obama delivered a speech on Friday outlining his plans to address the widespread outrage over the domestic surveillance activities of the National Security Agency. However well-intentioned, the president’s proposals indicate he just doesn’t get the constitutional notion of delegated powers.

Implicit in the Fourth Amendment is the principle that the government should remain powerless unless and until an individual is reasonably suspected of having committed a crime. It isn’t even allowed to search one’s person or papers (viz. phone records, emails) to collect the proof it needs until it persuades a judge that it has probable cause.

The only reason the Fourth Amendment offers any protection is it prescribes an adversarial process. The judicial branch is predisposed to refuse to issue a warrant until the executive branch provides sufficient evidence of probable cause.

Read the rest of the article at the Daily Caller…

Why are American citizens financially responsible to defend Syrians?

Tax DayTAMPA, September 1, 2013 — One day after President Obama indicated he would seek a vote from Congress on whether to launch missile strikes against Syria, media outlets have already begun reporting on the debate from a number of perspectives. As usual, one perspective is completely ignored: that of the American taxpayer.

The Constitution grants Congress the power to tax U.S. citizens to provide for the common defense of U.S. citizens, not every soul on the planet. The only exception is for citizens in countries with whom the United States has signed a mutual defense treaty. In those situations, it is assumed that American taxpayers get a reasonably equal benefit back in defense provided to them.

The founders still told us to avoid those alliances whenever possible.

Regardless, the United States has no treaty with Syria. If it did, it would be with the Assad government, not with rebels attempting to overthrow it. Syria has not attacked the United States nor issued a declaration of war against them. There isn’t even a U.N. Security Council resolution for force against Syria, which strict constitutionalists don’t recognize as legitimate anyway.

President Obama is arguing for the United States to intervene militarily solely for “humanitarian” reasons. That begs the question:

How did American taxpayers become financially responsible for protecting Syrian rebels and civilians?

Every other U.S. president has recognized that Americans can only be taxed to pay for their own defense or the defense of allies by treaty. The arguments haven’t always been bulletproof, but at least they have acknowledged this principle.

President George W. Bush made his case for the Iraq War based upon Saddam Hussein’s supposed “weapons of mass destruction.” At one point, the administration went so far as to say that Hussein could strike the United States “within 45 minutes.”

Why did the administration go to such lengths to exaggerate Iraq’s capabilities? Because it recognized that only an imminent threat to American citizens would justify a war against Iraq.

“Operation Deliberate Force” in Serbia was recognized as a NATO operation, meaning the United States participated due to a supposed treaty obligation. President Clinton’s attempts to conduct military operations in Africa and Haiti for humanitarian reasons were met with public and congressional opposition. Both interventions were aborted prior to prolonged involvement.

In Korea and Viet Nam, Americans were told war was necessary to prevent “the domino effect,” where one Asian nation after another would fall to communism, which then would spread to the rest of the world. The theory was proven wrong when North Viet Nam took over South Viet Nam and communism still failed. Still, the stated reason for war was to protect Americans from communist aggression.

President Obama has broken new ground. He has argued that not only does the U.S. government have the authority to tax Americans to defend every human being on the planet, but that the president can order military intervention for that reason on his authority alone.

Unfortunately, this has led many to believe that his decision to wait until Congress debates the intervention is some sort of victory for constitutional government.

It’s not. Nowhere in the Constitution is it stated or implied that American taxpayers are financially responsible for the common defense of the whole world.

Military operations are not funded by donations. Taxpayers are compelled to pay them by force. That’s why the Constitution sets limits to what Americans can be taxed for: “to pay the Debts and provide for the common Defence and general Welfare of the United States.”

As widely as that clause has been interpreted, no one could possibly interpret it to mean defense of Syrian civilians under present circumstances, nor for the citizens of non-treaty partners in any other country.

If the constitution imposes no such financial obligation on American taxpayers, then what does? When and how did American taxpayers consent to it? By what authority is it enforced? When and how will this financial obligation end?

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

 

Obama says Edward Snowden isn’t a patriot

Tampa August 10, 2013 – Yesterday, President Obama spoke to reporters about his plans to address the growing public outcry over domestic spying programs run by the NSA and other U.S. intelligence agencies. During the press conference, Obama said that he didn’t consider Edward Snowden a patriot. Instead, those doing the spying are the patriots, along with those who have “lawfully raised their voices” to defend civil liberties.

Edward Snowden may have broken the law, but “the law is often but the tyrants will,” as Thomas Jefferson famously said.

Never has that been truer than now, when the law protects lawbreakers and forces defenders of our most sacred principles to seek political asylum in other countries. That anyone would seek asylum from the United States government at all, much less in Russia, would have been the stuff of wild fantasy just a few decades ago. Now, the torture of prisoners, arrest and detention without warrant and even execution without a trial are regarded as commonplace.

President Obama is on the wrong side of history.

Edward Snowden will be remembered as a patriot.

President Obama will be remembered as the first U.S. president to kill an American citizen without a trial. History has a word for that, too.

It isn’t patriot.

This has all happened before. Read my op-ed in The Washington Times on the first Edward Snowden in U.S. history…

Libertarians to Chris Christie: Is life so dear, or peace so sweet?

TAMPA, July 27, 2013 – Rep. Justin Amash (R-Mich.) introduced an amendment to the Defense Appropriations Bill that would have defunded the NSA’s blanket collection of metadata and limited the government’s collection of records to those “relevant to a national security investigation.”

It terrified New Jersey Governor Chris Christie, who lashed out at those who supported the bill and libertarianism in general.

“As a former prosecutor who was appointed by President George W. Bush on Sept. 10, 2001, I just want us to be really cautious, because this strain of libertarianism that’s going through both parties right now and making big headlines, I think, is a very dangerous thought,” Christie said.

Yes, it is dangerous, but to what? It is dangerous to the bloated national security state, which tramples the liberty and dignity of every American under the pretense of protecting them from what Charles Kenny recently called the “vastly exaggerated” threat of terrorism.

Chris Christie shamelessly invoked the image of “widows and orphans” of 9/11 in an attempt to discredit any resistance to the federal government’s complete disregard for the Bill of Rights. He then echoed former NYC Mayor Rudy Guiliani in claiming some imagined authority on the matter because he is the governor of the state “that lost the second-most people on 9/11.”

Newsflash to Governor Christie: You have no more moral authority on this subject than the U.S. Congress had legislative authority to pass the Patriot Act.

Christie doesn’t understand that the power that legislators may exercise is limited to what was delegated to them in the Constitution. He seems to believe that power changes depending upon how he “feels.”

“I think what we as a country have to decide is: Do we have amnesia? Because I don’t,” he said. “And I remember what we felt like on Sept. 12, 2001.”

Ignoring the cheap tactic of trying to paint libertarians as “unfeeling” or not having sympathy for the victims of 9/11, there is a simple answer to Mr. Christie’s question.

“We as a country” decide questions like this through Article V of the U.S. Constitution. The Fourth Amendment forbids the federal government from running programs like the NSA’s. Only an amendment that revises or repeals it can change that.

Until then, the federal government does not have the power to do what it is currently doing, regardless of any terrorist attacks or how Mr. Christie feels about them.

Amash’s amendment should be unnecessary, but it is preferable at the moment to the remedy offered in the Declaration of Independence for a government that exercises power not given to it by the people.

If history provides any guidance, the people will never give this power to the federal government. Let’s not forget that none of the Soviet-style security measures establishd since 9/11 have prevented a single terrorist attack, other than those the government created itself. Flight 93 on 9/11, the shoe bomber and the underwear bomber were all foiled by private citizens, the latter two after the perpetrator walked right past the government’s garish security apparatus.

The truth is that no security measures will ever be able to make Americans 100% safe from harm. There is absolutely nothing the U.S. government could do right now to prevent Russia or China from launching a nuclear attack on the United States. What makes one unlikely is the ability for the United States to retaliate and the lack of any good reason for either country to do so. The United States doesn’t routinely commit acts of war against Russia or China.

Perhaps that strategy might also be effective in preventing terrorism.

Regardless, the government can’t stop the next terrorist attack any more than it has stopped any previously. What it can do is continue to erode American liberty. This country is already unrecognizable as the same one that ratified the Bill of Rights. The Chris Christies and Michelle Bachmanns (she’s “one of them”) of this world are too busy cowering in fear to be concerned with “esoteric” subjects like the liberty and dignity of the individual.

Their opinions are not important. The people will decide whether a false sense of security is worth their liberty or not.

The first shot in this war has been fired. Amash lost the opening battle, but so did the colonists at Bunker Hill.

The real question that the American people will have to answer is this:

Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery?

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

Thank God the 4th of July is over

TAMPA, July 5, 2013 – Thank goodness the 4th of July is over. For those who believe in freedom, it has become unbearable.

On July 4th, 1776, a written document codifying the resolution passed two days earlier was approved by Congress. It declared to the whole world that thirteen of Great Britain’s colonies were seceding from the union. The document stated the Lockean principles upon which the decision was based and then listed the reasons why secession was necessary.

The modern U.S. government is far worse than George III’s. Today’s Americans not only fail to object, but celebrate its depravity.

Unqualified worship of the military is the most obvious example. Throughout human history, standing armies in times of peace have been the most recognizable characteristic of tyranny.

The 21st-century U.S. government and media invites Americans to thank the military for what little freedom they have left. Despite the complete absence of any cause-effect relationship between U.S. military adventures and the smattering of freedom Americans retain, they enthusiastically comply.

And where is this freedom the government supposedly secured by invading Korea or Afghanistan?

The “irony of the flag-waving masses slouching along in airport lines toward their inevitable date with the total state so that they could celebrate their liberty and freedom” was not lost on Daniel McAdams, but likely is on most Americans. Just watch them laugh and joke with government agents who literally bark orders at them before searching them without probable cause or a warrant.

It’s not just the airport. Any clear-thinking person recognizes the various domestic police forces as an army of occupation, complete with body armor, assault weapons and tanks. Yet, most Americans believe there are not enough of these “swarms of officers to harass our people and eat their substance.” This despite the U.S. having the largest prison population in human history, twice the size of present-day China’s, China’s population being five times as large.

The Constitution assumes law enforcement officers cannot even be trusted to arrest the right person after he has committed a crime. It requires them to get written permission from a judge to do anything. That concept is completely lost on most Americans, who teach their children police officers are their friends and their orders should be obeyed, whether they have been directed by a judge to issue them or not.

The entire paradigm of police officers patrolling the streets and supposedly “preventing crime” is completely antithetical to the principles of 1776. As Anthony Gregory observes, “Although there was plenty to object to in colonial law and law in the early republic, police as we now know them didn’t exist back then.” Nevertheless, conservatives are this institution’s biggest proponents. These are the “small government” people.

The colonists complained that George III’s army was insulated “from punishment for any Murders which they should commit on the Inhabitants of these States.” William Grigg’s blog has documented thousands of examples of the very same tyranny in 21st-century America.

The Declaration cited “transporting us beyond Seas to be tried for pretended offences” and “depriving us, in many cases, of the benefits of trial by jury.” That referred to trying American colonists in public courts in England, sometimes by a judge instead of a jury. Today, the U.S. government transports its subjects to secret prisons all over the world without even bothering to charge them with a crime.

Or, they might just decide to summarily execute you and save the time and trouble.

Modern Americans hold up as heroes the presidents who have helped build this Orwellian nightmare. They revere those who have presided over massive expansions of government power and took their country into hugely destructive and largely unnecessary wars, while dismissing those who presided over relatively free and peaceful periods as “postage stamps.”

Worse yet, they dutifully join the government’s propaganda machine in engaging in the “two minute hate” against Edward Snowden, uncritically parroting the government’s charges of treason, even though no reasonable person could believe what he did constituted “levying War against them [the United States – plural], or in adhering to their Enemies, giving them Aid and Comfort.”

Charged with the same crime George III charged Washington, Jefferson, Adams and Franklin with, for resisting substantively the same tyranny, 21st-century Americans side with the government that spies on them, routinely lies to them, plunders their wealth, controls every aspect of their lives and kills hundreds of thousands of civilians in undeclared wars.

As Johann Wolfgang von Goethe observed, “None are more hopelessly enslaved than those who falsely believe they are free.”

This has never been truer than in 21st-century America on the 4th of July. Thank God it’s over.

Libertarianism, anyone?

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.