State government

Remembering our landmark Constitution

Today we celebrate the 222nd anniversary of the completion of the United States Constitution by a hardy assemblage of patriots in 1787, meeting for four months in Philadelphia’s Independence Hall. They produced the world’s first written constitution, which has turned out to be the longest continuing constitution as well. While we revere our Constitution we must also be mindful of the obligation that we, the people, imposed upon ourselves so that we can enjoy its benefits in the future for at least as long as we have already. The Constitution has numerous virtues, each one of which merits praise in our public discourse. It is widely understood and appreciated (excepting certain political parties) that the virtue that underlies all the others is limited government. Martin Diamond, who coauthored what was doubtless the best American government textbook ever written, and who was also one of my mentors, spelled out the various ways in which the American government is limited, and each is in its own way, remarkable.

The Constitution limits the scope, the jurisdiction, the powers and the operation of all levels of government. First, it carries out the fundamental principle of the Declaration of Independence that limits government to the security of everyone’s liberty. It is emphatically a movement away from ancient governments, which subordinated liberty to the goals of the ruling class, and from medieval governments, which sought to guarantee eternal salvation.

This is also not a government that attempts to guarantee everyone’s satisfaction but leaves them free to make the decisions that promote their happiness. It rejected in advance the totalitarian regimes that cursed so much of the world in the 20th century, such as fascism, communism and nazism. We must add to that list radical Islam which invades human freedom for the sake of jihad.

Second, the Constitution limits the jurisdiction of both federal and state governments, by broadening that of the former and restricting that of the latter. Before the national government was instituted by nine states’ ratification of the Constitution in 1788 and the first national elections in 1789, we were governed by a loose alliance of sovereign states. It was essentially a military alliance for winning and keeping our independence, but it was incompetent to accomplish even that very well, not to mention the equally important object of promoting commerce among the states and securing adequate revenue.

The Constitution was written mainly to secure a powerful government for the limited purposes of common defense and general welfare through granting it authority to make decisions by the consent of the people, rather than by consent of the state governments. Thus, the Constitution deprived the states of the power to govern the Union, but left with them the vast bulk of domestic powers relating to the safety, welfare, health and education of persons in their jurisdiction.

Liberals today are prone to imagine that the broad authority of the federal government in certain areas somehow justifies any scheme that can be financed by federal revenues. Conservatives, on the other hand, sometimes have difficulty granting the federal government the broad authority over limited objects which it actually possesses. No one stated the matter more clearly than James Madison, known as the Father of the Constitution:

"The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected." (The Federalist, No. 62)

Third, the federal government is limited to those enumerated powers, particularly in Article I, Section 8, wherein the powers of Congress are set forth. The last clause of that section, known as the necessary and proper clause, does not grant any additional powers but leaves it to the discretion of federal officers the means for "carry[ing all] powers into execution."

The Tenth Amendment to the Constitution, adopted out of an abundance of caution, reminds us that powers not granted to the federal government, nor prohibited to the states, are left with the states or the people. It does not deny any powers that the original Constitution did not already deny.

Fourth, the Constitution limits the operation of the federal government by distributing powers among three separate and distinct departments with an eye to preventing tyranny by either the government or the people, as well as providing the most competent government possible. Congress has the power to make laws, but it requires the assent of two legislative branches and the approval of the President. The President’s veto power is not absolute, as two thirds of both houses of Congress may override it.

The Supreme Court and other federal courts established by Congress have jurisdiction over cases arising under the law and hear challenges from lower courts to federal authority. The power to declare either state or federal laws null and void was not explicitly stated in the Constitution but was thought to be implied by the fact that a limited government required such a check on legislative authority.

The checks on Congress derive from the fact that the lawmaking power is the greatest of all powers in a republic, which includes regulating the executive and judicial branches, funding them and approving their personnel. It is misleading to speak of some sort of "deadlock of democracy" between three equally frustrated branches as liberals often lament and conservatives sometimes imagine.

Congress can deliberate but it cannot provide leadership when circumstances call for it. Only the president is so constituted by its unity, duration and powers. Congress can make laws but it cannot fairly judge violators. Only an independent judiciary can do that.

The Constitution is also noteworthy for its brevity. It consists of only seven sections, the first of which is as long as the rest combined. This enables persons of average intelligence to read and understand its provisions without resort to voluminous interpretations or obeisance to Platonic guardians. Unfortunately, that has not prevented our states from devising exceedingly long constitutions. (For example, California has amended its constitution more than 500 times!) Nor has it prevented virtual canonization of those wearing judicial robes with their unfathomable interpretations.

Again, it is Madison who has the best criticism of the first corruption and, by implication, of the second:

"It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed? (The Federalist, No. 45)

The Constitution could not have been adopted without compromising with slavery which, sad to say, took a bloody Civil War to extinguish. And it is only as good as we, the people, make it by our continued adherence to its fundamental strictures. Nevertheless, it has continually frustrated the tyrannical ambitions or grandiose schemes of its enemies or confused friends, and God willing it will continue to do so.


Taxes undo Mass. Guv & other Dems

(Wellfleet, MA - July 20) This is a small Cape Cod community –about 500 people when I was growing up- now part of Massachusetts’ National Seashore Park. It's also home to a few hardy souls with whom I shared the experience of a one-room school house presided over by a septuagenarian female teacher whose reproving glances struck abject fear in our young hearts. One of the advantages of encountering such old friends is that it is possible to discuss current events without hitting the high wall that these flinty New Englanders usually erect between themselves and nosy “outsiders”. Thus of a recent morning I enjoyed some illuminating conversation concerning Massachusetts politics- usually a good source of light entertainment if not moral uplift.

It’s been a tough week for the state’s Democratic governor, Deval Patrick. On Monday the Democratic State Treasurer Tim Cahill announced he was quitting the party and signaled pretty clearly that he would run against Patrick as an Independent. On Wednesday Charles Baker, a prominent Republican businessman with deep pockets, announced that he too would challenge the incumbent.

Illustrating a key reason for Patrick’s vulnerability was the discovery on Tuesday that the state’s budget gap- already 3.2 billion dollars- had worsened by an additional 200 million dollars owing to dismal June revenues.

The basic cause of Patrick’s plummeting approval ratings and the consequent electoral challenges is no mystery: Taxes. With the concurrence of the Democrat controlled legislature Patrick has recently done the following: a. increased highway tolls by 25 %; b. increased Metropolitan bus and subway fares by 30 %; c. imposed a first ever tax on retail alcohol sales (two dollars on a fifth of Scotch. Ouch!); and d. –causing the most outrage- raised the already high sales tax by 25%.

The use of weasel terms like “fee adjustments”, or “revenue enhancements”, or Patrick’s gem-“state income improvement measures” does not fool but does further infuriate a public that knows a tax increase when it sees one.

Also significant is that all of those taxes are regressive in nature falling most heavily on those lower income groups that have traditionally been the foundation of the Democrats’ electoral base.

All of this however is not just a Massachusetts story, but rather a template for states across the nation where Democrats are running things. The recession has put the Democratic Party under a harsh spotlight that has simultaneously exposed their deeply flawed approach to governance and their fundamental incapacity to preside over difficult economic times like the present.

The recession undermines and ultimately makes counter-productive the Democrats favorite activity: Spending. It also impels them toward the only remedy tolerated by their ruling elites: The political Kool-Aid of Tax Increases.

At the heart of the Democrats’ dilemma are three inherent defects that have long plagued their party: 1.They are constitutionally incapable of grasping the concept that lower tax rates can generate higher tax revenues (See Reagan,R., 1981); 2. They are politically incapable of any budget or policy initiative opposed by their union allies; and 3. Ideology makes them utterly blind to the fact that creating a “business friendly” climate is essential to any sustained economic recovery.

Historically, political change in the U.S. begins at the state level before going national. An excellent example is Proposition 13- California’s 1978 tax revolt that prefigured the triumph of Ronald Reagan.

A major reason for this pattern is that economically speaking reality bites earlier and harder at the state level. Economic make-believe can be sustained longer at the Federal level because it is a remote and artificial environment that prints its own money- a luxury unavailable to states where budgets must be balanced in real time.

Accordingly political retribution is swifter at the state level. Gubernatorial approval ratings nosedive faster than the Presidential variety, but in the end both are reflective of economic malfeasance, and the populist backlash it generates.

In 2006 Deval Patrick was an attractive, articulate outsider who preached a gospel of “Hope and Change”. His good friend Barack Obama even admitted in 2008 to plagiarizing a few of Patrick’s speeches.

No doubt friend Obama has noticed that Patrick’s “Hope and Change” bandwagon has collided head-on with “Reality and Disillusion”.

An increasingly restless nation waits to see what if any lessons our new President will learn. William Moloney’s columns have appeared in the Wall St. Journal, USA Today, Washington Post, Washington Times, Philadephia Inquirer, Baltimore Sun, Denver Post, and Rocky Mountain News.

The Constitution is still the supreme law

"We must never forget it is a Constitution we are expounding"- Chief Justice John Marshall Last week I discussed the controversy over the nomination of Sonia Sotomayor as Associate Justice of the United States Supreme Court, focusing on the standard for evaluating nominees. This week I will examine our Constitution, the basis for that standard.

Ours is a limited constitution, one that delegates powers to a federal government and denies certain powers to state governments which they had exercised to the detriment of our prosperity. It is necessary to recall these circumstances which originally gave rise to the Constitution in order to appreciate its authority and legitimacy today.

The Constitution did not come into being in a vacuum. What we now call the founding generation could not be sure that their nation would survive. Partly because of a suspicion of distant centralized authority and partly because of an attachment to their states, many Americans were far from assenting to a national government.

The Continental Congress (1774-81) and the Articles of Confederation (1781-89) were based on the good faith of the colonies until Independence (1776), and then the states which formed in that fragile union. Nothing of consequence could be accomplished without the approval of nine of the 13 states, and no independent and powerful national legislative, executive or judicial branches existed.

The major domestic threat to our nation was faction. The comparatively small size of the states which rendered them responsive to the wishes of their constituents also made them vulnerable to domination by majority factions determined to assert their rights but loathe to accept their responsibilities.

In the midst of a depression caused by the end of wartime production and the lack of access to continental and foreign markets, many Americans were broke and in debt. The war had been financed by an almost worthless Continental currency, made worse by the states' issuance of paper money as well. As debtors and their allies soon outnumbered their creditors, state after state passed laws which, in one way or another, repudiated debts.

Such legislative acts constituted more than an attack on the property rights of one class of people by another, as wrong as that was. They also sent a signal to nations from whom we borrowed money to finance the War that those debts were susceptible to repudiation too. After all, the same factions that controlled state governments dominated the weak Confederation Congress.

Reverence for the Constitution and the laws was not necessarily in the hearts of many of our ancestors at their moment of great crisis. How to counter this? As vital to the defense of our rights as a strong legislative and executive branch are, the courts have more immediate impact than either on the lives of our people. It is there that contracts are upheld and private property protected.

Thus, the Constitution, in Article III, provides for a supreme court, and "inferior courts" established by Congress, the judges of which hold their offices "during good behavior." When combined with Article VI, which declares the Constitution, federal laws and treaties to be "the supreme law of the land," binding every state judge, we gained a truly national judicial branch. This was soon to be the chief restraint on the states which, at that time, were coining or printing money, and passing bills of attainder, ex post facto laws, and "laws impairing the obligation of contracts."

It would be strange for the Constitution to permit at the federal level what had been curbed at the state level. Thus, the Fifth Amendment to the Constitution forbids the federal government from taking private property for public use without just compensation.

But since New Deal days, Congress has passed laws which have encroached on rather than merely regulated our trade and commerce. In other words, it has been doing what the states long ago had been restrained from doing by our Constitution. And just as it once took state judges of uncommon fortitude to resist what James Madison denounced as the states’ "rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project," so now it requires federal judges of equal fortitude to resist that same impulse in Congress.

For as Alexander Hamilton put it so forcefully, we must turn for the defense of our property and other rights to "courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void."

California needs leadership, not evasions

Typically in the wake of disasters there is a mess to clean up. California’s interminable budget crisis qualifies as an ongoing disaster. On the maxim that those who make messes should clean them up, the politicians in Sacramento have no business following up their failure to exercise budgetary discipline by throwing the alleged solution into the laps of voters in the May 19 special election. The package of propositions 1A through 1F imposes budgetary gimmicks, raises taxes, puts more money into education, borrows money from the lottery, transfers funds from some programs to fund others, and delays officials’ pay increases in order somehow to end the annual gap between expenditures and revenues. But it suffers from two major defects: it derives from the same politicians who largely got the State into its current fiscal mess and it attempts to make up for their lack of prudence with constitutional and statutory tinkering.

When public policy is bad, surely it should change. But the best way to ensure change is to change those who made the bad policy. What the Democrat-dominated State Legislature needs is tough love, not enabling. Therefore, voters should turn down all six propositions, whatever the specific merits of any of them.

The strongest proof of the questionable paternity of these "save the day" measures is the deception in the first and most critical of them: Proposition 1A. Its aims, as summarized by the Legislative analyst in the Voter Guide (pp. 10-15) are to

* increase the State’s "rainy day" fund from five to 12.5 percent of the General Fund;

* dedicate some annual deposits into that fund for future economic downturns and the rest to fund education, infrastructure and debt repayment, or for use in emergencies; and

* require additional revenues above historic trends to be deposited in the "rainy day" fund.

A careful reader might wonder just where the "additional revenues" will come from. No answer to this question can be found in the summary (or in that provided on the sample ballot, either), but near the bottom of page 10 we read: "If this measure is approved, several tax increases passed as part of the February 2009 budget package would be extended by one to two years. State revenues would increase by about $16 billion from 2010-11 to 2012-13."

At the bottom of the next page and following, voters are reminded that the sales tax was increased from eight to nine percent, the vehicle tax rate was raised from .65 percent to 1.15 percent of a vehicle’s value, and the personal income tax rate was raised by .25, ranging from increases of one to 10.3 percent, depending on income.

The political advertisements I have seen on television stations mention nothing whatever about this "additional revenue," speaking only in glittering generalities about how great it is that finally something is going to be done to restrain the politicians in Sacramento who got us into this mess.

Propositions 1A through 1C and IF are constitutional amendments and 1D and 1E are revised statutes. Once again, California’s already incredibly long Constitution is being burdened with still more specific provisions which are designed to particularize the judgments our elected officials make rather than holding them accountable to the voters for their decisions.

The massive defect of such a constitution is that it defies the efforts of all but the most sagacious and interested parties from understanding it and blurs the distinction between the supreme law, which establishes the government, and the statutes which are intended to be consistent with its limitations.

Thus, constitutionally, as well as fiscally, California's political leaders are attempting to fix bad or inadequate decisions of the past with decisions cut from the same cloth. Rather than exercising fiscal and budgetary prudence as a constitutional duty, they are lurching from one crisis to the next without owning up to the primary cause of the problem, which is themselves.

Denying the Legislature and the Governor the power once again to cobble together a Rube Goldberg contraption designed to put a brake on their own insatiable desires to tax, spend and elect will do far more to promote fiscal discipline than this clever package, which conceals the source of the problem.

Instead, we should look forward to the implementation of the redistricting plan Californians passed last November that will, for the first time in years, permit the design of state legislative districts with greater attention to geographic and demographic realities and less to assuring safe seats that keep incumbents in office. The real need is for open and competitive elections, not more evasions.