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Constitutional Crisis
Where liberty lives and dies
by Tim O'Brien, Small Government Alliance

Mr. O'Brien is in my humble opinion, one of the best—and normally brief[1]—political pundits writing today, especially in Michigan. We've been allies for decades in libertarian causes of one kind or another, and I'm glad he gave me the green light to publish on the Coffee Coaster this long excerpt from his June 24, 2010, column.
— bw

The coming showdown between the United States of America and the State of Arizona over the jurisdiction and authority of each with respect to enforcement of immigration law actually signifies not one but two kinds of constitutional crises.

The more obvious of these is over the governing document of our republic.  Specifically, the meaning and implications of the 10th and 14th Amendments.

The more subtle, though profound crisis, however, is over the constitution of the American people themselves.

A bit of essential, historical perspective

Soon after the thirteen, united States of America won their independence representatives from all of them met to consider amending the Articles of Confederation and Perpetual Union that had constituted their alliance during the war.

Although an entirely new United States Constitution was proposed instead, the fundamental form remained the same — a federation of independent states, not unlike a combination of the military and economic alliances of a NATO/EU in contemporary Europe.

Proponents of creating a new government were called “Federalists.”  Opponents, who were so suspicious of any expansion of central government authority they preferred reforming the existing alliance, became known as “Anti-federalists.”

Side note: After the Constitution was ratified, the awkward appellation for the political philosophy of a subordinate, national government was replaced by the more descriptive: “State’s Rights” (nomenclature that is in fact also problematic since governments have powers — only people have rights.)  The dominance rivalry between the two levels of government finally culminated in a long and brutal civil war, the central government crushing an attempted secession by some of the states.  The “Anti-federalist” political philosophy, however, was not extinguished.  But it was eventually rebranded yet again as, oddly enough, “Federalism.”

Constitution for the United States of America

The grant of powers and responsibilities by the states to the national government under the proposed United States Constitution were essentially to provide for their common defense and peacefully resolve any conflicts that might arise between any of them.

There were some, important, additional authorizations such as the power to coin money and to establish such national institutions as a post office, uniform standards of weights and measures, grant patents and copyrights, etc., that seemed practical, beneficial and harmless.

More significant was the elimination of a restriction on the authority of the central government — requiring assent of two-thirds of the states — in what, history would eventually show, were some crucial areas.  Among these was the power of congress to “engage in war” (note, that this small, semantic difference in itself might have side-stepped the word game played by 20th century Commanders-in-Chiefs over the implied formality of “declare”), as well as to coin and/or borrow money (i.e., create a Federal Reserve Bank and unlimited, national debt.)

The most substantive, new authority provided in the Constitution was in remediation of what was arguably the fatal flaw of the erstwhile government — no reliable source of revenue — by granting the central government taxing authority.

This controversial, new power was, under normal circumstances, confined to indirect taxation, i.e., a levy added onto transactions and paid to the government by intermediaries (such as a tariff or a sales tax.)

To make allowance for possible emergency situations a direct tax, i.e., one paid to the government by those upon whom it is imposed (such as an income or a property tax) was also authorized.  Intended primarily to permit the national government to quickly raise vital revenue in the event of war, the drafters were very cognizant of the dangers of a direct tax.  Both in the lure for authorities to rely on what amounts to legal extortion as a routine revenue source and in the obnoxiousness of it for those who are compelled to pay under duress rather than merely accept the tax as a premium on an otherwise voluntary transaction.  So a restriction was included requiring any direct taxes to be “apportioned,” i.e., borne equally by all citizens (such as a head or poll tax.)

Ultimately, the rise of the socialist idea in the mid 19th century — that “fairness” in taxation was not in citizens bearing the cost of their government equally, but rather according to their particular means — led to the adoption in 1913 of the 16th Amendment.

This degeneration of the laudable, revolutionary concepts of political and legal equality into a rationalization for economic leveling also heralded the birth of a grotesquely deformed twin: government as an enormous charity.  In a single generation redistribution of wealth (a concept that would have been utterly repugnant, if not incomprehensible, to the founders of our republic) became government’s largest and most expensive function.

The United States Constitution also brought three, significant, new restrictions on state governments not in the Articles of Confederation.

The first was intended to preempt a looming threat, the others to redress issues that had already proven problematic, by prohibiting states from:

  1. Dealing directly with foreign powers or making separate, exclusionary compacts among themselves.
  2. Enacting legal tender laws or making anything other than gold or silver lawful payment for debt.
  3. Imposing any tariffs or duties on trade with their sister states.

Thus the Constitution provided clearly defined and specifically enumerated powers to the central government, and placed a few, particular restrictions on the governments of the states.

Indeed, when a ten-amendment Bill of Rights was subsequently added the last two of these, considered superfluous by proponents, were included, nevertheless, to reassure suspicious opponents: the enumeration of some rights was not to be construed as authorization to intrude upon any not specified, and a declaration that powers not explicitly given to the federal government were reserved to the states or to the people themselves.

After heated debate, and despite the misgivings of many who had pledged their lives, fortunes and sacred honor to the cause of freeing themselves from imperial power, the new government was adopted.

“The natural progress of things…”

But the winners not only write the history.  Henceforward, they make it.

Gradually, all the protections against consolidation of power in the central government incorporated into the Constitution were dismantled.

The egalitarian mindset, for example, that led to the removal of the apportionment restriction on direct taxation to permit a federal income tax (16th Amendment) simultaneously inspired elimination of the requirement that all national legislation be approved by both a popularly elected body and one appointed by and representing equally the governments of the several states (17th Amendment.)

Until we have finally come to a place where there is hardly even any memory of, let alone respect for, the sovereignty of the individual states as autonomous jurisdictions.  The “laboratories of democracy” were ultimately harnessed into a single team, directed and driven under a federal whip.

How did this happen?  What went wrong?

Try to imagine a more masterfully crafted structure of government!  Could Mr. Madison & Co. have created a more explicit separation of powers?  A more effective system of checks and balances?  A more clearly defined, more unambiguous limitation of the scope and jurisdiction of the national government than what they bequeathed to us in the United States Constitution?

What safeguard was omitted?  What particular words could have been included that would have guaranteed in perpetuity the drafters’ stated intent to “secure the blessings of liberty to ourselves and our posterity”?

For as abolitionist and legal scholar, Lysander Spooner, observed only a few decades after ratification, “Whether the Constitution really be one thing, or another, this much is certain — that it has either authorized such a government as we have had, or has been powerless to prevent it.”

In retrospect, the Anti-Federalists/State’s Rights/Federalists proved astonishingly prescient.  The national government under the United States Constitution has grown into the very grasping, voracious, profligate, omnipotent, military empire the founders so feared.

Indeed, even the most ardent advocate for a more vigorous, national government, Alexander Hamilton, would undoubtedly have dismissed as patently absurd the suggestion that this — or any other — republican form could metastasize to the point where it would someday consume nearly half of all the wealth its citizens produce, maintain hundreds of military bases in dozens of countries around the world, and dictate every facet of its citizens’ lives down to the point-size of the typeface of a mandated list of ingredients on a box of breakfast cereal.

A body full of light

But at long last there is a beacon of hope on the horizon.

For the first time since the attempted secession by several of them more than a century and a half ago, the states are beginning to see that the union they formed in 1789, far from becoming more perfect, has become far and away the greatest, single source of injustice and domestic turmoil.

It was not the agents of Idaho or any of its political subdivisions who literally blew the head off of Vicki Weaver as she stood in the doorway of her family’s mountaintop cabin, clutching nothing more threatening than her infant daughter.

It was not the agents of Texas or any of its political subdivisions who launched an unprovoked attack on a peaceful, church community outside Waco, ultimately laying a military-type siege that ended in a conflagration incinerating 80 members of the congregation, including two dozen children under the age of fifteen.

Those horrifying debacles — and many, many more — were perpetrated by the agents of an out-of-control, federal government.

Finally, the people of the fifty states that now comprise the union are coming to the realization (albeit, belatedly and reluctantly) that if they genuinely wish to promote the general welfare, they must reassert their legitimate authority over the central government that they ordained and established.

The battle to do just that, tentatively begun a little over a decade ago, is now being aggressively joined on several fronts.

Prohibition redux

The first and most inarguable of these challenges is in repudiating what is, beyond question, the most blatant and egregious (not to mention unnecessary and destructive) federal overreach: marijuana prohibition.

The bizarre crusade to exterminate a ubiquitous plant, used for a number of purposes throughout all of recorded history, was instigated in the 1930’s by a newspaper magnate as a cynical, self-serving, marketing ploy.  The campaign was eagerly exploited by demagoguing politicians whose ambitions were also served by stoking the hysteria and pandering to racists.  And then by criminals who offered up drug-induced helplessness as mitigation for their offenses and throwing themselves on the mercy of a credulous court.

But nowhere in the Constitution is the central government empowered to prohibit any product — let alone an innocuous, agricultural good that was cultivated by, among others, George Washington and Thomas Jefferson.  (It is passing strange that so little notice is taken of the fact that the authority to impose nationwide prohibition of alcohol required a constitutional amendment.)

For decades the federal  government ignored compelling, anecdotal evidence that, aside from its fast-growing stalks making high quality rope, paper and cloth, the leaves and flowers of the marijuana plant also make an effective, yet exceptionally mild, palliative (there has never been a single instance of a fatal overdose in over four millennia of recorded medical use) that can provide relief from both nausea and chronic pain without the dangers and incapacitating side-effects of other drugs.

So pervasive and unquestioned was the propaganda campaign against it, that officials didn’t even get around to actually doing an objective study of marijuana until 1970.  When the results where published two years later in a report titled, Marijuana, A Signal of Misunderstanding, concluding that marijuana was innocuous and recommending that prohibition be ended, an outraged President Nixon summarily repudiated the findings.  Thereafter, every effort was made by the federal government to derail, defund and otherwise impede any further research.

Finally, in 1996 California became the first of what now number more than a fourth of the states to simply disregard federal dictates and make a medical exception for possession and use. (It should also be noted that there was never any constitutional authority for federal intrusion into the practice of medicine in any case.)

California is poised to again lead the way on this issue as there is a proposal on the November ballot in that state to repeal marijuana prohibition entirely and make the drug available for recreational use (and, more importantly to the struggling state, revenue generation) under a regulatory regime comparable to the handling of alcohol.

Your papers, please!

A less obvious, more ominous, federal overreach is the putsch to impose a national identity card system.

Americans have long recognized that comprehensive lists — of citizens, their arms, travels, associations, etc. — are an invaluable tool for despots, and an enormous danger to their own liberty and security.

Although many still possess social security cards bearing the bold disclaimer, NOT FOR IDENTIFICATION, the number (or SSN) associated with this Roosevelt-era, middle-class, entitlement program, inevitably joined in unholy matrimony with the Income Tax, soon devolved into a comprehensive, national registry.

Today it has become virtually impossible for anyone to work, contract, or engage in any significant, financial transaction without this de facto “Mark of the Beast.”

The next steps, taken by the George W. Bush administration, were in commandeering the drivers license systems administered by state governments.

Phase I was mandating association of state-issued identifications with holders’ social security numbers, ostensibly to facilitate enforcement of child support orders across state lines.

Phase II followed in a Department of Homeland Security directive creating uniform standards and features for federally-recognized, identification documents to expedite compilation of all records into a single, national database.  The putative purpose of the program, called “Real ID,” was to protect us from terrorists.

Alarm over the move to connect federal SSNs with state IDs was expressed mostly by libertarians.  The Real ID program, however, prompted a surprisingly broad and powerful backlash.  Fifteen states flat out defied the national directive, conspicuously enacting legislation prohibiting its implementation. So vehement and vociferous was opposition in fact that the program was renamed: “PASS ID.”

In addition, the focus of the PASS (nee Real) ID subtly shifted — from stopping terrorists to stopping illegal immigrants.

Phase III of implementation of the Bush-era citizen compendium mandate, called the Western Hemisphere Travel Initiative, requires a passport of anyone wishing to enter the United States.

Although promoted as yet another protection against terrorism from abroad, the directive is — and, perforce, can only be — directed at our own citizens.  (Which begs an interesting question: To exactly where does the federal government expect foreign countries to deport U.S. citizens who have been denied entry into the U.S.?)

Authorities did, however, offer a more convenient, less expensive alternative.

Citizens could be issued a comparable, DHS-approved, document, i.e., a state-issued drivers license, meeting the new, federal standards.  And since recent United Nations passport requirements include incorporation of a tiny, passive radio chip capable of being remotely activated (similar to those already in use for locating and identifying shipping pallets and lost pets), this silent, tracking device would also have be added to make the ID federally compliant.

Adopted amid post 9/11 apprehensions and justified as a necessary, “War on Terror” measure, the value of WHTI as a tool for immigration enforcement, and the shift in emphasis by proponents to that issue are, of course, no coincidence.

The abysmal failures of the Department of Immigration would be laughable if the consequences of their lapses weren’t so disturbing… [Tim's full column]

[1] Tim's columns in SGA are usually refreshingly short and incisive. This particular column is uncharacteristically long, but the general issue of constitutional crisis requires this length. His analysis brings a depth and width of understanding of history and law that one never—and I mean never... until the republic is restored and mainstream journalism rises out of the corporate-statist propaganda muck—sees in any mainstream journalistic outlet. [You rarely find such sterling qualities on the Web either.]

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