Since 1819, McCullough v. Maryland has served as the law of the land. At that time, state governments exercised more power and held more credibility than the still infant federal government. Chief Justice John Marshall and the Supreme Court sought to bolster the federal government's position to prevent disruption from jealous states.
Marshall wrote the opinion broadly enough so that it legally prevented any state from officially acting in contradiction to any federal policy or agency. State police cannot even legally pull over a federal vehicle that is speeding.
Obviously this decision came in the context of its times. The federal government was very small and claimed few powers. Some of the states had existed for almost or over 200 years as political units.
Delegates Kelli Sobonya (R) Cabell, and Darryl Cowles (R) Morgan, think they may see a breach in the iron wall of McCullough.
In a recent Legislative committee meeting on medical marijuana covered by the Charleston Daily Mail , Sobonya queried about the inconsistent enforcement of marijuana laws by the federal government.
If Sobonya and Cowles are right, then the Obama Administration may have opened the door to states ignoring laws that they find onerous to their citizens. EPA regulations and Obamacare were cited by the delegates as examples.
Delegate Gary Howell (R) Mineral later noted "civil society depends on rule of law. You can't just have the president and his political aides pick and choose what to enforce. Then we have a government of men, not of laws, which John Adams saw as a prime threat to liberty." He also SAID that the inconsistent enforcement could set a precedent where states can legally defend their own interests.
It should be noted that no court or statute has ever refuted the Virginia and Kentucky Resolutions penned by James Madison and Thomas Jefferson. If the federal government violates the Constitution, according to Madison in the Virginia Resolution, "necessary and proper measures" must be taken to protect the people's rights. Madison never specified what those ought to be. At the very least, it would seem that Virginia, Kentucky, and West Virginia can refer to these works as grounds of legal argument.
Post Script: Full disclosure. I support legalization of medical marijuana. Frankly those who support it should take more issue with the Obama Administration's non enforcement than with either enforcing or getting rid of the law. By not enforcing the law, Obama is allowing businesses to grow. Those businesses will always be subject to legal extortion by the federal government because the law can always be held over them as a Sword of Damocles.
Showing posts with label James Madison. Show all posts
Showing posts with label James Madison. Show all posts
Thursday, September 26, 2013
Wednesday, November 30, 2011
Pattern of Tyranny: Hugo Chavez, Cristina Fernandez de Kirchner, Bill Clinton
What do each of those individuals have in common? Each of them over the past several years has been associated with term limits abolition for presidents.
Hugo Chavez already has the coveted "president for life" job. Argentinian President Fernandez de Kirchner this week seemed to float a trial balloon in her country about amending their "outdated" constitution. Bill Clinton suggested that the term limit amendment be lifted in this country recently.
The executive branch has an advantage over the legislative in this key area. At the most, every eight years, the executive gets swept clean of its political officers. Even presidents from the same party tend to want to have their own people, avoiding the messes caused when John Adams and Harry Truman held over officials. Turnover in office reduces the amount of corruption that can settle in.
Congress operates without term limits. Invariably, human nature takes over when a person in power gets comfortable. They cut corners, ignore rules here and there, and probably are as surprised as anyone else if they end up scandalized.
President Washington feared more than most the concept of "president for life." He saw it as upsetting the balance established between the branches of government, leading to the establishment of what Madison called "the tyranny of the majority." The president has the most to gain by somehow purchasing or otherwise appeasing the majority at the expense of the minority. And the majority rarely see infringements upon their rights.
Presidential term limits are necessary for the continuance of good government. Congress should consider them as well.
Hugo Chavez already has the coveted "president for life" job. Argentinian President Fernandez de Kirchner this week seemed to float a trial balloon in her country about amending their "outdated" constitution. Bill Clinton suggested that the term limit amendment be lifted in this country recently.
The executive branch has an advantage over the legislative in this key area. At the most, every eight years, the executive gets swept clean of its political officers. Even presidents from the same party tend to want to have their own people, avoiding the messes caused when John Adams and Harry Truman held over officials. Turnover in office reduces the amount of corruption that can settle in.
Congress operates without term limits. Invariably, human nature takes over when a person in power gets comfortable. They cut corners, ignore rules here and there, and probably are as surprised as anyone else if they end up scandalized.
President Washington feared more than most the concept of "president for life." He saw it as upsetting the balance established between the branches of government, leading to the establishment of what Madison called "the tyranny of the majority." The president has the most to gain by somehow purchasing or otherwise appeasing the majority at the expense of the minority. And the majority rarely see infringements upon their rights.
Presidential term limits are necessary for the continuance of good government. Congress should consider them as well.
Monday, April 18, 2011
Neo-Confederates?
The scribes at West Virginia Blue, with their usual grasp of history and facts, have dubbed those supporting the Intrastate Coal and Use Act "Neo-Confederates." This must come from the fact that they are citing the Tenth Amendment and its defense of states' rights. The Confederates did cite states' rights in defense of their cause, as did the legislators in the last session. That must mean that abolitionists in the North between 1850 and the Civil War were Confederates beofre the fact. In 1850, Congress passed a Fugitive Slave Act that expanded the law enforcement powers of United states Marshals and infringed upon property rights. Abolitionists cited states' rights in opposition. This makes them pre Confederates, according to the Democratic blog.
Other pre-Confederates, according to the logic of West Virginia Blue, include Democratic Party founders Thomas Jefferson and James Madison. They were the first to articulate states' rights doctrine. In 1798, they penned the Kentucky and Virginia Resolutions that claimed state courts could find federal laws unconstitutional. The law that created such powerful objections was the Sedition Act. This law made it a crime to satirize or make any untrue statements about the government, its policies, or its officials. In other words, today it would allow the arrest of newspaper editors, the cast and crew of Saturday Night Live, and a lot of bloggers. Who defines what the truth is about the government? The government would! Jefferson and Madison knew no other recourse against such an abominable law rather than to resort to states' rights doctrine. And Madison, being the architect of the Constitution, would know what could and could not be done.
Since we are on the subject of associating ideas with regimes, I wonder if anyone at West Virginia Blue has ever done the following:
Driven on the interstate
Ridden in a jet plane
Used satellite television
Approved of Obama using cruise missiles in Libya
Owned, drove, or simply admired a Volkswagen
If so, this makes them neo-Nazis. The National Socialists came up with the idea of the authobahn, which Eisenhower adapted into the interstate highway system. The German Air Force invented the jet engine. Germans in World War II created the ballistic and cruise missiles; of course ballistic missiles were the basis for the rockets that brought the advance of space flight and satellite deployment. And we all know that Volkswagens were "Hitler's car."
The states' rights principles articulated by Republicans and Democrats in the past session are meant to put checks on an overreaching federal government. A bipartisan group of men and women want to make economic conditions better for everyone, regardless of race. They see the federal government standing in the way at every turn. and just like the co-founders of the Democratic Party, Messrs. Jefferson and Madison, they see states' rights as a shield of liberty when the federal government goes too far.
Tuesday, March 22, 2011
The Constitutionality of the Attack on Libya
Obama's belated decision to launch attacks on the Libyan regime of Moammar Ghaddafi has sparked some debate on the home front over the constitutionality of his action.
Hate to say anything that defends Obama, but I would argue that the president does have a constitutional and legal authority to deploy the armed forces into a conflict despite the lack of a declaration of war. First of all, Congress does have the option to cut off funding for U. S. military actions at any time. Because of that, the legislative branch does have power and leverage over a protracted, but undeclared war.
Secondly, there is the precedent set by the Founding Fathers themselves. I will skip over John Adams' deployment of the navy in an undeclared war against France and Thomas Jefferson's attacks on Tripoli which were also undeclared. Neither one of these men had anything to do with the creation of the Constitution. James Madison, as president, in 1816 deployed the United States Navy against Tripoli and the other Barbary Pirate states. Since he was the man who more than anyone else drafted the Constitution and its first ten amendments, it is reasonable to assume that he did not intend for a president's decision making power over war to be limited to formal declarations.
Of course Barack Obama himself argued that military strikes ordered unilaterally by the president were unconstitutional during the Bush Administration. Liberal and left wing Democrats have tried to remind him of that stance lately. It was incorrect, but it is interesting to watch Obama once again enrage his own base. They can't be happy that Guantanamo Bay is once again in the same mode as under President Bush.
That all being said, I still am of the opinion that we should have recruited a country such as India to play a role here. That way this action could not be perceived as neo-colonialism. With active conflicts in Iraq and Afghanistan and North Korea rattling its sabre, we cannot afford to get seriously invovled in Libya. Let Europe, if no one else is available, take the lead and the griping that comes with it.
Hate to say anything that defends Obama, but I would argue that the president does have a constitutional and legal authority to deploy the armed forces into a conflict despite the lack of a declaration of war. First of all, Congress does have the option to cut off funding for U. S. military actions at any time. Because of that, the legislative branch does have power and leverage over a protracted, but undeclared war.
Secondly, there is the precedent set by the Founding Fathers themselves. I will skip over John Adams' deployment of the navy in an undeclared war against France and Thomas Jefferson's attacks on Tripoli which were also undeclared. Neither one of these men had anything to do with the creation of the Constitution. James Madison, as president, in 1816 deployed the United States Navy against Tripoli and the other Barbary Pirate states. Since he was the man who more than anyone else drafted the Constitution and its first ten amendments, it is reasonable to assume that he did not intend for a president's decision making power over war to be limited to formal declarations.
Of course Barack Obama himself argued that military strikes ordered unilaterally by the president were unconstitutional during the Bush Administration. Liberal and left wing Democrats have tried to remind him of that stance lately. It was incorrect, but it is interesting to watch Obama once again enrage his own base. They can't be happy that Guantanamo Bay is once again in the same mode as under President Bush.
That all being said, I still am of the opinion that we should have recruited a country such as India to play a role here. That way this action could not be perceived as neo-colonialism. With active conflicts in Iraq and Afghanistan and North Korea rattling its sabre, we cannot afford to get seriously invovled in Libya. Let Europe, if no one else is available, take the lead and the griping that comes with it.
Wednesday, March 17, 2010
Remember the Federalists
In the 1790s the Federalist Party had a secure grip on power. People associated them with the Constitution, George Washington, security, and prosperity. As late as 1796 they dominated elections to the presidency and Congress. How did they lose power by 1800?
Much of the reason lies in the passage of the Sedition Act. Sedition is the criminalization of attacks on the government. If the government decides that the origin is either satirical or untrue (in the 1798 version anyway) it can move towards prosecuting the writer, cartoonist, or speaker. Many Federalists enthusiastically backed this act despite its blatant violation of the Constitution. John Marshall, a Virginia Federalist, argued against it and it shocked, scared, and angered the opposition Democratic-Republican Party.
Thomas Jefferson and James Madison from Virginia feared that the anger stirred up by this act could cause a civil war. Perhaps many Federalists, publicly or privately, supported this as a way to finally get a virulent press off their backs. However the people saw it as an attack on liberty and the natural right to speak freely, even in dissent, about government. Jefferson and Madison tried to assuage the people by penning the Virginia and Kentucky Resolutions that asserted the right of state courts to declare federal laws unconstitutional.Voters punished the Federalists by expelling them from power in 1800. They found themselves loathed as aspiring tyrants and their party disintegrated by 1815. Its most promising leaders, such as John Quincy Adams, left to join the Democratic-Republicans to escape the tarnish.
Democrats need to look very hard at history before they vote for unpopular expenditures and expansion of federal power. It might not mean simply their loss of power, but perhaps the destruction of a venerable institution that has contributed much to the national discussion over the centuries. Kowtowing to an authoritarian left wing element just because it currently has authority will not help moderate Democrats in the long run. Tyrants never last. Remember the motto of Madison and Jefferson's home commonwealth: Sic Semper TyrannisFriday, May 9, 2008
The Second Amendment Explained
A comment recently argued that the Second Amendment was vague and therefore open to an interpretation that would prevent people from owning handguns. He likely got this interpretation from the writer Garry Wills who has made a good living attacking conservative ideals over the past couple of decades.
The reason for the language in the Second Amendment is that those at the time worked within an Anglo-American tradition that needed no explanation. Just as today, we would say "the dream of Dr. King" and no one would ask "what dream" or "who is Dr. King?" those of the 1790s were children of a centuries old tradition.
King Henry II helped to build this tradition with the Assize of Arms, requiring that every male citizen own some sort of weapon. Although Alfred the Great in his time had ordered the creation of a fyrd, or militia, Henry's assize was much more specific. This enabled him to get by without a standing army because all were required to help defend the realm. However, an armed citizenry meant that Henry also had to take steps to make sure those people were happy. He traveled his kingdom to make sure he was aware of the people's needs. Later it became more convenient for kings to call representatives to the capital. The partnership between ruler and ruled, cemented by an armed people, put England on the road towards democracy. A good government has nothing to fear from an armed population, but the armed population is the best insurance policy against tyranny. And don't bring up the argument about modern weapons. The experiences and/or writings of Giap, Che Guavara, Max Boot and others about guerilla warfare bely the notion that people with their own arms are powerless in modern warfare.
In the 1600s Britain knew tyranny from both power hungry kings and Oliver Cromell's dictatorship. The natural rights of life, liberty, and property were unsafe in the hands of such a government. By the 1700s British Whigs spoke openly about the need for an armed population to protect itself from tyranny. Our forefathers, according to noted American historian Bernard Bailyn, absorbed these principles like mother's milk. It was part of the justification for the Revolution itself. Meanwhile, the Indian chief King Phillip's war of genocide against New England spurred Americans on the frontier to understand that every good citizen must be armed to defend his community. Add to these historical antecedents the natural right of people to protect themselves and their property and you have the Second Amendment.
But let's imagine for a second that guns would magically vanish. Would we be safer? Maybe the strongest of us would be. I am 6'2, 250, and fairly young. I could handle a baseball bat pretty well to defend myself and my property. What if I were elderly and frail? My grandmother until she died at age eighty kept a handgun under her bed. Her husband who died in 1973 taught her how to use it and she kept it for security. She lived far from possible police protection. If there were no guns, home invaders could easily have harmed her with bats or axes. The possibility of getting shot deters a lot of these predators. Who is anyone to deny the right of the elderly or the disabled to defend themselves? How about the young woman trying to break away from a much stronger and abusive man who has promised to kill her if she ever leaves? Who is anyone to take away her right to protect herself? The intruder will think twice before entering a home if there is a possibility of the resident shooting him or her to death.
The Second Amendment's guarantee of gun rights is meant to help assist in the national defense, give property owners the ability to defend themselves and their families, and insure against a tyrannical government. Thomas Jefferson, who has been described as James Madison's collaborator to the point that one historian claimed they by the early 1790s almost shared the same mind, described the Second Amendment as his favorite because it helped protect against tyranny. This gives an important clue as to the mindset of the author, James Madison. No one at that time would have fathomed that people's right to defend their persons with deadly force would ever be questioned. It would be like questioning your right to eat whatever you wanted.
The violent will be violent, governments at some point will seek too much authority, and at some point we will face a serious attack on our territory. The first measure taken to prepare any nation for dictatorship is the removal of the citizens' guns. We must never allow ourselves to be in that position as a nation or as individuals, vulnerable to whatever strong force seeks to violate us.
The reason for the language in the Second Amendment is that those at the time worked within an Anglo-American tradition that needed no explanation. Just as today, we would say "the dream of Dr. King" and no one would ask "what dream" or "who is Dr. King?" those of the 1790s were children of a centuries old tradition.
King Henry II helped to build this tradition with the Assize of Arms, requiring that every male citizen own some sort of weapon. Although Alfred the Great in his time had ordered the creation of a fyrd, or militia, Henry's assize was much more specific. This enabled him to get by without a standing army because all were required to help defend the realm. However, an armed citizenry meant that Henry also had to take steps to make sure those people were happy. He traveled his kingdom to make sure he was aware of the people's needs. Later it became more convenient for kings to call representatives to the capital. The partnership between ruler and ruled, cemented by an armed people, put England on the road towards democracy. A good government has nothing to fear from an armed population, but the armed population is the best insurance policy against tyranny. And don't bring up the argument about modern weapons. The experiences and/or writings of Giap, Che Guavara, Max Boot and others about guerilla warfare bely the notion that people with their own arms are powerless in modern warfare.
In the 1600s Britain knew tyranny from both power hungry kings and Oliver Cromell's dictatorship. The natural rights of life, liberty, and property were unsafe in the hands of such a government. By the 1700s British Whigs spoke openly about the need for an armed population to protect itself from tyranny. Our forefathers, according to noted American historian Bernard Bailyn, absorbed these principles like mother's milk. It was part of the justification for the Revolution itself. Meanwhile, the Indian chief King Phillip's war of genocide against New England spurred Americans on the frontier to understand that every good citizen must be armed to defend his community. Add to these historical antecedents the natural right of people to protect themselves and their property and you have the Second Amendment.
But let's imagine for a second that guns would magically vanish. Would we be safer? Maybe the strongest of us would be. I am 6'2, 250, and fairly young. I could handle a baseball bat pretty well to defend myself and my property. What if I were elderly and frail? My grandmother until she died at age eighty kept a handgun under her bed. Her husband who died in 1973 taught her how to use it and she kept it for security. She lived far from possible police protection. If there were no guns, home invaders could easily have harmed her with bats or axes. The possibility of getting shot deters a lot of these predators. Who is anyone to deny the right of the elderly or the disabled to defend themselves? How about the young woman trying to break away from a much stronger and abusive man who has promised to kill her if she ever leaves? Who is anyone to take away her right to protect herself? The intruder will think twice before entering a home if there is a possibility of the resident shooting him or her to death.
The Second Amendment's guarantee of gun rights is meant to help assist in the national defense, give property owners the ability to defend themselves and their families, and insure against a tyrannical government. Thomas Jefferson, who has been described as James Madison's collaborator to the point that one historian claimed they by the early 1790s almost shared the same mind, described the Second Amendment as his favorite because it helped protect against tyranny. This gives an important clue as to the mindset of the author, James Madison. No one at that time would have fathomed that people's right to defend their persons with deadly force would ever be questioned. It would be like questioning your right to eat whatever you wanted.
The violent will be violent, governments at some point will seek too much authority, and at some point we will face a serious attack on our territory. The first measure taken to prepare any nation for dictatorship is the removal of the citizens' guns. We must never allow ourselves to be in that position as a nation or as individuals, vulnerable to whatever strong force seeks to violate us.
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