The View From 1776

During the two-year debate before the Constitution was ratified in 1789, the central concern was striking a power balance between the new Federal government and the states.  Recognizing that there will always be special-interest conflicts in every political society, the Constitution’s framers structured a government that would, at every point, pit ambition against ambition. 

Above all they wished to avoid concentration of too much power in any one part of government.  The strongest of all safeguards to that end was retention in the states of all police powers, defined by the Britannica Concise Encylopedia as, “Power of a government to exercise reasonable control over people and property within its jurisdiction in the interest of general security, health, safety, morals, and welfare.”

States arrayed over a vast geographic area would naturally have widely differing economic and cultural interests.  The Constitution, supplemented by the Ninth and Tenth Amendments, aimed to protect local and state interests against the tyranny of the majority. 

Passage of the 17th Amendment in 1913, making United States Senators elected by popular vote rather than by state legislatures, opened the gates to unprecedented socialist collectivism of Federal power under Democrat/Socialist Party President Franklin Roosevelt in the 1930s.  Senators, no longer representing specifically the interests of their states, became vulnerable to pressures from the President, Congressional party leaders, and the vast sums of money deployed by special interest groups such as labor unions. 

We see the effect today in President Obama’s apparent intentions to ram socialized, National-State control of the entire healthcare sector down the people’s throats, without regard to their revulsion.  Because of Franklin Roosevelt’s collectivization of power, ever increasing swaths of our private lives are coming under the control of Washington bureaucrats, everything from the kinds of light bulbs to the kinds of automobiles we will be permitted to purchase.

Read Tony Blankley’s exposition of the issue.

Columnist Bruce Bartlett, who regularly cudgels the presidency of George W. Bush and the economic policies of President Reagan, wrote the following in his column dated May 12, 2004.

The 17th amendment was ratified in 1913. It is no coincidence that the sharp rise in the size and power of the federal government starts in this year (the 16th amendment, establishing a federal income tax, ratified the same year, was also important).

 As George Mason University law professor Todd Zywicki notes, prior to the 17th amendment, senators resisted delegating power to Washington in order to keep it at the state and local level. “As a result, the long term size of the federal government remained fairly stable during the pre-Seventeenth Amendment era,” he wrote.

 Zywicki also finds little evidence of corruption in the Senate that can be traced to the pre-1913 electoral system. By contrast, there is much evidence that the post-1913 system has been deeply corruptive. As Miller put it, “Direct elections of senators ... allowed Washington’s special interests to call the shots, whether it is filling judicial vacancies, passing laws or issuing regulations.”

Jeff Lukens sketches our predicament and the need to navigate back to home base before it’s too late.

Hitherto the drift has been imperceptibly slow.  With the shoreline now out of sight, most of us are unaware how dangerously far we are from our starting point.  Obama may paradoxically be doing us a favor with his abrupt, radical, socialist initiatives that awaken us to our accelerating leftward drift.

For a shoreline base point see also The Unwritten Constitution.

The Choice Between Prosperity and Decline
By Jeff Lukens

This land of a free people and a free-market economy has generated a great wave of innovation that has benefited all of humanity. The essence of freedom and prosperity that moved around the world in past 200 and some years has been driven primarily by the United States. With our economy now stagnating, it has become more important than ever to return to the basic Constitutional freedoms that have made prosperity possible.

My son came home from college to visit recently. After some time of catching up on things, the conversation turned to topics that interest him—and that means all things electronic. He explained to me why I needed the latest operating system update for the computer and how properly to configure the surround sound system for the HDTV. I could barely keep up with it. Somewhere in the conversation, it occurred to me that in the long view of human history, we have come a long way in a very short time.

Think about it. In the 1600s, the ships that brought the first settlers to our shores, and tools for tilling the soil they brought with them, were not much more advanced than those used by people thousands of years before. In the relatively short time since their arrival in the New World, there has been an explosion in technology and the standard of living for ordinary people.

Communications, for example, were revolutionized first by the telegraph, then by telephone, then radio, then television, and now by the Internet and the computer. In that same time, the average length of life has been doubled, and the quality of life has been greatly enhanced. Homes, heating, cooling, clothing, transportation, food, education, and medicine have quickly advanced as well.

While people around the globe have benefited and other countries have contributed, the American spirit of innovation and free enterprise has been a driving force behind much of the change. And that change has flowed primarily from the fruits that come from the individual freedoms that the Founders understood and turned loose.

In his book, W. Cleon Skousen calls this American phenomenon “The 5000 Year Leap” that changed the world. Whether it was actually a 5000-year leap forward is hard to say, but it certainly was a giant step in the advancement of human civilization.

The Founders generally agreed that the only reliable basis for sound government and just human relations is Natural Law. The Declaration of Independence called this “the laws of Nature and Nature’s God.” Constitutional precepts such as unalienable rights, habeas corpus, limited government, separation of power, no taxation without representation, were based on Natural Law.

The Founders intended a government that is subservient to the people (rather than the reverse), that rights are not derived by government but by a higher power, that the free market system more than any other provides the best, most efficient and most just opportunity for individual prosperity and for the welfare of the nation as a whole.

It would be wonderful if every American studied writings of Thomas Jefferson, James Madison, John Adams, Alexander Hamilton, and others that have made our great nation possible, but sadly this is not so. In our collective ignorance, we are becoming hostages to our very own government. As Ben Franklin said, “Only a virtuous people are capable of freedom. As nations become more corrupt and vicious, they have more need of masters.”

Has our idea of “rights” become so corrupt that we are allowing the government to become our master? As the health care battle rages on Capitol Hill, could we be seeing a reversal of roles by the government and its citizens?

Today, many in Washington wish to overturn what they see to be outmoded notions of Constitutional law. We hear of conferring new, artificial rights not granted by the Creator, but by other men. The “right” to government-sponsored health care is only the latest example. And in the end, it is nothing more than a ruse intended to empower the state and deny everyone his or her true inalienable rights.

In just the past few weeks, we have seen it all. From grossly irresponsible spending of taxpayer money, to an ever-increasing national debt, to corrupt political payoffs, to expanding entitlements that we cannot pay for, the list goes on. The government corruption and mismanagement of our finances has been going on for decades, and it is getting worse. We must face the possibility that the great wave of prosperity that this nation has known from the beginning could be ending, and that our government is causing much of the decline.

The economic trend lines do not paint a pretty picture. Not to be too dramatic, but the bankruptcy of our government, a collapse of the American economy, and hence the world economy, could happen. That almost happened in the 1930s, and this time it could be worse.

One thing for certain, fixing society’s problems is not accomplished by growing government and the overstepping its constitutional role, but by a return to founding principles. For prosperity and innovation to continue, we must choose to preserve the honest relationship of self-interested individuals working in cooperation with a government of limited and divided authority.

From the beginning until today, the “noble experiment” of free people and free enterprise has produced phenomenal results. There has never been of greater need than now, however, to preserve our Constitutional principles. The future of our children is depending on it.

Jeff Lukens is a staff writer for the New Media Alliance, a non-profit (501c3) national coalition of writers, journalists and grass-roots media outlets. He can be contacted at www.jefflukens.com

Philosophers of the 1789 French Revolution were the first to recognize that, when the historical structure of society is eradicated, control by an intellectual cadre necessitates manipulation of public opinion.  This necessarily requires some degree of censorship.

Read the warning by National Journal’s Stuart Taylor.

Troubling Signals On Free Speech
In his eagerness to please international opinion, President Obama has taken a small but significant step toward censoring free speech.

by Stuart Taylor Jr.
Saturday, Oct. 31, 2009

It was nice to hear Secretary of State Hillary Rodham Clinton say on October 26, “I strongly disagree” with Islamic countries seeking to censor free speech worldwide by making defamation of religion a crime under international law.

But watch what the Obama administration does, not just what it says. I’m not talking about its attacks on Fox News. I’m talking about a little-publicized October 2 resolution in which Clinton’s own State Department joined Islamic nations in adopting language all-too-friendly to censoring speech that some religions and races find offensive.

The ambiguously worded United Nations Human Rights Council resolution could plausibly be read as encouraging or even obliging the U.S. to make it a crime to engage in hate speech, or, perhaps, in mere “negative racial and religious stereotyping.” This despite decades of First Amendment case law protecting such speech.

To be sure, the provisions to which I refer were a compromise, stopping short of the flat ban on defamation of religion sought by Islamic nations, and they could also be construed more narrowly and innocuously. It all depends on who does the construing.

Is it “negative stereotyping” to say that the world’s most dangerous terrorists are Islamists, for example? Many would say yes.

I sketch below how the resolution could be construed to require prosecuting some offensive speech and how it could be used in the long run to change the meaning of our Constitution and laws, based on doctrines developed by legal academics including Obama appointee Harold Koh, the State Department’s top lawyer.

Also troublesome on the free-speech front are various remarks by Mark Lloyd, the Federal Communications Commission’s associate general counsel and chief diversity officer. Lloyd asserted in a 2006 book, “The purpose of free speech is warped to protect global corporations and block rules that would promote democratic governance.” He co-authored a 2007 report calling for regulatory changes to close “the gap between conservative and progressive talk radio.” In 2008, he praised the “incredible ... democratic revolution” of Hugo Chavez and implied approval of the thuggish Venezuelan strongman’s pattern of shutting down news media opposed to him.

That’s how I read Lloyd’s videotaped statement, first aired by Glenn Beck of Fox News, in which he said: “The property owners and the folks who then were controlling the media rebelled [against Chavez], worked, frankly, with folks here in the U.S. government, worked to oust him. But he came back with another revolution, and then Chavez began to take very seriously the media in his country.”

Then there was the June 5 high school commencement speech in which White House Communications Director Anita Dunn called Mao Zedong—one of history’s greatest mass murderers and an implacable enemy of free speech—one of “my favorite political philosophers.” Dunn has, coincidentally, been the point person in President Obama’s attacks on Fox News.

This is not to suggest that Dunn approves of mass murder or that Obama wants to censor critics. But the ideologies of appointees such as Lloyd and Dunn can have consequences. And in his eagerness to please international opinion, Obama has now taken a small but significant step toward making bad law.

Law—especially international law—evolves below the radar, in small moves largely ignored by the mainstream media. Although international resolutions have traditionally not been seen as binding law, the Obama administration is seeded with left-liberal thinkers who have long sought to spin what some call “transnational” law out of such stuff, and who have smiled on efforts to punish speech that is offensive to favored racial, religious, and other groups.

Such attitudes may help explain the administration’s decision to join the U.N. Human Rights Council in the first place. Obama reversed a Bush administration policy of shunning this deeply politicized body, which counts as members several flagrant human-rights abusers and which is preoccupied with attacking Israel.

The council’s October 2 resolution is ostensibly an endorsement of “freedom of opinion and expression,” which seems ironic, given the track records of such members as China, Cuba, Egypt, and Saudi Arabia.

But the real problem is a provision, which the U.S. championed jointly with Egypt, exuding hostility to free expression.

That provision “expresses its concern that incidents of racial and religious intolerance, discrimination and related violence, as well as of negative racial and religious stereotyping continue to rise around the world, and condemns, in this context, any advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence, and urges States to take effective measures, consistent with their obligations under international human-rights law, to address and combat such incidents” (emphasis added).

What is this clot of verbiage supposed to mean?

It could be read narrowly as a commitment merely to denounce and eschew hate speech. But it could more logically be read broadly as requiring the United States and other nations to punish “hostile” speech about—and perhaps also “negative stereotyping” of—any race or religion. It’s a safe bet, however, that the Islamic nations that are so concerned about criticisms of their religion will not be prosecuting anyone for the rampant “negative racial and ethnic stereotyping” and hate speech in their own countries directed at Jews and sometimes Christians.

Eugene Volokh of the University of California (Los Angeles) Law School pointed out on his Volokh Conspiracy blog that the reference to “obligations under international human-rights law” could be seen as binding the United States to a provision of the International Covenant on Civil and Political Rights requiring that hate speech “shall be prohibited by law.” The U.S. has previously rejected that provision.

Added Volokh: “Advocacy of mere hostility—for instance… to radical strains of Islam [or any other religion]—is clearly constitutionally protected here in the U.S.; but the resolution seems to call for its prohibition. [And] if we are constitutionally barred from adhering to it by our domestic Constitution, then [the administration’s vote was] implicitly criticizing that Constitution, and committing ourselves to do what we can to change it.” Such a stance could be seen as obliging the executive branch to urge the Supreme Court to overrule decades of First Amendment decisions.

Far-fetched? Not according to the hopes and expectations of many international law scholars. “An international norm against hate speech would supply a basis for prohibiting it, the First Amendment notwithstanding.... In the long run, it may point to the Constitution’s more complete subordination,” Peter Spiro, a professor at Temple University Law School, asserted in a 2003 Stanford Law Review article.

Similarly, if more ambiguously, Koh wrote in another 2003 Stanford Law Review article, “Our exceptional free-speech tradition can cause problems abroad, as, for example, may occur when hate speech is disseminated over the Internet.” The Supreme Court, suggested Koh—then a professor at Yale Law School—“can moderate these conflicts by applying more consistently the transnationalist approach to judicial interpretation” that he espouses.

Translation: Transnational law may sometimes trump the established interpretation of the First Amendment. This is the clear meaning of Koh’s writings, although he implied otherwise during his Senate confirmation hearing.

In my view, Obama should not take even a small step down the road toward bartering away our free-speech rights for the sake of international consensus. “Criticism of religion is the very measure of the guarantee of free speech,” as Jonathan Turley, a professor at George Washington University Law School, wrote in an October 19 USA Today op-ed.
Even European nations with much weaker free-speech traditions than ours were reportedly dismayed by the American cave-in to Islamic nations on “racial and religious stereotyping” and the rest.

The pressure to censor harsh criticisms of Islam, as well as other religions and groups, began to intensify after bloody riots by Muslims around the world in 2006 over the publication in Denmark of cartoons ridiculing Muhammad.

People have reportedly been prosecuted in Austria, Finland, and India for asserting that Muhammad’s marriage to a 9-year-old girl made him a “pedophile.” Brigitte Bardot was convicted in 2008 of provoking racial hatred for saying in a letter to France’s interior minister that Muslims were ruining France. A 15-year-old boy in Britain was charged under the Racial and Religious Hatred Act last year for holding up a sign outside a Scientology building calling the practice “a dangerous cult.” And so on.

We have had no such overt federal government censorship in this country so far. But we have seen plenty of private censorship and self-censorship, especially at our universities, most of which have thinly disguised speech codes.

One example is the spineless decision in August by Yale President Richard Levin and the Yale University Press to remove the Danish cartoons (and all other pictures) of Muhammad from a book about the drawings.

The reaction of the academic world to such episodes has been apathy. The same is true of the response by the academic world, the news media, and civil-liberties groups to the October 2 resolution.
Take The New York Times and the American Civil Liberties Union. Both were once dependable guardians of uninhibited, robust, and wide-open debate, regardless of whose ox was gored. But as best I can tell from their websites, neither has said a word about the Obama administration’s collaboration with would-be censors sitting on the U.N. Human Rights Council.

The Washington Times reports that the Obama administration has intervened in the town of Kinston, NC, to overturn voters’ decision to adopt a non-partisan system of election.  Candidates in local elections were to run for office without listed party affiliations.

The Justice Department ruled that black voters can elect people to represent them only if candidates are identified as members of the Democratic Party.  According to the Justice Department, presumably taking its cue from President Obama’s promise to eliminate discord and foster bi-partisan amity, Republicans cannot represent blacks.

Ironically, the wealthy village of Scarsdale, New York, in upscale Westchester County, has for many decades had a non-partisan system of elections for local office.  The idea is that candidates should focus on the best interests of the entire village, not upon granting favors to backers of one political party or the other.

Scarsdale is close to being a 100% liberal-progressive-socialist community, as I can attest from living there for 23 years.  Anyone questioning the welfare state or Democrat/Socialist Party social-justice initiatives is dismissed as an imbecile or a nut case.

From the stimulus bill, to cap-and-trade, to National Socialist healthcare, the president has just tossed out an idea and watched to see where it would land, leaving it so far to Congress to fight it out over the all-important details that can cause economic and foreign policy disasters.

Now he is confronted with one of the most consequential decisions of his administration: what to do with the war in Afghanistan.  It appears that he will simply poll everybody who has an interest in the decision - including the Taliban - and just take an average of opinion polls.

Do we need a president at all, if that is to be his modus operandi?  Obama’s passing the buck amounts to doing as Ross Perot proposed in 1988: giving every citizen computer access and calling for a vote of the entire electorate on every issue.

There is, of course, much to be said for curbing what Arthur Schlesinger called The Imperial Presidency, the concentration of too much power in the presidency, at the expense of balancing power in Congress.  Indeed, our history has featured periodic tugs of war between the two. 

But what President Obama has done so far, which is little beyond making speeches, amounts to abdication of duty.