I wanted to take this opportunity to openly respond to an
e-mail I received. I know a few observers think I am a rabid conservative and conservative or libertarian ideologue the
way I go after the Obama administration. The reason why I’m going after them is
because they were (and still are) in charge of the White House when I started
the blog. Democrats dominated Congress until the most recent elections. If a Repub. was in the White
House, and/or they were in control of Congress, I’d be hammering them. I take the
U.S. Constitution seriously--it is not a convenient tool to be manipulated by
either the Liberals or Conservatives. I am a cautious libertarian second. The threats to constitutional government and
constitutional rights come from both liberals and conservatives. I opposed Rick Santorum because I saw him as
a threat to constitutional rights. I
opposed Newt Gingrich because I saw him as an unethical, constitutional loose
cannon. I oppose Obama because I personally see him is a threat to constitutional government and
the Bill of Rights (esp. Second and First Amendments). As Lord Acton said, “power corrupts.” It corrupts both the Left and the Right. People of both parties get in the White House and they become control
freaks. As I have said on a number of
occasions, the Supreme Court should have let the recounts continue and finish
before ruling in Bush v. Gore. The Bush administration deceived the American
public on the existence of WMD’s in Iraq. I praised Scalia for his opinion in
Heller. I hate what he is trying to do
to the Fourth Amendment and the exclusionary rule. I generally agree with the liberals on the Court on these issues. On the other hand, the liberals were dead-wrong hypocrites in the Citizen's United case. I praised Alito for his opinion in McDonald,
but believe he was dead wrong in the Westboro Baptist Church case (Snyder v.
Phelps). I believe in all constitutional rights, not just those favored by the
Left or Right. If I am an “ideologue” my
ideology is “Constitutionalism.” The
Constitution is the supreme law of the land.
On policy matters, my view is that such policies, must first be constitutional. Second, they must be rational, and show a concern for human life and dignity. After that, I generally subscribe to a
cautiously libertarian ideology. Libertarianism
is not always going to provide a sensible or reasonable answer (e.g. legalizing
cocaine and heroin). If we don’t feel comfortable as an overall "land of the free and the home of
the brave", we need to change our national anthem.
Our country's constitution purposely limited government powers, with its relative restraint on Article 6, to maintaining national defense, foreign relations and commerce between individual states and nations.
ReplyDeleteAll other powers, such as the vast majority of domestic affairs, belonged exclusively to the people and states. The 9th and 10th Amendments clearly spelled this separation out.
Regardless of political party affiliation, politicians who strayed from our republic's federalism paradigm are justifiably singled out for ridicule as they've betrayed their oath of office. Unfortunately, much structural damage has already undermined the union's fundamental balance of power without any reprimand to those elected and appointed officials responsible.
Prof. Kessler,
ReplyDeleteFrom your point of view, did the Federal Government have the authority to prohibit the sale and/or use of alcohol before the passage of the Eighteenth Amendment?
44 & Bennett: Thanks for the comments. 44: As I think you are stating, unfortunately state officials sold out the Constitution in return for federal $ Bennett: IMHO, No. Arguably, from the constitutional perspective, they could prohibit the INTERstate transportation or sale of liquor under the Commerce clause. Completely in-state activities could, IMHO not be regulated. Control of alcohol solely within a state is arguably something restricted to the state under the 10th Amendment. The Eighteenth Amendment was so worded in part to, inter alia, make it clear that after the Amendment, purely intra-state activities (e.g. manufacture) could be covered and that no interstate activity was required. This precluded federalism challenges to Prohibition.
ReplyDeleteProf. Kessler,
DeleteSo where does the current Federal Government derive the authority to prohibit the production/sale/use of other chemical substances within a State?
Allow me to answer your question. Like past socialist wannabe overreaches during the early 1900s and later, the federal government granted its own authority. Of course this is against the domestic sovereignty of states. The fundamental principle of power separation is clearly spelled out in the U.S. Constitution. I view states as being different households. Some are more responsible than others. As I've said before, if a stoned California zombie happens to make it into Texas, we'd simply send them out the back door via Mexico with directions home pinned to their rear.
ReplyDelete44 & Bennett: Thanks for the comments. Bennett: The analysis provided above on the Commerce clause was based on my understanding of the original meaning of the Constitution and Bill of Rights. That analysis does not reflect current Supreme Court doctrine. Since at least the late 1930's, the Court has pretty much de facto repealed the 10th Amendment. Although there are some exceptions (e.g. Lopez, Morrison and Printz), the Court has pretty much given Congress and blank check on the Commerce power. The Court has wrongly abdicated it's authority of judicial review when it comes to the Commerce power. Contrary to my analysis, the current approach is to allow federal regulation of totally intrastate activity, if, when cumulated/aggregated, that activity could have an effect on INTERstate commerce. Given the interconnectedness of the U.S. economy, this is almost totally a carte blanche. See, e.g. Gonzalez v. Raich, 545 U.S. 1 (2005)
ReplyDelete