Watcher's Council Forum: How Will The Supreme Court Rule On Same-Sex Marriage?

Each week, the Watcher's Council hosts a forum on a topic du jour, as well as a weekly contest among the members for best post. This week's forum question is "how will the Supreme Court rule on same sex marriage?" I have kindly been invited to respond.

Update: The forum is now posted here. Do click over to see how the rest of the respondents answered this question.

The Supreme Court is currently considering same sex marriage in the case of Obergefell v. Hodges. I expect that they will decide the case by discovering that there is a right to gay marriage in the Constitution. It has been, they will claim, perfectly hidden in plain sight in the Constitution for a century and a half.

I also expect the Court's decision to break the camel's back as these supremely arrogant judges force left wing social policy down the throat of this nation and begin a final, direct assault on the rights of conscience of the religious in our land. If you thought the activist Roe v. Wade decision caused turmoil, I can assure you, you haven't seen anything yet. As Bookworm Room pointed out some time ago, unlike with abortion, this decision will, for the first time in our nation's history, make it unlawful to live by the same Judeo-Christian beliefs that have been part of our nation since the Founding.

As I pointed out in The Supreme Court: Originalism, Judicial Activism, & America's Future, there are two schools of Constitutional interpretation, originalism and activism:

Originalists attempt to interpret the Constitution by determining what the people who drafted it and voted for it understood it to mean at the time. An intellectually honest originalist does not announce new policy, he or she interprets history and precedent. That is a bit oversimplified - originalism is certainly not always that clean and can become muddled as precedent builds (and see the discussion here). But because there is always a strong bias to stay limited to what the Constitution says and what the drafters meant, it provides a carefully circumscribed role for unelected judges, thus paying the maximum deference to democracy.

When a Court stops interpreting the meaning of the Constitution and starts to impose its own policy views under the color of a "living constitution," it transforms into a Politburo legislating by fiat. Judicial activists and the left who champions them are the people who see an activist Court as a way around democracy and an irreplaceable tool to remake society.

The left has been relying on judicial activism for the past century to work fundamental, unconstitutional and non-democratic changes to our society, and they have engaged in what has amounted to a jihad on the Judeo-Christian religions. Finding that a right to homosexual marriage has been hiding in the Fourteenth Amendment for the past 147 years would set the stage for the last step in that jihad.

The Fourteenth Amendment holds, in relevant part, that "[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws" - the so called Equal Protection clause. The Fourteenth Amendment was passed in 1868, in the wake of the Civil War and the abolition of slavery, for the purpose of insuring that blacks were treated to no legal disability in this nation. There is no evidence whatsoever that those who passed this law intended its provisions to extend to homosexuality. To the contrary, homosexuality was then under legal disability throughout most of the states. To claim now that the Equal Protection clause includes homosexual marriage in its ambit is to make an utter mockery of the Constitution and our system of government. This is not a nation of laws; it is now a nation subject to the whims of activist judges who, in acts of supreme arrogance, corrupt our entire government when they impose social policy at odds with the will of the people of this nation and their elected representatives.

What should happen is that the nine members of the Supreme Court should examine intent of those who drafted and voted for passage of the Fourteenth Amendment in 1868. That would inevitably lead to the conclusion that homosexuality is not a "right" enshrined in the 14th Am., and that that there is no Constitutional right to homosexual marriage. The only way to change that at the federal level is through a Constitutional Amendment as set forth in Article V. Barring that, because the Constitution does not concern itself with homosexuality or marriage, this is an issue of social policy that, per the Xth Amendment, should be left to the states. Period.

But what we have on the Court today are at least four judges who live to impose their left wing social policy preferences on our nation, and Justice Kennedy, who has shown himself ready to join the four in support of homosexuality and against the rights of the religious in this nation. Two years ago, Kennedy and the other four struck down the Defense of Marriage Act and refused to hear an appeal seeking to uphold California's referendum on Section 8, defining marriage as between a man and a woman. Last year the Supreme Court let stand a New Mexico decision punishing a Christian photographer targeted by the gay mafia for refusing to photorgaph a gay wedding ceremony. The handwriting is on the wall on this one. We'll see what follows after.

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Obama & The Death Of Our Republic

The people of Fairfax County, Virginia are up in arms. They have every right to be. Obama's federal government has dictated that they adopt a new, controversial social policy which they never voted to approve, nor did their representatives in Congress:

A plan to add “gender identity” to a Virginia school’s nondiscrimination policy has enraged parents and preachers, but leaders of the nation’s tenth largest school district say unless they make the change, the U.S. Department of Education could withdraw federal funding.

Critics warn the Fairfax County Public School policy would allow boys who identify as girls to use the locker rooms and bathrooms of their choice – as well as participate on athletic teams of their choosing.

Martin Baker, the pastor of Burke Community Church, warned that “the damage and destruction to our children, teens and impacted adults will be incalculable.”

“Everything from locker rooms to bathrooms will be potentially open for people who simply feel that their inner sexuality does not match their outer, physical sexuality,” he wrote in an email to the 3,000-member congregation.

“This is not just shocking, it is morally and spiritually abhorrent, and that is why I am convinced this is one cultural issue where we, as a church, must speak up and out with clarity, compassion and conviction,” he added.

But the deputy superintendent of Fairfax County Public Schools said they have no choice but to provide specific protections for transgender students. A vote on the issue is expected Thursday night.

“The Office of Civil Rights of the U.S. Department of Education is requiring that school divisions revise their non-discrimination policies to include gender identity,” Deputy Superintendent Steven Lockard wrote in a memorandum to school board members.

He also said the federal government was requiring the district to hire a consultant to advise them on how school divisions should handle individual cases of transgender students.

“If FCPS refuses to amend its policy, OCR has the right to recommend the termination of federal funding to FCPS,” Lockard wrote.

There is not a law that has been passed through Congress providing civil rights for the transgendered. That is an issue of social policy on which the people have the Constitutional right to be heard through their elected representatives, period. So how has it come to pass that the Office of Civil Rights of the U.S. Department of Education has bypassed Congress and unilaterally opted to impose this new social policy on our nation and on Fairfax County, Virginia?

In 2014 the Title IX civil rights law was updated to address sex discrimination “based on gender identity or failure to conform to stereotypical notions of masculinity or femininity” and protect students “who do not conform to sex stereotypes.”

Title IX, when it was passed by Congress in 1972, was directed to providing equality in educational opportunities between the male and female gender. This new update is nothing more than an outrageous reinterpretation by the Obama DOJ that goes far beyond the Congressional intent of the law as passed. It is now being used to force leftist social policy on our nation.

Art. 1, Sec. 1 of the Constitution provides that Congress is the sole body with the authority to legislate. The problem posed by the DOJ's willingness to interpret laws so ridiculously divorced from their intent as to constitute new legislation is one part of the problem of our out of control federal government.

Yet a second problem is posed by President Obama himself. He has caused an existential Constitutional crisis with his plan to grant rights and a path to citizenship to millions of illegal aliens. It is a legislative act for which he has no Constitutional authority. Acting without the consent of Congress, that amounts to tyranny. We fought a revolution over that to become a nation in the first place.

The third problem - the rise of agencies with the authority to pass regulations with the full force and effect of law, yet which have never been voted upon by our elected representatives. Particularly abhorrent is the FCC's recent unilateral decision to assume regulatory control over the internet based on a 1934 law that applied to monopolistic phone companies. But perhaps the most damaging of the out of control agencies at the moment is the EPA. The EPA has claimed vast powers - some of which failed to pass Congress as recently as 2009 - to regulate our energy sector. This from City Journal:

. . . [T]hough Congress refused to pass a law addressing climate change, Tribe points out, the EPA is behaving as if it has the authority Congress refused to give it, wielding the Clean Air Act in ways Congress not only didn’t authorize but also expressly forbade in the Act itself. Moreover, though Tribe doesn’t say so, it is clear that this executive-branch agency is trying to use its non-existent legislative-branch mandate to carry out a highly contentious, highly partisan policy of the Obama administration. As the New York Times quotes one anonymous former administration official, “Whether he intended it or not, Tribe has been weaponized by the Republican Party in an orchestrated takedown of the president’s climate plan.” Moreover, Tribe reports himself mystified as to how the EPA has the gall to contravene the federal government’s “promotion of coal as an energy source,” and to envision, in contravention of the Fifth and Tenth Amendments, shutting down not just a major industry, but also the way of life of whole communities and indeed a whole region of the country.

What is most important about Tribe’s involvement in this case is that he lends his considerable professional authority and impeccable liberal credentials to an increasingly loud chorus that questions the constitutionality of the Administrative State that has developed ever since the establishment of the Interstate Commerce Commission in 1887. Unlike the Founding Fathers, Progressive politicians, with Theodore Roosevelt and Woodrow Wilson in the lead, envisioned government not of, by, and for the people, but rather by highly trained, nonpartisan experts who would use the latest scientific knowledge to make better regulations for people than they could make themselves through their elected representatives.

This enterprise was unconstitutional, even un-American, in itself. But as the administrative agencies developed — as they violated the Madisonian principle of separation of powers by merging together executive with legislative power, which the legislature had no constitutional right to delegate, and with judicial power, which the legislature most certainly had no right to delegate — promulgating rules, charging people and corporations with violations of them, and exacting penalties without the benefit of grand or petit juries, in defiance not only of the American Bill of Rights but even of the Magna Carta, they evolved into an utterly unaccountable government that is nothing like the democratic republic the Founders envisioned. What’s more, with lobbyists having so much sway over them and often writing their regulations, the administrative agencies turned into the guarantors of crony capitalism, protecting giant corporations against competition from upstarts, just as the ICC protected the railroad cartel 132 years ago.

The fourth problem is perhaps the most dangerous -- unaccountable, activist judges who feel free to impose their social policy preferences on our nation under the guise of Constitutional interpretation. We've seen this in countless areas, such as with religion and abortion. The issue of the hour is "gay marriage." One federal court after another has struck down laws defining marriage as between a man and a woman using a laughable interpretation of the Equal Protection clause. No one can claim with a straight face that, when the Equal Protection clause was enacted shortly after the end of the Civil War, that the people voting for it meant it to apply to homosexuals. Homosexuality was under legal disability throughout most of the states at the time and remained so for over a century. That makes gay marriage an issue of social policy for each state to decide on its own unless and until our Constitution is amended in respect thereof. In no event is this an issue to be decided by five unelected judges sitting as a sort of politburo and dictating to our nation what they personally want our new social policy to be.

In 1787, as Ben Franklin emerged from behind the doors of the Pennsylvania State Hall, at the conclusion of secret deliberations of the Constitutional Convention, a woman asked him "Well, Doctor, what have we got, a republic or a monarchy?" Franklin famously replied, “A republic, if you can keep it.”

For over two centuries, we did manage to keep it, more or less. But no longer. Our Founding Fathers would not recognize our form of government today, despite the fact that there have been no substantive Constitutional Amendments to alter its design.

While our Republican form of government managed to coexist with activist courts and a parallel legislature in the regulatory bureaucracy for decades, it is only under the Obama regime that the left has truly come to warp and exploit the entire panoply of our government institutions to work non democratic fundamental changes to our nation. We have ceased to function as a republic and now function as a sort of hybrid tyrannical regulatory bureaucracy. This needs to end and the course corrected soon else we will never be able to return this nation to a republican form of government absent bloodshed. The 2016 election will be one of existential importance to our nation.

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Three Worth Reading Today

There are several good articles out recently worthy of your attention. At Bookworm Room, the author skillfully weaves together three thoughts, criticism of the left's superficial caricature of the Christianity, the actual purpose of Indiana's RFRA, and the motivations of the left in attacking the RFRA hidden behind the stated goal of protecting gay rights. Jesus Would Have Supported RFRA:

The only thing that the law does is to say, consistent with both Jesus’s teachings and the Constitution, that people of conscience cannot be forced to bring commerce or government diktats into their own inviolable area of faith. Put another way, to the extent marriage is a core sacrament to the faithful, the law cannot force them to sell themselves out — in effect, to become coerced money changers in their own temple.

Incidentally, while I’m on the subject of the gay lobby pushing ever harder on Christians and Christian doctrine, let me say that all of this was predictable. Years and years ago, I warned that gay marriage had nothing to do with marriage and everything to do with toppling religion.

At National Review, Victor Davis Hanson takes a look at the pettiness and malevolence driving Obama's presidency, as well as the lawlessness with which it is being run. Obama's Chicago Presidency

Once that pen-and-phone threshold has been crossed, anything is possible — and even the critics of Obama now belatedly accept that. In brilliantly diabolical fashion, the president of the United States has all but ruined the Democratic party in Congress and the state legislatures, but has also confounded his Republican opponents by not caring a whit about his own nihilism — as if he is supposed to worry about ending the congressional careers of his supposed allies?

After all, if someone is going to ignore the law or what tradition demands, then why does he need a legislative majority to do it? Obama is more powerful in defeat than he ever was in victory. Like a seasoned Chicago pol, he reminds his auditors and critics that not only does he not care about the appearance of his actions, but also that no else does either. He all but says, “Each time I issue an illegal executive order, my polls go up, and the more my enemies howl and my friends cringe.” It becomes more hazardous — ask Senator Menendez or an audited Tea Party group — to object to an Obama abuse than for Obama to commit the abuse, which makes further abuse only more certain.

And also at National Review, Thomas Sowell discusses how the left has turned the liberal arts into a means for indoctrination rather than education. As he points out, the rights criticism is not of the liberal arts education, but rather what the left has made of it. Who Really Trashes The Liberal Arts:

The history of the 20th century shows soft-subject students and their professors among the biggest supporters of extremist movements, both fascist and communist — the former in central and eastern Europe before World War II and the latter in countries around the world, both before and after that war.

Those who want the liberal arts to be what they were supposed to be will have to profoundly change them from what they have become. Doing that will undoubtedly provoke more denunciations of critics for “trashing” the liberal arts by criticizing those who have in fact already trashed the liberal arts in practice.

Good articles. Happy reading.

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Democracy, Our Republic & Obama

President Obama, whose party was trounced in last year’s midterm election due in part to poor turnout among Democrats, endorsed the idea of mandatory voting Wednesday.

“It would be transformative if everybody voted,” Mr. Obama said during a town-hall event in Cleveland. “That would counteract [campaign] money more than anything. If everybody voted, then it would completely change the political map in this country.”

. . . [W]e’ve got to have a better debate about how we make our democracy better and encourage more participation.”

Washington Times, Obama Calls For Mandatory Voting In The U.S., 18 March 2015

Okay, I'll bite. Let's talk about "democracy" and suffrage. But to understand those concepts within the context of our Republic, you need to go back to the time that the Founders drafted our Constitution.

The American Revolution, defined by the Declaration of Independence and culminating in our Constitution, marked the pinnacle of the Age of Enlightenment. What our Founders built with the Constitution was not a democracy, it was a Republic underpinned by a carefully limited democracy. One could be excused for thinking that our unreserved reverence for democracy today extends back in time all the way to the Founding Fathers, but that is decidedly not the case.

The Founders certainly believed in democracy as the basis of self-rule. While writing the Constitution, the Founders ignored the issue of suffrage -- i.e., who would be entitled to vote in that democracy. Their concern was with the role democracy itself was to play in our form of government.

Their view of democracy was that it was a double-edged sword that needed to be carefully limited in two respects. One, the purer the democracy, the more likely to lead to "mob rule," something to be shunned every bit as much as an aristocracy. As Thomas Jefferson opined, "democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other forty-nine.” John Adams was even harsher in his criticism:

Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There never was a democracy yet that did not commit suicide. It is in vain to say that democracy is less vain, less proud, less selfish, less ambitious, or less avaricious than aristocracy or monarchy. It is not true, in fact, and nowhere appears in history. Those passions are the same in all men, under all forms of simple government, and when unchecked, produce the same effects of fraud, violence, and cruelty.

Their second criticism of democracy, expressed in countless forums by our Founders, was that the average person, what we would call the "low information voter" today, was not paying intimately close attention to the issues of the day and could be led astray by charismatic politicians who were not fit to lead. Thus, while the Founders thought that democracy worked at the local level -- the town meetings of Massachusetts fame, for example -- they were deeply distrustful of democracy beyond that.

That is why, when they crafted our Constitution, the Founders allowed for direct democratic election of only 1/6th of our federal government, the members of the House of Representatives. Senators were to be appointed by elected Governors. The President was not to be directly elected, but rather a convention was to be held among people either locally elected or, at the State's choosing, appointed by the State to act as representatives at the convention. There, the representatives were to examine the candidates and make an informed decision before casting a ballot in an Electoral College. Once chosen, it was the President who would appoint Judges to the third co-equal branch of our government, but only with the consent of the Senate. At each level, our Founders tried to filter out the worst aspects of democracy, while still maintaining democracy as the foundation upon which our Republic is built.

We've certainly moved away from their vision and in the direction of greater democracy since the Constitution was drafted. We have had direct elections of Senators for the past century. Consequently, we've had a vast expansion of the federal government at the expense of state's rights, the Senators no longer being answerable to the Governors. And the electoral college is antiquated, effecting the selection of President, but with representatives pre-selected for candidates, it is now virtually a purely direct, democratic vote. Thus, the low information voter so feared by our Founders now plays an already outsized role in the formation of our government.

We've also had a vast expansion in suffrage. At the time of the Constitution was written, suffrage was extended only to white male property owners or those who paid sufficient taxes to give them a stake in the rate of taxes and the disposition of the public funds. It was both inevitable and necessary that, in a nation defined by it's aspirational statement that "all men are created equal," with God given rights to "Life, Liberty and the pursuit of Happiness," that suffrage would be extended to all irrespective of race, gender, and the like. It was not inevitable that the property or tax requirements would be removed, thus severing the link between those who funded the government and the control over taxes and the disposition of government funds, but in light of the misuse of these requirements to limit suffrage based on race, they too had to go. That said, one could make a strong argument today that, if strictly neutral application of the standards could be enforced, those standards should be returned.

Enter Obama, who would like to see all people required to vote, apparently believing that the left has a much greater edge among low information voters and those voters not paying into the tax base. Allowing his plan would be the final nail in the coffin of the form of government our Founders so carefully crafted. All of the dangers of democracy that they tried to filter out would become our modern reality.

And of course it is not just that which makes Obama's call for mandatory voting objectionable. There's also the little matter that forced voting would also be a violation of our First Amendment, which has been interpreted to protect against enforced "political speech." But it is not like Obama has shown the least amount of concern for our Constitution in other contexts.

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Republicans, Immigration, The Constitution, & Is It Time For A Third Party Yet?

President Obama, with his Immigration plans, has brought us to the point of a Constitutional crisis. He is unilaterally making new law with his plan to give millions of illegal aliens social security numbers, and work permits, and apparently, retroactively available Earned Income Tax credits. (It's hard to buy loyalty without taxpayer cash, of course). Regardless of the policy, whether one thinks it right or wrong, it is the President's unilateral act that must be the focus.

The Presidents immigration plan is not "executive discretion," its legislation that, per Art. 1 Sec. of our Constitution, only Congress has the authority to authorize. It is a textbook act of tyranny of the kind over which we fought a Revolution. If this is allowed to stand, it will be the single most corrosive act taken in oppression of our "liberties" since our founding. And as a practical matter, it is an act that threatens long term repercussions for our economy and politics.

Fortunately for this nation, we just elected the largest Republican House majority in a century and gave Republicans a comfortable majority in the Senate. Surely, they will act decisively to check this act of tyranny. They have full control of the public purse. And yet . . . within the past few days, the House and Senate have passed bills fully funding Obama's immigration orders. The roll call for the House vote is here. It was House Speaker Boehner's choice to bring a clean bill to a vote, and the vote succeeded 257 to 167, with 75 Republicans voting for approval.

This has been a supreme act of treachery and cowardice by the Republican leadership and by all who supported these votes.

The Republican Party can no longer be relied upon to protect the Constitution or the interests of this nation. We must now rely on the Courts to correct this obscenity, but given the partisan and compliant nature of our Courts, that is a forlorn hope indeed.

It is time to support a third party. It is the last remaining peaceful alternative.

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Immigration, Liberty, & An Existential Constitutional Crisis

"This meeting can do nothing more to save the country."

Samuel Adams, Dec. 16, 1773

When Samuel Adams said the quote above, he was in a meeting with several thousand other colonists. He had just been informed that the colony's Royal Governor would not allow the East India Company's tea to be returned to Britain. That tea had been shipped on consignment to America and subject to a tax not approved by the colonists. It was the final straw in a Constitutional crisis started by the British themselves in 1761 when they attempted to limit the rights of British citizens living in the American colonies. With Adams's pronouncement, the Revolution was inevitable.

The American Revolution was fought over British liberty. When Americans cried out, "No Taxation Without Representation," they were not innovating new rights. They were demanding the King honor a right of British citizens that dated back to 1215 A.D. and the Magna Carta. After the war, what America produced was a Constitution and Bill of Rights that, but with few changes, memorialized British liberties. Those liberties were neither conservative nor liberal. Rather, they were a series of systems very carefully designed to insure that the will of the people was paramount, that the will of the majority did not become itself a lawless tyranny, and that the powers of government be limited lest it too become a tyranny. To that end, the system the Founders designed very carefully diffused power over the three branches of government.

And for much of the last two and a quarter centuries, the system has worked brilliantly, albeit imperfectly. Policy disputes come and go. So long as they are resolved within the framework of our systems, than all is well. But the system has broken down now, in three very critical ways, two of which pose a long term threat to our liberties and one of which presents an immediate, catastrophic threat. All ultimately revolve around the most fundamental aspect of our system, Article 1, Section 1 of the Constitution -- that the sole right to pass laws resides in our elected members of Congress.

One break is in the regulatory bureaucracy, addressed here and, most recently, here as regards the FCC plan to take control of the Internet. The second break is our Court system, addressed here. Both of those breaks can be corrected by Congress if and when they find the will to do so.

The most immediate, dangerous and quite likely existential threat to our system of government comes now from our President. For the first time in our Republic's history, we have a President legislating unilaterally. That is the very definition of tyranny.

The President is charged with the duty of executing the laws of our nation. As regards illegal aliens, the laws require that they be deported. How to effect that is legitimately within Presidential discretion. It is Constitutionally problematic that our President should choose to ignore those laws, claiming the right to do as being within his "discretion." But then Obama goes beyond that. He is in the process of affirmatively granting these illegals "the ability to obtain Social Security numbers, work authorization permits, and the ability to travel.” That's not discretion, that's legislation that can only be lawfully passed by the elected representatives of the people. Obama's actions are a direct threat to our system of liberties.

There is no question why the President is doing what he is -- for immediate political gain. The thought is that these five million plus new immigrants will be left wing voters who will, for a generation or more, alter the political balance of power in this country. I oppose that policy on political grounds, but that is for reasoned debate.

But the President's actions take this orders of magnitude outside the realm of a policy argument. This is a fundamental challenge to our system of government that needs to be fought on every level and by every means. If the President's action is allowed to stand, it marks the date of the end our nation as one based on the Constitution and rule of law. Any politician who does not oppose this action is quite simply a traitor to this nation. And if the legislature cannot stop this action, then we must hope that the Courts finally do their job of protecting the sanctity of the system. For if not, than, truly, we "can do nothing more to save the country."

Update: John Hinderaker at Powerline has some very tongue in cheek proposals for amendments to the Constitution in order to clarify, for the Obama administration, the scope and limits of their powers. The irony is that his proposals are quotes from the Constitution.

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Our Non-Democratic Bureaucratic Government

George Washington Univ. Law Prof. Johnathan Turley, writing at the Wapo, has had an epiphany:

[Our federal government] is dangerously off kilter. Our carefully constructed system of checks and balances is being negated by the rise of a fourth branch, an administrative state of sprawling departments and agencies that govern with increasing autonomy and decreasing transparency. . . .

This exponential growth has led to increasing power and independence for agencies. The shift of authority has been staggering. The fourth branch now has a larger practical impact on the lives of citizens than all the other branches combined.

The rise of the fourth branch has been at the expense of Congress’s lawmaking authority. In fact, the vast majority of “laws” governing the United States are not passed by Congress but are issued as regulations, crafted largely by thousands of unnamed, unreachable bureaucrats. One study found that in 2007, Congress enacted 138 public laws, while federal agencies finalized 2,926 rules, including 61 major regulations.

This rulemaking comes with little accountability. It’s often impossible to know, absent a major scandal, whom to blame for rules that are abusive or nonsensical. . . .

Welcome to the party Prof. Turley. Or as Stephen Heyward srites at Powerline of the professor, In Praise Of Slow Learners. As I wrote last year in a detailed post, End The Tyranny - Stop Regulation Without Representation, this as the single greatest systemic threat to our form of government.

To his credit, Prof. Turley concludes likewise:

In the new regulatory age, presidents and Congress can still change the government’s priorities, but the agencies effectively run the show based on their interpretations and discretion. The rise of this fourth branch represents perhaps the single greatest change in our system of government since the founding.

We cannot long protect liberty if our leaders continue to act like mere bystanders to the work of government.

The problem is that this is completely off the radar screen in our national discourse.

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NYT Op-Ed: Let's Give Up On The Constitution

Harvard educated Georgetown Professor of Constitutional Law Louis Michael Seidman has penned an op-ed in the NYT - Let's Give Up On The Constitution. He trashes the Constitution and argues for pure judicial activism - i.e., that judges disregard the original intent of the Founders who wrote and voted on the Constitution in favor of whatever the judge believes is the better solution. He is arguing for a dictatorship of the judiciary. If this is the tripe being taught to our best and brightest young minds, we as a nation are indeed in trouble.

According to Seidman, our nation is dysfunctional because of "our insistence on obedience to the Constitution, with all its archaic, idiosyncratic and downright evil provisions." As he sees it, "instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago."

Rather than get into the weeds of Seidman's many fatuous arguments, it is enough to address Seidman's penultimate argument - that we should at a minimum reduce the Constitution to a mere starting point for discussion of what policies our nation should implement. For, according to Seidman, if we as a nation can't at least do that, than . . .:

. . . perhaps the dream of a country ruled by “We the people” is impossibly utopian. If so, we have to give up on the claim that we are a self-governing people who can settle our disagreements through mature and tolerant debate. But before abandoning our heritage of self-government, we ought to try extricating ourselves from constitutional bondage so that we can give real freedom a chance.

Seidman argument is the purist of deceits. Our judiciary claims the power - granted nowhere in the Constitution - to be the final arbiter of what the Constitution means. The Courts are not the starting point for debate, they are the end point of debate. And if our Judges have no fidelity to the Constituion, then what we are left with is a totalitarian state, where unelected judges are free to impose on our nation whatever policy they wish. That is anything but democracy.

Our Founders provided in our Constitution two separate means by which the people could alter or amend it. It is a measure of Seidman's extreme intellectual dishonesty that he studiously ignores that fact in his arguments, though it is not hard to guess why. Neither of those means of amending our Constitution - used many times over the past 200 plus years - involve Seidman's preferred solution of amending the Constitution by the unilateral decisions of unelected judges.

Twenty years ago, no mainstream professor would dare to have made an argument such as Seidman makes - not merely because it is fatuous, but because it ultimately an attack on the very core of our nation. But today, the progressive left is ascendant and they are taking no prisoners. They wish to remake our nation into a bureaucratic socialist state - a state left with only a bare patina of democracy to keep the unwashed masses fooled. Why not, if the nation can buy that Obama deserved re-election or that the right is at "war with women," they can be fooled by anything.

Update: I note that the Volokh Conspiracy make many of the same arguments as I do above in assessing Seidman's piece of progressive tripe.

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The Oncoming Constitutional Storm

The next debt ceiling vote should be interesting indeed. If Republicans have any cajones at all, they are going to demand real spending reductions from Obama and the left as a prerequisite to raising the debt ceiling. And if they hold firm, Obama will no doubt claim authority under the 14th Amendment to unilaterally raise the debt ceiling. It will be a Constitutional storm.

My suggestion for Republicans at the next debt ceiling talks, after giving Obama all of the tax increases he wants, would be to demand a plan that will reduce the budget deficit by 25%, about $4 trillion, by the end of Obama's term. Obama had previously promised to cut the deficit in half by the end of his first term - that would have been about $5 trillion - and indeed, he has called the accumulation of debt unpatriotic. It is time for the right to hold the line on spending by the left. That is the cliff we need to dive over.

So does Obama have the authority to unilaterally raise the debt ceiling? Short answer - hell no. Long answer:

Art. 1, Sec. 8 of the Constitution rests sole authority for our government to borrow money in the Congress. Specifically:

The Congress shall have Power To . . . borrow money on the credit of the United States.

And indeed, Congressional approval of a debt ceiling increase is required by law at 31 U.S.C. § 3101 and 3101A. All of that said, the people urging Obama to ignore these crystal clear provisions claim that the President has the authority, under the 14th Amendment, to raise the debt ceiling unilaterally. Specifically, they cite to the 14th Amendment's Public Debt clause:

The validity of the public debt of the United States, authorized by law . . . shall not be questioned.

That provision was meant to keep Congress from unilaterally discharging our nation's debts in a sort of pseudo bankruptcy. It does not apply to debts not yet incurred, and indeed, our government takes in more than enough money each month to cover existing debt. As John Malcom at NRO explains:

The president’s defenders argue that if Congress fails to raise the debt ceiling, the United States will immediately start defaulting on its debts, an outcome that the Public Debt Clause deems impermissible. To avoid default, they contend, President Obama could raise the debt ceiling without congressional approval. But this argument is dead wrong.

When the 14th Amendment was passed, Senator Benjamin “Bluff” Wade of Ohio, a proponent, set forth the rationale: “I believe that to do this will give great confidence to capitalists and will be of incalculable pecuniary benefit to the United States, for I have no doubt that every man who has property in the public funds will feel safer when he sees that the national debt is withdrawn from the power of a Congress to repudiate it and placed under the guardianship of the Constitution.”

In 1935, in Perry v. United States, the Supreme Court observed that the Public Debt Clause confirmed the “fundamental principle” that Congress may not “alter or destroy” debts already incurred. However, even if Congress refuses to raise the debt ceiling and additional borrowing is curtailed, the federal government’s revenues are more than enough to satisfy current debt payments and enable it to avoid a default.

Meanwhile, the Constitution clearly provides that borrowing money requires congressional action. In Article I, Section 8, Congress is granted the power “to borrow money on the credit of the United States.” As Andrew Grossman of the Heritage Foundation has explained, the power of the purse — including the authority to tax, spend, and borrow — is clearly legislative, according to the Constitution. Nothing in the Public Debt Clause takes this power away from Congress and assigns it to the president.

President Obama has no more unilateral power to issue new debt on the credit of the United States than he has to unilaterally raise taxes, sell off government assets, or make expenditures that have not been enacted by Congress.

Moreover, the Public Debt Clause refers to public debt that has been “authorized by law.” The debt ceiling is established by statute (31 U.S.C. 3101 and 3101A). If President Obama were to issue an executive order purporting to enable the federal government to borrow more money, thereby incurring public debt in excess of the statutory debt limit, any debt so incurred would not be “authorized by law.” It would, in fact, be contrary to law.

Obama has been running the U.S. as a tyranny, bypassing Congress and assuming powers clearly not authorized by the Constitution. Eric Cantor gives a great roll-up of the examples in his essay, The Imperial Presidency and I have complained bitterly about several aspects of this in a post here. The final straw will be if Obama attempts to claim unilateral power to raise the debt ceiling. This will be a Constitutional crisis. House Republicans should shut down the government if he attempts to do this. And in a rational world, this would be the basis for impeachment.

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Who Voted For The End To Coal?

The Obama EPA's war on coal is nearly complete. On Tuesday, the EPA issued it's first proposed rule for green house gases that will effectively prevent any new coal plant from being built, at least beyond the 20 or so in the pipeline today. This from the CS Monitor:

The Obama administration on Tuesday proposed the nation’s first-ever restrictions on greenhouse gas emissions from US power plants. If approved, the restrictions are expected to sharply curb construction of new coal-fired power plants nationwide.

The proposed restrictions, unveiled by officials at the Environmental Protection Agency, would apply only to new fossil-fuel-burning power plants – limiting them to no more than 1,000 pounds of carbon dioxide emissions per megawatt generated.

A typical coal-fired plant produces more than 1,700 pounds of carbon dioxide per megawatt. Most natural-gas fired plants – the majority of power plants under construction today – emit less than the new standard, around 800 pounds per megawatt.

The Obama EPA's other recently issued rules, the Cross State Air Pollution Rule, Boiler MACT, and Mercury and Air Toxics Standards, all attack existing coal fired power plants. Coal provides nearly 50% of our electrical generating capacity today.

We may be lucky. Obama, when he started the war on coal, sold the fantasy of replacing coal with solar and wind - yet neither are any closer to being cost effective at scale today than they were in 2009. That said, natural gas, which has exploded in recent years, may provide a replacement. Still, the overhead costs of building new LNG plants to replace working coal plants prior to the end of their natural period of operation will be significant. Then there is the question of how much the price of natural gas will rise as demand increases exponentially to replace coal. So whatever happens, electric costs are going to rise, the only questions are by how much and whether we will experience significant disruptions of electric service as part of this top down forced replacement of coal.

All of that said, the question that we should be asking is this, did any of our elected representatives vote into law a bill driving coal from our energy marketplace? No, quite the opposite, when the President's energy plan was presented two years ago, it couldn't make it out of the Senate. So why is it that something so fundamental to our nation is being decided based on regulations made without the approval of our elected representatives and in contravention of Article I, Section I of our Constitution (all legislative power is vested in Congress). This out of control, extra constitutional regulatory bureaucracy is the single greatest systemic problem our nation faces. As I wrote in a prior post, End The Tyranny - No Regulation Without Representation.

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End The Tyranny - No Regulation Without Representation (Updated)

Update: The House has proposed passage of the REINS Act. After reviewing the entire text, I am satisfied that it is the solution needed to restore the Constitutional balance between Congress and the Executive on this most critical issue.

In a dictatorship, laws are passed by unelected government bureaucrats without reference to the will of the people, nor subject to review by elected representatives. So what's the difference between that and our form of government? Today, not so much.

Our Founding fathers created by the Constitution a republic. In Art. I, Sec. I of the Constitution, they vested all legislative powers of our republic in Congress. The Founders further provided a framework that allowed Congress to, at any time, review prior law and, if appropriate, vote to repeal it. And most importantly, the Founding Fathers provided that each Congressman voting for or against the laws was directly subject to the ballot box. We no longer live in that world.

Today, Congress does not solely wield the legislative power of our nation. Indeed, Congress is very far from even being the most important source of our legislation.   Our nation now most clearly resembles the socialist regulatory bureaucracy of the EU, where mountains of regulations with the full force and effect of law are passed by unelected bureacrats.  In our nation today, individuals, businesses, and private and public organizations can be fined, sanctioned, forced to close, and jailed for violating federal regulations that have never been subject to a vote by our elected representatives, nor signed into law by the President. The genius of our Constitutional system of checks and balances is wholly obliterated in the tyranny of our modern the regulatory bureaucracy.

This is a grave issue under Obama, but it is also much bigger than just his wholesale abuse of the regulatory bureaucracy. The growth and dictatorial power of the regulatory bureaucracy is a systemic toxin overlaid upon our government by FDR, and its substantial growth now threatens to wholly undermine our form of government, taking our most important legislation completely outside the purview of our elected representatives.

This has reached crisis proportions under Obama and his administration, who have utterly run amok, passing mountains of regulations drastically effecting our nation, all of which have bypassed Congress.

Under Obama, the size of the Federal Register, wherein all new regulations and modifications to existing regulations are published, grew from 68,000 pages in 2009 to over 82,000 pages in 2011. And Obama is just warming up. A tsunami of new regulations wait in the wings from Obamacare, Dodd-Frank, the FCC and the EPA, none of which will ever be voted upon by a single elected representative. This from Heritage:

During the first three years of the Obama Administration, 106 new major federal regulations added more than $46 billion per year in new costs for Americans. This is almost four times the number—and more than five times the cost—of the major regulations issued by George W. Bush during his first three years. Hundreds more regulations are winding through the rulemaking pipeline as a consequence of the Dodd–Frank financial-regulation law, the Patient Protection and Affordable Care Act, and the Environmental Protection Agency’s global warming crusade, threatening to further weaken an anemic economy and job creation.

The most important consideration as regards these regulations is that, almost to a virtual certainty, none of the major regulations promulgated under Obama could ever have passed Congress to become law - even during the first two years of Obama's administration when Democrats controlled Congress. A partial list of the extra-constitutional regulations and executive actions of Obama's regulatory agencies includes:

- The EPA's decision to regulate carbon dioxide as a pollutant, despite lack of any Congressional authority and in the face of Congress's refusal to pass the proposed energy bill which would in fact have authorized such regulation.

- The EPA's promulgation of the Boiler MACT rules that will cost our nation an estimated $20 billion to reduce certain pollutants emitted from boilers. The regulation was made without reference to health risk thresholds for the pollutants.

- The EPA's promulgation of the Cross State Air Pollution rule requiring 27 states "to cut their sulfur dioxide emissions from 8.8 million tons per year to 2.4 million tons per year (73 percent) and their nitrogen oxides emissions from 2.6 million tons per year to 1.2 million tons per year (54 percent)," at an estimated cost of "up to $120 billion by 2015" and a reduction in the nation’s power supply by more than 55 gigawatts (almost 4 percent), according to the Brattle Group, an economic consulting firm."

- The EPA's promulgation of Mercury and Air Toxics Standards "which could cost an estimated $100 billion by 2017," require modification of over 700 electrical generating plants, and because "it will not be technically possible for some coal-fired power plants to comply, roughly 1 percent of U.S. net electrical capacity will be shuttered."  These new standards were not made in reference to health risk thresholds.

- The EPA, in what can only be described as a war on coal (which provides roughly 50% of our nation's electricity) has through its permitting process, virtually - and unlawfully - shut down all applications for new coal mines. In one particularly egregious case, the EPA cancelled a permit issued in 2007 after it reinterpreted its own regulations.

- The EPA has made yet another power grab, assuming the authority to unilaterally issue fuel standards for vehicles, providing that in 2025, vehicles must get an average of 54.5 mpg.

- The EPA, as part of its rules on biofuels has provided that oil refiners must pay a significant penalty if they fail to mix cellulosic biofuels with their gas.  Cellulosic biofuels, while mandated, are not being produced commercially, thus rendering compliance impossible.  

- The Interior Dept.'s Gulf oil drilling unlawful permatorium in the Gulf after their falsification of a report to justify imposing the permatorium.

- The Interior Dept.'s decision to unilaterally put the eastern Gulf of Mexico, the Atlantic coast, and the Pacific coast off limits for development, effectively banning drilling in those areas for the next seven years.

- The Interior Dept.'s decision to unilaterally cancel 77 leases for oil and gas drilling in Utah.

- The Interior Dept.'s decision to break an agreement with Utah done in settlement of a lawsuit and reinstate an ambitious nationwide plan to unilaterally take more land and ocean territory under federal government control, putting the land off limits for development.

- The FCC power grab, without any grant of authority by Congress, to assume the right to regulate the internet.

- The FCC decision to order the the big wireless providers to sign ‘data-roaming’ agreements with smaller carriers, thus allowing smaller carriers to free-ride on the mammoth investments by the big carriers. "In addition, the FCC made it clear that it is willing to set the price for each data roaming agreement if it doesn’t like what the big carriers are offering–effectively reinstituting price regulation for the most dynamic sector of the economy."

- The DOE's war on Yucca Mountain as a nuclear waste repository that is still continuing. "In 2009, Administration arbitrarily broke federal law and derailed the most studied energy project in American history when DOE announced intent to withdraw 8,000 page Yucca Mountain licensing application with prejudice. American people have paid more than $31 billion (including interest) through percentages of electric rate fees towards the project and taxpayers have footed an addition $200 million in legal fees and over $2 billion in judgments against the DOE for breaking contracts associated with Yucca Mountain."  Note as an aside that Obama's NRC appointee, Gregory Jaczko, did all in his power to thwart the Yucca Mountain project, including quashing an NRC staff report, altering a scientific staff report on the safety of the Yucca site, and withholding critical information from fellow commissioners.  Jaczko, like Holder, still inexplicably retains his position.

- An EEOC letter stating that businesses may be violating a job applicant's rights under the ADA if they require that the applicant have graduated from high school.  

- New DOJ regulations that require, at significant cost, every public pool in America be fitted with a permanent lift for disabled individuals or face stiff fines.

- The NLRB decision to file a frivolous complaint against Boeing for making the decision to open up a plant in right to work South Carolina, thus strong-arming Boeing into a sweetheart deal with the closed union shop plant in Washington.

- The NLRB decision to institute Card Check via the back door, thus dispensing with the right of employees to demand a secret ballot on whether to organize and thus making the union organizing system ripe for coercion and corruption.

- The NLRB, in what poses to be a particularly insidious decision, has approved micro-union organizing of workers holding the same job title in a businesses, regardless whether the majority of employees in the business reject the union.

- The NLRB, in cases where unionizing elections are held, has now provided for "snap elections" by shortening the time frame for such elections to 10 to 21 days after notice to the employers demanding a vote.  This severely prejudices the ability of employers to make the case against unionization among their employees.

- The decision of the National Mediation Board to to make it easier for unions to organize the railroad and airline industries.  "The law, as written by Congress, clearly requires a support of a majority of a group of employees before their employer can be forced to bargain with their union. For 75 years, the NMB interpreted it the same way.  At the AFL-CIO’s request, the NMB changed the rule. There is now no requirement that a union ever demonstrate that it has the majority support of all the employees it will represent.

- The decision of the Dept. of Education to circumvent Congress and make unilateral changes to the No Child Left Behind Law.

- The HHS Mandate that will require religious individuals and institutions who are employers to fully fund free contraception and abortion plan B pills for female employees, irrespective of whether it violates their 1st Amendment rights of conscience.

- An IRS power grab to require that all tax preparers be licensed by the IRS. "The IRS wasn't granted the authority to do this by Congress, they just decided to go for it."

This is out of control and tyrannical.  It is near the polar opposite of what our Founding Fathers envisioned when they drafted our Constitution.  It must end or it will destroy our nation.

How we got here is the story of FDR and a Supreme Court that has utterly failed to defend the plain language of our Constitution. As one Cato Institute expert, Jerry Taylor, pointed out in testimony before Congress in 1996:

Before the New Deal, wholesale delegation of legislative authority to the executive was largely unknown in the United States, at least during peacetime. With the coming of the Great Depression, President Franklin Delano Roosevelt sought sweeping authority to manage the U.S. economy. With the passage of the National Industrial Recovery Act of 1933, he got it. The NIRA authorized industrial and trade associations to draw up codes designed to raise prices and restrict production; if the president found the codes acceptable, he was empowered to immediately issue and enforce them. Upon hearing of the NIRA, Benito Mussolini exclaimed, "Ecco un ditatore!" ("Behold a dictator!")

In 1935 the Supreme Court emphatically rejected the industrial code provisions of the NIRA in A.L.A. Schecter Poultry Corp. v. United States. The Court, led by Chief Justice Hughes, argued that "Congress is not permitted. to abdicate or to transfer to others the essential legislative functions with which it is thus vested." In his concurring opinion, Justice Cardozo famously characterized the industrial code provisions as "delegation running riot." But after Roosevelt's 1937 attempt to subvert the judiciary's independence by enlarging the Court, the Court never again struck down a New Deal statute on delegation grounds. Fear of Court-packing concentrated the mind wonderfully, and the judiciary chose not to stand in the path of the administrative state.

And so it has been ever since. In the 1944 case Yakus v. U.S., the Supreme Court put the final imprimatur on their Constitutional retreat, holding that "Congress could delegate to an executive agent the power to set maximum prices for virtually all goods throughout the economy." They rendered Art. I Sec. I of our Constitution a nullity.

But there was more to come. The final nail in our coffin came with the 1983 Supreme Court decision in Chevron, U.S.A., Inc. v. Natural Resources Defense Council. In that case, the Court granted "extraordinary deference to administrative agencies interpretations of their own authority." The Court held that "when a statute is silent on a particular issue, Congress can be understood to have delegated the power to make the law to the agency." That decision grants deeply non-democratic regulatory agencies vast power - and we can see its effect today in the many power grabs enumerated above in this post.

As Mr. Taylor summed up in his testimony before Congress:

With the judiciary's abdication of its constitutional role, we are left with a legal status quo that effectively centralizes all governing functions in the executive branch agency: Congress passes a statute endorsing a high-minded goal--accommodation of the handicapped, safe drinking water, protection of wildlife--the executive branch agency then issues and enforces the rules governing individual behavior; the judicial branch, for its part, grants "controlling weight" to the agency's interpretations of its own authority. In this way, the modern administrative state comes perilously close to realizing the Framers' definition of despotic government, articulated by James Madison in the Federalist 47: "The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self- appointed, or elective, may justly be pronounced the very definition of tyranny."

Newt Gingrich oversaw passage of the Congressional Review Act during his term as Speaker. It is a law meant to give Congress the authority to quickly stop burdensome regulations. Unfortunately, it has not proven effective. Under the Act, Congress can raise an objection to a regulation within 60 days of its passage. Only a majority in the House and in the Senate are required to quash the regulation - but only if their joint resolution to quash is signed by the President. That makes the Congressional Review Act virtually useless.

The whole problem is a President governing our nation like a dictatorship through the regulatory agencies that are directly, or in some case indirectly, under his control. Thus the Cong. Review Act must be amended to remove the role of the President, requiring only an act of the elected body with "all legislative powers" to decide whether a regulation is to be approved or quashed.

Further, all regulations should be treated precisely as laws. As it stands today, regulations enjoy what amounts to a presumption of treatment as if they were a duly enacted law by Congress. In other words, it will remain in place unless repealed by an act of Congress that passes the House and a super-majority in the Senate.

Regulations should not be easier for government to create and leave in place than the laws of Congress itself. If an objection to a regulation is raised by a member of Congress, then that regulation should only pass into force - or remain in force - if Congress votes to approve it subject to the same standards as any law. That means it must be approved by a majority in both Houses, and as to the Senate, by a super majority if a filibuster is invoked.

Lastly, the time frame of 60 days to object to a regulation must be removed. Just as all laws are subject to being withdrawn by Congress at any time, so must all regulations be forever subject to Congressional review under the framework above.

The above recommendations would do nothing more than put regulations on the same footing as all other laws in our Constitutional system. Let there be no regulation without representation. Our nation's fate hangs on it.

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Krauthammer On The Gospel According To Obama

Pinhead does his best Obama imitation:

 

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In his column this week, Charles Krauthammer disects Obama's forays into the pontifical:

At the National Prayer Breakfast last week, seeking theological underpinning for his drive to raise taxes on the rich, President Obama invoked the highest possible authority. His policy, he testified “as a Christian,” “coincides with Jesus’s teaching that ‘for unto whom much is given, much shall be required.’ ”

Now, I’m no theologian, but I’m fairly certain that neither Jesus nor his rabbinic forebears, when speaking of giving, meant some obligation to the state. You tithe the priest, not the tax man.

The Judeo-Christian tradition commands personal generosity as represented, for example, by the biblical injunction against retrieving any sheaf left behind while harvesting one’s own field. That is for the gleaners — “the poor and the alien” (Leviticus 19:10). Like Ruth in the field of Boaz. As far as I can tell, that charitable transaction involved no mediation by the IRS.

. . . But this Gospel according to Obama has a rival — the newly revealed Gospel according to Sebelius, over which has erupted quite a contretemps. By some peculiar logic, it falls to the health and human services secretary to promulgate the definition of “religious” — for the purposes, for example, of exempting religious institutions from certain regulatory dictates.

Such exemptions are granted in grudging recognition that, whereas the rest of civil society may be broken to the will of the state’s regulators, our quaint Constitution grants special autonomy to religious institutions.

Accordingly, it would be a mockery of the Free Exercise Clause of the First Amendment if, for example, the Catholic Church were required by law to freely provide such “health care services” (in secularist parlance) as contraception, sterilization and pharmacological abortion — to which Catholicism is doctrinally opposed as a grave contravention of its teachings about the sanctity of life.

Ah. But there would be no such Free Exercise violation if the institutions so mandated are deemed, by regulatory fiat, not religious.

And thus, the word came forth from Sebelius decreeing the exact criteria required (a) to meet her definition of “religious” and thus (b) to qualify for a modicum of independence from newly enacted state control of American health care, under which the aforementioned Sebelius and her phalanx of experts determine everything — from who is to be covered, to which treatments are to be guaranteed free of charge.

Criterion 1: A “religious institution” must have “the inculcation of religious values as its purpose.” But that’s not the purpose of Catholic charities; it’s to give succor to the poor. That’s not the purpose of Catholic hospitals; it’s to give succor to the sick. Therefore, they don’t qualify as “religious” — and therefore can be required, among other things, to provide free morning-after abortifacients.

Criterion 2: Any exempt institution must be one that “primarily employs” and “primarily serves persons who share its religious tenets.” Catholic soup kitchens do not demand religious IDs from either the hungry they feed or the custodians they employ. Catholic charities and hospitals — even Catholic schools — do not turn away Hindu or Jew.

Their vocation is universal, precisely the kind of universal love-thy-neighbor vocation that is the very definition of religiosity as celebrated by the Gospel of Obama. Yet according to the Gospel of Sebelius, these very same Catholic institutions are not religious at all — under the secularist assumption that religion is what happens on Sunday under some Gothic spire, while good works are “social services” properly rendered up unto Caesar.

. . . To flatter his faith-breakfast guests and justify his tax policies, Obama declares good works to be the essence of religiosity. Yet he turns around and, through Sebelius, tells the faithful who engage in good works that what they’re doing is not religion at all. You want to do religion? Get thee to a nunnery. You want shelter from the power of the state? Get out of your soup kitchen and back to your pews. Outside, Leviathan rules.

The contradiction is glaring, the hypocrisy breathtaking. But that’s not why Obama offered a hasty compromise on Friday. It’s because the firestorm of protest was becoming a threat to his reelection. Sure, health care, good works and religion are important. But reelection is divine.

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A Multiple Choice Test

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The Left's Constitutional Wish List

Do the left wing in our country see our Constitution as an archaic obstacle to their goals? The recent evidence certainly points to it. The question then becomes, if the left could wage a magic wand, with what would they replace our Constitution?

It was about two years ago that the left's "go to guy" for policy issues, Ezra Klein, complained about the Constitution, that "the text is confusing because it was written more than a hundred years ago."  The left has been working through the Courts to work fundamental changes to the Constitution for 50 years, creating new rights out of whole cloth in many instances while, in other areas of  enumerated rights, limiting them. As to the latter, religion and property rights have been the arenas of the most judicial activism.

Thus it was no surprise when a sitting left wing Supreme Court Justice, Ruth Bader Ginsburg, should opine that Egypt should not look to the U.S. Constitution as a model, but rather to South Africa's Constitution, as it "embrace[s] basic human rights . . . [and] an independent judiciary." Nor is it surprising to see the New York Times weigh in with an editorial, suggesting that our Constitution has many faults. "The rights guaranteed by the American Constitution are parsimonious by international standards," and the Constitution is "difficult to amend." I add as a comment here that it is not difficult to amend our Constitution if you are a federal judge who wants to see their own personal policy choices made into Constitutional law. At any rate, the NYT author then launches into the crux of the left wing criticism of our Constitution:

Americans recognize rights not widely protected, including ones to a speedy and public trial, and are outliers in prohibiting government establishment of religion. But the Constitution is out of step with the rest of the world in failing to protect, at least in so many words, a right to travel, the presumption of innocence and entitlement to food, education and health care.

It has its idiosyncrasies. Only 2 percent of the world’s constitutions protect, as the Second Amendment does, a right to bear arms."

As to a right to travel and a presumption of innocence, the NYT criticism is ridiculous.  Those have been fundamental rights recognized by our Courts since the time of our founding.  Likewise, the left  uniformly hates the thought of an armed populace.  But the real nub of the NYT criticism is that our Constitution does not make us all wards of the state by entitling us all to "food, education and welfare."    

 The South African Constitution so beloved of Justice Ginsburg goes further than merely "food, education and welfare."  It includes:

-  a right to housing;
-  makes affirmative action Constitutional;
-  has a provision requiring regulation of hate speech;
-  provides a right of all workers to unionize and strike;
-  provides a right to a clean environment;
-  allows property to be expropriated not merely for a public purpose, but also "in the public interest;
-  provides an extensive children's bill of rights; and finally,
-  it contains a clause that allows the government to limit the above rights as it deems necessary.

In short it is a leftie's wet dream.  It provides cradle to grave welfare, extensive unionization, it limits property rights, allows for government thought control under the auspices of hate speech, and finally, contains a catch all provision that allows the government to limit all of the above rights.  It is a Constitution that requires big government, massive taxation to provide  the welfare state, and that allows religious freedom on one hand but limits it on the other through hate speech laws and by requiring the state to assume functions that are traditionally charitable.  And on top of that, the catch all provision would allow the government expansive power to drive a gaping hole through every one of the rights.

If you want to see where the left would lead our nation, Ginsburg and the NYT are not exactly hiding the ball.  They would take us from a nation of limited government to a socialist nation with an expansive government.  Unfortunately, through judicial activisim, they are well on the way to achieving their goal.  It is a process that, as Newt Gingrich and Andrew McCarthy point out, must end.

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Obama Blatantly Violates A Broken Constitutional Process

[The President] shall have Power, by and with the Advice and Consent of the Senate, to . . . appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law . . .

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

U.S. Constitution, Art. II, Sec. II.

The other day, the President unilaterally appointed former Democratic Ohio attorney general Richard Cordray to the new Consumer Financial Protection Bureau and, further, appointed three people to the NLRB. In doing so, Obama bypassed the Senate's right to provide "advice and consent" to the appointments, and Obama made the appointments while the Senate was still in session. Obama's actions are outrageous. As Constitutional experts John Yoo from the right and Richard Epstein from the left agree, Obama's action violate the plain language of the Constitution. As Roger Pilon sums this up at Cato:

So what is this? It’s politics — Chicago politics, plain and simple. If any doubt remained, three years into his presidency, that Obama is a master demagogue, with class warfare as his central tool, this incident should dispel it.

This highlights a systemic problem with the whole recess appointment / advise and consent process. One, the President's powers of recess appointment are an anachronism. When this clause was approved in 1787, Congressmen traveled about on horse and in buggies. Congressional recesses could last several months. Today, the reality is that recesses rarely last even a month, and in an emergency, Congress could be reconvened in a day. There is no justification for the recess appointment power today. Its only use is to get around the Constitutional requirement that the Senate consent to the Presidential appointment. That was never its intended purpose.

That said, if there are to be no more recess appointments, then it behooves the Senate to stop filibustering Presidential appointments and give them an up or down vote. The Senate's use of the filibuster to prevent an up or down vote is, in its own way, as much a violation the spirit of the duty to "advise and consent" as is the President's use of recess power to go around the Constitutional duty to receive Senate consent. The current system promotes only gridlock and excessive politicization. Changes to both the recess power and Senate treatment of nominees would lead to a much better and more democratic system.

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