Pocket Constitution From Cato.org

Mr. Kahn’s emotional plea at the Democratic Convention caused a run on pocket constitutions at Amazon. The best seller, Pocket Constitution (Text from the U.S. Bicentennial Commission Edition), is the lowest cost version on Amazon but it comes with something extra. In addition to the Declaration of Independence and the Constitution it contains notes allegedly from “American conservative author and faith-based political theorist”, W. Cleon Skouson, who some people think is a conspiracy theorist. I guess you get what you pay for. I am kind of surprised by the sales since free and almost free pocket Constitutions are readily available from various organizations.

Of the various pocket Constitutions I  own, my favorite is the one from Cato. Cato gives me a “free” copy every year I give them money and I give them away to interested people. I think it is the same pocket Constitution the late Senator Byrd from West Virginia carried around in his shirt pocket. When he would get into an argument with fellow legislators about the Constitution, he would yank his out his pocket Constitution and challenge them to show him where the Constitution said that. Since the Constitution says very little about immigration laws, I doubt that Mr. Kahn can use that trick.

I was reading Bill Gardner’s article on The Incidental Economist, Prediction: SCOTUS will find for the King plaintiffs, and I was perplexed by this statement.

The constitutional outcome of a victory for the King plaintiffs would be a radically decentralized federalism.

Since we already have existing state exchanges I am not sure how “radical” of a change this would be. Then I stumbled over the words “decentralized federalism”. Wikipedia defines federalism as,

The term “federalism” is also used to describe a system of government in which sovereignty is constitutionally divided between a central governing authority and constituent political units (such as states or provinces)

I suspect Bill is complaining over the perceived change from a centralized form of federalism to a more decentralized form. Since the states and and the federal government are already using a form of this decentralized federalism in running Medicaid, I do not see a problem if the Affordable Care Act respects the constitutional limits assigned to it. Since no one has attempted to make the case that the federal government has an overriding constitutional issue that requires them to regulate state health insurance, I find it fascinating that Bill was naïve enough to think anything other than decentralized federalism would be constitutionally acceptable. Congress knew that the Affordable Care Act was stuck with state exchanges with some type of federal support and no amount of wishful thinking was going to change that. The federal exchange would be created as a convenience to those states that could not afford to create and manage their own exchange. It was to be the exception and not the rule. The requirement of state exchanges is not a new argument. It was one of the points being made by Senator Baucus in this CNN clip, “Senate Hearing: Tax Credits are available for State Exchanges Only. Senator Baucus explains how The Affordable Care Act sets conditions where Tax Credits are available for State Exchanges Only.“

Since I would like to see major changes in the Affordable Care Act in 2015 rather than 2017, I hope SCOTUS rules in favor of the plaintiffs. The King is dead, long live The King!

I was getting pretty concerned this weekend over the Bundy versus the Bureau of Land Management(BLM) fiasco this weekend. I saw a couple of scenes that looked they were one small step from re-enacting the Waco siege. The Waco siege or otherwise known as the Waco massacre is is not one of the bright spots in American history. It purportedly was about the sale of automatic weapons but it was so botched that the only thing most people remember is all of the people who died unnecessarily. It is a vivid reminder of the pitfalls when you to try to defend yourself against the government. In the case of the Mr. Bundy versus the BLM, wiser heads prevailed and the BLM backed down. What I found interesting is what Mr. Kornze said,

“Based on information about conditions on the ground, and in consultation with law enforcement, we have made a decision to conclude the cattle gather because of our serious concern about the safety of employees and members of the public.”

This weekend I also caught up with Justice Steven’s opinion in the Washington Post on how to fix the Second Amendment. In that piece he argues everything would have been fine with the Second Amendment if the authors had said,

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the Militia shall not be infringed.

Unfortunately he ignores the fact that our Bill of Rights was based on the English Bill of Rights and common law history. Here is what Wikipedia says.

The right to keep and bear arms (often referred to as the right to bear arms or to have arms) is the people’s right to have their own arms for their defense as described in the philosophical and political writings of Aristotle, Cicero, John Locke, Machiavelli, the English Whigs and others.^[1] In countries with an English common law tradition, a long standing common law right to keep and bear arms has long been recognized, as pre-existing in common law, prior even to the existence of written national constitutions.^[2] In the United States, the right to keep and bear arms is also an enumerated right specifically protected by the U.S. Constitution and many state constitutions^[3] such that people have a personal right to own arms for individual use, and a right to bear these same arms both for personal protection and for use in a militia.^[4]

The concept of the “right of the people to keep and bear arms” is derived from the English Bill of Rights 1689 which states:

That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law.

Now we get to the $64 questions. Were the authors of the second amendment deliberately vague in phrasing this right so as to allow citizens to act as the political counter-balance to thuggish political actions by the executive branch and to allow the judicial branch some discretion in how the law was enforced? I suspect that Justice Steven’s solution would only recognize a militia that was duly authorized by the legislature.  This would make a mockery of the people who felt the Bundy’s grazing rights had been trampled on solely to support a misguided environmental concern voiced by a major donor to Senator Harry Reid. The idea that people in the government would engage in thuggish political actions solely to benefit their friends existed long before the Bill of Rights and I suspect King George III would have agreed with Justice Stevens on the importance of restricting the right to bear arms. The right of the people to keep and bear arms appears to have been a veiled threat intended to convince our politicians whether they be Kings, Prime Ministers, or Presidents that they should fear the wrath of their citizens whenever they stop listening and respecting the grievances of the citizens.

The second of the $64 questions is why is Justice Stevens arguing this point at the same time the Administration has garnered their place in history as the best gun salesman ever. This bustling market for guns looks like a bigger problem than one that can be solved by adding five more words to Second Amendment. The more the Administration talks the worse the problem gets. When Vice President Joe Biden gave us his opinion on self defense, my wife went out and bought a shotgun. Now we own two guns and I sarcastically refer to the shotgun as Joe. If Justice Stevens and the Administration really wanted citizens to own less guns then they should seriously consider doing the opposite of what they are doing.

The third $64 question comes from The Second Amendment As Ordinary Constitutional Law piece by Glenn Reynolds of Instapundit fame. He asserts that the “individual right to arms, not just “state armies”””a right that was, in fact, not at all dependent on the individual’s membership in any organized body or militia” is ordinary constitutional law. If that statement is true then why is Justice Stevens trying to make the link of the right to bear arms to participation in the militia? Isn’t that already settled?

Yesterday my wife and I sat down to watch this video clip on reason.tv, Randy Barnett: Losing Obamacare While Preserving the Constitution. Since Randy was one of the leaders in the constitutional challenge to Obamacare, I read several of his legal criticisms and was curious what he had to say about the decision. He is by definition one of the original sources of the legal challenge to Obamacare. In the interview Randy talks at length about the libertarian view of the Constitution. I learned that my political leanings can be described as more of a constitutional libertarian than a traditional conservative. I remain skeptical about the big government decision making process. I do not have a problem with government occasionally making a bad decision but it seems too easy for big government decision makers to make really big, bad decisions. This remains a fuzzy definition since it is so difficult to define what a conservative, liberal, and a libertarian view is anymore. Here is one of the highlights of the interview.

Barnett argues that the chief justice “substituted a less dangerous tax power for a far more dangerous Commerce Clause power." Had the Supreme Court accepted the government’s theory of the Commerce Clause, Barnett explains, Congress would have had the power "to do anything it wants with respect to the economy."

The best historical example of a socialist government before the 20^th century is the government under Roman emperor Diocletian. Our founding fathers were probably familiar with this type of government and wisely chose not to follow this example. Peter Earle has written a nice piece, Of Krugman and Diocletian – Peter C. Earle – Mises Daily, that discusses the debate Ron Paul and Paul Krugman had about the Diocletian government and its relevance to our modern day governments.

I have been toying with the idea that our modern form of federal government has expanded its power beyond its ability to make good governing decisions on several issues that used to be the responsibility of states. One of the key problems at the federal level is the disconnect between tax revenue and government benefits. It is natural to expect that if spending limits are not placed on federal politicians, they will take advantage of the situation to expand benefits. As a result programs such as Social Security and Medicare which started out with good financial intentions quickly degraded into programs that were dependent on the next generation to pay the bill. It was inevitable that these programs would run into a population mismatch between the group receiving the benefits and the group paying the bill. Asking the next generation to pay for the politically sound but financially stupid management of these programs is not really feasible. This is a lousy way to run a program but is the natural result of deficit spending at the federal level. If we cannot institute spending controls at the federal level, it makes sense to transfer control of these programs to the state level where balancing the budget and spending controls is a more familiar practice.

The modern administrative state is a behemoth incompatible with the rule of law.

Government By ‘Expert’ | Hoover Institution