Back in October, 2009 in the midst of frenzied, back-room deal-making to cobble together bare majorities in the House and Senate to enact ObamaCare House Speaker Nancy Pelosi was asked to cite language in the Constitution authorizing the government to force individuals to buy health insurance.  Her arrogant, sneering response:

“Are you serious?”

A bit later Pelosi issued a press release called, “Health Insurance Reform Daily Mythbuster: Constitutionality of Health Insurance Reform.” It was typical of The Left’s abuse of the Constitution:

Reform opponents continue to spread myths about components of the [House Health Care Bill]  including the nonsensical claim that the federal government has no constitutionally valid role in reforming our health care system—apparently ignoring the validity of Medicare and other popular federal health reforms…As with Medicare and Medicaid, the federal government has the Constitutional power to reform our health care system.

This was an obvious obfuscation.  Constitutional objections from many sources, including Liberty Works, were not objections to “reform,” a happy word that could mean almost anything.  The actual objection is that most of the new government powers in ObamaCare are not authorized by the Constitution.

In the Next paragraph Pelosi recited her version of Constitutionality:

…the Constitution gives Congress broad power to regulate activities that have an effect on interstate commerce.  Congress has used this authority to regulate many aspects of American life, from labor relations to education to health care to agricultural production. Since virtually every aspect of the heath care system has an effect on interstate commerce, the power of Congress to regulate health care is essentially unlimited.

This claim of unlimited power shocked anyone who understood the history, language and intent of the Constitution.  A Congress with unlimited power was exactly the outcome the authors of the Constitution were determined to prevent.

The House and Senate went on to enact their audacious, 2,500 page monstrosity, including at least 51 new bureaucracies and hundreds of new powers assumed by the government in defiance of the Constitution.

The political-media establishment joined Pelosi in dismissing anyone who raised a Constitutional Objection as “silly” or “unqualified” or “ignorant of history.”

A lawsuit eventually joined by Twenty-six states was filed against ObamaCare and this week Judge Roger Vinson of the US District Court, Northern Florida issued an order that vindicated the silly, the unqualified and the ignorant.   He declared the individual mandate Unconstitutional.  And because the individual mandate is the scheme’s indispensable funding mechanism he declared the entire act Unconstitutional.

Government lawyers argued that the individual mandate was a Constitutional exercise of Congress’ power to regulate interstate commerce.  But in the Founders era the term “commerce” did not refer to production of goods or provision of services such as health care.  Commerce was buying and selling transactions, in this case across state lines.  The purpose of this clause was to empower Congress to prevent the states from erecting taxes or other barriers to transactions across state lines.

Beginning in the 1940s the Supreme Court issued rulings that changed the meaning of “commerce” from buying-selling transactions to virtually any activity that could be said to be economic.  Then the court expanded the power of Congress to regulate anything that had “a substantial effect” on commerce.  Since virtually any activity could be said to, however slightly or remotely “affect” commerce the protection the people now have from governmental interference in virtually any activity has been reduced to one, ambiguous word, “substantial.”

Judge Vinson reviewed the tortured interpretations of the Commerce clause that served to expand federal power far beyond what was contemplated by the Constitution’s authors.   Then he drew a line at using the Commerce Clause to justify a requirement that every person buy a government approved health plan.    Here’s just one of several excerpts from his opinion referencing the founders and the original meaning of the Constitution:

It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause. If it has the power to compel an otherwise passive individual into a commercial transaction with a third party merely by asserting — as was done in the Act — that compelling the actual transaction is itself “commercial and economic in nature, and substantially affects interstate commerce” [see Act § 1501(a)(1)], it is not hyperbolizing to suggest that Congress could do almost anything it wanted.

The section of the law he referenced does indeed seem to claim the individual mandate  justifies itself in that it will affect commerce.

It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place. If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be difficult to perceive any limitation on federal power and we would have a Constitution in name only.  Surely this is not what the Founding Fathers could have intended.

We are on the leading edge of an historic change in national direction, away from perpetually expanding government, toward a new awareness of and respect for the Constitution.  Growing numbers of people are identifying themselves as “Constitutionalists” and are no longer willing to accept Presidents, Senators, Congressmen and bureaucrats who operate as if they have unlimited power with no Constitutional restraint.

Thursday was the second day of the 112th session of Congress since the Constitution that created the Congress was ratified by the states in 1789.  For the first time in history the entire Constitution was read aloud on the floor of the House of Representatives.  Approximately 100 Representatives came to well of the House one at a time, each to read a few words.

Reactions from Democrats and the establishment media to scheduling a reading of the Constitution have ranged from sneering contempt to outrage.

Washington Post blogger Ezra Klein, who is regularly put forward by his employer as a learned authority on government, said on CNBC that reading the Constitution was a gimmick.  He went on to assert:

You can say two things about [the Constitution.] 1) It has no binding power on anything and then 2) the issue is not that people don’t read the text and think they’re following.  The issue of the Constitution is that the text is confusing because it was written more than a hundred years ago and what people believe it says differs from person to person and differs depending on what they want to  get done.

No binding power on anything?  How ignorant!  Due to its binding power Mr Klein and his newspaper still enjoy freedom of the press!  Elections are still held every two years.  The power of the President, even the current President, is still limited and is still confined by Congress’ budgeting authority.   Someone should whisper to Mr. Klein that the Constitution was written 223 years ago.

Representative Jerrold Nadler (D NY) called reading the Constitution “total nonsense.”  However, he took his turn as one of the readers.

Columnist David Corn wrote a piece with the hysterical title: “The House GOP Weaponizes the Constitution” wherein he  fell back on a typical leftist/progressive debate tactic, the inference that those who want less government really want no government and don’t understand that some government is necessary.   Corn would simply dismiss any consideration of the Constitutional limits on the power of government because…

…for over 200 years, Americans have been arguing over the role of government. The truth is, this is largely a judgment call.

Yes, there are some judgment calls.  The right to freedom of speech does not permit a citizen to cause immediate harm by shouting fire in a crowded theater or to damage another citizen with libel or slander.  But Americans endure thousands of intrusions from the federal government that are clear, unambiguous violations of the Constitution, including the ObamaCare law that will soon:

• Empower the Secretary of Health and Human Services to use force against every American to ensure each of us purchases health insurance, and,
• Empower 51 new commissions, boards and bureaucracies to dictate the terms of every health insurance policy, thus using force against insurance companies and customers in order to implement the opinions of politicians and bureaucrats.

The reading in the House of Representatives turned out to be a respectful and dignified ceremony.  House Speaker Boehner began by reading the preamble, “We the people . . . ”

Boehner was followed by dozens of members of both parties who walked to the podium one at a time, in order of seniority, each reading a sentence or two until they reached the end of the Constitution and all its Amendments.

It remains to be seen how many of them will continue to respect the Constitution they have taken an oath to defend.

Our previous post reveals the blatantly dishonest Commerce Clause precedent now used to abrogate the Constitution and embolden politicians like Speaker Nancy Pelosi to openly claim it grants to Congress unlimited power.

We presented the two most important questions Supreme Court nominee Elena Kagan must be forced to answer in her confirmation hearings:

Does the Constitution impose ANY limits on federal power to intervene, regulate or control The People’s personal lives or business activities?  If so, where in the Constitution does a Supreme Court Justice find those limits?

In this 80 second video Senator Coburn comes close to demanding an Answer from Ms. Kagan.  However, he is apparently uncomfortable with the silence as she struggles to find words that appear to answer without answering and he lets her off the hook.

It is imperative that  Senators bring the Commerce Clause issue to the attention of the public and the voters by demanding that Elena Kagan disclose her views.  She will likely refuse to answer but that refusal will reveal her agreement, that the Constitution no longer operates as a limit on government power.

In the video below Republican Senator Kyle, one of those we depend on to haul the truth out of this reluctant nominee, expresses the astounding view that it would be inappropriate for Ms. Kagan to tell the Senate and the public her views on the Commerce Clause!

I don’t want a Justice who goes into the court with an idea of how she wants to rule in certain cases, with a predisposed notion of how justice should come out.  I want her to read each case based on the facts and on the law and then decide it.

So what is the purpose of confirmation hearings?   If the Senate and the public isn’t even entitled to know if the nominee believes there are ANY Constitutional limits on Federal power then why even hold hearings?  Why not just wave her through by unanimous consent?  Why does the Constitution require the Senate to confirm the President’s nominee?

If Kyle’s prevails, Republican Senators will have let pass a rare opportunity to alert the American People to the dangers ahead.  There won’t be many more such opportunities.

Does the Constitution impose ANY limits on federal power to intervene, regulate or control The People’s personal lives or business activities?  If so, where in the Constitution does a Supreme Court Justice find those limits?

These are the questions Senators on the Judiciary Committee should ask Elena Kagan as her Confirmation hearing continues today.

Even if her confirmation by the Democratic party majority is a foregone conclusion the hearings can still be what liberals love to call “a teachable moment.”  There is in America a renewed interest in the Constitution and the timeless principles of liberty and individual autonomy that guided the visionaries who wrote it.  These hearings can focus public attention on the cancerous accumulation of Unconstitutional power in Washington.

The recently enacted ObamaCare legislation will force unprecedented government intrusion upon us, even including a requirement that every person purchase a government approved health plan. To counter complaints that ObamaCare was Unconstitutional Speaker Nancy Pelosi issued a press release that stated, in part:

The 10th amendment to the U.S. Constitution states that the powers not delegated to the federal government by the Constitution, nor prohibited by it to the states, are reserved to the states … or to the people.  But the Constitution gives Congress broad power to regulate activities that have an effect on interstate commerce.  Congress has used this authority to regulate many aspects of American life, from labor relations to education to health care to agricultural production. Since virtually every aspect of the heath care system has an effect on interstate commerce, the power of Congress to regulate health care is essentially unlimited.

This defiant declaration by the Speaker of the House is an outrage to anyone who understands the Constitution.  Unlimited government power was abhorrent to The Founders.  A Congress with unlimited power over any industry or sector was exactly the outcome they were determined to prevent.

Tragically, over the past century politicians and judges and Supreme Court Justices have brazenly twisted and perverted the language of the Constitution and turned the vision of The Founders on its head, largely through deliberate misinterpretation of what is known as the commerce clause:

“The Congress shall have Power To…regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”

A review of the Federalist Papers and other contemporary writings makes clear that the modern interpretation of this clause as expressed above by Pelosi is definitely not what the original text means.

In the Founders era the term “Commerce” meant buying and selling transactions, in this case across state lines. The purpose of this clause was to prevent barriers to buying or selling across state lines.   The purpose was not to empower the government to run everything.  James Madison wrote in Federalist Paper #22 of problems caused by state governments that had attempted to interfere with commerce:

The interfering and unneighborly regulations of some States, contrary to the true spirit of the Union, have, in different instances, given just cause of umbrage and complaint to others, and it is to be feared that examples of this nature, if not restrained by a national control, would be multiplied and extended till they became not less serious sources of animosity and discord than injurious impediments to the intcrcourse between the different parts of the Confederacy.

Madison cited as a negative example the German empire that, similar to America was an association of semi-independent jurisdictions:

The commerce of the German empire is in continual trammels from the multiplicity of the duties which the several princes and states exact upon the merchandises passing through their territories, by means of which the fine streams and navigable rivers with which Germany is so happily watered are rendered almost useless.

Clearly, this clause was meant to empower the new federal government to regulate interstate transactions, not the products or services that were exchanged in those transactions.  And if a transaction did not cross state lines – purchasing the services of a local physician for example – government was granted no regulatory authority at all.

So how could Pelosi claim the commerce clause, intended to regulate interstate transactions, grants her unlimited power to regulate physicians’ medical practices, dictate the terms of health insurance policies, and require every person to buy one?

The basis for Ms. Pelosi’s arrogant claim of unlimited power, was the Supreme Court’s decision in Wickard v. Filburn, 317 U.S. 111 (1942).  During the Great Depression Congress had imposed limits on crop production, in an effort to help farming businesses at the expense of everyone else by artificially reducing food supply, which would cause food prices to rise.

Mr. Filburn was fined by the government for violating the limit by growing “too much” wheat.  He argued that his entire wheat crop was consumed on his own farm, mostly as chicken feed, and was not sold to anyone and therefore was not an interstate commerce transaction.  Thus, he concluded the federal government had no Constitutional authority to regulate his wheat production.

But the government argued that Mr. Filburn affected interstate commerce by growing his own wheat rather than buying it on the open, interstate market.  The court took the government’s side and the rest is history.  Not only did the court expand the power to regulate interstate transactions to include regulating the amount of wheat product farmers could raise and sell, it was even extended to Mr. Filburn’s personal wheat harvest that was never sold to anyone!

Pelosi and her political allies believe that any idea a politician can conceive is Constitutional as long as it involves an “effect” on interstate commerce. Since it could be argued that virtually any human activity could, however remotely, effect interstate commerce, we are now told by progressives that The Founders meant for Congress to have unlimited power to intervene and control every aspect of our lives.

The Bottom Line:

Does Elena Kagan agree with the political establishment that there are no limits on the power of the federal government? Or, does she believe Wickard v. Filburn was wrongly decided?  If Ms Kagan is not required to answer, the confirmation hearing will have been a useless, tragic farce.

If she does confirm her belief that the government has unlimited power and is still confirmed by the Democrat majority, Republicans will have the once-in-a-century opportunity – if they are up to the challenge – to redirect the national agenda away from vacuous slogans about hope and change, to restoration of Constitutionally limited government based on the principles of liberty and individual sovereignty.

The Senate and House Health Care bills are both Unconstitutional.  They violate the restrictions on government power in Article 1, Section 8 of the Constitution.  So how can Pelosi, Reid and Obama get away with it?  They simply disregard the plain language of the Constitution.

Back in October House Speaker Nancy Pelosi was asked by a reporter to cite the language in the Constitution that authorized the government to force people to buy health insurance.  She dismissed the question by sneering:

“Are you serious?”

A bit later Pelosi issued a press release called, “Health Insurance Reform Daily Mythbuster: Constitutionality of Health Insurance Reform.” It’s typical of The Left’s abuse of the Constitution:

Reform opponents continue to spread myths about components of the [House Health Care Bill]  including the nonsensical claim that the federal government has no constitutionally valid role in reforming our health care system—apparently ignoring the validity of Medicare and other popular federal health reforms…As with Medicare and Medicaid, the federal government has the Constitutional power to reform our health care system.

While Pelosi hoped most of us are stupid enough to be hypnotized by this language, Constitutional objections from many sources, including Liberty Works, are not objections to “reform,” a term that could mean almost anything, but to specific provisions of the House or Senate bills.

In the Next paragraph Pelosi recites The Left’s standard version of Constitutionality:

The 10th amendment to the U.S. Constitution states that the powers not delegated to the federal government by the Constitution, nor prohibited by it to the states, are reserved to the states … or to the people.  But the Constitution gives Congress broad power to regulate activities that have an effect on interstate commerce.  Congress has used this authority to regulate many aspects of American life, from labor relations to education to health care to agricultural production. Since virtually every aspect of the heath care system has an effect on interstate commerce, the power of Congress to regulate health care is essentially unlimited.

To anyone whose even slightly familiar with the history and language of the Constitution, this defiant declaration by the Speaker of the House is deeply disturbing.  Unlimited government power was abhorrent to The Founders, who wrote the Constitution.  A Congress with unlimited power over any industry or sector was exactly the outcome they were determined to prevent.

Tragically, over the past century politicians and judges and Supreme Court Justices have brazenly violated the language of the Constitution and turned the vision of The Founders on its head, largely through deliberate misinterpretation of what is known as the commerce clause:

“The Congress shall have Power To…regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”

A review of the Federalist Papers and other contemporary writings makes clear that the modern interpretation of this clause as expressed above by Pelosi is not what the original text meant.

In the Founders era the term “Commerce” did not include productive activities such as manufacturing, or agriculture or providing medical services.  Commerce meant buying and selling, in this case across state lines.

The purpose of this clause was to prevent unnecessary barriers to buying or selling across state lines.   James Madison wrote in Federalist Paper #22 of problems caused by state governments that were attempting to interfere with commerce:

The interfering and unneighborly regulations of some States, contrary to the true spirit of the Union, have, in different instances, given just cause of umbrage and complaint to others, and it is to be feared that examples of this nature, if not restrained by a national control, would be multiplied and extended till they became not less serious sources of animosity and discord than injurious impediments to the intcrcourse between the different parts of the Confederacy.

Madison cited as a negative example the German empire that, similar to America was an association of independent states:

The commerce of the German empire is in continual trammels from the multiplicity of the duties which the several princes and states exact upon the merchandises passing through their territories, by means of which the fine streams and navigable rivers with which Germany is so happily watered are rendered almost useless.  Though the genius of the people of this country might never permit this description to be strictly applicable to us, yet we may reasonably expect, from the gradual conflicts of State regulations, that the citizens of each would at length come to be considered and treated by the others in no better light than that of foreigners and aliens.

The basis for Ms. Pelosi’s arrogant claim of unlimited power, was the Supreme Court’s decision in Wickard v. Filburn, 317 U.S. 111 (1942).  During the Great Depression Congress had imposed limits on crop production, in an effort to help farming businesses at the expense of everyone else by artificially reducing food supply, which would cause food prices to rise.

Mr. Filburn was fined by the government for violating the limit by growing “too much” wheat.  He argued that his entire wheat crop was consumed on his own farm, mostly as chicken feed, and was not sold to anyone and therefore could not be considered interstate commerce.  Thus, he concluded the federal government had no Constitutional authority to regulate his wheat production.

But the government argued that Filburn affected interstate commerce by growing his own wheat rather than buying it on the open, interstate market.  The court took the government’s side and the rest is history.

Pelosi and her political allies believe that any idea a politician can conceive is Constitutional as long as it involves an “effect” on interstate commerce. Since it could be argued that virtually any human activity could, however remotely, effect interstate commerce, we are now told that The Founders meant for Congress to have unlimited power to intervene and control every aspect of our lives.

The Founders came together from thirteen separate, sovereign states.  They were in favor of individual liberty and against government management of people’s affairs.  But they recognized that some, legitimate governmental functions were necessary to protect and maintain individual liberty.  They wanted most of those functions to be the responsibility of the states.  But they agreed that a limited few could be handled more effectively by a federal government that acted for all of the states at once.

The goal of the founders was to create a federal government with just barely enough power to handle that limited list of functions, but without enough power to intervene in the lives of individuals or challenge the authority of state governments.  They viewed the new federal government being chartered by the Constitution as the servant of, not the master of the states.  They even added the Tenth Amendment, that Pelosi quoted above, to make sure there was no misunderstanding about the strict limits on Federal power

Obama, Pelosi, Reid and most of Congress have very different goals.   They believe an elite few, backed by unlimited government power, can and should make us better than we will make ourselves if we are allowed to live our own lives, free of their supervision.  They believe unlimited government power and reduced individual freedom is justified by the “good” they can achieve through the use of force.

The Bottom Line

The Constitution prohibited Congress from enacting authoritarian ideas, like government run health care, so those who held authoritarian ideas corrupted the Supreme Court in order to nullify the Constitution.  The only way to undo this damage is to elect people to Congress who will obey the Constitution, even though the Supreme Court has ruled that they are no longer required to.

The 100 second video starts very quickly, and it’s hard to understand his first words:

“…we [Senator McCaskill and I] have something in common in that we both took an oath to defend the Constitution.  Her oath took her to Washington, my oath took me overseas with a rifle.”

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Here at Liberty Works we often point out that the Constitution does not authorize any of President Obama’s initiatives, nor most of the current “programs” the government runs.  It does not authorize any bailouts of any banks or companies.  The Obama stimulus, federal health care takeover, and energy initiative,  are all Unconstitutional.

Unfortunately, we’ve come to a sad moment in American history when anyone who refers to, or advocates obeying the Constitution is shouted down as an “extremist” or even a nut case.  The entire political-media establishment is united in defiantly disregarding the Constitution.

But resistance is slowly growing at the state level.  Alaska Governor Sarah Palin has signed Resolution 27, passed by the Alaska House of Representatives, claiming “sovereignty for the state under the Tenth Amendment to the Constitution of the United States over all powers not otherwise enumerated and granted to the federal government by the Constitution of the United States.” The final vote was 37-0, with 3 not voting.

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The full text of the Alaska resolution:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the
States, are reserved to the States respectively, or to the people”; and

WHEREAS the Tenth Amendment defines the total scope of federal power as being
that specifically granted by the Constitution of the United States and no more; and

WHEREAS the scope of power defined by the Tenth Amendment means that the
federal government was created by the states specifically to be an agent of the states; and

WHEREAS some federal actions weaken states’ rights protected by the Tenth
Amendment to the Constitution of the United States; and

WHEREAS the Tenth Amendment assures that we, the people of the United States of
America and each sovereign state in the Union of States, now have, and have always had,
rights the federal government may not usurp; and

WHEREAS art. IV, sec. 4, Constitution of the United States, reads, “The United
States shall guarantee to every State in this Union a Republican Form of Government,” and
the Ninth Amendment to the Constitution of the United States reads, “The enumeration in the
Constitution, of certain rights, shall not be construed to deny or disparage others retained by
the people”; and

WHEREAS the United States Supreme Court has ruled in New York v. United States,
112 S.Ct. 2408 (1992), that the United States Congress may not simply commandeer the
legislative and regulatory processes of the states; and

WHEREAS all states, including Alaska, find themselves regularly facing proposals
from the United States Congress that weaken states’ rights protected by the Tenth
Amendment;

BE IT RESOLVED that the Alaska State Legislature hereby claims sovereignty for
the state under the Tenth Amendment to the Constitution of the United States over all powers
not otherwise enumerated and granted to the federal government by the Constitution of the
United States; and be it

FURTHER RESOLVED that this resolution serves as Notice and Demand to the
federal government, as our agent, to cease and desist, effective immediately, mandates that are
beyond the scope of these constitutionally delegated powers; and be it

FURTHER RESOLVED that all compulsory federal legislation that directs states to
comply under threat of civil or criminal penalties or sanctions or requires states to pass
legislation or lose federal funding be prohibited or repealed.

COPIES of this resolution shall be sent to the Honorable Barack Obama, President of
the United States; the Honorable Joseph R. Biden, Jr., Vice-President of the United States and
President of the U.S. Senate; the Honorable Nancy Pelosi, Speaker of the U.S. House of
Representatives; the Honorable Lisa Murkowski and the Honorable Mark Begich, U.S.
Senators, and the Honorable Don Young, U.S. Representative, members of the Alaska
delegation in Congress; and all other members of the 111th United States Congress.

…the balance of power in determining the course of events — and the fate of the Obama agenda — lies with about a dozen centrist senators, a few of them Republicans but most Democrats.

If the Constitution were still recognized by Congress as the supreme law of the land there would be virtually no federal government involvement in medical services or health insurance, except for the military and government employees.  ObamaCare would not even be considered.

If Obama had bothered to read it, he would know the Constitution doesn’t authorize the government to start it’s own health insurance company or attempt to allocate and ration medical services in order to meet an arbitrary national health care spending limit, imposed by politicians and determined by political horse trading in Washington.

The Wall Street Journal article describes a polarized Congress, with virtually zero Republican support for Obama’s agenda.  On paper, Democrats have a bullet proof majority that should make Obama a virtual dictator.  But eight Democrat Senators from more conservative states are not dependable, lock step votes.  They could  derail ObamaCare.  The article concludes:

So the moderates have power — but toward what end? In general, they want to reduce the 10-year, $1 trillion price tag of the House health bill, and they surely don’t like the idea of paying for the whole thing with a surtax on wealthier Americans. “I would hope what the Senate would look at would be more of a mix” of revenue sources, says moderate Democratic Sen. Mark Warner of Virginia.

Sadly, these “moderates,” like their hard-line liberal colleagues have no interest in protecting the lives and liberty of Americans from an Unconstitutional  invasion by a government bureaucracy empowered to regulate and ration medical services.  Their concerns are strictly cosmetics.  If ObamaCare becomes law it will, like it’s Medicare predecessor, require continuous funding increases.  Any tax limitations the “moderates” win now will last only until the first, inevitable, “funding crisis.”

Apparently no Congressman or Senator has asked what should be the fundamental questions:

• What about individual liberty?
• Is ObamaCare permitted by the Constitution?
• Is the Constitution still the supreme law of the land?

The “moderates” are more interested in milking their temporary political clout.  They strategy will be  to  exchange tie-breaking votes for cosmetic changes in the legislation, PLUS political favors or money from this President who has demonstrated himself willing to ruthlessly disregard Constitutional limits on his own power to get what he wants.  Because their strategy will produce no benefit for themselves if ObamaCare goes down in flames, they must in the end vote to pass it.

Thus, The People are not protected from the threat of ObamaCare by patriotic Senators’ who took an oath to defend The Constitution.  The only possible protection provided by Senators is a potential breakdown in Democrat Party discipline  due to political miscalculation or incompetence on the part of either the “moderates” or party leaders.

Unfortunately, we’ve come to a sad moment in American history when anyone who refers to, or advocates obeying the Constitution is shouted down as an “extremist” or even a nut case.  The entire political-media establishment is united in defiantly disregarding the Constitution.

However, we may be at the very beginning of an historical moment when the nation begins to hold Congress and The President accountable for Constitutional compliance. This week the Oklahoma Legislature took up the matter with a joint resolution that will be sent to the President and Congress, to instruct them on their continuous violations of the Constitution.

Let us hope the Oklahoma Legislature becomes only the first of dozens of Legislatures to stand up and demand that the federal government conform to the Constitution.  The first step should be to repeal the stimulus, the huge, extra borrowing-spending program hyped by President Obama, and passed by the Congress on February 13, before the thousand page bill was even printed, and thus, before any Senator or House Member could read it.

The 75 second TV news segment starts with a 15 second commercial.

The full text of the Oklahoma Legislature’s resolution appears below the video
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Text of Oklahoma Legislature’s Resolution:

WHEREAS, the Tenth Amendment to the Constitution of the United States reads as follows:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”; and

WHEREAS, the Tenth Amendment defines the total scope of federal power as being that specifically granted by the Constitution of the United States and no more; and

WHEREAS, the scope of power defined by the Tenth Amendment means that the federal government was created by the states specifically to be an agent of the states; and

WHEREAS, today, in 2009, the states are demonstrably treated as agents of the federal government; and

WHEREAS, many federal laws are directly in violation of the Tenth Amendment to the Constitution of the United States; and

WHEREAS, the Tenth Amendment assures that we, the people of the United States of America and each sovereign state in the Union of States, now have, and have always had, rights the federal government may not usurp; and

WHEREAS, Article IV, Section 4 says, “The United States shall guarantee to every State in this Union a Republican Form of Government”, and the Ninth Amendment states that ”The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”; and

WHEREAS, the United States Supreme Court has ruled in New York v. United States, 112 S. Ct. 2408 (1992), that Congress may not simply commandeer the legislative and regulatory processes of the states; and

WHEREAS, a number of proposals from previous administrations and some now pending from the present administration and from Congress may further violate the Constitution of the United States.

NOW, THEREFORE, BE IT RESOLVED BY THE HOUSE OF REPRESENTATIVES OF THE 1ST SESSION OF THE 52ND OKLAHOMA LEGISLATURE, THE SENATE CONCURRING THEREIN:

THAT the State of Oklahoma hereby claims sovereignty under the Tenth Amendment to the Constitution of the United States over all powers not otherwise enumerated and granted to the federal government by the Constitution of the United States.

THAT this serve as Notice and Demand to the federal government, as our agent, to cease and desist, effective immediately, mandates that are beyond the scope of these constitutionally delegated powers.

THAT all compulsory federal legislation which directs states to comply under threat of civil or criminal penalties or sanctions or requires states to pass legislation or lose federal funding be prohibited or repealed.

THAT a copy of this resolution be distributed to the President of the United States, the President of the United States Senate, the Speaker of the United States House of Representatives, the Speaker of the House and the President of the Senate of each state’s legislature of the United States of America, and each member of the Oklahoma Congressional Delegation.

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While several members used the hearings as yet another opportunity to perform for the cameras, expressing sanctimonious indignation, one member, Michelle Bachman of Minnesota asked questions that every member should have asked.  At the bottom of this post is a five minute video of her exchanges with Geithner and Bernanke.

First, she asked if the government is “making an historic shift,  jettisoning free market capitalism in favor of centralized government economic planning.” Secretary Geithner said not to worry, that the government was using authority Congress gave it.

Then Ms. Bachman focused on what should be the central question on the mind of every Congressman and Senator. At 48 seconds into the video she began to question Mr. Geithner on Constitutional authority:

REP BACHMAN: What provision in the Constitution can you point to, to give authority for the actions that have been taken by the Treasury Dept. since march of 08?

SECRETARY GEITHNER: oh…uh…well, the congress legislated, in The Emergency Economic Stabilization Act a range of very important new authorities…

REP BACHMAN: Sir, in the Constitution.  What in the constitution could you point to, to give authority to the Treasury for the extraordinary actions that have been taken?

SECRETARY GEITHNER: Every action of the Treasury and the Federal Reserve and the FDIC has been using authority granted by this body, by this body, the congress

REP. BACHMAN: And in The Constituiton what could you point to?

SECRETARY GEITHNER: Under the laws of the land, of course.

That answer, “under the laws of the land” was truly lame, and unworthy of  a fourth grader, let alone a senior government official. If the Constitution authorized the federal government to give or loan or invest money in private banks and insurance companies and other businesses, Secretary Geithner should have been able to cite the clause, where that authority appears.  In fact, no such authority does appear, anywhere in the Constitution.

Representative Bachman deserves emails and letters of appreciation and thanks from all Americans for focusing attention on this qustion.  Most of the actions of the Congress, the Treasury Depatrment, and the Federal Reserve since the Big Bailout began in September have been Unconstitutional.

Sadly, we live in a time when most politicians are either unfamiliar with the Constitution, or just don’t care what it says, unless of course they suffer personally from some action of government.  But the Constitution was written to put restraints on government, to authorize it to perform just a few functions, and to leave all other functions to the states or to The People.

Representative Bachman then asked Chairman Bernanke the same question, regarding the Constitution.  His answer, in part was:

The Congress has the right to authorize funds, which is what they did in The TARP program…

This answer is often given by those who wish to ignore the Constitution’s restraints on government.  It’s true that the Congress is empowered to authorize funds, but only to pay for legitimate, Constitutionally authorized functions. Brenanke’s answer, implying that anything and everything is permitted by the Constitution, as long as the Congress authorizes the funds to pay for it, has been used to justify thousands of Unconstitutional government programs, regulations, and restrictions on liberty.

The Constitution does specifically provide government with the means to deal with companies that become insolvent and cannot meet their obligations:  Bankruptcy Court.  That’s where AIG, Citibank, Bank of America, General Motors, Chrysler, and a several Wall Street firms should be today.   In bankruptcy court a company like AIG is dismantled, the parts that are valuable are sold to third parties and the proceeds are used to repay as much of the  debts and obligations as possible.  It’s a brutal process and reditors and investors usually end up with less than 10% of what they are owed.  But the pain is limited to those who, by their own choice, were  directly involved.

The Bottom Line

Both the Bush and Obama Administrations have chosen to ignore and violate the Constitution.  They have borrowed enormous sums in the name of the taxpayers in order to save companies and financial institutions that became insolvent, from the Constitutionally provided process of bankruptcy.  The cost to the taxpayer is likely to exceed Two Trillion Dollars.  The Federal Reserve is printing Trillions of new Dollars.   This will eventually bring on a round of inflation, diminishing the value of the savings, pensions and life insurance.  It’s time for The People to rise up and protest, to demand that their elected representatives and their government obey the Constitution.
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Various financial publications have come up with estimates ranging from $3 Trillion to $7 Trillion for the total amount of cash and backstop guarantees the government has hurled at problem financial institutions in just three months.

One might expect the new administration to distance itself from this reckless misadventure, but President-elect Obama has embraced and supported these measures.   He has even appointed Tim Giethner, President of the New York Federal Reserve Bank, and one of the three bailout decision-makers in the current administration, to be the next Secretary of The Treasury.

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Wisdom & Ingenuity Vs Courage & Sacrifice

During a recent press conference Mr. Obama offered assurances that we’ll “get through” the economic crisis because he has confidence in:

• “the wisdom and ingenuity  of my economic team (a group of veteran, Washington-Wall Street operatives)”
• “the hard work, courage, sacrifice of the American people.”

So in Obama’s mind, the “wisdom and ingenuity,” the thinking, planning, and economic decision making for 300 million Americans is better managed by a dozen august officials in Washington, and then forced upon the rest of us by the government.

On the other hand, the “hard work and sacrifice” that will be required to reconcile all that ivory tower “wisdom and ingenuity” with the realities of the marketplace will, of course, fall upon us less enlightened slugs out here on Main Street.

Mr. Obama seems not to understand that this is more of the same, anti-liberty hubris that brought us to this point of economic crisis.

Politicians and government officials, attempting to be the source of wisdom and ingenuity for all of us, used laws and regulations to force mortgage lenders to issue subprime loans.  Then they empowered government sponsored Fannie Mae and Freddie Mac, to seek out sub-prime borrowers. They did this, even though there already were private sector lenders that specialized in sub-prime mortgages, putting their own resources at risk.

Now, tens of millions of Americans are suffering serious financial setbacks, and having to exhibit “courage and sacrifice” to endure misery caused by politicians in Washington.

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Too Big To Fail

On a parallel track, a history of Federal Reserve and Treasury bailouts of financial institutions, over several decades, established the concept that some companies are “too big to fail.” The leaders of those companies were thus encouraged to purchase or insure risky mortgage backed securities it now appears they didn’t even understand!  Now, we the taxpayers are funding bailout after bailout of these “too big to fail” institutions, which will soon include General Motors, Ford, and Chrysler.

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A Path To Disaster

America has started down a dangerous new path.  Government is rapidly becoming THE major source of capital and credit, pushing aside private sector sources. This means politicians and bureaucrats, most of whom have no relevant experience or qualifications, are beginning to use the power of government to substitute their judgment for that of entrepreneurs and investors in deciding which enterprises, products and services are worthy of the resources to start up or expand, and which are not.

President-elect Obama seems to be fully supportive of this trend and prepared to accelerate it as soon as his administration begins.  It’s time for those of us who prefer Liberty to the “wisdom and ingenuity” of elite government officials to begin demanding a halt to this madness before our nation is driven into economic stagnation and misery.

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Constitutional Amendment

We have a humble proposal:  A Constitutional amendment that prohibits future bailouts.  The Constitution has never authorized these bailouts, but Congress has done them anyway.  Now, the American People must put the politicians and the Executives and managers of all businesses and financial institutions on notice: In the future they will be totally accountable for their actions and will not be given access to any government funds if their decisions bring down their companies.  No company is too big to fail.

Yesterday we joined the blogosphere frenzy by commenting on a tape that appeared Monday on YouTube, of segments of a 2001 radio interview of Barack Obama.  A transcript of the entire interview is now available here.

During the interview Senator Obama said:

…the Supreme Court never ventured into the issues of redistribution of wealth and sort of basic issues of political and economic justice in this society, and to that extent as radical as people try to characterize the Warren Court it wasn’t that radical.

It didnt break free from the essential constraints that were placed by the founding fathers in the Constitution, at least as it has been interpreted, and the Warren Court interpreted it generally in the same way, that the constitution, as a document of negative liberties, says what the states can’t do to you, and says what the federal government can’t do to you, but it doesn’t say what the federal government or state government must do on your behalf.

Some uninformed commentators and bloggers have slammed Senator Obama for “calling liberty negative.”  Obama deserves criticism but not for that.  “Negative liberties” is a legitimate term, understood by Constitutional scholars for decades, maybe centuries.  Put simply, the concept of negative liberties means the absence of barriers, controls or constraints from government.  the First Amendment is a good example, beginning with a negative clause:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The 19th Amendment secured for women the right to vote.  But it’s expressed in the form of a  negative liberty, restraining government:

The right of citizens of the United States to vote shall not be denied or abbridged by the United States or by any State on account of sex.

The problem with Senator Obama’s position is that he sees “a document of negative liberties” as inadequate.

In the context of this radio interview, what Obama would have government “do on your behalf” is transfer income from those who earn it to others, deemed more deserving by whatever political faction happens to be in control of Congress.  He goes on…

I think one of the tragedies of the civil rights movement was that [it] became so court focused i think there was a tendency to lose track of the political and organizing activities  on the ground that are able to bring about the coalitions of power through which you bring about redistributive change  and in some ways we still suffer from that.

Redistribution of wealth, or confiscating a family’s income and transferring it to others deemed more worthy by the political establishment, is an old idea that saw a revival in the sixties.  The Federal Government already violates the Constitution by redistributing income and providing health care, food, housing, and cash to tens of millions of people.  A majority of American voters has steadfastly opposed this concept whenever it has come up as an election issue. In spite of public opposition Congress has managed to contrive ways to defy the Constitution and expand redistribution.

Senator Obama is firmly committed to redistribution.  He said as much to Joe the Plumber.  In the radio interview he said it was a “tragedy” that the civil rights movement failed to achieve greater redistribution.

Obama’s campaign web site offers a long list of new, Unconstitutional, redistribution schemes.  With the enthusiastic help of of the sold-out media he has deceived millions of voters by calling his redistribution schemes “tax cuts.”

In the language of modern, leftist government, they are “refundable tax credits.” Rather than apply for a cash benefit, individuals and families fill out a forms to file with their tax returns and automatically receive the full amount of the cash benefit from the IRS as a so-called “refundable credit,” even if it exceeds their tax obligation, even if their tax obligation is $0.

We’ve posted the list before, here it is again.