Life

Life, Liberty and Property.  I cannot repeat that enough.  I have covered Liberty, touched on property, but let’s talk about life.  I believe life is about individualism, individual liberty, the right to live as I choose.  We have touched on these concepts in previous posts.  It is important that my actions do not infringe on others rights.  I can own my property, my labor, the fruits of my labor, take care of myself, all without infringing on others.  A right requires nothing from someone else.  Life should require nothing from someone else.

Self-interest and responsibility are truly what made this country great.  As people worked to create a better world for themselves, they produced, participated in free trade, innovated, employed others who produced and participated in trade and the cycle continued.

The economic welfare of all our people must ultimately stem not from government programs, but from the wealth created by a vigorous private sector. – Ronald Reagan

Individual productivity.

Because of liberty and the freedom to pursue our own self-interests, this country has created great innovation, great wealth, raised the standard of living of everyone around us.  No magic. Just self-responsible people making a better life for themselves, working hard to produce a better outcomes and we all benefited.

A rising tide lifts all boats. – John F Kennedy.

This is the path of enlightenment that our founders traveled and ultimately passed on to us.  Our founders read about government and philosophy in the works of great minds like John Locke, Lord Acton, Voltaire, Descartes and Bacon.  During the Enlightenment or Age of Reason of the late 17th and 18th centuries there was a transition to reason and individualism instead of tradition, the traditional lines of authority, the church and the rule of man, kings.  I have quoted some of these authors in my posts.  The end of this period saw the beginning of the United States and could almost be thought to culminate in the thinking that created our constitution, protected our liberty and is embodied in this great nation, setting us on a course to be the greatest most powerful nation on earth.  Individual rights and liberty, powerful concepts!  Our farming fed the world, our industry created the products and innovations that changed the world, our science and technology informed the world and made the unthinkable reality.

Milton Friedman in 1979 when asked if he ever doubted capitalism when he looked around and saw a world of “inequality”  (I would love to hear the definition of inequality in that context) The only cases in which the masses have escaped from the kind of grinding poverty you’re talking about, the only cases in recorded history, are where they have had capitalism and largely free trade. If you want to know where the masses are worse off, worst off, it’s exactly in the kinds of societies that depart from that. So that the record of history is absolutely crystal clear: that there is no alternative way so far discovered of improving the lot of the ordinary people that can hold a candle to the productive activities that are unleashed by the free-enterprise system.

Our government was formed to protect individual rights through the rule of law, stopping infringements on our liberty and protecting us from force and fraud.   I believe James Madison embodied the spirit of the enlightenment.  Madison helped write the Virginia constitution in 1776 and created and presented the Virginia Plan in 1787 at the constitutional convention, most of which formed the basis of our constitution and earned him the title of “Father of the Constitution.”  Madison spent years reading and studying history, philosophy and political theory looking for a framework of government that would create a stable nation that protected individual liberty.  Historian Douglas Adair said of Madison’s work “probably the most fruitful piece of scholarly research ever carried out by an American”  Madison focused on the concept of an extended republic, our republican form of government with checks and balances.  Read Federalist 10 and 51.  One that would have the effects of self-interested factions work against each other as checks and balances instead of trying to regulate or eliminate those factions.  Same with the various parts of the government.  Competing interests can provide great balance and often lead to far better results.

Let not him who is houseless pull down the house of another; but let him labor diligently and build one for himself, thus by example assuring that his own shall be safe from violence when built. – Abraham Lincoln

This is much different than selfless, self-sacrifice, beholden to the public good, the collective, equal outcomes and social justice, enacted through the force of government.  Mandated charity and collectivism.  In order to have equal outcomes and social justice, there must be unequal and arbitrary rules.  Someone must decide who does with less so another can have more to even the results.  That is the rule of man.  That is not equal protection of the laws, not a level playing field.   Redistributing money from one group of people to help another, lessens one group while making another dependent on the redistribution.  If redistribution comes from government, people become dependent on the government.  How can that ever be considered liberating or a legitimate use of government and force.  Remember, government is force.

Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves. – William Pitt

In 1887, Democrat Grover Cleveland vetoed the Texas Seed Bill, stating: I do not believe that the power…of the general government ought to be extended to the relief of individual suffering… A prevalent tendency to disregard the limited mission of this power…should…be steadfastly resisted… Though the people support the government, the government should not support the people. Charity of our countrymen can always be relied upon to relieve their fellow-citizens in misfortune. This has been repeatedly… demonstrated. Federal aid in such cases encourages the expectation of paternal care on the part of the government and weakens the sturdiness of our national character, while it prevents…among our people of that kindly sentiment…which strengthens the bonds of a common brotherhood.

It will be in our self-interest to help our neighbors, to extend the fruits of our labor to our family, friends and neighbors in order to create a better world for ourselves.  As Grover Cleveland said, we have seen repeated demonstrations of self-instituted charity, we are also the most charitable nation on earth.  While there will always be those that choose differently, we must focus on our own lives and responsibilities and do our part in raising the tide.

The 10 cannots: (some falsely attribute these to Lincoln, but reflect there meaning in today’s political climate)
You cannot bring about prosperity by discouraging thrift.
You cannot strengthen the weak by weakening the strong.
You cannot help little men by tearing down big men.
You cannot lift the wage earner by pulling down the wage payer.
You cannot help the poor by destroying the rich.
You cannot establish sound security on borrowed money.
You cannot further the brotherhood of man by inciting class hatred.
You cannot keep out of trouble by spending more than you earn.
You cannot build character and courage by destroying men’s initiative and independence.
And you cannot help men permanently by doing for them what they can and should do for themselves.

Conclusion:
Wealth and liberty cannot come from government.  The best government can do is redistribute, take wealth from some and give to others.  At its best it can protect liberty, but gets its power from infringing on liberty.  As a people we can insist on and hold on to our liberty and freedom, be productive, act in our self-interest, create wealth and create a larger economy, a bigger pie, for all to participate in.  Participation being key.

We all need to find our path to enlightenment and learning, our strengths, our contribution to the production of this great nation.  That is life: learning, growing, producing and enjoying the fruits of our labor!  I will write a future post on “Take care of yourself, do what you said you were going to do and don’t harm others.” To me that is what our founding principles are, that and protecting us in that pursuit.  The pursuit of happiness.

The tagline of this blog; A People who mean to be their own governors must arm themselves with the power which knowledge gives. – James Madison

I predict future happiness for Americans if they can prevent the government from wasting the labors of the people under the pretense of taking care of them – Thomas Jefferson.

Liberty

I have written about “Life, Liberty and Property” as written in the 5th and 14th amendments of the Constitution.  The Declaration of Independence says “Life, Liberty and the Pursuit of Happiness.”  I think Life is pretty obvious, but worthy of its own topic.  But let’s see where the idea of Liberty takes us.  I think that leads into property and the pursuit of happiness.  I believe that liberty requires the protection of property and the pursuit of happiness, the ability for us to acquire life’s essentials through our own individual effort.

John Lock on liberty:
“In the state of nature, liberty consists of being free from any superior power on Earth. People are not under the will or lawmaking authority of others but have only the law of nature for their rule. In political society, liberty consists of being under no other lawmaking power except that established by consent in the commonwealth. People are free from the dominion of any will or legal restraint apart from that enacted by their own constituted lawmaking power according to the trust put in it. Thus, freedom is not as Sir Robert Filmer defines it: ‘A liberty for everyone to do what he likes, to live as he pleases, and not to be tied by any laws.’ Freedom is constrained by laws in both the state of nature and political society. Freedom of nature is to be under no other restraint but the law of nature. Freedom of people under government is to be under no restraint apart from standing rules to live by that are common to everyone in the society and made by the lawmaking power established in it. Persons have a right or liberty to (1) follow their own will in all things that the law has not prohibited and (2) not be subject to the inconstant, uncertain, unknown, and arbitrary wills of others.”

The elements of individual and political liberty, freedom.  The Declaration makes two assertions:
The separate and equal station to which the Laws of Nature and of Nature’s God entitle them… and
…that to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed

Man’s law and Nature’s law.  Political and individual liberty.  Powerful concepts we must vigilantly defend.  As I have written in other posts and is in John Locke’s thoughts, we are restrained by the laws of nature and the laws applicable to everyone, made by the lawmaking power established in society…  Equal protection of the laws and due process.

Liberty is not the power of doing what we like, but the right of being able to do what we ought – Lord Acton

The assumption that there is a morality by the people that cannot come from the government, but from another source, I believe natural law. Acton also said Men cannot be made good by the state, but they can easily be made bad. Morality depends on liberty.

So it appears that liberty requires a morality and morality requires liberty.  Interesting conflict.  But also to me an implication that we cannot legislate morality without diminishing liberty.

“Liberty is established by the conflict of powers.” – Lord Acton

Acton, following ideas by earlier philosophers, most notably Voltaire, credit the emergence of freedom and liberty in Europe as the outcome of centuries of conflict between church and state.  It has been written that neither the church nor the state favored liberty, but in competition for allies granted “immunities and privileges” to towns, parliaments, various groups and corporations. Unable to establish a monopoly of power over the people, through unintended consequences enabled freedom and liberty.

Voltaire, in his Philosophical letters (1733; also known as the letters concerning the English nation), wrote:
Fortunately, in the shaking that the strife between kings and nobles gave to empires, the chains of the nations have been more or less loosened. Liberty was born in England of the quarrels between tyrants.

Condorcet in the 1790s wrote about the decentralized power in Renaissance Italy:
“rivalry between pope and emperor, prevented Italy from being united under one master, and ensured the continuance of a large number of independent societies.”

Ever since the feudal period, and with renewed vigour in the age of absolute monarchy, the Catholic Church fought against State supremacy; and the very fact of this conflict between two great powers has been an effectual safeguard for individuals against the perils of utter enslavement to either. If the Western peoples have succeeded in saving themselves from the stagnant theocracy of the East, it has been because of the age-long rivalry of Church and State, rooted ultimately in the fact that both Church and State were self-contained and self-sufficient institutions forming in fact two separate and independent states. – Guido de Ruggiero

So Liberty exists when we are not ruled over, when one master cannot be established.  In order to not be ruled over and protect our liberties, we establish governments to make law, but also constrain our government through constitutions and enumerated powers…  The power to rule by our consent.

That leads us to our Republic.  The union of our states.  The goal: to protect our liberty.  The preamble of our Constitution says “…secure the Blessings of Liberty to ourselves and our Posterity” the goal wasn’t to create a union or a government in and of itself, to create a master, it was to create due process and constrained power, enumerated power, to secure liberty. The tools to do that were: ” a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare”

Read it again in that light:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

“It has been said that all Government is an evil. It would be more proper to say that the necessity of any Government is a misfortune.” – James Madison

Federalist 10
James Madison in Federalist 10 explains the premise of a Republic and just how that preserves liberty.  It is one of the most important treatises on republics and faction.   It really is a must read and one of the important Federalist papers, here is a link:

http://www.thefederalistpapers.org/federalist-papers/federalist-paper-10-the-utility-of-the-union-as-a-safeguard-against-domestic-faction-and-insurrection-continued

Interestingly enough, our founders built conflict and competition into our government through divided power, as a way to preserve liberty.  We have divided/separation of power through the 3 branches of government, legislative, executive and judiciary.  We have divided power through our city, state and federal governments, our extended republic as Madison covers in Federalist 10.  We also divide the power of church and state. (another post, but we do not want the religion in government policy and we don’t want the state dictating religion.)

Excerpts from Federalist 10:
By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community…

…The protection of these faculties is the first object of government. From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results; and from the influence of these on the sentiments and views of the respective proprietors, ensues a division of the society into different interests and parties.

A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good.

The question resulting is, whether small or extensive republics are more favorable to the election of proper guardians of the public weal; and it is clearly decided in favor of the latter…

The federal Constitution forms a happy combination in this respect; the great and aggregate interests being referred to the national, the local and particular to the State legislatures.

The goal being to slow the flames of passion, faction, and not allow them to rule against individual and political liberty.  Divide power to minimize the effects of faction, thus increasing liberty.

Conclusion
If power is unchecked, a faction can impose its will on an individual, liberty is lost.  We need laws to protect liberty, but the laws must be wise and created by consent.

The power to deter and coerce criminals can be transformed into the power to restrict individual liberty, take property, and impose tyrannical government. – James Madison

So we protect liberty and constrain that power through a division and competition of power.  Division and competition provide the the checks and balances required to secure liberty.  States are one great competition we have.  If I don’t like the policies of my state, I can leave.  Keeping people happy and in the state requires wise policy, an alliance with the people, smart law created by the consent of the people with the common good (individual and political liberty) in mind.

Limitation is essential to authority. A government is legitimate only if it is effectively limited. – Lord Acton

We are losing these very checks and balances, loosening the chains of the constitution by centralizing power.  We are devolving our republic, spiraling towards a national democracy.  We are uniting power not keeping it divided, eliminating the competition, creating a monopoly on power.  Often in the name of social justice or making people do the right thing. It is a power grab by the ruling class. Trying to achieve equal outcomes is the antithesis of equal opportunity (subject of another post.)

“Political atheism: End justifies the means. This is still the most widespread of all the opinions inimical to liberty.” – Lord Acton

Standing up to the enemies of liberty requires us to open our eyes and see the enemy.  It requires a vigilance to learn, understand and fight against those enemies every day.  It requires us to allow others the liberty to their property and pursuit of happiness even if we do not like their approach, even if they only have their own self-interest in mind.  That is liberty.

Rights

What are rights?  How do we define them?  The concept of a right in today’s power driven, power grabbing political class is a flexible concept that they can use to buy your vote.  But, if they can reclassify what is a right and then give them away for votes…  Yes, that is cynical, think deeply on that as we proceed and see if you don’t feel used by the end.  We must get back to the founding principles of a constrained government that protects our freedoms and liberties.  A government that keeps others from infringing on our rights.  The rights we hold that are not granted to us by any government or ruler.

The start of paragraph 2 of the Declaration of Independence:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

Paragraph 1:
When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

Unalienable Rights – Separate and equal station entitled by the laws of nature.  Those are very powerful statements.  It is a lot of responsibility for us to hold and maintain those rights, that station.  But, they are ours to lose.  The only guard is our vigilance to this concept and our demand to keep and have our rights protected, something we only gain through self-responsibility, self-governance.  Remember, the original constitution did not have a bill of rights, The first 10 amendments added after ratification.  The founders did not want to enumerate our rights and make it seem like they were given to us from our government.  If you read the first 10 amendments, they are really a refined set of restrictions on congress to protect specific rights we already had.  Well done really.

So, what is a Right?

To find a definition I had to search a lot of places.  A great start is John Locke.  His two treatises on government in 1690 were the basis for a lot of the founders thinking on liberty, rights, limited government and even wording in the Declaration of Independence.  It is worth a read and study on John Locke and Thomas Hobbes.  Some great philosophical thinkers from the Enlightment.   Side note:
John Locke expressed the radical view that government is morally obliged to serve people, namely by protecting life, liberty, and property. He explained the principle of checks and balances to limit government power. He favored representative government and a rule of law.

Definition of Unalienable Right:
Things which are not in commerce, [such] as public roads, are in their nature unalienable. Some things are unalienable, in consequence of particular provisions in the law forbidding their sale or transfer, as pensions granted by the government. The natural rights of life and liberty are UNALIENABLE. – Bouviers Law Dictionary 1856 Edition

John Locke wrote:
“Reason, which is that Law, teaches all Mankind, who would but consult it, that being all equal and independent, no one ought to harm another in his Life, Health, Liberty, or Possessions…   A Liberty to follow my own Will in all things, where the Rule prescribes not; and not to be subject to the inconstant, uncertain, unknown, Arbitrary Will of another Man.”

Rights are mutually exclusive, my right to life does not infringe on your right to life.   My right to my opinion and free expression does not infringe on your right to do so.  Note, that is slightly more refined than the simplistic free speech.  There are things I can say that begin to infringe on your rights, your safety, your protection and as a civil society we can make laws to limit harmful speech.  But, we must be very careful where we draw that line.  We do not have a right to NOT be offended.  Trying to protect that right would certainly infringe on others rights.  Policing thoughts and speech becomes a dangerous precedence.  If you want the right to free speech you must defend another’s right to speak their mind even if you do not like hearing what they have to say.  That is real liberty and freedom.  That is what it takes to defend your own rights.

A definition of Civil and Political rights:
A class of rights that protect individuals’ freedom from infringement by governments, social organizations, and private individuals, and which ensure one’s ability to participate in the civil and political life of the society and state without discrimination or repression.

Personally I would change that definition to Civil Rights protection laws.  A class of laws that protect an individuals’ rights and freedom…       … Right to pursue happiness.

So, do I have a right to health care?  Or a right to affordable healthcare?  I do not see a way to enforce/protect that right without infringing on another’s right.  Someone else would need to pay for or provide that healthcare.  I am under no obligation by even natural law to provide that service or “right” to another person.  Do not confuse that with a moral obligation or the “right thing to do”, to help my neighbor.  But, I should be able to help my neighbor under my own free will.  By choice, not by force.  Do not confuse what is right with a right.  We all have different opinions of what is right and we are free to have those opinions, but there is really no question on the unalienable rights.  Forced morality and charity is not compassion.  I also believe it breaks the laws of nature, has consequences and begins to erode our rights, not protect them.

I do have a right to pursue happiness (not be given, but to acquire by my own doing); vocation, property, find and procure reasonably priced healthcare from people willing to create that contract with me.  That is a right.  One me must honor and protect.  That is the market.  Remember the definition above, a right are things that are not in commerce.  Things that cannot be sold or transferred.  Let’s not confuse the market, the freedom of the market, the freedom to pursue, contract law and the guarantee of equal protection of the law by due process, with rights.  By the way, like Locke, I believe we only have the guarantee of equal protection, due process and the rule of law because we agree to not infringe on another’s rights as a society.  That agreement is aligned with natural law and the ramifications of not honoring natural law.  As the Declaration of Independence says:
That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed

We gave up some of our rights and powers (infringed on ourselves) to give our government power and due process to protect our life, liberty and property, our right to pursue our needs, our happiness.

Conclusion:
Rights are ours to lose.  Use them wisely and responsibly.  Do not water them down by declaring everything a right in a selfish endeavor, or as a way to gain power, force others to do right.  If I have a right to food, housing, education, healthcare, etc… I am infringing on others rights to liberty, property and their own pursuit while they provide those “rights.”  I am diluting and eroding my own rights.  I must now support others through the “Arbitrary Will of another Man.” If we are Separate and equal in station, individual and equal, we must protect our rights and not infringe on another’s.   We must not vote for the politician that will promise us something at the expense of others, claiming it is a right!  Individual rights are the greatest promise.  The individual is the greatest minority that must be protected.

The Clauses – part III

In the final installment of this series I cover the Establishment, Supremacy and Full faith and credit clauses.

The First amendment states: 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.

Congress cannot pass laws respecting an establishment of religion.  Remember the constitution only applied to the new federal government and new congress.  There were at least 6 states that had established religions when the constitution was ratified.  The constitution would not have been ratified by the states with established religions if they would have been forced to disestablish their religion.  In fact some think the amendment was to keep the new congress from disestablishing the states religions.

There is debate around incorporation doctrine that the 14th amendment and the due process clause only incorporates individual rights.  For example, the second part of this clause, the free exercise thereof, by an individual.  But preventing a state congress from establishing a religion is not an individual right.

We need to be very clear on when religion is being established vs. allowed to be practiced or the free expression thereof.  A city can put a Christmas tree or a manger or any other religious symbol in the town square, that is not establishing a religion.  Only in denying certain religious symbols is it in the realm of establishing, especially denying all but one denomination’s symbol.  I personally think it might be best if the city does not perform the activity at all, but does allow the activity by its citizens.  There is no constitutional question in the latter case.   It is even debatable that it applies to the state to begin with.

We know the framers of the constitution were not in favor of incorporation of the constitution to the states.  There are specific enumerated state restrictions in the constitution, mainly to ensure that power was given to the new federal government.   James Madison proposed a negative or veto power for the new congress on state laws and that never made it into the final draft.  I think Madison felt that we would have great statesmen in the federal government that could protect liberties and provide equal protection of the laws by placing a negative on a bad state law.  But it was decided, wisely I believe, that it was too much power to grant the federal government and I am guessing they could imagine the abuse.  I am glad it does not exist.  So, they did not find it wise for the federal government to be involved in state law except where expressly stated.

Note; there is no such wording as separation of church and state in the constitution.  The phrase “separation of church and state” in this context is generally traced to a January 1, 1802 letter by Thomas Jefferson, addressed to the Danbury Baptist Association in Connecticut, and published in a Massachusetts newspaper.  The constitution does not say we need to keep them separate.

But we must allow the public to define morality, right from wrong, guide their cities and neighbors as they see fit and agree to.  We do not want that legislated by the government, not the federal government for sure.

Some food for thought:
“No government can continue good but under the control of the people; and . . . . their minds are to be informed by education what is right and what wrong; to be encouraged in habits of virtue and to be deterred from those of vice . . . . These are the inculcations necessary to render the people a sure basis for the structure and order of government.” – Thomas Jefferson

“…if the citizens neglect their Duty and place unprincipled men in office, the government will soon be corrupted; laws will be made, not for the public good so much as for selfish or local purposes; corrupt or incompetent men will be appointed to execute the Laws; the public revenues will be squandered on unworthy men; and the rights of the citizen will be violated or disregarded.” – Noah Webster

Article 6 of the constitution says: (paragraph 2) This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

A few keys points.  There are restrictions on states in the constitution, most in Article 4 and Article 1 section 10.  These restrictions give power to the federal government and remove it from the states.  E.g. article 1 section 8 says “To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;” Our Federal government acts as a single entity to the world outside the states and needs power to act on each states behalf.  The clause talks about treaties as well.  So, if the U.S. enters into a treaty with England, all states must abide by it.  There would be too much chaos if foreign nations had to negotiate with each state.  Also laws made to implement the powers of the constitution also become national laws of the land, keeping in mind that power is limited.  This does not grant power to the federal government to make rules to regulate the behavior of the citizens.  They only have enumerated powers in which to act and most of them do not give the federal government power over the individual.  One of the few places this power exists was granted in the 16th amendment. The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration. Which I believe was a mistake and part of the beginning of the end of federalism.  Followed quickly with the 17th amendment, future topic, along with Nullification.  (The states ability to nullify unconstitutional federal laws)

James Madison in Federalist 44 talks about this clause extensively concluding with:
It has been asked why it was thought necessary, that the State magistracy should be bound to support the federal Constitution, and unnecessary that a like oath should be imposed on the officers of the United States, in favor of the State constitutions.

Several reasons might be assigned for the distinction. I content myself with one, which is obvious and conclusive. The members of the federal government will have no agency in carrying the State constitutions into effect. The members and officers of the State governments, on the contrary, will have an essential agency in giving effect to the federal Constitution. The election of the President and Senate will depend, in all cases, on the legislatures of the several States. And the election of the House of Representatives will equally depend on the same authority in the first instance; and will, probably, forever be conducted by the officers, and according to the laws, of the States.

So, the federal government has a constitutional role in creating laws that can bind states, but the federal government is constrained in power by the constitution and the states that put the officers of the federal government in place.  Even the paragraph says laws made… …in Pursuance thereof. Again, be careful when giving away power and rights, I guarantee it will be next to impossible to get them back.  Especially the further away they are given.

Finally, Full faith and credit.  Article 4 section 1 says:
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

This clause applies to judgments, not laws.  One state’s laws do not apply to another, but a judgment rendered in a court in one state can be governed by the federal government in its proof and application in other states.  Congress is granted jurisdiction and due process to be involved.

At the Philadelphia Convention (the constitutional convention), James Madison said that he wanted to supplement that provision in the Articles of Confederation, to let Congress “provide for the execution of Judgments in other States, under such regulations as might be expedient.”

In Federalist 42 Madison explained:
The power of prescribing by general laws, the manner in which the public acts, records and judicial proceedings of each State shall be proved, and the effect they shall have in other States, is an evident and valuable improvement on the clause relating to this subject in the articles of Confederation. The meaning of the latter is extremely indeterminate, and can be of little importance under any interpretation which it will bear. The power here established may be rendered a very convenient instrument of justice, and be particularly beneficial on the borders of contiguous States, where the effects liable to justice may be suddenly and secretly translated, in any stage of the process, within a foreign jurisdiction.

Again, no power to apply state laws across state lines, or control the actions of a state with regard to the treatment of its own citizens.  It allows the prescription of how to prove the acts, records and proceedings.  And it allows for the jurisdiction in execution of the judgments across state lines.  The federal government generally does have jurisdiction when maters cross state lines.

Conclusion:
Again, the constitution provides enumerated powers to our federal government.  They are specific and limited.  While it might be convenient to use one of these clauses out of context to allow the federal government to exceed its power and legislate in a manner we might like, we may even find prudent, It is a dangerous precedent and releases the constitutional constraints that government can then use in ways unseen, in a manner you do not like.  Unintended consequences!  The founders were wise to constrain federal power. “ In questions of power, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.” – Thomas Jefferson

If we find it necessary to grant the federal government more power, we must follow the process in the constitution, Article 5 another future topic, to deliberately amend the constitution.  Let cooler heads prevail, let’s have that debate first.  We must always be vigilant and protect our liberty, or we will wake up to find it gone.

The Clauses – Part II

In the last post I wrote about the General Welfare and Commerce clauses.  This post I will cover Equal Protection clause and Due Process.  I am guessing that will take us many places.  Again these clauses are used to force national laws onto the states, increasing federal jurisdiction, reducing the division of power and creating one size fits all laws with very limited ability to change them, thus reducing liberty.

The Equal Protection clause is found in in Section 1 of the 14th amendment.  Do not forget that our constitution is a document of negative rights, it takes rights away from us, we hold all the rights, and grants them as enumerated powers to the federal government.

The second paragraph of the Declaration of Independence:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed

Section 1 of the 14th amendment reads:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

There is a lot in those words to digest.   First declaring all persons born or naturalized in the United States, Citizens.   Then protecting the privileges and immunities clause first stated in Article 4 Section 2 of the constitution:
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

James Madison wrote in Federalist 42:
“those who come under the denomination of free inhabitants of a State, although not citizens of such State, are entitled, in every other State, to all the privileges of free citizens of the latter; that is, to greater privileges than they may be entitled to in their own State….”

While this clause is vague, a few things to remember.  We own our basic rights, they are not granted to us by our government.  The constitution originally did not apply to the states.  It defined the federal government.  With the 13th, 14th and 15th amendments and in the 1920’s “Incorporation Doctrine” the courts have found the bill of rights can apply to the states as well.  That being said, “privileges and immunities” has never been applied to laws between a state and its own citizens, how a state treats its own citizens.  Furthermore, it does not mean laws of one state apply to/in other states.  Again, this could be abused to create a one size fits all law in one state and make it a national law.  But that has not been done, yet.

The clause means that the rights of a free citizen in a state apply to all who become under the jurisdiction of that state even if not a resident.  It also means that something against the law in your state, but not the visiting state, does not apply to you when you are in the jurisdiction of that state (as Madison said in Federalist 42.)

It has been called the right to interstate travel, it allows a citizen of one state to be a citizen of another state.  It prevents discrimination against people from out of state.  But only with regard to basic rights.  Remember, liberty, freedom and our fundamental rights are what is in question.  This also has the effect of unifying all citizens in the different states into a single nation.  You do not need your papers to cross the border into another state.

Finally we get to due process and equal protection.  Equal protection isn’t about equal rights.  It is about due process with regard to basic rights.  Life, liberty and property.  The application of punishment or protection of a state’s laws must be applied equally to all people within jurisdiction of that state (born or naturalized in that state).

The 5th amendment also states:
No person shall be … nor be deprived of life, liberty, or property, without due process of law

The 14th amendment, applying to the states, no state shall…

I ran across this paragraph in my research.  (from a law school none-the-less)
Generally, the question of whether the equal protection clause has been violated arises when a state grants a particular class of individuals the right to engage in an activity yet denies other individuals the same right. There is no clear rule for deciding when a classification is unconstitutional.

There are some good points here, an interesting clarification on the topic, but one glaring point that I wanted to mention.  “When a state grants a particular class of individuals the right to engage…”  Our government does not grants us rights.  It protects the rights we have.  It can deny a right to certain individuals by following due process and equal protection of the law.  But it does not grant.  That really bothers me.

To the “particular class of individual” or “deciding when a classification is unconstitutional.”  Things get interesting quickly.  None of these concepts are mentioned in the constitution, so this really is not a constitutional question.  We must be very careful not to put words into the constitution.  It starts granting power where none was given, it sets a precedence if you will.  If we want to grant power we must follow the amendment process, due process.

The government can provide benefits or deny benefits to citizens, again based on equal protection of the law and due process.  The law is by nature discriminatory, people under the age of 18 are not allowed to vote.  18 is an arbitrary but equally applied classification.  But if we allow the federal government to start defining classifications, especially based on constitutionality, then we are arbitrarily in the opposite direction determining how laws are applied, arbitrary being the key word.  A different kind of discrimination.  Maybe one we like and are ok with, for now…

So we must allow our states to make the laws we feel are appropriate, we are willing to live by.  Our leaders, especially at the federal level can use their “bully pulpit” and position of leadership to guide us in our judgment to better laws, help us to see the errors in our ways and correct bad laws.  They can suggest changing bad laws.  To me a real statesmen guides us with wisdom.  Does not dictate with the pen and pages upon pages of legislation.

Our politicians, representatives should provide leadership on right and wrong, but should they be able to control right and wrong?

I was challenged writing this particular post.  There is nothing in the constitution that allowed the federal government to put an end to the separate but equal laws of the south.  There is just no language to give them that power.  The law/due process was being applied equally, no one was being denied their basic rights.  But that does not make the laws good or right.  They were in fact in my opinion, misguided and bad.  Segregating people was providing no value in moving our country forward.  It was not in the spirit of all men being created equal.  It was an veiled attempt to try to deny equality, ironically it was a way to classify and control people.  But it still passed constitutional tests.  So what is the remedy?  The remedy is for us to control our destiny, change our laws, be active in our government, chose wise leaders who will speak out against injustice but let us create our laws, in our states.  In a free society we must let people make mistakes so we can learn from them and chose better paths for our future.  We cannot assume to be all knowing.  We cannot expect to get it right.  Right now we are making mistakes we do not see that future generations will wonder “what were they thinking.”  It is the natural course of things.

We will grow, mature our thinking and fix our mistakes.  We must let the states be laboratories of democracy.  We must be proactive citizens and work with our state governments and national leaders to ensure we are making wise laws and growing as a nation.  We must speak out against injustice.  We must educate ourselves and our neighbors.  We cannot sit back and let others do it for us.  We must be active and participate.  If we sit back and let others decide for us, we cannot be surprised by results we do not like.

As president Andrew Shepard (Michael Douglas) said in American President (I know, a movie quote)
America isn’t easy. America is advanced citizenship. You’ve gotta want it bad, ’cause it’s gonna put up a fight. It’s gonna say, ‘You want free speech? Let’s see you acknowledge a man whose words make your blood boil, who’s standing center stage and advocating at the top of his lungs that which you would spend a lifetime opposing at the top of yours.’ You want to claim this land as the land of the free? Then the symbol of your country cannot just be a flag. The symbol also has to be one of its citizens exercising his right to burn that flag in protest. Now show me that, defend that, celebrate that in your classrooms. Then, you can stand up and sing about the land of the free.