John L. Overland, Jr., a Texan and former military officer and police officer, moved to New York City to marry in 2005.  He now practices law in Manhattan.

Fighting Back - Part III

“Fightin’ Back”

1 May 2010

                        “The American people will never knowingly adopt socialism.  But, under the name of ‘liberalism’, they will adopt every fragment of the socialist program, until one day America will be a socialist nation, without knowing how it happened.”

                        In the prologue to this series I wrote that perhaps we needed the disaster that is the Federal government under Obama, Pelosi, Reid, and their devoted sycophants in the Congress and the media and this quote, credited to a Norman N. Thomas, only reinforces the point.   That is because up until very recently, the socialists have been content to chip away at our liberties bit by bit over the decades and for the most part we have shown very little interest in our government or our Constitution and thus we have failed to resist.  It has only been the open, naked dishonesty displayed by Obama and this Congress, most notably during the debate and vote on health care “reform,”  that has awakened us and aroused our anger.  

                        Of course, the socialists will tell us that the policies that they have advocated over the years were not intended as power grabs but were advocated instead in the interest of providing for the poor (especially the “little children”), protecting the environment, and other causes.  And through the years we have willingly acquiesced.  After all, who is against helping the poor, especially their children?   But these assertions fail when one evaluates these policies from the standpoint of identifying who really benefits from such policies.   The sad fact of life is that despite decades of New Deals, Fair Deals, Great Societies, and a “War on Poverty” that has been fought for at least as long as I have been alive, poverty is winning and, as Jesus taught us, the poor are still among us.  An honest evaluation can conclude only that the poor have not benefited from these programs but instead have been condemned through these policies to exist as a permanent underclass. 

                        The second sad fact of life is that many of those politicians and those who support their policies, who make great public displays of railing against the privileged wealthy,  are themselves very wealthy and whatever their desire to help the poor they will never give one dime of their own money to help.  I assure you that these people write laws that are designed to protect their own wealth while they steal your earnings and property, and those who vote for and support them have legions of tax attorneys and accountants who are very well paid to do the same.  It is more in their interest to give generously by taking from us.   It is also very much in their interest to create that permanent underclass that will forever be receptive to the class warfare arguments of the socialists as well as one that will forever be dependent upon the socialists being in power for their basic needs.   On a more sinister level, it is also very lucrative for socialist governments to take our precious rights away and, for substantial and prohibitive fees, give them back as privileges under license.  New York’s “Sullivan law”, the law that governs licensing of gun ownership in New York, is a classic example.   This law, purportedly enacted to advance the social policy of controlling crime, has been abused such that only the very wealthy and very politically connected in New York City may own a handgun.  The legislation and policies so beloved of the socialists thus enable a continuing and parasitic relationship where the socialists buy votes from those they have condemned to poverty with other peoples’ money and property.

                        So the question becomes how does one fight back to stop and reverse the calamitous course charted for us by decades of socialist deception and our own inattention?  I have a few suggestions.

Study the Constitution:

                        This is the cornerstone of fighting back.  Too many of us have been content to sit back and let the Federal courts tell us what is Constitutional and what is not, forgetting that the judges and justices who have rendered such decisions are fallible human beings who rely as much upon the erroneous decisions of past courts to tell them what to decide as much as we have simply accepted their decisions without criticism or resort to recourse.   (This indoctrination begins even in our high schools and continues in our universities --- I wish I had a dollar for every time I was told that the Tenth Amendment merely provided a “police power” to the States.  Nothing could be further from the truth!)  And way too many of these justices and judges themselves have agendas advocating an all-powerful, “progressive” Federal government.

                        A working knowledge of the Constitution, to include a reading of the Federalist Papers and the Declaration of Independence, arms the people with the knowledge to understand how the government is supposed to serve us, the rights protected under the Bill of Rights, and to understand when a decision is actually based on the Constitution instead of upon an ends-justifies-the-means analysis (again, the “living, breathing document” theory) so beloved of the Left.  More importantly, it arms the people with the means to resist laws and judicial decisions of dubious Constitutionality and provides them with the means to overturn such laws and decisions.  (Now you understand why I love Article V so much!)

                         The good news is that, especially among those in the Tea Party and Town Hall movements, there is an increasing intellectual discussion of the Constitution and the social contract theory upon which it is based among those involved.  And the States, long silent and acquiescent in submitting to ever-increasing and unconstitutional Federal encroachments on their reserved rights and powers, are finally waking up and are actively resisting the Federal government to restore the proper Constitutional balance of powers between the States and the Federal government.  The bad news is that the Federal government, and the socialists who now control it, have been allowed to run rampant over these rights for so long that the battle is certain to be bitter and prolonged.  Which brings me to my second suggestion.

 Survive- or Prevail?

                        I began this series with a quotation from Gordon Liddy’s When I Was a Kid, This Was a Free Country and it is appropriate that I conclude this series with an additional lesson from his book.   As stated above, the socialists strive to create a permanent and dependent underclass to keep them in power and to that end, they are preaching to that underclass that they cannot work and make it on their own but instead must rely for the rest of their lives upon a redistributive government for their support and survival.  Each of us must, therefore, decide whether we wish to be content with merely surviving at a lower but equal standard of living, or whether we wish to prevail.

                        In his classic book, Liddy writes that “to survive” means merely “to continue to live or exist.”  In contrast, “to prevail” means “to overcome; to gain the victory or superiority...to win; to triumph; to be victorious.”  I agree with Mr. Liddy, to strive to prevail is to live a completely different way of life!

                        One of the reasons that the socialists have continually been able to achieve power was by convincing many Americans that they could not make it on their own and that their only hope resides in a powerful government capable of providing for them.  You need not merely accept my word for that:  Obama said so himself to “Joe the Plumber” during the 2008 election campaign.  Too many of us have bought into that crap.  We need to learn again the values and virtues of self-reliance.  As an example, when I moved to New York in 2005 the only work readily available to me was temporary document review projects and making per diem court appearances for other attorneys.  I chased such work for fifteen months while seeking a full-time position and was often awake as early as 3:30 AM responding to position announcements and sending resumes before I was finally hired full-time, but I prevailed.  More to the point, throughout that time it never occurred to me to demand that government take from someone else to provide for me. 

                        I mention that example not out of narcissism but because that is the example that leaps to my mind.  There are other, more compelling examples of everyday, normal people prevailing against seemingly overwhelming odds.  The ordinary working  Americans who call into The Dave Ramsey Show thrill and inspire me as they tell Dave Ramsey how they overcame crushing debt and have begun to build their own wealth.   I challenge you, which is the more empowering and inspiring:  Dave Ramsey, his message of getting out of debt and personal wealth creation and of those Americans who are prevailing over debt and dependency, or the tired and clichéd “you’re-too-stupid-and-weak-to-do-it-yourself” class warfare message so beloved of the socialists?

Be Vigilant:

                        Yes, we can vote these scumbags out of office, but it won’t mean a thing if we don’t carefully and continually watch the people who take their place and the judiciary appointed by them.  That means reading and learning about the legislation that these people are proposing and making your views known about them.  It also means campaigning for referendums to vote these people out should they fail to vote the will of their constituents --- as so many of our senators and representatives did during the fight for health care “reform.”   It also means not simply giving up and accepting the decisions of activist judges and justices who cling to the “living, breathing document” theory of Constitutional interpretation the way that I (in Obama’s terms) cling to my guns and religion. 

                        If your State is actively resisting the Federal government’s encroachment on their powers and your rights, actively support your legislature and governor.  If your State is not, tell you elected State representatives to get with the program.  The great news is that despite the socialists’ blatant disregard for our concerns (as was made more than apparent during the debate and vote on “Obamacare”) an active and vocal State resistance is rising.   At least one State is actively challenging the Federal government’s power grab via the Commerce Clause by enacting laws stating that firearms produced and marketed within its boundaries are not in the stream of interstate commerce and are not subject to Federal regulation.  This is bold!  Several State legislatures have passed or have pending legislation reclaiming their rights and powers under the Tenth Amendment.  Thirteen States banded together after Congress’ vote on Obamacare to challenge Obamacare’s Constitutionality, and more States are joining in as of this writing.  This is exciting stuff!

                        It will take hard work and determined effort to overcome decades of neglect and to restore the liberties that have been stolen from us by the Federal government under liberalism during that time.  But again we can prevail, if we have the necessary will.                                                                               

               John L. Overland, Jr., a Texan and former military officer and police officer, moved to New York City to marry in 2005.  He now practices law in Manhattan.            

Fighting Back - Part II

 The “Living, Breathing Document” Theory of Constitutional Interpretation and the Need for Vigilance

17 April 2010

                        The careful reader of these commentaries will note that I keep returning to a debate raging between those who believe that the United States Constitution is a social contract and those who believe the Constitution to be a “living, breathing document.”    Those who believe in the social contract theory maintain that the Constitution is a contract between the citizens (or the “governed”, to borrow from another uniquely American document, the Declaration of Independence) and the Federal government which specifically defines and limits those powers the governed have provided to the Federal government.  The proponents of the “living, breathing contract theory” maintain that the Constitution is malleable enough such as to be “interpreted”, rather than amended, to fit a supposed greater good and to adjust to changing times and circumstances.

                        I reject the “living, breathing theory” for three main reasons.  First, as a practical matter the Constitution already has a mechanism for amendment to meet any particular need or change in times, namely Article V.   While amendment of the Constitution in accordance with Article V is a slow and cumbersome process, this process, as with most procedures stated in the Constitution, is to make sure that any amendment proposed and ratified is the result of deliberative thought and not the pathetic result of emotions run amuck.  Second, as one who advocates the social contract theory I understand that each article, clause, and amendment is intended to limit the powers of the Federal government to only those necessary to “provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our posterity.”  Finally, I understand all too well what kinds of powers a Federal government might interpret for itself if permitted to follow the “living, breathing document” theory of Constitutional interpretation.

                        In the first part of this series, The Constitution --- the “Tax and Spend Power”, this commentary examined how the tax and spend power provided Congress in Article I, Section 8 has been interpreted over the years such that the term “general welfare” means pretty much whatever Congress wants it to mean.   But did you know that our Supreme Court once held that Congress had the power to regulate wheat grown on a farmer’s land regardless of whether that wheat was grown for private use or for market?  This is true:  in 1942 the United States Supreme Court held, in Wickard v. Filburn (317 U.S. 111)  that Federal regulation of the production of wheat not intended in any part for commerce but wholly for consumption on the farm is within Congress’ power.   In this case the Court held that even though the activities of this particular farmer --- namely, wheat production --- was local in nature the Court looked to the effect of the farmer’s intrastate activity on  interstate commerce as a whole.  Since the Federal statute had been intended, among others, to control the price of wheat (which is determined upon consumption and demand), the Court held that Congress had the power to regulate even this particular farmer’s portion of wheat production that he had grown for his own use.

                        If you have already determined that the Constitutional power under which this particular law was held to be Constitutional was that power generally known as the “Commerce Clause”, give yourself another Gold Star.   Article I, Section 8, clause 3 provides, in relevant part, that Congress shall have power “To regulate Commerce…among the several States…”  Historically this clause was enacted to address those flaws concerning interstate commerce (or trade among the States) encountered during our Nation’s history under the Articles of Confederation.   While the Wickard case provides a historical analysis of Congress’ evolving legislative activity under the Commerce Clause (as the United States evolved from an agrarian society to a more industrial one), to deem crops grown for personal use “commerce” subject to Federal regulation is, I respectfully assert, a tremendous leap from that definition held by our Founders.  While it is encouraging that more recent Court decisions have been more restrained, does anyone really doubt that a future Court may return to Commerce Clause analysis under the “effects” doctrine should a future Court so desire?[1]

                        Of all of the cases invoking the “living, breathing document theory” of Constitutional law, however, perhaps none sparked so much outrage as the 2005 decision Kelo v. City of New London (545 U.S. 469).  In that famous case, the Court held that for purposes of the condemnation of private property under eminent domain, “public use” included seizure of private property for transfer to another private entity if intended as part of a government plan to revitalize an economically distressed area (oh --- and to generate property tax revenues, of course).  As brilliantly observed by Thomas Sowell, however (“Good Riddance”, April 13, 2010), while retiring Justice John Paul Stevens wrote for the majority that Federal courts maintained “great respect” for State legislatures in determining public needs, isn’t the Fifth Amendment --- where we find the “takings clause” --- and its requirement of a public use as a condition for government seizure of private property intended to restrain government, in this case to protect our rights to private property?

                        Those of us who have been to a courthouse understand that the architectural design of the courthouse (resembling the Greek columned temples of ancient times), the somber black robes of the judges, and the elevated position of the benches upon which they sit are intended to inspire awe in those who are in attendance as well as confidence in the wisdom of those judges in their decisions.  But I understand fully that despite the black robes and the temple architecture these are still only human beings and these courts are the same courts that gave us the Dred Scott and Plessey v. Ferguson cases.   While these cases have long since been overturned, it would do each of us who love and cherish liberty to remember that and to vehemently oppose and resist their efforts to amend our Constitution through the “living, breathing theory” of Constitutional interpretation.

               John L. Overland, Jr., a Texan and former military officer and police officer, moved to New York City to marry in 2005.  He now practices law in Manhattan.

Fighting Back - Part I

The Constitution---the “Tax and Spend Power”

3 April 2010

                        In the prologue to this series, I wrote that each of us have to become “reacquainted” with the Constitution.  I was wrong: it is not enough for each of us to merely become “acquainted” with it, we must read and understand it and the history behind this important document to fully appreciate the limited role the Founders intended for the Federal government and how these limits protect liberty.  As an example of the consequences of ignorance concerning what this important document actually provides, please consider the recent response of Representative John Conyers (D-Michigan) when he was asked what authority Congress had to require individuals to buy health insurance.  Conyers replied that Congress’ authority came from the “good and welfare clause.”   Note to Conyers: there is no “good and welfare clause” in the United States Constitution. This ignorance becomes all the more appalling when one considers that Monsieur Conyers presides as chair over the House Judiciary Committee.  

                        Oh well.  Let’s be kind and give this nitwit a little help, shall we?  Article I, Section 8 states, in relevant part, that Congress “shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the Defence and general Welfare of the United States.”    Perhaps this is what Conyers meant when he referred to the “good and welfare clause.”  Let’s be kind and assume that he did.

                        The Founders, steeped in the social contract theories of Locke and Rosseau, carefully crafted our Constitution to provide a federal government at the national level which was powerful with regards to limited areas of national life, with the vast majority of powers and rights retained by the people and the States.   Unlike any other social contract in history, however, this Constitution was intended as a written document specifically enumerating (and thus limiting) the powers of the new Federal government. As a written document specifying carefully limited powers, the terms of this social contract were specifically enumerated and are capable of enforcement.

                        Even so, the Constitution was a tough sell. Many citizens were suspicious of a strong Federal government and wanted assurances of their liberty.  The Bill of Rights (the first ten amendments to the Constitution) was drafted to provide assurances of liberty, to include the Ninth and Tenth Amendments which provide (1) that all powers not delegated to the Federal government reside in the States and (2) that the enumeration of certain rights in the Bill of Rights did not mean that the people were limited to those specific rights.  In short, the people retained even more rights than those specifically protected under the first eight amendments in the Bill of Rights.   Additionally, an intensive public relations campaign was conducted to assure the public that the Constitution would protect their liberty and that the vast powers would reside in the States.  Alexander Hamilton, James Madison and John Jay wrote and published a series of essays now collectively referred to as The Federalist Papers  to provide Americans with further assurances that the powers of the new Federal government would be limited to those enumerated in the Constitution.  It was on these assurances, and on the further assurances of liberty provided in the Bill of Rights, that ultimately led to the ratification of the Constitution by the States.

                        But as careful as the Founders were in drafting this document, they were not careful enough.   While the focus of the current debate on Congressional power to pass Obamacare has been on the Commerce Clause, this commentary focuses on Mr. Conyers’ “good and welfare clause” (more accurately referred to as the “Tax and Spend Power”) and how this power has evolved through the years to provide Congress carte blanche to reach far beyond its Constitutional restraints and to achieve any end it desires.   

The “Tax and Spend” Power:

                        Mr. Conyers’ “good and welfare clause”, more appropriately referred to as the “Tax and Spend Clause”, has unfortunately been manipulated such that Conyers almost has a point.  That is because the tax and spend power has been the battleground for two competing factions since the establishment of the Republic.  One faction, represented by James Madison, maintained that the tax and spend power applied only with regard to the other powers enumerated in the Constitution in Article I, Section 8.  The other faction, headed by Alexander Hamilton, viewed the tax and spend power as a broader power to promote the “general welfare” of the United States.  While history is full of examples of  Madison’s analysis (for example, commentator Larry Elder has cited Madison’s veto of a relief bill during Madison’s administration on the ground that Madison could not find any power of Congress to spend the public treasury on acts of benevolence), it has been the Hamilton view that has prevailed.  Current Constitutional  case law on the tax and spend power maintains that, to pass Constitutional review, a law based upon the tax and spend power must merely (1) be in pursuit of the “general welfare”, (2) whether the conditions imposed are unambiguous, (3) whether the conditions are related to the national projects or programs being funded, and (4) whether there are other Constitutional grounds which invalidate the tax and spend power proposed by that law.  Since the  decisions that have led to this exceptionally broad analysis have left the issue of determining what the “general welfare” might be at any moment to Congress, very few laws challenged on the basis of the “tax and spend” power are determined to be unconstitutional by the Supreme Court.

                        This dereliction of duty by the Supreme Court opens the door to much mischief.  For example, during the mid 1980s Congress sought a way to impose a national minimum age to purchase alcoholic beverages (including beer) at 21 years old, but lacked Constitutional power to do so.  So Congress passed a law that said, in essence, “States, make the minimum age for the purchase of alcohol 21, and not 18, or you don’t get any highway funds.”   The States submitted to Congress’ will and now you see a de facto national minimum drinking age of 21.[1]

                        If you, dear reader, are now thinking “John, does this mean that the Federal government can take my tax dollars which I earned in my State, and tell my  State that it can get my dollars back if it submits to the conditions imposed upon it by the Federal government?”, then give yourself a “Gold Star.”  That’s exactly what it means.  The tax and spend power has been interpreted to become a tool of extortion whereby the Federal government imposes its will upon the States when the Federal government has no Constitutional basis for the laws it desires to impose. Such is the danger presented by the “living, breathing document theory” of Constitutional interpretation so beloved by the Left.

                                                *************************

                        Imagine that there are two states, State A and State B.   State A provides a minimum of services to its citizens relating mainly to police, fire, education, and transportation.  State A has only limited welfare programs of limited duration to provide only for those in genuine need.  State B, on the other hand, provides its citizens with generous welfare programs, spends money to place advertisements on public transportation to discourage smoking (and to discourage the consumption of soft drinks in a supposed campaign against obesity), and provides condoms to its citizens and pamphlets to its drug addicts on how to properly inject narcotics into their bodies in supposed campaigns against blood-transmitted diseases.  State B’s government employees are heavily unionized, and so State B must provide them with generous compensation packages to keep them from striking (or to keep their union leaders from calling them to strike).  State B, a gun-control state, is also very upset that states such as State A allow their citizens to freely purchase and keep firearms.   State B’s taxpayers thus finance expensive lawsuits against gun stores in other states on the dubious theory that guns sold in these states are finding their way into State B in order to bankrupt such businesses, in order to render the Second Amendment void as a practical matter.

                        State B, in short, is a liberal state run by a liberal State government and, as long as the economy is good and as long as the citizens who make up State B’s tax base tolerate such taxation and spending, all is well for State B.  But suddenly the economy takes a turn for the worse and State B finds itself deeply in debt.  For State B’s government, every service it provides is absolutely essential and absolutely no spending can be cut so State B’s state and city governments raise taxes.  The working, productive citizens of State B finally tire of this theft and leave State B, taking their earnings with them.  Unemployment rises and creates a larger strain on State B’s already bankrupt welfare system. 

                        The citizens of State A are also experiencing hard times, but they have been wiser.  Most of the citizens, having been reared to be hard-working and self-reliant, rely upon their own labors to provide for their needs and State A’s government provides very little in the way of social services.  Taxes are imposed at minimum amounts needed to finance such genuine public needs as police, fire, education, and transportation, which allows the citizens of State A to keep more of their hard-earned income.  

                        Fortunately for State B, however, the Federal government is now controlled by a political party which pretty much sees eye-to-eye with the cradle-to-grave welfare, gun control policies, and other liberal policies of State B.   State B’s governor and mayors implore State B’s Congressional representatives to take action to demand Federal funding to State B to pay for State B’s massive welfare complex, and the Federal government agrees.  A new bill is introduced to take money from American taxpayers (such as the good people  living in State A and others like State A, the financially responsible states) to give to states such as State B, which are governed irresponsibly. 

                        Don’t think it can happen?  Look around you to states such as New York, California, and Conyers’ own state of Michigan.  All are economic basket cases, all are governed by liberal state governments, and even now, all are looking to the Federal government --- that is, to Federal taxpayers (that is to say, you and me) --- to bail them out.

               John L. Overland, Jr., a Texan and former military officer and police officer, moved to New York City to marry in 2005.  He now practices law in Manhattan.

  John Overland Jr.
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