From Whence Cometh Gay Rights: Part 5

If you have not read parts 1 thru 4 of this topic, posted on January 30, February 3, February 11, and February 18, I encourage you to do so before reading this post.

When our nation began, our Founders knew that personal liberty would be most threatened if the centralized government had power to regulate personal conduct: interpersonal relationships, or morality—how we ought to behave around and with one another. The federal government was empowered by the constitution only to do the things that simply were not possible for a state or local government to do, such as enter treaties with foreign nations, defend the nation against foreign enemies, and oversee the interaction of states (act as the judge in disagreements between two or more states).

But, as Alexander Hamilton said, "A fondness for power is implanted, in most men, and it is natural to abuse it, when acquired." As we described in earlier segments, man is naturally self-centered and wants to arrange the world around himself to suit himself. This involves imposing his will on others when and where he has the ability to do so. Recognizing this, our Founders attempted to chain the federal politicians down with the limitations of the constitution, leaving the power to regulate morality with the states and local governments. State and local politicians could be much more easily controlled by the voters, and would be far less capable of oppressing the people. As James Madison put it,

Wherever the real power in a Government lies, there is the danger of oppression.

But, through creative interpretations of the 14th Amendment and the Commerce Clause of Article I, Section 8, Clause 3 of the Constitution, limitations on the power of the federal government were essentially shattered.

The Supreme Court opening the door to Congress to regulate private commerce—our economic pursuits—amounted to letting the whole camel into the tent. That decision, so long as it stands, allows the world’s most powerful politicians to legislate every aspect of life, for as Nobel laureate economist Friedrich August von Hayek pointed out,

To be controlled in our economic pursuits means to be controlled in everything.

This week I started trying to compile examples of the ridiculous implications of this. Where do I begin? Where would I end? Ask yourself what part of your life does the federal government not have its finger in? Every product you purchase, every investment you make, every bite you take, every hour of your day is now regulated by the federal government in some way. Every time the federal government dictates that something must be done a certain way, or a product must have certain characteristics, or an activity must be or cannot be engaged in, it is imposing some powerful politician’s morality—his or her opinion about what someone ought or ought not do—on you and me.

How can elected politicians get away with this in a democracy? At the local level, they can’t. It might only take a dozen informed voters to throw the bums out. But when the federal government acts, it can get away with murder…practically. In every situation where the federal government tells us what to do, they buy off votes with a corresponding handout. As discussed in earlier posts, this immense power allows the politicians to secure their re-election even as they become ever more heavy-handed.

The more centralized the government, the more they can use the sheer power to insulate the elected officials from accountability. The number of unelected government employees and regulators is now breathtaking. The Congress passes a law that interferes with your or my activities. The Congress explains that it is “for the children” or “for public safety” or “for the good of society” or to make things “fair.” The law has, oh, let’s say 3,000 pages, just for kicks. You would think that a law with 3,000 pages would not need to be interpreted. You would think every detail must surely be spelled out already, wouldn’t you? But according to US News and World Report, regarding just six pages of the Obamacare law, federal regulators have written 429 pages of new regulations! Why didn’t the Congress just write what the law requires and prohibits, establish the penalties, and be done with it? Because the detailed implications of a law like Obamacare are so tedious, so intrusive, so objectionable, so offensive that no Member of Congress would want his or her name on it. So they write the outline—nearly 3,000 pages, yes, but still just an outline—as something they can sell to the voters as “fair” or “just” or even fiscally necessary…and then empower unelected employees fill in the oppressive details.

The current hot button issue is Obamacare’s disregard for freedom to exercise one’s religious convictions. But this is only a symptom. The bigger issue is how the federal government now holds so much power that its standard way of doing business is to enact a sweeping new law claiming control over a whole sector of the economy, and then appointing a bunch of unaccountable, unelected bureaucrats to work within the broad framework of the law. From a recent piece by Matthew Spalding:

“It turns out that under Obamacare ... all insurance plans must cover, at no charge, abortion-inducing drugs, contraceptives, sterilization, and patient education and counseling for women of reproductive age. ... This is not a one-time exception to the rule of Obamacare; it is the es­tablishment of the rule itself. One can only imagine what life will be like when the Independent Payment Advisory Board (IPAB) begins rationing health benefits to reduce Medicare spending. It is not the details in Obamacare that are the real problem but the form of governance it establishes, by which unelected experts are empowered to make the rules as they go along. What is happening has little to do with health care or even public policy and everything to do with the role of government in the most immediate and intimate matters of our lives. All is subject to government control, regulatory dictate, and administrative whim. ... It is what happens when a model of government focused on determining outcomes, despite good intentions, finally acquires the unlimited authority to reshape society to its bureaucratic blueprint.” (emphasis added)

When the lawmakers have power “to reshape society to its bureaucratic blueprint”—just another way of saying impose their moral judgments on all of us—who or what will keep the lawmakers moral? In the days of limited government, with a constitution that was enforced by judges who understood that it meant the big (federal) government had to stay out of issues of interpersonal behavior, the people could keep the lawmakers moral. But voters don’t and won’t do it when their votes can be bought and sold with an extension of unemployment benefits here, and a food stamp there, tax deduction here, and a waiver there, and a favorable regulation (one that hurts your competition more than it does you) here, and on and on and on. Less powerful local governments can’t pull that off. A big one can.

An acquaintance last week said he thought anyone who is getting welfare of any kind should not be permitted to vote until they get off such subsidies. I felt strong impulse to agree with him, but where could that line be drawn? The more I thought about it, the fewer people I could come up with who do not get some direct or indirect government subsidy. It is incredible when you think about how far the tentacles of government inducements actually extend.  

I started thinking of the most obvious welfare, like food stamps, subsidized housing and the like, followed by business subsidies, green energy, farm programs, and government schools. But the most obvious example is health care. Roughly 50% of all health care is now paid for by tax dollars. I don’t mean dollars that are merely mandated by law, I mean actual taxes paid, handled by the government, and paid out to the doctors, hospitals and other medical providers. This is before Obamacare has even started! You could argue that health care ought—uh oh, there we go, dictating morals!—to be provided to all, the cost spread among all. I disagree, but hey, that makes it my moral judgment against yours, so who gets to impose his morals on whom?

Even if it were the role of the federal government to tell us that it is immoral not to share the cost of others’ health care, what would that mean? The definition of health care is no longer treatment for accident and sickness. Obama can pontificate all he wants about “part of the American dream” being not fearing going bankrupt if you get sick. But that is just the sales pitch to get us on board. Now his real position on morality kicks in. He doesn’t just want everyone to pay for your broken arm or your cancer treatment. No, remember what he said back in 2001:

"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 didn't break free from the essential constraints that were placed by the founding fathers in the Constitution, at least as it has been interpreted," Obama said in the recording.

"And the Warren court interpreted it generally in the same way -- that the Constitution is a document of negative liberties, says what the states can't do to you, 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, and that hasn't shifted.

"And I think one of the tragedies of the civil rights movement was that the civil rights movement 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," he is recorded saying.

When the Supreme Court says you have a constitutional right to contraception, it only meant no government can keep you from buying it for yourself; a negative liberty, meaning government cannot stop you. When the Court says you have a right to an abortion, it only meant government cannot outlaw abortion; another negative liberty. Government cannot stop you from doing it. When government says free speech means pornographic material, that means government cannot outlaw making and distribution of such material. Negative liberties are what government cannot do or interfere with you doing.

But where are we headed? In the provisions of Obamacare we are seeing what he meant. We are seeing where a liberal who wants to shape the world into his image will go. He said the court “never ventured into the issues of redistribution of wealth and sort of basic issues of political and economic justice in this society” and that the court only “says what the ...government can't do to you, but it doesn't say what the ...government must do on your behalf.” Obamacare is a major effort on the part of the political organizer to use coalitions of power to bring about redistributive change...to move to a world where civil rights are not just what the government must allow you to do, but are what the government—through its power to collect tax dollars and dole them back out, or its power to mandate personal purchases—“must do on your behalf…”

The idea—the goal of liberals with power to impose their morals on the rest of us—is not merely to say we can’t stop people from acting perversely, immorally, or in violation of community standards of decency, but that we must share the costs, whatever those costs are, to enable the perversity. First it is contraception. Next it is abortion. In some areas we are hearing that completely elective, plastic surgery is now provided to public employees at taxpayer expense. Whose morality is it that says someone who believes in the sanctity of the marriage bed must provide those who do not with tools for violating it? Who gets to tell me that I must help you pay to deform your body from the shape God gave you into something that Hollywood says will get you more attention?

When we allow the federal government to legislate any “commerce” they deem appropriate, we have opened the door to this sort of thing.  When liberals like this President say they just want to be left alone to “love” as they choose to love, and that it doesn’t affect those who disagree with their choices, they are simply lying. That is just the sales pitch to get us to open the door to them.

And where are we going next? Quite frankly, this freaks me out even as I am writing it.

From Whence Cometh Gay Rights? Part 4

If you have not read parts 1, 2 and 3 of this topic, posted on January 30, February 3, and February 11, I encourage you to do so before reading this post.  You should be aware of: (a) how I define “morality” and “interpersonal relationships” for these posts; (b) my proposition that our Founders rightly believed the power to “legislate morality” should be reserved to smaller governmental units, as the most effective form of democracy supporting greater personal liberty; and (c) the attack on democracy (restricting small-government legislative authority) that entered through interpretation of the 14th Amendment.

For a century or so the rules of morality—how people ought and ought not behave toward and around one another—were established by local governments. Rules varied widely from one community to another. If you wanted to live among Methodists, you could select a town of mostly Methodists and the local government catered to Methodism. If you wanted to live in a pornography-free community, you moved to one, or you organized enough people in your community to elect people who would ban it.

This freedom of local governments to set the rules of morality was not always something to be proud of. The poster-child example of this, of course, was slavery. The freedom of local governments to set rules, coupled with the physical power of arms to enforce those allowed one group of people who had power to enact laws that made the other people “property” instead of human. The one group “legally” denied the others a place at the democratic “table.” This was the ultimate perversion of democracy, of course, and the 14th Amendment attempted to bring all people back to an equal place in the rule-making.

It has been pointed out that even after the 14th Amendment was passed, declaring all people to be citizens and entitled to privileges and immunities, to life, liberty, and property, and the full benefit of due process and equal protection, attempts were still made to deny blacks a place at the democratic table. From the obvious example of a poll tax to prevent poorer former slaves voting, to bizarre and obviously contrived requirements (like, you can vote only if your grandpa could vote prior to the date of the Emancipation Proclamation!) those in power attempted to retain it. Federal laws were enacted to give teeth to the purposes of the 14th Amendment. In today’s environment, those denied access to the polls would file suit asserting that the state or local government was denying them a right guaranteed by the 14th Amendment. In the late 1800s it seems that the solution was to enact federal legislation to enforce compliance upon the local officials. But the crux of the issue (the proper role of the bigger government imposing on the little ones) was assuring that all humans had equal access to the law-making process.

But let’s go back to the two prongs of “power grab” by powerful politicians in Washington D.C.  First, when powerful politicians did not agree with the rules of morality set by local governments they could impose their own standards through the 14th Amendment. They appointed Federal judges who would overrule the local majority opinion and “protect” the individual who wanted to deviate from community standards. They did this by interpreting the 14th Amendment as extending the Bill of Rights’ limitations on Congress’ power to become limitations on all government power (explained further in Part 3 of this series). As such, local rules of morality were now extinguished, and a new national morality—or “national immorality” if you please—was imposed on everyone, everywhere.

For the most part this approach was, and still is, seen as rights derived by negating government power. By the extension of the Bill of Rights against all government bodies, you have a right to do things that a majority of your peers, and all state and local elected officials, might think you should not do…so long as you can get a federal judge to define what you want to do as a right under the Bill of Rights.

This gave the powerful politicians part one of their power to impose their morality on us all. We can no longer choose for ourselves and our communities through the free democratic process to post the ten commandments in schools, to place a nativity scene on the courthouse lawn, to ban abortion, to prohibit fornication, or to punish those who would corrupt their minds and others through pornography. (If you doubt that the Founders believed states and local governments should be able to set their own limits on licentiousness of speech, press, etc., read Thomas Jefferson’s “Kentucky Resolution.” It’s an eye-opener for those of us born and raised since the 1960s!)

But how will the powerful politicians go the next step and start writing their own rules of morality for us all? Remember that the Constitution was an agreement by the states to delegate limited authority to the federal government. The federal government could not write rules for interpersonal relationships. According to Article I, Section 8, Clause 3 of the Constitution, Congress could “regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” What do those three phrases mean?

The first is easy. States could not negotiate treaties, impose tariffs, etc., with foreign countries. That would be the job of the feds. The third clause…well, not as obvious today as it was in the 1790s, but “Indian tribes” were almost like another country. The feds were to make rules for and deal with the Native American, which involved everything from war, to treaties, to reservations. (When you think of the correlation between more powerful politicians and liberal social policies vs. lower levels of government and conservative social policies, notice the fact that gambling and casinos have been permitted on “Indian reservations” more than where state and local governments set the rules of morality. Coincidental? Hmmm… oops, I digressed.)

But what about the second type: “commerce… among the several States”? For the first 140 years or so this clause, linked with the 10th Amendment, was interpreted narrowly. Navigable waters that crossed state lines was a rare example of Congress having the power, approved by the Supreme Court, to regulate commerce among states. In order for Congress to act, it had to be regulating the activities of states. The feds would act when the matter was beyond what states could independently address, i.e., where states had competing interests and a higher authority was needed to arbitrate.  Remember the principal of subsidiarity? (see Post 2.)

So what did these three clauses not mean? They did not mean writing laws for how businesses would be run, how families would be defined, or otherwise what people ought and ought not do with or to each other. Morality and interpersonal relationships were none of the feds’ constitutional business.

This limitation on the ability to regulate people was simply not acceptable to the type of people who want to impose their morality on everyone else. Like our current President, for example, who wants to dictate what is “fair” and the “right direction” for everyone. But President Franklin D. Roosevelt came long before Obama.

FDR was very aggressive about imposing his will on everyone. He simply was not going to let the 10th Amendment get in his way. Under FDR’s leadership, Congress passed a series of laws attempting to regulate interpersonal—rather than just interstate—relationships. But in the decades leading up to 1936, the Supreme Court had struck down a laundry list of federal legislation attempting to regulate morality: minimum-wage laws, child labor laws, agricultural relief laws, and virtually every element of FDR’s New Deal legislation that had come before it.  The 10th Amendment meant what it said. Wikipedia provides this snapshot of history, which gives insights as to how manipulative a President can be:

“In 1936, Roosevelt and Congress were implementing New Deal policies and the Supreme Court, in Carter v. Carter Coal Company,[10] struck down a key element of the New Deal's regulation of the mining industry, on the grounds that mining was not "commerce". After the Presidential and Congressional elections of 1936, Roosevelt began an assault on what he regarded as the Court's anti-democratic decisions. …”

Pause. Hear the spin? FDR said the court, by limiting the power of the federal government to regulate interpersonal relationships, was “anti-democratic.” How subtle. But democracy at the federal level is the least democratic form, democracy at the local level is the most democratic. We typically hear “legislating from the bench” is improper and “activist judges” are bad. I agree. But in stopping the federal attempts to regulate, the courts were preserving the ability of the local democracy to do what it does best: listen to the people most affected. The court was being pro-democracy! Back to Wiki…

 “After winning the United States presidential election, 1936, Roosevelt proposed a plan to appoint an additional Justice for each sitting Justice over age 70. Given the age of the current Justices, this allowed a Supreme Court size of up to 15 Justices. Roosevelt claimed that this was not to change the rulings of the Court,

[…I can hear your sigh of relief to learn that…]

but to lessen the load on the older Justices, who he said were slowing the Court down.

“There was widespread opposition to this court packing plan

[…gives me a sense of nostalgia to know sane people still had influence back then…]

and in the end Roosevelt abandoned it. In what became known as "the switch in time that saved nine", Justice Owen Josephus Roberts and Chief Justice Charles Evans Hughes switched sides in 1937 and, in National Labor Relations Board v. Jones & Laughlin Steel Corporation, 301 U.S. 1 (1937), upheld the National Labor Relations Act, which gave the National Labor Relations Board extensive power over labor relations across the United States.”

So FDR got his way. The nature of man (see Post 2) is to impose our will on those around us, and those who are most aggressive about doing so seek the highest offices. FDR pushed his agenda, pushed justices around, pushed his morality on the nation…and most significantly, he fundamentally altered the relationship between state and federal governments.  

This is not just a matter of which government will enact the best policy. When the federal government regulates a matter, it trumps any contrary state and local regulation on the same subject. The lower government is simply overruled. Worker protections or pro-business policies that are democratically enacted at a local level are nullified by federal legislation on the same topic. Thus morality is dictated by the most powerful politicians who take it upon themselves to speak on the subject.

One last quote from Wikipedia, which illustrates the common failure to perceive the fact that greater freedom of self-governance is provided by local democracy compared to its federal counterpart:

 “The "New Deal Court" drastically changed the focus of the Court's inquiry in determining whether legislation fell within the scope of the Commerce Clause … Central to [the Court’s] theory was the belief that the democratic process was sufficient to confine the legislative power. Thus one of the central issues was whether the judiciary or the elected representatives of the people should decide what commerce is. The Court began to defer to the Congress on the theory that determining whether legislation impacted commerce appropriately was a legislative, not a judicial decision. The debate over Commerce Clause jurisprudence thus includes philosophic differences over whether Congressional abuse of the Commerce Clause is best redressed at the ballot box or in the Federal courts.”

Wiki, along with a huge segment of our population, has swallowed FDR’s arguments whole.

The question was not one of whether the courts or “elected representatives of the people should decide what commerce is.” The state and locally elected representatives of the people had total authority to regulate commerce, and were doing as much of it as their electorate demanded. The question presented to the New Deal Court was whether the federal government had power to regulate private commerce or only commerce among the several States… as that pesky Constitution says.  In other words, the court simply abrogated its constitutional duty to be a check on the federal administrative and legislative branches. If the democratic process was and is sufficient to stop abuse by legislative bodies then there is no reason for a constitution at all except, perhaps, to require that legislators be elected.

Any of our Founders who weren’t by this time spinning in their graves, must certainly have started. “In questions of power, then” the final link of Jefferson’s “chains of the Constitution” had been broken. We are not better off as a result. The self-centered nature of mankind, acknowledged by our Founders and long restrained by the Constitution, is on a rampage. Next time we will explore current results of this unleashed power.

Fergy's Fables: Taking Up the Collection

Once upon a time there was a simple, law-abiding man named Bob.  He had a wife and two children, and he worked to provide for them.  Bob took his family to church on Sunday, and tried to live right during the week, too.

One Saturday as Bob was watering his lawn, a man in a suit carrying a briefcase stopped at his front gate. Bob looked up. He recognized the man.

“Hey Bill, what’s up?” Bob called out in a friendly voice.

“Nothing much,” Bill replied. “I am taking up a collection, though, and knew you would contribute.”

Bob winced a bit. Money was tight during the recession and all. But he was a generous man. “What are we doing with the money?” he asked.

“Well,” Bill replied, “the Fair City fathers have decided to…” He hesitated, then continued: “well, they’ve decided, let’s just say…um…to dispose of unwanted baby puppies. They need to raise funds to cover the costs of the, ah, [cough] the ‘clinic’ that does the, um…drowning.”

Bob frowned. He looked into Bill’s eyes. Bill seemed to be serious, or was making a very good go of keeping a straight face…if this was some kind of sick joke. After a full 30 seconds, Bill was holding his own. Bob broke the silence:

“You’re kidding, right?”

“No. I’m not. Its called the PDF…puppy drowning fund.”

Silence.

Bob: “I think you know me well enough to know I’m not going to support something like that.”

Bill: “Look, Bob, I know it doesn’t sound very nice.  But there are a lot of unwanted puppies in the community, and someone has to deal with it. With the proper facilities, sterile environment, trained professionals, paperwork and all, it averages a few hundred dollars for each drowning. But it saves everyone money and headache in the long run.”

Bob: “I don’t have any unwanted puppies and if someone needs to find a home for one, I will be glad to help. But I’m not going to give you money to pay someone to drown them! That’s awful, and I have to say, I’m offended that you even asked.”

Bill: “Man, chill out! Nobody has to drown any puppies. I mean, no one is forced to drown them or anything. It’s only those who choose to do it.”

Bob: “Chill out! Chill out?! Duh, of course no one has to drown puppies. Like me. I don't and won't. But anyone who wants to can spend their own money to do it! I’m not going to donate to the cause. Good-bye.”

Bill didn’t move. “Look. I don’t really like it any more than you do, OK. I’m just the messenger. Well, you might say the collector. It’s my job, man.”

Bob wrinkled his nose with a confused expression on his face. “I know you work for Fair City, and you work hard and all of that. But I thought you said this was a collection, like taking donations or something.”

“No, it’s not really like that. I mean, it’s not donations. The PDF is mandatory. Everybody has to pitch in. Five bucks…” Bill’s voice trailed off. He looked rather pitiful, but he wasn’t budging.

“You and I have been friends for years,” Bob retorted. “But I’m not getting you. What are you saying?”

“I’m saying it’s the law, Bob,” Bill whined. “The Fair City fathers passed an ordinance forming the PDF. People need more access to puppy drowning services, so they can make their own choice about whether to keep the puppies or not. Every family has to kick in. They think it will only be five bucks, so that’s all you have to…pay.  Per month. We hope.”

“You’re saying I have to pay for drowning puppies? That I have to pay for other people who didn’t keep their dogs at home to drown the results? Why don’t they pay for their own puppy-drowning? Bill,” Bob sighed, “I have a conscience on this. I would never drown my puppies. Why should I pay to drown someone else’ puppies?”

“Some people can’t afford it. The only way they can exercise their right to kill their puppies is for everyone to share the cost. I mean, you aren’t choosing to kill any puppies, Bill. It’s their choice, not yours.” Bill hoped Bob would just let it go, and get this over with.

Bob looked at his shoes. Then at Bill. “Do you know where puppies come from, Bill? Of course you do. Everybody knows that when you let your dog run around, out of control, somebody is gonna end up with puppies. So all you have to do is keep your dog on a leash, and if you don’t, you should bear your own consequences. Raise the puppies. Give them to someone who wants a puppy. But if you insist on drowning your puppies, pay for it yourself!”

“I know that sounds logical. But some people just don’t think. And drowning your puppies is legal. How can they do it if they can’t afford to?” Bill was starting to sweat.

Bob looked back at Bill. “They don’t have puppies if they don’t want puppies. It’s simple as that.”

Bill: “I thought you might object. Honestly, so I asked what I should say if you do.”

Bob: “Are you saying there any way around this?”

“Well, for people who object, the Mayor says you don’t have to pay for any puppy drownings. You only have to contribute to the PDF and the PDF pays for the drowning.” Bill smiled weakly.

Bob: “First I thought you were making a bad joke. Then I thought you were just involved in a lame charity. Next it seemed you were just a public employee doing a macabre job. But now I know you are insulting my intelligence. Go away.”

“I can’t do that, Bob. I have a copy of the ordinance right here in my briefcase. Well, actually, the ordinance is almost 3,000 pages long, and the regulations to enforce it are a lot longer. So all I could carry is the part of the ordinance that deals with the puppy drowning mandate.” Bill was squirming uncomfortably. “Give me your share of the money for the PDF.”

“I’m not doing it.” Bob looked Bill straight in the eye. “I can’t do it. I can’t go against my conscience and help pay for people to drown puppies.”

“Bob, if you don’t pay, you’ll go to jail.”

“Do what you have to do, I guess.” Bob turned his back and walked toward the house.

The Moral

If everyone has to contribute to the pot—has to pay premiums to insurance companies that are required by law to include contraception and/or abortions as a covered benefit—we are all helping to pay for the contraception and/or abortions.

Abortions are the result of careless living. And if careless living is subsidized, there will be more careless living. And if the consequences of careless living are not born by the person making the careless choices, more careless choices will be made.

We have a right under the U.S. Constitution to be free to live in accordance with our religious beliefs. This mandate is a clear violation of that explicit constitutional right. While the battle over whether women have a “right” to kill their unborn children seems to have been lost, this mandate in ObamaCare that all insurance policies provide coverage for abortion services, coupled with a mandate that all employers provide the health insurance, coupled with a mandate that all people buy health insurance if not covered by an employer plan, means we are all being forced by law to help pay for abortions.

Never before has a civil right included the right to have the general public pay for your exercise of the right. If that doesn’t make sense, think of it this way: Does the right to freedom of the press require the public to pay for my press, ink and paper? Does the right to freedom of speech require that the public create a platform for me to speak from? Does my right to exercise my religion require the public to build me a church? Does the right to bear arms require the government to provide me a free gun? No, no, no and no…even though those rights are explicitly stated in the constitution, unlike the manufactured “right” to an abortion.

But now this “right” to abort your child is being turned into a requirement that everyone else cover the cost of that abortion for you. These are dangerous times, my friend.

It was well summarized in The Patriot Post: “[T]hroughout history a "right" has always been defined as a freedom to act, along with a corresponding duty of forbearance from others who would interfere with that act…a right has never been viewed by any within the "sane" sector of the legal community as a positive conveyance. That is, the notion that a person has a "right" in the form of a demand on someone else to provide contraceptives, free abortions or any other form of "health care" is ludicrous.” (http://patriotpost.us/edition/2012/02/10/digest/ )

From Whence Cometh Gay Rights? Part 3

If you have not read parts 1 and 2 of this topic, posted on January 30 and February 3, I encourage you to do so before reading this post.  You should see how I defined “morality” and “interpersonal relationships” and consider my understanding that our Founders rightly believed that power to “legislate morality” should be reserved to smaller governmental units and kept out of the hands of federal government.

In my last post I made the case for the proposition that the larger the reach of your authority and the more voters it takes to elect or “un-elect” you, the less responsive you have to be to the desires of the average person and the more prone you are to impose your personal values on those you govern.

Those who have the greatest ambition to impose their beliefs and values on others tend to rise to positions of power at the highest levels of government. That is where they can affect the most people, or put more crassly, that is the position from which they can tell the most people what to do. Even more bluntly, that is where they get to impose their morality upon the most people. It is not fashionable to say “I want to impose my morality on others,” of course. It is usually couched in words like “fair” or “just” or even hintingly religious phrases like “following the Golden Rule.” But no matter what words are used, a politician making people do what that politician thinks is fair, just, or right is the politician imposing his morals on us. They want to limit freedom in interpersonal relationships.

Someone with very openly stated ambitions along those lines recently said:

“Well, it turns out our Founders designed a system that makes it more difficult to bring about change than I would like sometimes. But what we have been able to do is move in the right direction. And you know what? One of the things about being president is you get better as time goes on."

Those with such ambitious aim for a seat in Washington, D.C.. The above was President Obama, with three years behind him, suggesting that after his re-election he will be better able to impose his morality—what he thinks is “the right direction”—on all of us.  For most of the first century, however, Washington politicians found two things that got in their way due to the wisdom of those Founders Obama laments:

1. The Bill of Rights only restricted Congress. As Washington politicians looked down upon the elected officials in state and local offices, they saw Minor-Leaguers—they might even say Little Leaguers—getting to decide issues of morality for the local citizens. When the “big” politicians with the “big” aspirations wanted to dictate what is “right and wrong,” that included their desire to tell the “little” politicians what could be defined as moral (and what could not be legally defined as immoral!).
2. The limitations the Constitution placed on the federal government prevented Congress from overtly legislating the interpersonal relationships of people, that is, from getting into what people “ought” and “ought not” do in their personal lives.  The Constitution said Congress could “regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.”

If you are a powerful politician in Washington, how do you get around these limitations on your concentrated power? Let’s tackle the first one first, since that is the way they were attacked historically. We will discuss the second more in the next post.

These power limitations were first attacked through the 14^th Amendment which began:

 “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.”

Here was a loophole. Washington could indirectly regulate the morality (what people “ought” and “ought not” do) if they could get federal courts to apply the Bill of Rights against state and local governments.  Let me explain.

Recall earlier posts. Under the constitution as interpreted until the 14^th Amendment,  small government bodies got to determine the culture, set standards of conduct, establish penalties, and enforce the rules for local communities. That was a multi-cultural nation and democracy at its best.  The Bill of Rights said Washington D.C. (“Congress”) could make no laws abridging freedom of religion, speech, press, association, etc. But states and cities could regulate such things, and they did! Because of this, you could establish your home in a community where people shared your values, where your kids would be around other families who shared your values, and where friends became spouses and started another family in the community, and so forth. If you did not like the culture of your area, you did not necessarily have to move far to find a community that fit your values. Some states used tax dollars to support certain religious denominations. Many municipalities banned obscene materials, or even regulated political speech (even when such speech is not obscene!). Some had religious tests for holding public office. Nevada was known early as the state that allowed gambling and prostitution, while Utah allowed polygamy.

The most powerful politicians—President and Congress—could not tell you what the cultural values of your community had to be. It was none of their constitutional business! For those who wanted make the rules for everyone, who want to impose their morals from Washington, this system made it difficult. It was supposed to be that way. But the ambitious don’t like to have their will restrained! So these most powerful politicians—President and the Senate—who appoint federal judges started appointing judges who would interpret the 14^th Amendment roughly as follows:

1. All people are US citizens and should be guaranteed the same liberties; not just the same as other citizens in the state or city in which they choose to live, but the same liberties as all citizens in all states.
2. What defined “liberties” shall be guaranteed? Those liberties that “Congress” shall not abridge. Therefore, the Bill of Rights should be universally applied around the US.  
3. Hmmm, now what exactly do we want those amendments to mean…?

Thus the Bill of Rights was twisted from a limitation on the most powerful politicians (President and Congress) into a power grab by them! Where previously they had no power to dictate rules of morality, they could now appoint judges who, by interpretation and extension of the Bill of Rights, would dictate the rules of morality these politicians favored.

How did this work out? Following are examples of rules of morality—what is fair, just, or right, and how people ought and ought not act toward one another—that were democratically enacted and permissible at the local level, but which were declared unconstitutional under the new interpretation that the 14^th Amendment now restricted the state and local governments’ legislative power:

• Protection from having private property taken without compensation, 1897
• Freedom of speech, 1925
• Freedom of the press, 1931
• Freedom of assembly, 1937
• Freedom to exercise your religion, 1940
• Freedom from being compelled to support a religion, 1947
• Right to a speedy trial, 1948

If you want to live where the city officials prohibit large public gatherings, you are out of luck. There can be no such place in the United States according to the powerful politicians and their hand-picked appointees. If you want to live in a town where everyone must  support the Catholic church, and that view is shared by all voters…too bad! The supreme powers from Washington have now decreed that no town can through its elected officials collect taxes to support a church. If you want to live in a town where all citizens preferred not to be assaulted by lewd magazine covers in the drugstore or checkout lanes…to bad! The morality dictators from Washington declare that no ordinance can be passed to prohibit such displays. If you want to live in a district where everyone is Mormon and wants the school day started with an appropriate Mormon prayer, tough. According to those who have worked their way into power, no public school board in the country can allow it. And if you want to live in a community where sexual activity is legally permissible only within lawful marriage…I’m sorry. Our least accountable rulers have decreed that setting any such standards is, in their view, immoral. Now, whatever the most powerful politicians want people to be “free” to do can no longer be made illegal by the locally elected, officials: township, city, county or state.

Again I ask: “who or what will keep the lawmakers moral?” What we are seeing in constitutional law is exactly what the Founders of our nation feared. Fewer and fewer elites are exerting their will over more and more citizens. We are witnessing the destruction of democracy. Those who appoint federal judges are the ones who determine the moral standards of our nation.

If you look at my title, I trust that the dots are starting to take shape. How might we define “liberal” and “conservative” in current political context? On government power, conservatives (I do not pretend that this includes all Republicans) favor traditional subsidiarity: that the federal government should do only those things that the individual states cannot do, states should only do what local governments cannot do, and so forth (see post #2 for more on subsidiarity). The liberal philosophy is one of greater centralized power: more power should be placed in fewer hands to impose what is fair, just or right on the presumably unenlightened masses.

Where do they stand on what standards of morality should be imposed? Liberals like to call themselves “progressives” largely because they believe in moving from long-standing traditional standards. Conservatives tend to stand for preserving, or conserving, the standards that have generally been bedrock for stable society, values that come from the Judeo-Christian heritage, which values tended to be agreed upon when local governments were permitted to set their standards.  

In my next post we will explore how Washington politicians escaped their remaining constitutional shackles, and achieved unlimited power to legislate morality and interpersonal relationships.

From Whence Cometh Gay Rights? Part 2

If you have not read part 1 of this topic, posted on January 30, I encourage you to do so before going on.  You should see the historical perspective and know how I defined “morality” and “interpersonal relationships.”

Before the Civil War, our country was truly multi-cultural.  States and local governments were allowed wide latitude to democratically establish the standards of morality for their own jurisdictions. With the Civil War states’ rights to self-governance came sharply into question. In a way the issue was slavery, of course, but in another way it was this broader issue of state autonomy to regulate interpersonal relationships. The north won (despite Granny Clampett’s denials) and as part of the resolution of the matter the 14^th Amendment was enacted.  It’s opening paragraph states:

 “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.”

What did this mean? Given the context, the meaning was clear. Negroes were declared citizens of the United States, and states could not treat them differently than other citizens.  A state could no longer deny them “equal protection of the laws.” By the 14^th Amendment, the U.S. Constitution added a new limit on the states to go along with the “don’t nullify people’s contracts” one. Now each state had “agreed” (via an amendment to the same constitution wherein they agreed to delegate limited powers to the federal government) as a condition of being part of the union to treat all “persons” equally and give them “equal protection.”

This was a great historical step forward, of course. Slavery was such a fundamental evil against humanity that even if a majority of people in a community or state saw slavery as acceptable, the majority should be barred from legislating it. The 14^th amendment was an agreement by the states that the regulation of interpersonal relationships—morality, which might also be defined as what people “ought” and “ought not” do—could not include permitting slavery.

People are naturally self-interested. (I am not digressing here, I promise.) We naturally want our own comfort, our own pleasure, and the world around us arranged in the way that suits us. It also makes us feel better about ourselves if we can get the rest of society to agree with us and affirm our choices. This is part of being human, and is what causes us to interfere with the lives of those around us. Some people are pushier about it than others, but we are all so inclined. Without some outside force to hold us in check, we naturally attempt to impose our will on others.

Remember what Pascal said? Liberty is not possible without morality, nor morality without faith.  To turn the formula around and state it personally: faith is my belief in a supernatural force or consequence that motivates me to restrain my natural desire to impose my will upon others, that is, keeps me moral; and so long as I am moral—don’t force my will on those around me—I won’t need outside forces like laws and policemen to check that natural inclination, thus government can afford me liberty.

No matter what G.K. Chesterton said about them, politicians are people, too. And that is no compliment.  They are fallen like those they purport to govern. Laws are to make people act morally when faith doesn’t accomplish it…but here’s the million dollar question: who or what will keep the lawmakers moral? This is the problem Thomas Jefferson foresaw, of course, when he said:

“In questions of power, then, let no more be heard of con­fidence in man, but bind him down from mischief by the chains of the Constitution.”

Mischief. That puts it lightly, when we are speaking of the power to dictate the lives of over three hundred million people! The constitution had fairly effectively kept the federal government out of the interpersonal relations business for about a hundred years, but the 14^th Amendment became the chain’s weakest link. It’s perfectly proper purpose and clear language—“all persons” shall be treated as citizens and given equal treatment under the laws—was soon twisted into a door through which monstrous mischief would invade.

We often hear that smaller government is better. It is sort of a cliché and the focus is on “waste” or bureaucracy in what is truly a gargantuan government. But waste and inefficiency are not the most important point.  Think of smaller government this way. Democracy at the lowest level of government is the best sort. As Charles Murray of the American Enterprise Institute stated it, our founders “had a broad allegiance to…the principle of subsidiarity” that is, “that local government should do only those things that individuals cannot do for themselves, state government should do only those things that local governments cannot do, and the federal government should do only those things that the individual states cannot do.” For good reason, I would submit.

If a township trustee is the swing vote to make a rule that 10 people don’t like, there may well be a new trustee in that seat after the next election, and reversal of the undesirable rule. If a city council enacts an ordinance that offends 100 people, they are likely to be voted out and the ordinance changed by new council members. But the U.S. Senate has to do something that angers millions of people spread statistically among the right states before anyone’s re-election is in jeopardy.

When small government bodies like villages and townships get to set the behavior rules—define morality—for their small jurisdiction, they have to be responsive to their constituents, and if they are not, a relatively small effort of organized constituents will elect more responsive officials. The people will prevent the imposition of the will of government upon them, when even a small number of people feel wrongly imposed upon. In our own community we have seen this first hand with respect to matters like curfews, alcohol licensing, and zoning regulations. You could say that the higher an elected official climbs, say to the U.S. Senate, the more unaccountable he or she is to the will of the people.

This problem is further aggravated by the sheer power wielded in higher office, and the blurring of the connection between causes and effects. The Senate can approve a five hundred million dollar loan to one badly-run company in one township that employs 2,000 people or less, and spread the cost of that loan over the entire country when the badly-run company’s executives disappear with huge severance pay while the company goes belly-up and defaults on the loan.  No Senator gets blamed…but they personally benefit from campaign contributions from those executives. How many voters were harmed? All taxpayers except a select few who were inside the company. How many voters will have to agree on the issue in order to make the Senate regret it? Millions of them. By contrast, what if the money for that loan had been raised at the local level, by City or County officials? They would promptly be ejected for their poor judgment, and their replacements would be much more responsible about how they doled out money!

Next look at the other side of the sheer power. The same Senate that can allocate half a billion dollars to one company (where their friends and supporters will be sure to make it worth the Senators’ while) can also distribute tax credits to half of the population, extend unemployment benefits to millions, and press food stamps into the palms of fifty million Americans. Strategically placed, these benefits can offset the wrath of voters who disapprove of the half billion dollars squandered, and protect the Senators at the next election. (G.K. Chesterton: “It is terrible to contemplate how few politicians are hanged.”)

What if all welfare spending in a township (redistribution of wealth) were directly tied to taxes raised in that township? The elected Township trustees would be held closely accountable for whether the welfare was well-spent or wasted.  If such redistribution were done at the local level, either it is a truly good idea with which a majority of the population will agree, or the Township trustees will be tossed out. Democracy at work. You say that in such a small arena a majority would never support that idea? Then why presume that Federal politicians should do on a large scale what real people looking at the needs of their real neighbors would not support as the right moral judgment?

There is another aspect of local welfare that should be considered. If the money was all raised and redistributed locally, the recipients of the help would feel accountable to their neighbors. A recipient who is slothful will feel societal pressure to find work; a recipient who is truly needy beyond their control will feel appreciative to the neighbors who are sacrificing to support them. Contrast that with the feelings the 18,000,000 new-under-the-current-administration food stamp recipients have toward the taxpayers…can’t you just feel them oozing with motivation and gratitude?

So let’s summarize what we’ve been seeing. The more people you can affect by your decisions, the less accountable you become and therefore the more careless, both with money and other tools of power. The legislator is more prone to impose his or her will on others. Aside from how taxes are collected and then doled out, as compared to a Member of Congress, the township trustee is going to be more responsive to the people in setting rules for acceptable ways to treat your fellow man—legislating morality. If most people in the township want to be free to shoot firearms, drive loud cars, drink beer, stay out late at night, sleep around, leave junk cars in their yard, or abandon their children—the township rule-makers will be obliged to listen to the very close and loud voice of democracy. If most people want to enforce marriage vows strictly, punish child abusers, throw public drunks in jail, require clean cars, prohibit pornography, and support their local school system with increased tax dollars, again the local officials in charge had better listen up. By contrast again, you don’t get that feeling from a Senator with a multimillion dollar campaign fund, or a President with a billion dollar one. When rules of morality are set by the smallest possible government bodies, if most people in your community find something perfectly fine that you don’t like, either you are an oddball or you live among oddballs, and in the latter case you would not have to move far to find a place where most people are normal like you.

Which brings me back to my early question: “who or what will keep the lawmakers moral?”  The answer was the people, of course. Our Founders’ commitment to the smallest level of government wielding the greatest power in governing was part of their brilliance. Jefferson, one of the strongest proponents of democracy, was right. Put no confidence in man, but chain them down. We’ve all heard that power corrupts, or as Edmund Burke said, "The greater the power the more dangerous the abuse."

In case you are wondering, yes, we are heading back to the 14^th Amendment. We’ll get right to it in my next post.