Lies the government told you
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Clark’s improvement program was also extremely unnecessary, in addition to being wildly unconstitutional. His plan called for drastic remodeling to the schools, Olympic-sized swimming pools, zoos, gymnasiums, and “learning resource” centers.34 Judge Clark also required that the schools fund salary increases and remedial education programs. Luckily, in 1995, after nearly two decades of Judge Clark’s abuse, the Supreme Court of the United States, by a slim, 5 to 4 margin, decided that mandating increased salaries and funding for remedial programs was an abuse of power.
Wake Up!
During the recent recession in the United States, the Supreme Court was too soft in analyzing government actions that were surely against the law. For example, at the end of President George W. Bush’s second term in office, and at the very beginning of President Barack Obama’s first term, the federal government decided that it would take an extremely active role in bailing out companies that were deemed “too big to fail.”
One of the industries that got special treatment, particularly during the Obama administration, was the auto industry. In June 2009, the government dashed to complete Chrysler’s bankruptcy court proceedings so that it could merge with Fiat, an Italian auto company.35 The bankruptcy blatantly wronged Chrysler’s secured creditors who, under settled law, are first to be paid in the event of a bankruptcy.36 The secured creditors in this bankruptcy, however, received less per dollar than the United Auto Workers, an unsecured creditor that also gained 55 percent ownership of Chrysler.37 The Supreme Court approved the bankruptcy, taking a time-out from its function of defending freedom, property, contracts, and other good stuff that the Constitution keeps from the government’s grasping hands.
Conclusion
It is clear that judges should not act as “judicial activists” and bring their legislative agendas to the bench. However, there are many instances where judges can act as “constitutional activists,” to uphold the Constitution and our freedoms. As former Supreme Court Justice William O. Douglas stated in his autobiography, “The Constitution is not neutral. It was designed to take the government off the backs of the people.” Only a constitutionally activist Supreme Court can assure that it does so.
* I am loath to cite Hamilton for any purpose because he is the father of Big Government and devoted the last years of his wretched life to undermining the Constitution and the Bill of Rights. But, just like a stopped clock twice a day, on this point he is correct.
Lie #4
“Every Vote Counts”
The 2000 American presidential election will be remembered as one of the most glaring examples of the federal judiciary infringing upon the fundamental right to vote. The Supreme Court of the United States, in Bush v. Gore, took the election out of the hands of the Florida voters and, in a 5 to 4 decision, essentially decided the election in favor of then-Texas Governor George W. Bush. Some have gone so far as to call the decision criminal.1 How did it happen? We have a very complex history of voting rights in our country.
The United States government is not a direct democracy, in which the majority of its citizens have the right to govern, but a democratic republic in which the people exercise only some degree of influence on government decision making. Article IV, Section 4, of the United States Constitution requires that “[t]he United States shall guarantee to every State in this Union a Republican Form of Government.” According to James Madison, in The Federalist, No. 57, “The elective mode of obtaining rulers is the characteristic policy of republican government.”2 Today, it is widely accepted that a necessary component of this republican form of government, and a basic human right, is the right of the people to vote for their representatives. In fact, the people’s right to vote is the most effective mechanism to hold government officials accountable and ensure that they act in a manner consistent with their constituents’ freedom.
The right to vote is so important to us that we use it as a primary criterion in grading other democratic governments. The new Iraqi Constitution, the text of which was influenced by the United States, highlights the right to vote. Among other references to voting and the rights of voters, Article 20 of the Iraqi Constitution states that “[t]he citizens, men and women, have the right to participate in public affairs and to enjoy political rights including the right to vote, to elect and to nominate.”3 The right to vote is so central to the Iraqi government that it permitted its people to ratify the Constitution by direct vote.4 President George W. Bush viewed elections in Iraq as an essential step in achieving stable, democratic government. After the first Iraqi elections, Bush stated that by voting, Iraqis were “exercising their rights as citizens.”5 According to Bush, the relatively high voter turnout showed Iraq’s “commitment to democracy” and its rejection of “the anti-democratic ideology of the terrorists.”6
President Obama, apparently adopting Bush’s stated purpose for U.S. military action in the Middle East, also considers legitimate elections vital to the success of the new government in Afghanistan, and fears the consequences of fixed results. In June 2009, on the eve of the Afghan elections, Obama vowed to work with the “Afghan electoral authorities and the United Nations to help Afghans ensure a credible, secure and inclusive election process.”7
In America, the right to vote is protected throughout the United States Constitution:
• Article I, Section 2, Clause 1, provides that “[t]he House of Representatives shall be composed of Members chosen every second Year by the People of the several States.”
• The Fifteenth Amendment, ratified in 1870, states that the right to vote “shall not be denied or abridged by the United States or by any State on account of race, color or previous condition of servitude.”
• The Seventeenth Amendment, ratified in 1912, provides for the direct election of United States Senators by the people of the States. (Article I, Section 3, had provided that each state's legislature selects that state's senators.)
• The Nineteenth Amendment, ratified in 1920, states that the right to vote “shall not be denied or abridged ... on account of sex." (It should have stated ”... on account of gender.")
• The Twenty-Sixth Amendment, ratified in 1971, grants the right to vote in all elections, federal and state, to all American citizens “eighteen years of age or older.”
• The Fourteenth Amendment protects the right to vote by preventing the States from infringing on individual liberties without due process, and guaranteeing all persons equal protection of the laws.
The Constitution prevents the government from restricting the right to vote based on age, race, or gender. Surprisingly, however, neither the original United States Constitution, nor the Bill of Rights, explicitly grants or recognizes a federal right to vote. Rather, the Constitution, as it stands today, protects the right to vote only when it is granted by the States. Voting privileges, therefore, extend only as far as our respective state legislatures permit.
This chapter describes unfairness in the American system of selecting representatives, as well as discrimination perpetrated against voters, to show the many ways in which the government has taken the future of this republic out of the hands of the American voter.
Empowering the Majority, Assaulting Federalism
The Seventeenth Amendment does not violate the literal proposition that “every vote counts,” in that all eligible voters can directly elect their U.S. Senators. The direct election of senators dilutes the people’s strength, however, by constricting the States’ power to protect themselves against the massive power of the federal government.
First things first: The Framers did not vest our state legislatures with the power to select their U.S. Senators because they distrusted our ability to make decisions, or because they desired to withhold voting power from us. Rather, they sought to give the States a voice in the federal government, and thus provide a structural check on the power of the federal government. The United States government was founded on the principles of checks and balances and of federalism. One such che
ck and balance is bicameralism, which instructs that the legislature be divided into two chambers. In the United States, Congress is divided into the House of Representatives and the Senate. According to Article I, Section 2, Clause 1, of the United States Constitution, “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States. . . .” Every two years, all eligible voters may vote to elect one congressperson to represent them in the lower house, with no intervention from their respective state legislatures. The House of Representatives, therefore, is often referred to as the “People’s House.”
On the other hand, Article I, Section 3, Clause 1, of the Constitution states that “[t]he Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote” (emphases added). James Madison, among other Framers, supported a two-chambered Congress. In The Federalist, No. 51, Madison stated that “[i]n republican government, the legislative authority, necessarily predominates.” According to Madison, “[t]he remedy for this inconveniency is, to divide the legislature into different branches; and to render them by different modes of election, and different principles of action, as little connected with each other, as the nature of their common functions and their common dependencies on the society, will admit.” The Framers also believed that the bicameral Congress would prevent the influence of special interests on government policy, and allow the federal legislature to satisfy smaller voting districts on the one hand, and entire states on the other.
In another check and balance, the Framers insisted that the U.S. Senate, whose members were to be selected by the state legislatures, would preserve the federal society they created. Federalism is a system in which political power is divided between a central government and sovereign states, and each may check the other’s exercise of power. The Framers believed that the Senate would protect the States’ power. The Federalist, No. 62, states that even though the Constitution enumerates federal powers, mere “parchment barriers” will not prevent a central government from abusing its power. Therefore, the Framers believed that certain structural barriers, or “forms,” were necessary to hold federal power in check. One of these barriers is the U.S. Senate, and the method by which its members are selected.
Even Alexander Hamilton, the father of Big Government, believed that the election of senators by state legislatures would preserve the States’ power by providing an “absolute safeguard” against federal government tyranny. George Mason opined that the election of senators by state legislatures would provide the people with “some means of defending themselves against encroachments of the National Government.”
Simply put, U.S. Senators were intended to be “ambassadors of the states,”8 as States, not representatives of the people in them. Recall that the States, through their delegates at the Constitutional Convention, formed the federal government and ceded power to it. President Ronald Reagan highlighted this fact in his First Inaugural Address, stating that “[a]ll of us need to be reminded that the Federal Government did not create the States; the States created the Federal Government.” It only made sense, then, that in the upper house of Congress, the States, as States, would be represented. The preamble of the Constitution begins with, “We the People . . . ,” but this is misleading, for the “People” did not cede power to the Constitution. Rather, “We the States . . .” did so.
For some time, state legislatures held their U.S. Senators accountable and instructed them on how to act. The Virginia and Kentucky Resolves of 1798, for example, instructed those States’ senators to oppose the Sedition Act, which effectually criminalized the uttering of statements critical of the federal government.9 The Resolves would not have been possible without the influence of state legislatures.10 State legislatures also played an integral role in forcing their senators to support President Andrew Jackson’s crusade against the Bank of the United States.11 Senator Pelog Sprague of Maine, for example, was forced to resign in 1835, after disregarding his state’s instruction.12 Seven other senators suffered the same fate.13
The direct election of senators was a popular idea until the end of the nineteenth century. The very first resolution calling for direct election was introduced in the House of Representatives on February 14th 1826, eighty-six years before the Seventeenth Amendment was ratified.14 In the interim, 187 comparable resolutions were introduced in Congress, 167 of which were introduced after 1880.15 Concern over the original selection of senators increased as the methods by which the States chose their U.S. Senators proved cumbersome for the U.S. Senate, which, pursuant to Article I, Section 4, is entrusted with determining whether its members have been appropriately chosen.16
Since Article I, Section 3, does not specify the manner in which state legislatures must select their U.S. Senators, the States’ selection methods were not uniform. Some senate elections resulted in “legislative deadlock,” where no candidate received a majority of the state legislature’s vote.17 To avoid having to review elections, the Senate, with approval by the House of Representatives, passed legislation in 1866 exercising greater control over senate elections.18 The legislation, which is a clear example of federal imposition on states’ rights, also proved to be highly ineffective, as legislative deadlocks increased drastically.19 It was also unconstitutional.
Charges of bribery and corruption stemmed from the deadlocks that the 1866 legislation created.20 Between the passage of the 1866 act and 1900, the Senate investigated potential bribery in nine senate election cases, and had investigated five more cases by 1912.21 Corruption was found in a very limited number of cases, but the investigations were highly publicized, and supported the notion that state legislatures could not be trusted.22
Furthermore, the development of Populism and Progressivism— two demons that have only destroyed individual liberty—pushed for a change in the way senators were selected.23 The Populists characterized the Senate as a “millionaires club” that was “too far removed from the people, beyond their reach, and with no especial interest in their welfare.”24 Progressivism, a movement that developed as Populism declined, supported a democracy in which the people directly chose all of their representatives.25 Despite the Founders’ ideas, Progressives believed that Americans had become “a new people living and acting under an old system.”26 Progressivism was, and is, based on what I like to call the Gang theory and the Robin Hood theory of government.
The Progressives believe that all power goes to the gang that gets the most votes, and thus all structural efforts to temper that power— like federalism, states’ rights, even natural rights—must give way to the majority’s will. Progressives also believe that somehow, from somewhere, from some source other than the Constitution, they can use the power of government to steal from those who have and give to those who do not. Woodrow Wilson led the Progressives in the Democratic Party, and Theodore Roosevelt led the Progressives in the Republican Party. By promoting and enacting just two amendments to the Constitution—the Sixteenth, which purported to permit taxes on personal incomes; and the Seventeenth, discussed herein—these pernicious little tyrants destroyed many property rights, much federalism, and a great deal of personal freedoms.
The Seventeenth Amendment was approved by Congress on May 12th 1912, and ratified by three-quarters of the States on May 31st 1913. The Amendment states, in part, that “[t]he Senate of the United States shall be composed of two Senators from each State, elected by the people thereof. . . .” This Amendment is a mortal blow to the concept of federalism, as it prevents state legislatures from having any influence in the federal government. Sure, the Amendment ensures that all members of Congress are elected by the people, but the people of an entire state are unable to affect the actions of their U.S. Senators; they can only vote them out of office after their lengthy, six-year terms. Furthermore, the people of every State are not trained to influence federal government policy, and would not know what to do even if
given the opportunity to communicate with their senators.27
We live in a representative democracy, not a true democracy, and we trust our representatives to look out for our best interests. The original Constitution provided our state legislatures control of our U.S. Senators, but the Seventeenth Amendment took the power out of their hands, rendering the States defenseless against federal government abuses. It is no coincidence that the size of the federal government has grown exponentially since 1913 and U.S. Senators have been controlled by special interests often exercising their influence from outside the States that the senators represent.
Repealing the Seventeenth Amendment would not attract the same problems that led to its passage in 1913. Today, we can protect ourselves against corrupt state legislatures through term limits and campaign disclosure statements.28 Also, information on our government officials is highly visible.29 Moreover, to protect against deadlocked state legislatures, the governor of a State could appoint a U.S. Senator if the State’s legislature does not elect a senator or fill a vacancy within thirty days.30
If any amendment is unconstitutional, it is this one. Can an amendment to the Constitution be unconstitutional? I submit it can, even if lawfully adopted, if it strikes at the core values of the Constitution. Removing the representation of the States as States in the central government was a direct and impermissible assault on federalism; more tyranny of the majority. It undermines the premise that the people and the States would have a place at the federal table. It also undermines the States’ check on federal corruption of states’ rights. This amendment, along with the Sixteenth (which permitted federal income taxes), has contributed more to 1984-style Big Government than any other. It is a direct repudiation of the framework the Founders set up. If anyone tells you that this Amendment enfranchises voters, tell that person that the Amendment disenfranchises the States.