"The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and all persons voted for as Vice-President and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate.
The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.
The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.
The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States."
Well...what an amendment. The Twelfth Amendment of the United States Constitution changed the way the Electoral College would elect the President and Vice-President of the country since elections dating back to 1804. Instead of each elector casting two votes for a Presidential candidate, under the twelfth amendment, the electors would now cast a single vote for President, and a single vote for Vice-President. However, only one of their votes can be for a candidate residing in the elector's state. In each state, the electors will create separate lists after each has voted that will contain the names of persons voted for as President, and the other the names of persons voted for as Vice-President, and on each list, beside each name, the electors must record the number of times each person was voted for. The electors, respectively in each state, must sign and certify by notary each list, which afterward shall be sealed and sent to Congress on Capitol Hill, directed for the attention of the President of the Senate, which is the Vice President.
Once the Vice President has received all of the ballots, then he/she shall open all of the ballots in front of the House of Representatives and the Senate, and publicly announce and record each vote.
The winner of the Presidency is the candidate receiving the majority of the votes of the Electors. If no candidate has a majority, then the House of Representatives will vote between the top three candidates. This process requires the presence of at least two-thirds of the total number of representatives, but the winning candidate must receive a majority vote of the whole number of representatives. If the House is unable to make a decision before the next inauguration, then the Vice President would stand in, just as in the case of presidential death, until the House could come to a decision.
For the Vice President position, a candidate must also receive a majority of votes of whole electors. If no candidate receives a majority vote, then the Senate will choose between the two highest voted candidates. In order to do this, two-thirds of the whole number of Senators must be present, and the candidate must receive a majority vote of the whole number of Senators. Also, if a Vice Presidential candidate is ineligible to run for
President, then they may not run for Vice President.
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Wednesday, September 23, 2009
Birthers, Earthers and Founders
Perhaps no controversy in recent years illustrates more clearly the dismal state of American civics education than the controversy pertaining to Barack Obama's birthplace. People who are woefully ignorant of Article 4, Section 1 of the Constitution of the United States again are locked in mortal combat with people who are woefully ignorant of Article 2, Section 1 of the same document. The only good outcome that one can hope for in this struggle is that they both lose.
Let's start with the birthers; after all, they started it. Birthers believe that Barack Obama was born in Kenya and therefore is not a native born citizen, and not eligible to be elected President of the United States. Birthers have some highly circumstantial evidence on their side in the form of secondhand comments about a newborn Obama being held in his mother's arms in Kenya. They also had, for a space of time, an argument from silence due to the lack of publicly available documentation of Obama's U.S. birth. This argument eventually failed along two lines: first, because the argument from silence is a material fallacy (absence of evidence is not evidence of absence), and second because the evidence was, eventually, produced. The State of Hawaii has confirmed that Obama was born there and has furnished America with a certificate of live birth. With the release of that document, the birther movement seems to have suffered its final defeat among convincible Americans. Nevertheless, a few diehards still clench to the hope that Obama can be disqualified from office due to the fact that the Hawaiian document is a "Certificate of Live Birth," as opposed to a Birth Certificate.
This is a sad state of affairs. It is always sad to see dispirited people floundering in desperation. Many of the birthers are the type of people who speak loudly and repeatedly about their fidelity to the Constitution. The problem is that the Constitution is against them. Article 4, Section 1 settles the matter:
"Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."
In other words, it doesn't matter how many times that right wing investigative reporters have "Kenya" stamped on their passports, or how many rumors they manage to publish in World Net Daily. Any official loyal to the Constitution has no choice but to take Hawaii's word for it. States are required to give "full faith and credit" to other states. Under the Twelfth Amendment, the President is to be chosen by a college of "electors." Since these electors are emissaries of the states they are governed by the full faith and credit clause and must accept Hawaii's documentation regarding one of her natives. In other words, this, like most other matters of legal status, is not a matter of endless, enervating debate. If certain citizens choose to ignore the evidence that Obama was born in the U.S., they are permitted to do so, but they are not permitted to hold the rest of us in their manic grasp. If we did not have such a legal mechanism to settle such disputes, states could routinely invalidate the election of politicians from disfavored sections of the country, by endlessly questioning the credentials of the candidate.
In other words, the matter is settled, even if Mr. Obama's status is not apodictically certain. After all, how many such matters are? Was I born in the Easton Area Hospital in 1962? I have a birth certificate and my mother's word for it, but nothing else. Marriages, driver's licenses, all of these matters are handled by paperwork, not through searching metaphysical inquiry.
This is a lesson for the other side, too. Chris Matthews of MSNBC has made a habit of asking Republicans who appear on his program whether they are sure that Obama was born in the United States. Of course, they are not sure. How could they be? How could they be sure that Chris Matthews, much less Barack Obama, was born in the United States? The evidence for Mr. Obama's native status is no more, nor any less, than the evidence of most of ours - Mom's word and a piece of paper.
But the anti-birthers suffer from some knowledge gaps of their own. Many Obama supporters have pointed repeatedly to what they call the ‘xenophobia' of the birther movement, tying it in with nativists and other politically bigoted historic movements. This group holds Americans to be too ‘parochial' and ‘provincial,' criticizing us of being insufficiently well-traveled and cosmopolitan in outlook. This group (let's call them ‘earthers') seems to feel that having an international point of view is an inherent advantage over a domestic one. It extols Senator Kerry's multilingualism and time spent in French Brittany. It looked down upon Mr. Bush's and Mrs. Palin's rather limited travel itinerary. Obama , having lived in Indonesia, would help us to bridge the gap between the Western and Muslim worlds, they told us, just as they had told us before that the Francophile Kerry would be able to reset the relationship with our European allies.
All of this ignores the fact that the founders themselves required U.S. birth for a reason: precisely to avoid someone with an international point of view. Article 2, Section 1 is as follows:
"No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States."
The debate surrounding Article 2, Section 1, was not about whether to restrict the presidency to the native born, but whether to make an exception to the heroes of the revolution who had come from foreign countries. The founders compromised by creating a 14-year transition period. According to Joseph Story, the leading constitutional scholar of the era, the idea of restricting office to the native born was decidedly uncontroversial; the point was to exclude foreign influence. The framers wanted the President to have a monofocally American point of view. Washington reflected this point of view in his farewell address when he warned Americans against permanent alliances with other countries. He saw the fracturing of the body politic between the somewhat pro-English Adams faction and the fanatically pro-French Mr. Jefferson. America got no advantage from the fact that Mr. Jefferson, its third president, travelled widely and came to think of France as his second home. This cosmopolitan vision gave the republic its first genuine threat of dissolution in the fractious election of 1800.
There is nothing xenophobic about concerns regarding Mr. Obama's birthplace, anymore than there would be something juveno-phobic if a movement had developed which questioned his age. The problem with the birthers is not that they allegedly hold a certain skepticism about foreign born men in the White House. After all, the founders gave us that point of view. They problem with the birthers is that Mr. Obama was born here and has proven such to any open-minded citizen, and to the full satisfaction of the Constitutional standard.
The problem with the earthers is that they reject the philosophy bequeathed to us by the framing generation, namely American exceptionalism. We are different from the rest of the world, and although we welcome immigrants more openly than any other great power in history, we withhold one privilege from them--the office which, in a single person, most embodies the will of the American people: the Presidency of the United States. If eathers don't like that wee bit of suspicion towards foreign lands, they shouldn't take it up with birthers or with Palin, they should take it up with James Madison and George Washington, from whom it originally came. We'll see who wins that debate.
I chose this article because cites the Twelfth Amendment when describing that we have processes in place that would prevent fraud in campaigning, especially in Presidential Candidates.
I chose this video because it explains the electoral college of today.
"The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."
Here, again, we run across the word "construed," which plainly means interpreted. Thus, powers of justice and judicial execution, which would include the Judicial Branch of Article III of the Constitution and the Executive Branch of Article II, are not to be interpreted so that their jurisdiction includes any case suit, criminal or civil, where a U.S. citizen prosecutes an American State or wherea citizen of a foreign country prosecutes an American State.
This amendment is pretty straightforward, and, while necessary to be written as law, I think if a citizen of a foreign country were to "sue" or press charges against an American state that the judicial power of the United States would be automatically void if said foreign citizen were out of the U.S. at the time of legal discovery. However, in the situation that said foreign citizen were within the borders of the U.S. and in the situation of a U.S. citizen suing a state, then yes, this amendment is necessary to prevent the government from exercising its judicial power. However, does this mean that the suit simply can't be made, or do international treaties and laws guide this process? Well, strictly following the Constitution, this judicial power SHOULD be reserved for the States and the People according to the Tenth Amendment.
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Publisher And School Board To Go To Trial
By Daniel Gilbert | Reporter / Bristol Herald Courier
Published: October 3, 2009
A newspaper publisher’s lawsuit against the Buchanan County School Board has survived a pre-trial appeal and motion for summary judgment, and appears headed for an Oct. 13 jury trial.
A U.S. District Court judge last week denied the school board’s motion for summary judgment in the 2007 suit brought by Earl Cole, publisher of The Voice, a bi-weekly paper in Buchanan County.
“I guess I’m going to get my day in court,” Cole said Friday by phone.
Cole’s complaint stems from October 2006 when he came onto the grounds of an elementary school to report a story about a school board member who sent his child to another district. Three days after he published a critical story on the board member, the school board banned him from setting foot on school premises – an action Cole contends “chilled” his First Amendment rights.
Attorneys for the school board have argued that the school board members are protected by qualified immunity, and that the resolution banning Cole from school grounds, which was later relaxed to allow him to vote and to attend public meetings, did not rise to the level of chilling his freedom of speech.
But James P. Jones, chief judge of the Western District of Virginia, in late 2007 denied the school board’s claim of immunity, ruling that board members had violated Cole’s constitutional rights.
The school board appealed, and in May the U.S. Court of Appeals for the Fourth Circuit reversed Jones’ order, concluding the district judge had “improperly framed the issue.”
“The appropriate inquiry here is whether a reasonable board member could have believed that banning Cole from the Buchanan County school grounds was lawful,” states the appellate court’s opinion.
The opinion noted that the school board had heard concerns from parents about Cole appearing on school grounds with a camera while children were present, and that Cole had entered a school building during school hours – all before the October 2006 incident that gave rise to the board’s decision to ban him.
Given the breadth of the school board’s authority and the facts members possessed at the time, “a reasonable board member may well have believed it was his or her duty to ban Cole from school grounds in order to protect both the safety of the students and the integrity of the educational process.”
The appellate court’s decision dismissed the school board members individually, but did not apply to the board itself, which, the court noted, “cannot claim qualified immunity.”
Three months later, the Buchanan County School Board filed another motion for summary judgment, this time claiming that the Eleventh Amendment protected them from paying damages.
Jones denied this, noting that the school board “is an independent local government agency, not an arm of the state,” and that a judgment against the board would not be paid from the state’s treasury. The ruling leaves the board as the lone defendant in Cole’s suit.
I chose this article because it defines Schools relating to the eleventh amendment.
I chose this article because it describes a case in which an individual sues a State.
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
If someone forced me to pick a favorite amendment, this would be the one. I can't recall any specific examples, but I would not be surprised to learn that the government has not only attempted, but succeeded in granting itself additional power, especially in lieu of national tragedy. (Patriot Act?)
This amendment states that any powers not granted to the U.S. government by the Constitution are reserved for each individual State, whether it applies the powers or not, and to the people, as long as it is not previously prohibited to the States or the People by the Constitution. This amendment may seem straightforward, but upon deeper examination, one could interpret "the people" as including the federal government as well because it is of the people. However, if that were the case, however, I don't think the Founding Fathers would have differentiated "the people" from "the United States" in this amendment by recognizing "the people" as a separate entity from "the United States" government that is entitled to further power beyond "the United States."
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Financial reform could make US states powerless-Govs
Wed Oct 14, 2009 1:48pm EDT
WASHINGTON, Oct 14 (Reuters) - The reform fervor gripping Washington is worrying many states, with U.S. governors on Wednesday speaking up about a bill that Congress is drafting to create consumer protection regulations in the financial services sector.
Democratic Representative Melissa Bean may block a provision in the bill that would give states rights to protect consumers from risky financial products, according to a source familiar with the matter.
The U.S. House of Representatives Financial Services Committee could vote on the bill as early as Wednesday.
California Gov. Arnold Schwarzenegger and New Jersey Gov. Jon Corzine said in a letter to the committee the bill should not impair "the ability of states to enforce laws regarding investor protections, community reinvestment and fair credit."
"To preempt our ability to protect consumers and investors is shortsighted and would increase risk because the diversity of consumers, financial services products and institutions, investors, and local market conditions are too great for any single regulator," they wrote.
The two wrote on behalf of The National Governors Association, saying it supports the bill's provisions to allow states to enforce their consumer protection laws against financial institutions.
Right now, the bill would "set federal rules as a floor, not a ceiling, allowing the states to adopt and enforce stricter consumer protection laws," they said.
Bean is expected to propose an amendment removing that provision, with the support of U.S. businesses.
The governors say the legislation should instead include language specifically stating that federal powers cannot preempt state authority, arguing that states often can move more quickly than federal agencies in identifying problems and enforcing regulations.
"For example, while Congress has yet to enact comprehensive predatory lending reforms, more than 30 states have already put such reforms in place," they wrote.
The legislation, which would establish a Consumer Financial Protection Agency, will likely be included in a consolidated financial regulation reform bill the House could vote on next month.
Those fears of uniformity, which states say could supersede their unique laws and traditions, and preemption, which could render them powerless, have grown in recent months as President Barack Obama pushes to reform other parts of the U.S. government.
With healthcare reform progressing in the U.S. Senate, some states have threatened to pass laws barring a nation-wide, uniform health insurance plan within their borders. Others have opted out of requirements for a national identification card as well.
Federalism -- the idea of a nation made up of smaller, semi-autonomous states -- was deemed so important by the founders of the United States that they included it in the "Bill of Rights," the first 10 amendments to the U.S. Constitution.
The tenth amendment says that "powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states."
(Reporting by Lisa Lambert and Rachelle Younglai; Editing by Diane Craft)
I chose this article because it discusses the potential infringement of States' Rights granted by the 10th amendment that could result from financial reform.
I chose this video because Rep. Sam Rohrer of Pennsylvania explains the relevance of the 10th amendment today.
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
A straightforward interpretation of this amendment would define it as any rights written in and, thus, granted by the Constitution shall not be interpreted in any way that infringes, to any degree, the rights reserved by the people. The question that raises in my mind is what the Founding Fathers meant by "others retained by the people." Clearly, "others" is referring to rights. But what how would the Founding Fathers define what rights were eligible to be retained by the people? The most obvious answer would be rights granted by the Constitution itself. Therefore, no rights enumerated in the Constitution can be interpreted to infringe or deny upon any other rights guaranteed by the Constitution. However, do these rights include common law? (referring to laws set by precedence of British judges throughout the thousands of years before the colonies). In my opinion, yes, this amendment should include common law so that common law does not infringe upon other rights enumerated in the Constitution.
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If you are not free to choose wrongly and irresponsibly, you are not free at all. – Jacob Hornberger.
Every four years, voters in the United States are given a choice between two major party candidates in the Presidential election. We are often told that either of these candidates are the “mainstream” candidates and if you want your vote to count, you need to choose between either one of the two major party candidates who have a “chance” at “winning”.
However, for true supporters of limited government and personal liberty, this is often a choice made in vain. If you truly believe in a limited, decentralized government which protects both economic and personal liberties and rights, during most elections there isn’t a major party candidate that will generally fit your values. You have a choice between the Democratic Party, of which too many members wish to violate your economic rights and liberties, and the Republican Party, of which too many members wish to violate your personal rights and liberties. This is not a judgment of individuals in either party. Most individual members are doing what they think is right. This is a judgment on those than run the major parties.
To illustrate my own philosophy of government, I’ve often used an analogy of a road trip. The route and destination are analogous to the choices you make in life and the level of freedom you possess.
Too many big government Democrats want to drive your car for you. They feel that if they know the route better, it’s in your own interest to just sit in the back and let them drive the car for you — they will be able to plan the best route and will be able to get to the destination according to the way they think is best. It doesn’t matter if you feel that a different route may be better, because they know how to get there better than you do.
Unfortunately for the American people, some Republicans have deviated from the principles that the party was founded upon, limited government and personal responsibility. Therefore, there is also a part of the Republican Party, a segment of big government Republicans that also want to choose the route and destination for you. Rather than driving the vehicle for you, they will let you sit in the drivers seat and give you the illusion that you are making free choices when in reality the government is in the passenger seat next to you with it’s own set of omnipotent pedals and a steering wheel that they can use to override any choice they deem as unacceptable. Like the omnipotent Drivers Ed teacher than can take control of the vehicle at any moment, big government Republicans want you to have the illusion that you are making your own choices but in reality are only holding up a smokescreen. If they don’t like your choice, they can (and will) quickly override you. The only difference between big government Republicans and Democrats is that Republicans want to give you an illusion that you will be able to choose your destination, when in fact the level of control is the same. Pro-corporate bailout Republicans fit into this category, and it hurts good Republicans like Jeff Flake and Ron Paul.
Those who advocate limited government offer a different path. Grover Norquist wrote that, “The Leave Us Alone Coalition [Norquist's name for limited government advocates] is not antigovernment. It simply wants properly limited government that plays a role in protecting the life, liberty and property of citizens.”
The proper role of government is not to shepherd you to the “correct” decision, government’s role is to protect your rights so that you may make your own choices, whether popular or not, good or bad. Therefore, in the context of the above analogy, to an advocate for limited government, the government is not in your car at all. No judgments can be made on either your route or destination because government is not a participant in the road trip. Instead, government is the mechanic, keeping your car running so that you can make your own decisions while driving.
The proper role of government is not to make sure people make good decisions. There is no role for personal morals in government. The real purpose of government is to maintain minimum social order for people to live their lives by their own morals through their own choices. The key word in that sentence is minimum. For too long, authoritarians have used the guise of “social order” to induce massive control and individual rights violations. To protect minimum social order, government exists to protect nothing more than individual rights, with individual rights being defined broadly enough to include the right to do anything until you restrict the freedom of someone else to do what they please — the classic example being that you have the right to swing your fists through the air, but the right to swing your fist ends at the tip of another person’s nose. This self-correcting view of rights is the only way to ensure freedom. Some may even question whether government is the proper avenue for the protection of rights. Throughout history, it is rare to find an institution that has as evil a record on protecting rights as government does. However, while government may be a bad mechanism for protecting rights, it’s probably least bad way we have, and certainly the only demonstrable way. Barry Goldwater illustrated this point when he stated in his classic Conscience of a Conservative, “All too often we have put men in office who have suggested spending a little more on this, a little more on that, who have proposed a new welfare program, who have thought of another variety of ’security.’ We have taken the bait, preferring to put off to another day the recapture of freedom and the restoration of our constitutional system. We have gone the way of many a democratic society that has lost its freedom by persuading itself that if ‘the people’ rule, all is well.”
However, the deference to government power is moving us from the individualistic “Father knows best” mentality to our current way, a “government knows best” mentality where Barack Obama and his band of merry travelers will dictate economic planning from above because they know best. This is the same type of argument that Justice Holmes gives in allowing the power of government to dictate what’s best in the 1927 decision Buck v. Bell in which Holmes reasoned that government could dictate solutions to social problems. By reasoning that it was within the power of government to forcibly sterilize the “feeble minded and socially inadequate,” Holmes’ reasons for why the government could sterilize women against their will and the reasons behind the entire platform of Barack Obama’s Presidential campaign are identical: government knows best, and government will attempt to solve social problems. If there is one lesson to take from history, it’s that deference to government knowledge and planning is dangerous and responsible for most of the suffering in the world.
However, under no objective analysis have the Republicans done any better. Too many Republicans have given in to the demands of big government is an effort to hold on to power. The Republican Party is not in the gutter because they have been too laissez-faire. The Republican Party is in the gutter because the status quo of the GOP has thrown the principles of limited government into the trash. Discretionary domestic spending under George W. Bush rose at a higher rate than it did under Bill Clinton. The legacy of George W. Bush will be as the Great Spender and the Great Regulator. If you are proud of the record of the GOP in the last eight years, you are not an advocate for limited government. If you are proud of the record of the GOP in the last eight years, you are a supporter of big government.
The main problem for this stems from the fact that when presented with a big government Republican, advocates for limited government are often pressured to support the big government Republican in the name of ‘victory.’ Unfortunately, I see no ‘victory’ in creeping socialism, despite whether there is an R or a D next to the name. Republicans who supported candidates like John McCain and other politicians who voted for the bailout seem to welcome socialism, as long as there is an R next to the candidate’s name. Instead of standing up for the principles of limited government, these Republican socialists have tossed aside what’s right and many have become no better than Democrats.
Under President Bush, this Republican administration has left a legacy of big government. Among the legacies of the Bush administration
When President Bush took office, the national debt was approximately $5 trillion dollars. As he leaves office, the national debt is currently over $10 trillion dollars. President Bush has doubled the national debt in eight years.
President Bush has made it his policy that the federal government should micromanage who should and who shouldn’t get married. The federal government must approve of your relationship before you can wed.
President Bush spearheaded the federalization of education in 2001. President Bush has decided that unelected bureaucrats in Washington should control your child’s education, not parents and teachers.
This is only a select portion of the harm that runaway government power under George W. Bush has threatened our nation and way of life. Big government was slipped in by Republicans because no one was minding the store. Many of the largest budget items weren’t even included in budgets, because they were so outrageous that they wouldn’t survive budget negotiations. They could be added later with a sense of urgency because of “emergency” purposes. According to Grover Norquist:
“The Bush administration has perfected the strategy of pretending to send up a budget and then showing up later with ‘emergency’ spending requests to pay for such ‘unexpected’ costs as pay and equipment for the hundred thousand American troops in Iraq that have been there for years, but somehow the guys at OMB forgot this when they wrote their budget”
The fiscal policies of the Bush administration while running interference on budget supplementals would make Senator Goldwater roll over in his grave. In the end, there is really no difference between the “Compassionate Conservatism” of President Bush and the Great Society socialism of President Johnson. Both are big spending, big government social programs designed to treat the “symptoms” of poverty and not the actual “disease” of poverty.
Henry Hazlitt understood these problems when he wrote the free market classic Economics in One Lesson. The central thesis of the book is that economic planning by government will always attempt to benefit one group (whichever group is lobbying for a policy enactment) at the expense of all other groups, and will always help in the short term while being harmful in the long run. Therefore, he states that, “The art of economics consists in looking not merely at the immediate but at the longer effects of any act or policy; it consists in tracing the consequences of that policy not merely for one group but for all groups.” When government tries to meet the need of whatever group has power or money at any given time, the results are almost universally bad. Hazlitt states,
“Each one of us, in brief, has a multiple economic personality. Each one of us is producer, taxpayer, consumer. The policies he advocates depend upon the particular aspect under which he thinks of himself at the moment. For he is sometimes Dr. Jekyll and sometimes Mr. Hyde. As a producer he wants inflation (thinking chiefly of his own services or product); as a consumer he wants price ceilings (thinking chiefly of what he has to pay for the products of others). As a consumer he may advocate or acquiesce in subsidies; as a taxpayer he will resent paying them. Each person is likely to thinking that he can so manage the political forces that he can benefit from a rise for his own product (while his raw material costs are legally held down) and at the same time benefit as a consumer from price control. But the overwhelming majority will be deceiving themselves. For not only must there be at least as much loss as gain from this political manipulation of prices; there must be a great deal more loss than gain, because price fixing discourages and disrupts employment and production”
Because we have many different roles in our economy, any policies which are enacted for your benefit as one role will harm you in your other roles. The only way to keep everything is free market capitalism. Enterprise capitalism is the only way to ensure justice among all the roles within a diverse economy, strictly because it avoids the problems of central economic planning expressed so eloquently by Hazlitt above.
This all leads back to the fact that the powers that be in both the Democratic and Republican Parties have ignored two of the most important parts of the Bill of Rights: the Ninth and Tenth Amendments.
The Ninth Amendment states:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
In layman’s terms, this means that just because some rights are specifically mentioned in the Constitution, naming those rights should not be taken to mean that rights that are not mentioned are not protected. Put simply, the list of rights in the Constitution is not exhaustive or complete; there are other rights held by the people which are not named, because it would be impossible to name every single right retained by the people. Leading Ninth Amendment scholar and law professor at the Georgetown University Law Center (and native of my home town/graduate of my high school alma mater) Randy Barnett has this to say about the Ninth Amendment and the protection of rights, from his book Restoring the Lost Constitution: The Presumption of Liberty (p. 58)
…natural rights define a private domain within which persons may do as they please, provided their conduct does not encroach upon the rightful domain of others. As long as their actions remain within this rightful domain, other persons — including persons calling themselves government officials — should not interfere without a compelling justification. Because people have a right to do whatever they please within the boundaries defined by natural rights, this means that the rights retained by the people are limited only by their imagination and could never be completely specified or enumerated.
There is no better paragraph on the meaning and bounds of natural rights of which I am aware. The Ninth Amendment is not a source of any specific rights per se, it’s a guideline that ensures that just because a right isn’t mention doesn’t mean it isn’t held by the people.
Next up is the Tenth Amendment. It states:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
This is probably the most ignored part of the entire Constitution. The meaning has been lost to many currently in power, yet is so simple: the federal government only has the power it is specifically given in the Constitution. Unless the Constitution gives the federal government the power to do something, it doesn’t have that power. This system was set up by the founders precisely to give autonomy to the state and local governments, with minimal power to the federal government. The federal government serves an important purpose, and that’s why powers are delegated to the federal government in the Constitution. However, the power that was delegated to the federal government was minimal. Current politicians have chosen to completely ignore this amendment, and give a completely illiterate reading of the necessary and proper clause of the Constitution.
The ninth and tenth amendments work hand in hand. The ninth amendment gives an expansive view of individual rights, and the tenth amendment institutes a strong limitation on the powers of the federal government. It seems that too many Republicans want to ignore the expansive view of natural rights in the ninth amendment and Democrats want to ignore the strict limits on the power of the federal government of the tenth amendment.
The most principled person in Washington understands this problem. Back in 1998, Ron Paul wrote,
“But rather than abide by our constitutional limits, Congress recently passed two pieces of legislation – neither containing a shred of constitutional authority – which, of course, were “non-controversial” despite moving us further from the notion of a limited government. One piece of legislation pledged that the Congress will “pass legislation that provides the weapons and tools necessary to protect our children and our communities from the dangers of drug addiction and violence.” Setting aside for the moment the practicality of federal prohibition laws, an experiment which failed miserably with alcohol in the 1920s, the threshold question must be: “under what authority do we act?” Whether any governmental entity should be protecting individuals from themselves and their own stupidity is certainly debatable; whether the federal government is constitutionally empowered to do so is not. Being stupid or brilliant to one’s sole disadvantage or advantage, respectively, is exactly what liberty is all about.”
Unfortunately, not enough people have read the Constitution.
It is for these reasons that I call on advocates for limited government to pledge to support the World’s Smallest Political Platform. It reads that we “support reducing the size, scope and power of government at all levels and on all issues, and opposes increasing the size, scope or power of government at any level or for any purpose.”
There are good organizations out there that believe in limited government. Some good ones to support are (There are many, many more good limited government organizations. This is just an example): Heartland Institute Americans for Tax Reform Illinois Policy Institute
Cato Institute Republican Liberty Caucus
I leave you with a quote from Mr. Republican himself, Robert Taft. If we had more Robert Tafts in the Republican Party, we’d be much better off. I mean liberty of the individual to think his own thoughts and live his own life as he desires to think and to live; the liberty of the family to decide how they wish to live, what they want to eat for breakfast and for dinner, and how they wish to spend their time; liberty of a man to develop his ideas and get other people to teach those ideas, if he can convince them that they have some value to the world; liberty of every local community to decide how its children shall be educated, how its local services shall be run, and who its local leaders shall be; liberty of a man to choose his own occupation; and liberty of a man to run his own business as he thinks it ought to be run, as long as he does not interfere with the right of other people to do the same thing. – Robert Taft
I chose this article because it directly relates to modern day issues concerning not only the ninth amendment, but the tenth as well. However, with regards to the ninth, this article touches on contemporary political issues, such as federal economic regulation, that arouse concern about powers that are reserved for the states and the people.
"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
Cruel and unusual punishment... In a court case where a question of rights is espoused with regards to the Eighth Amendment, one would find a debate of interpretation, especially in defining "excessive," and "cruel and unusual." To me, this is a problem. We need a common and uniform law dictionary for reference when addressing these types of issues; however, I fear that we could spend years also debating which dictionary that would be.
As far as I know, the Supreme Court of the United States uses (or at least use to use) Black's Law dictionary for reference, and this is what I used in high school debate competitions. So, let's see what Black's Law has to say about the Eighth Amendment: excessive bail: bail that is unreasonably high considering both the offense with which the accused is charged and the risk that the accused will not appear for trial. bail: a security such as cash or a bond; security required by a court for the release of a prisoner who must appear at a future time. excessive fine:criminal law.A fine that is unreasonably high and disproportionate to the offense committed. A fine or penalty that seriously impairs one's earning capacity, esp. from a business. fine: an amicable final agreement or compromise of a fictitious or actual suit to determine the true possessor of land. a pecuniary criminal punishment or civil penalty payable to the public treasury. cruel and unusual punishment: punishment that is torturous, degrading, inhuman, grossly disproportionate to the crime in question, or otherwise shocking to the moral sense of the community. punishment: a sanction - such as a fine, penalty, confinement, or loss of property, right, or privilege - assessed against a person who has violated the law.
Thus, depending on the crime committed, no bail shall be in excess of the value of the risk that the accused will not appear for trial, nor shall the judgment of the accused include an unreasonably high and disproportionate fine, or punishment that is torturous, degrading, inhuman, grossly disproportionate to the crime, or shocking to the moral sense of community.
A very short and simple amendment...
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Is a second execution attempt cruel and unusual?
A lethal-injection team tried for about two hours to find a usable vein, then gave up. Romell Broom, a convicted rapist-murderer, says another try would be unconstitutional.
Two hours and 23 minutes after it started, the execution of Romell Broom was halted by the governor. (Photo provided by the Ohio Department of Rehabilitation and Correction.)
By Carol J. Williams
September 19, 2009
As executioners poked his limbs with an IV needle, Romell Broom initially tried to speed along his own demise, flexing his arm and tugging on a rubber tourniquet to better expose a vein on the inside of his elbow.
But as prison workers repeatedly failed to find a vein strong enough to take the lethal injections, the convicted rapist-murderer began to despair over his protracted end. Witnesses and the execution-team log from Tuesday describe how the 53-year-old winced and cried as a shunt inserted in his leg also failed to open a pathway for the fatal drugs.
Two hours and 23 minutes after it started, Ohio Gov. Ted Strickland halted the execution and scheduled a second attempt for a week later.
The aborted execution has renewed concerns about lethal injection, and raises the question of whether a second execution attempt would violate the 8th Amendment prohibition of cruel and unusual punishment.
On Friday, one of Broom's attorneys filed lawsuits in state and federal court alleging that another execution attempt would violate Broom's civil rights. U.S. District Judge Gregory L. Frost issued a temporary restraining order putting off the attempt for at least 10 days. The attorney, Tim Sweeney, also appealed to the U.S. Supreme Court to review the case.
Only once before has a state's execution failed, legal scholars say. In 1946, 17-year-old Willie Francis walked away from Louisiana's "Gruesome Gertie" electric chair after a 2,500-volt current coursed through his body.
"The issue with Willie Francis was, can you re-execute him, or would that be cruel and unusual punishment or double jeopardy?" said Deborah Denno, a Fordham University law professor and death penalty expert.
A divided high court decided in 1947 that Louisiana could lawfully subject Francis to execution again. A second electrocution killed him a year and three days after the first attempt.
"But so many aspects of that case are so outdated or so specific to Willie Francis and that time that even though it is entrenched precedent with the U.S. Supreme Court and frequently cited, one would look at the Broom case very differently," said Denno, whose writings on execution methods were cited by the U.S. Supreme Court majority in last year's decision upholding the constitutionality of lethal injection in Kentucky.
"I think we're in a new day in our treatment of human beings," said Richard Dieter, executive director of the nonprofit Death Penalty Information Center.
"To subject someone to being at the brink of death, then yank them back because the state couldn't carry out its own procedures . . . suggests the whole lethal injection process is in need of further review," said Dieter, who has expressed views against capital punishment.
The Supreme Court took what some analysts saw as a narrow look at lethal injection in the Kentucky case, Baze vs. Rees. The state had carried out only one other execution in recent years and, as in the Francis decision, the court found no pattern of flaws with methods.
Other states held off on executions until the justices in April 2008 ruled lethal injection a humane means of execution if carried out correctly.
All 35 states that allow the death penalty use a similar -- though not identical -- three-drug process. It is often administered by corrections officers rather than doctors because the American Medical Assn. advises against physician participation in executions.
Death penalty opponents say the Broom incident should at least compel Ohio to impose a moratorium on executions and review the procedures.
"Ohio has a history here. It's not just him. He's the third guy in three years where we've had essentially variations on the same problem," said Jeff Gamso, volunteer attorney and former legal director for the ACLU of Ohio. He was referring to the executions of Joseph Clark in 2006 and Christopher Newton in 2007 in which prison workers took more than an hour and two hours, respectively, to kill the inmates because of trouble locating veins.
Some legal scholars said they expected little legal consequence from the Ohio incident.
"This certainly put someone through anxiety and stress, but whether that rises to cruel and unusual punishment -- I doubt the Supreme Court at the end of the day would agree with that," said John Eastman, dean of the Chapman University School of Law in Orange
Robert Weisberg, a Stanford University law professor and director of the Stanford Criminal Justice Center, said public opinion has been little affected by previous cases where executions were botched.
What is likely to happen, he said, is an incremental backing off from capital punishment because of the costs, delays and mounting concerns about executing the innocent.
Last year, 37 people were executed nationwide, the lowest number in 14 years, partly because of states' review of execution procedures. And 111 death sentences were issued, compared with more than 300 a year in the mid-1990s.
Since 1973, 135 people have been exonerated and freed from death rows, five of them this year.
Weisberg said California is a prime example of a state that retains a death penalty in theory yet rarely conducts executions despite having the nation's biggest death row, with 685 condemned prisoners.
In California, executions have been on hold since early 2006: Lethal injections have failed to fully anesthetize inmates in six of the 13 executions conducted in the state since capital punishment resumed in 1976.
I chose this article because it deals directly with the cruel and unusual punishment clause by pondering if a second attempt at capital punishment is or isn't cruel and/or unusual punishment after a failed first attempt.
I chose this video because sentencing 13-14 year old children to die in prison, whether it actually happens or not (I can't be sure at this point), is cruel and unusual, being that in many other cases, children under the age of 18 are considered not consciously capable of moral cognition, and are, therefore, unable to be held responsible for their actions.
