Judge Neil Gorsuch Says the Declaration of Independence Is Not Foundational Law

Under questioning by Ben Sasse, Republican Senator from Nebraska, Judge Neil Gorsuch said that the Constitution is the foundational law.  The Declaration of Independence is not, though it is informative of the background of the Constitution and should not be lightly discarded.  Unfortunately, Judge Gorsuch did not discuss the fact that the Declaration of Independence is the primary statement of the philosophy behind the Constitution.  He neglected to say that the Declaration of Independence is the American document that defines the legitimate purpose of government -- the protection of the rights of the individual.

It is the Declaration of Independence that makes it clear that sovereignty resides in the individual, not in government.  Government exists to serve the sovereign individual, the holder of rights.  The individual and his rights exist whether government does or not.  Government does not define individual rights.  It is the nature of man and his need to survive and flourish in life that define individual rights.  An understanding of this is absolutely necessary to make it possible for government to fulfill its legitimate purpose in protecting everyone's individual rights.

The Bill of Rights enumerated some individual rights.  Yet that same document, in the 9th Amendment, made it crystal clear that the enumeration of individual rights was incomplete and that the federal government was not "to deny or disparage the other rights retained by the people." Unfortunately, the federal courts have attributed almost no protections to individual rights under this 9th Amendment, having virtually ignored the broad scope of individual rights acknowledged in the Declaration of Independence as those of life, liberty, and the pursuit of happiness.

The 14th Amendment also recognizes the broad individual rights of citizens: "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."

Absent the context of preexisting and preeminent individual rights, the protections of those rights by the government are bound to be haphazard at best.  More likely, the government itself will become the greatest threat to individual rights.  The fact that the Declaration of Independence is not considered a foundational document in the law drastically undermines our understanding of the purpose of government, its proper limits, and the effectiveness of the Constitution to fulfill its contract with the people to provide "a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, ..."

It is very disturbing when politicians and judges prove themselves to be rudderless before their essential and only task of protecting individual rights.  There is no way that a knowledge of these individual rights is or can be spelled out by a few short documents.  The Constitution is itself a given document whose meaning is the Law of the Land.  It is not a changing or living document and it must be interpreted in accordance with its original meaning.  When and if one cannot do that, it should be amended.

What is living and evolving is our understanding of individual rights.  The Constitution literally makes it clear that we are to see to it that the government protects everyone's equal individual rights as these rights are understood in terms of man's nature and the reality in which he lives.  The use of this understanding of man's rights is not a matter of changing the meaning of the Constitution.  Its meaning was always to provide a very limited government whose purpose was the protection of individual rights.  There is no other interpretation of the Constitution which is self-consistent, rational, and legitimate.

Freedom of speech has evolved since the time of the Constitution's adoption as the Law of the Land. It still means that one has the right to say what one wants to those within hearing range, but it also now means that one has the freedom to buy a radio or a television station and say what one wants through that medium, or that one can say what one wants in a video posted to You Tube.  Similarly, property and labor rights have evolved in many ways to include new forms of contracts and new forms of intellectual property.  It has come to be recognized that domestic partnership contracts have to equally recognize the partnerships of two people of the same sex, as well as those of two people of the opposite sex.  Not to do so is a violation of the principle of the equal protection of individual rights necessary to the right to pursue one's happiness.  One can only hope that our broad right to freedom of association will one day be more recognized than it is now.  As these changes have occurred and will continue to occur in our real lives, the 9th and 14th Amendments should be constant as sources of the justification for protecting these individual rights. No change in the Constitution is needed to protect individual rights, despite their evolving nature.

To be clear:  I am not a believer in a living Constitution.  I believe that it is our understanding of individual rights that is changing.  To some degree, those individual rights are themselves evolving as the conditions of man's existence in reality change.  Most of that change is the result of man using his rational faculty to improve and control the world in which he lives.  We need judges throughout our judicial system who understand that the Constitution itself should be interpreted literally and always in such a manner as to maximize the protection of individual rights.  These same judges should be open to understanding our individual rights and prepared to expand their range.  It is not the Constitution which is the primary basis for rational law.  The primary basis is the protection of individual rights.  The Constitution is an important and critical tool to limit the powers of government and to direct its actions toward the equal protection of every citizen's many and broad individual rights.  This is the critical context for all valid constitutional law -- indeed for any valid law.

It is sadly the case that Judge Neil Gorsuch seems to defer too much to any existing law and any prior interpretation of the law whether or not they violate these principles of legitimate government.  It appears that Justice Clarence Thomas will remain the best of the Supreme Court justices.

ObamaCare - The Law of the Land Made Lawless

The Democrats of the Democrat Socialist Party have repeatedly claimed that the PPACA or ObamaCare is the Law of the Land and must be respected.  Yet, Obama has made many exemptions from the law's requirements for unions and favored businesses and has made 18 major changes in the law, mostly by delaying its provisions, without the congressional action required by the Constitution, which is the Law of the Land. 

Of course, I think that ObamaCare is clearly unconstitutional, since the government was given no power to own our bodies and minds and hence has no power to determine the means of maintaining our bodies and minds.  Any attempt by government to take over this critical life function of the individual is a fundamental violation of individual rights.

But if we ignore that paramount fact, then the many unlawful changes in ObamaCare made by Obama have clearly deprived it of any pretense of being The Law of the Land, unless Congress and the Courts become adamant in defending the law as voted on by Congress and originally signed into law by Obama.  The law is already highly blemished, indeed highly rotten, by virtue of the many provisions already violated by Obama.  Those violations of the law by Obama have not yet been opposed by Congress, making Congress complicit in this lawlessness.

The fact that this law is maintained in an ever changing form against the wishes of most of the People is a red flag slapping us in the face and shouting that this is not a democracy, however often the Democrats proclaim it to be so.  This is a clear indicator that special interests and not the People control the government.

The fact that the Democrat Socialist Party is now in such terror of the next election is a very clear result of the extremely harmful effects of ObamaCare.  The very high premium costs in most states, the high deductibles and co-pays, the poor doctor and hospital choices, the many drugs and medical services no longer covered, the severe disruptions brought to the entire medical care, medical insurance, and medical insurance policy holders, and the financial risks of entering the system negligently deprived of security guards for one's personal information, all scream that the law is highly inimical to our welfare.  The law has failed to induce the uninsured to sign-up for ObamaCare as well.  So, it is both unaffordable and unwanted.  So far, only about 10% of the uninsured have become insured and fewer of the previously insured who lost their insurance because of ObamaCare have signed on to ObamaCare.  While some uninsured with serious medical conditions have now signed on to ObamaCare, others with serious medical conditions who previously had coverage and then lost it thanks to ObamaCare are now either without insurance or have a less desirable insurance coverage.

The results of ObamaCare are so bad that it is pretty much impossible to buy into the idea that the Democrat Socialist Party ever thought that this law was consistent with the Welfare of the People.  Or if they did think so, then the Progressive Elitist claim to rule due to superior intelligence, education, and moral fiber is ridiculous.

Proposed Constitutional Amendments

I am proposing the following constitutional amendments.  Many would not have been necessary had Americans understood and lived by the principles of the Framers of the Constitution.  Given decades of ignoring the Constitution and a huge excess of laws, regulations, and government spending, I think these amendments would go far in correcting the many problems we have with excessive, tyrannical government.

Good law requires that the welfare of every individual is increased by the law.  For this reason, it a super-majority of individuals do not approve of a law or a regulation, it should not become law or it presently law, it should be repealed.

My amendments are:

1) Amend the 16th Amendment authorizing an income tax to state that one and only one marginal tax rate will be applied to incomes equal to 75 percent of the median taxable household income and all higher taxable household incomes.

2) Repeal the 17th Amendment requiring the popular election of Senators.  Return to the original election of Senators by state legislatures.

3) Every adult owns his own mind, body, and labor and may use them, maintain them, and dispose of them as he pleases, so long as he does not initiate the use of force upon others.    Individuals have the right to protect their minds, body, and labor from violence.

4) Every adult has the right to the results of his labor or thought and to his property.  The goods he has made, the land he has improved, and the ideas he has originated and put into the form of a product or process are to be protected from theft by government.  No government taking of property is permitted except with just and reasonable compensation or because that property was used by the owner in the commission of a crime as determined by trial.  No government taking of property not used in the commission of a crime is allowed except for necessary and proper government use.

5) Every adult individual has the right to associate with others for the purposes of his choosing in voluntary relationships, contracts, and trading.  Adult individuals have the right to exercise their own judgment in their associations, contracts, and relationships with others.  Government will protect individuals from violence and fraud which has actually happened or is in the process of happening, but will not limit the freedom of association out of fear of potential future violence or fraud.

6) The government does not control or manipulate the economy or trade and commerce.  It provides a constant value supply of currency for government functions and general use, but does not prevent the circulation of other distinctive currencies.  It forbids state and local governments from interfering with trade, commerce, and travel by the People across state boundaries.

7) Individuals have the right of privacy so long as they are not engaged in acts of violence or fraud.  Information not available to the general public will not be collected and saved about any individual without a court order attesting to the reasonable likelihood that the individual is engaged in violent acts or fraud.  No means of obtaining private information on individuals will be used without due process.

8) Any law or act of Congress may be repealed by a vote of 40% or more of the members of both the House of Representatives and the Senate.  The President may not veto such repeal votes.

9) Any law or act of Congress requires a vote of 60% or more of the members of both the House of Representatives and the Senate.  The President may use his veto power on such acts of Congress.  The same 60% approval is required for all Executive Branch appointments reviewed and consented upon by the Senate.

10) Any member of Congress who has voted for a bill must attest in a written document that the member has read the bill and believes it to be in the interest of the general welfare, necessary, proper, and constitutional.

11) Any federal law may be repealed by act of 40% or more of the state legislatures.

12) Any regulatory rule by an executive branch agency of the federal government may be nullified by votes of 40% or more of the members of both the House of Representatives and the Senate or by 40% or more of the state legislatures.  Any new regulation produced by a government agency which will impose costs of $25 million or more must be specifically approved by both the House of Representatives and the Senate with votes of 60% or more.  Any legislative attempt by Congress members to review any regulatory ruling which has the support of 40% of the members of that house cannot be kept from a vote in that house.

13) No federal law shall exempt members of Congress or federal government employees from its application to them, except by an explicit and recorded vote in favor of such an exemption by at least 80% of the members of both the House of Representatives and the Senate.

14) No member of Congress shall serve in Congress more than 12 years continuously and no more than 20 years in a lifetime.  After 12 years of service, there must be at least a ten-year period of non-service in the federal government before further service commences.

15) Senators and their staffs will be paid by the state they represent.  Senators will not receive any payment or benefits for services, nor will they receive any payments or benefits after the termination of their service, from the federal government.

16) Members of the House of Representatives will not receive any payments or benefits from the federal government after the end of their service in the House of Representatives.

17) Authorizations for the existence of each and every executive branch agency or department must be renewed by an individual, specific act of Congress every four years for that executive entity.  The budget for every such agency or department must be individually reviewed and approved at the same time.  Congress will also at that time review and evaluate the actions of that agency or department over the last four years and make that review available to the public, with only national security exceptions upon the vote of 60% or more of the members of each house of Congress.  If Congress does not authorize the agency or department and its budget individually on this four-year cycle, all operations of that agency or department must cease at that time.

18) No appropriations may be made by any Congress which are binding upon any future Congress.

19) Decisions of the federal courts may be overturned by a vote in both houses of Congress of two-thirds of the members of each house.  Federal court decisions may be overruled by two-thirds of the states by acts of their legislatures.

20) Annual federal government spending may not exceed a fixed percentage of the annual national gross domestic product except in times of declared war and then by no more than half the annual cost of that war unless both houses of Congress approve such additional spending with a vote of 80% or more.  The upper limit fixed percentage will initially be 18% and will be decreased by 0.5% with each new Congress, until it reaches 8% of gross domestic product. 

21)  Annual federal government spending may not exceed government revenues by more than 3% except in times of declared war and then by no more than half the annual cost of that war unless both houses of Congress approve such additional spending with a vote of 80% or more.

22) Total government debt may not exceed the annual national gross domestic product except by the vote of 80% or more of the members of each house of Congress.

23) No one may vote in a federal election unless they present a valid picture identification at the time of voting.  Only federal employees on duty outside the United States of America may cast their vote more than 2 weeks prior to the day of the election.  They may not vote earlier than 6 weeks prior to the election.

I plan to revisit these proposed amendments to discuss them in more detail.  I am sure that some of them need to be tuned up and I will welcome comments with suggestions on how to do that.

Levy: The Moral and Constitutional Case for a Right to Gay Marriage

Robert A. Levy is the chairman of the Cato Institute, a libertarian think tank in Washington, D.C.  He recently played a major role in strengthening the Second Amendment to the Constitution in the case of Washington, D.C. vs. Heller.  He recently wrote an article appearing in the New York Daily News on 7 January 2010 on the right to gay marriage called The Moral and Constitutional Case for a Right to Gay Marriage.  It is an excellent article, consistent with my oft-stated belief that we would be better served by getting government out of marriages, which I believe are a spiritual union of partners.  The government should only be offering an important legal contract for domestic partnerships, somewhat akin to a small business partnership.  The spiritual aspect of such a domestic partnership, the marriage aspect, is not something government can or should attempt to address.

Levy points out that New Hampshire and Washington, D.C. have just joined Connecticut, Iowa, Massachusetts, and Vermont in legalizing gay marriage after disappointing defeats in California, Maine, and New York.  Levy says:

The primary purpose of government is to safeguard individual rights and prevent some persons from harming others. Heterosexuals should not be treated preferentially when the state carries out that role. And no one is harmed by the union of two consenting gay people.

For most of Western history, marriage was a matter of private contract between the betrothed parties and perhaps their families. Following that tradition, marriage today should be a private arrangement, requiring minimal or no state intervention. Some religious or secular institutions would recognize gay marriages; others would not; still others would call them domestic partnerships or assign another label. Join whichever group you wish. The rights and responsibilities of partners would be governed by personally tailored contracts — consensual bargains like those that control most other interactions in a free society.

Levy notes that more than 1,000 federal laws dealing mostly with taxes and transfer payments have provisions for married people.  The states have many more laws with provisions for married people.  But Levy says:

Whenever government imposes obligations or dispenses benefits, it may not "deny to any person within its jurisdiction the equal protection of the laws." That provision is explicit in the 14th Amendment to the U.S. Constitution, applicable to the states, and implicit in the Fifth Amendment, applicable to the federal government.

Levy also observes that:

No compelling reason has been proffered for sanctioning heterosexual but not homosexual marriages. Nor is a ban on gay marriage a close fit for attaining the goals cited by proponents of such bans. If the goal, for example, is to strengthen the institution of marriage, a more effective step might be to bar no-fault divorce and premarital cohabitation. If the goal is to ensure procreation, then infertile and aged couples should be precluded from marriage.

More and more people are unable to find any substantial merit to the claim that gay domestic partnerships weaken or threaten heterosexual marriages.  As Levy notes, nearly 60% of Fortune 500 companies offer employee benefits to domestic partners.  The Senate Homeland Security and Governmental Affairs Committee has also voted to apply employee benefits to the gay partners of federal employees.  The clock is running out on this cruel act of discrimination.

The Effectiveness of Government Management

I have grown a bit weary of constantly pointing out the nonsensical, idiotic, wrongheaded, uneconomic, unconstitutional, thieving, and brutal aspects of what the Democrats want to do to change our health care system.  I have pointed out that the things they are already doing in medicine are largely unwise.

I have noted that the U.S. government mismanages these functions very badly already:

• Health care as in Medicaid and Medicare
• The U.S. Postal Service
• Amtrak
• Ethanol production as alternative fuel
• Subsidies and mandates for wind and photovoltaic electricity generation
• Crop subsidies
• The identification of pollutants and toxic substances
• The forests and wildlands
• Permitting for oil and gas exploration and field development
• Gas mileage requirements for vehicles
• Medical device testing and quality assurance
• Scientific research and development
• Energy research and development
• Climate research
• Home mortgage lending
• Monopoly identifications
• Business accounting rules
• Business and medical liability torts
• Education (see my next post)
• Defense (largely due to too unfocused attention given diffused meddling in everything)
• Foreign policy
• Constitutional law
• Flight safety and route controls
• Interstate bridge safety and maintenance
• Airwaves licensing
• Drug testing and evaluation
• Anti-discrimination (turning it into discrimination)
• Business destruction by encouraging labor unions
• Immigration and border control
• Taxation and government revenue
  
• Economic growth
• Job creation
• Interstate commerce
• International trade
• Government property
• Government purchasing and acquisitions
• Eminent domain
• Drug use prohibitions
• Wage controls
• Price controls
• Patent controls
• Alcohol controls

It sure is a strange thing that so many Americans are on a constant search to find some other aspect of our lives to turn over to the federal government.