James Madison

Housekeeping Note: Greetings, United Liberty Readers!

Hello, United Libertarians!

I just wanted to take a moment to thank UL editor Jason Pye for inviting me to join the fine group of contributors already bringing you the very great political and policy punditry you’ve no doubt come to expect from this site by now.

And, of course, I’d like to introduce myself: I’m George. Lots of people know me as @stackiii, The Dangerous Servant, or simply as the man behind the Cato Institute’s new media footprint over the last year. I currently work as a political consultant with CRAFT | Media/Digital in Washington, DC. You can read more about who I am, what I’ve done with my life, and the sorts of stuff in which I take an active interest here — but I thought it might be nice to add what it is I intend to do here at United Liberty.

Much like it does on my own website, my work here will largely take the form of critiquing public policy from a Madisonian perspective. That is to say that I will bring what I understand our Framers’ ideas to be, as well as my own scholastic and professional training, to bear on public policy issues and developments. I will try to post regularly, even if that does not mean frequently.

I do not typically spend a lot of time writing about politics, candidates, or campaigns, except when discussing electoral institutions in the abstract. There are many reasons for this, but suffice it to say that a) policy shapes our lives, not personalities, and b) as a political consultant, I aim to avoid any conflicts of interest that might otherwise arise.

The Federal Department of Education: Time to Pull the Plug

The current, ongoing showdown between Democrats and Republicans over the federal budget is giving Americans a front row seat for the fight over national spending priorities and, for the conservative wing of the Republican Party, over the proper role of government itself. There are huge quantities of heated rhetoric being thrown around about greedy corporations, the need to help the poor and dire warnings against “Draconian” cuts to the budget. Yet, make no mistake about it; the problem is solely one of spending. Even if we taxed 100% of earnings for those hated millionaires and billionaires that Obama and the Democrats so love to publicly flog (even as the privately court them for their campaign donations), we wouldn’t even fund the annual budget, much less make a dent in the national debt.

While we will be forced in the very near future to finally have a serious discussion about the Big Three entitlements (Social Security, Medicare and Medicaid…with ObamaCare pending resolution in the courts), there is some low-hanging fruit that we can cut in the budget if we look at a cost-benefit analysis of programs and agencies that are duplicative, outdated or simply unnecessary. Right near the top of that list should be the federal Department of Education.

The federal Department of Education was created in 1976, signed into law by President Jimmy Carter. The legislation narrowly passed Congress, but succeeded in large part because of a heavy lobbying effort by the National Education Association (NEA) and the American Federation of Teachers (AFT). Many politicians, eager to secure the donations, manpower and influence of a large and powerful constituency, jumped at the opportunity to cement this politically incestuous relationship.

Yglesias and the Constitution

Blogger Matthew Yglesias is actually one of my favorite bloggers, despite his left leaning ideas.  You see, Yglesias seems to try to understand the issues he’s talking about and often makes valid points in his writings.  That doesn’t mean I agree with them, but I do respect them to some degree. He also will ponder things he isn’t sure about publicly, something I should probably consider myself.

A couple of days ago, he wrote about the James Madison vetoing a canal bill.  Yglesias said:

The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution, and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers, or that it falls by any just interpretation with the power to make laws necessary and proper for carrying into execution those or other powers vested by the Constitution in the Government of the United States.

“The power to regulate commerce among the several States” can not include a power to construct roads and canals, and to improve the navigation of water courses in order to facilitate, promote, and secure such commerce without a latitude of construction departing from the ordinary import of the terms strengthened by the known inconveniences which doubtless led to the grant of this remedial power to Congress.

I would have said that the power “[t]o establish Post Offices and Post Roads” implies a generic grant of authority to do transportation.

Senate Appropriations chairman to deny earmarks for two years

Because of the earmark ban put in place by House Republicans and President Barack Obama’s pledge to veto bills containing them (though the White House did step back from that after the State of the Union address), Senate Appropriations Chairman Dan Inouye (D-HI) has gotten the message:

Senate Appropriations Committee Chairman Daniel Inouye, D-Hawaii Tuesday said he would not accept requests for earmarks for the next two years – a move that comes after President Obama said in his State of the Union address that he would not sign any bills with earmarks.

“The President has stated unequivocally that he will veto any legislation containing earmarks, and the House will not pass any bills that contain them,” Inouye said in a statement. “Given the reality before us, it makes no sense to accept earmark requests that have no chance of being enacted into law.”
“The Appropriations Committee will thoroughly review its earmark policy to ensure that every member has a precise definition of what constitutes an earmark,” Inouye added. “To that end, we will send each member a letter with the interpretation of Rule XLIV (44) that will be used by the Committee. If any member submits a request that is an earmark as defined by that rule, we will respectfully return the request.”

Inouye expects leader to revisit the issue next year.

Tenth Amendment Center: Health Care Ruling: Victory or Trojan Horse?

The following is a press release we received from the Tenth Amendment Center.

While many conservatives laud yesterday’s ruling by U.S. District Judge declaring the federal health care bill passed last year unconstitutional, analysts at the Tenth Amendment Center displayed significantly less enthusiasm, calling the ruling a Trojan Horse.

“According to Vinson – and just about everyone else in the federal judiciary – the federal government actually does have the authority to control, reform, and regulate the health care industry. They’re just going about it wrong,” TAC executive director Michael Boldin said. “This is seriously dangerous for those who believe that the founders’ Constitution needs to be followed: every issue, every time, no exceptions, no excuses.”

As James Madison explained, the commerce clause was intended to make trade “regular” between the states, primarily to prevent interstate tariff wars. Madison wrote:

“It is very certain that [the commerce clause] grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government.”

In other words, the framers never envisioned Congress regulating entire industries.

“The feds are authorized to make commerce in health care across state lines, ‘regular’ – that’s for sure. But this power is far less than anything that’s been proposed by either political party in….well, probably about forever,” Boldin said.

The Center’s director pointed out a “better option” for those yearning for just a little decentralized freedom.

“State nullification of the federal health care law – every single word of it, as it should be.”

Meet James Madison, Senator Inhofe

In an effort to defend earmarks and fight off a proposed moratorium, Sen. James Inhofe (R-OK), who has apparently fallen in love with the smell of the marble in the Halls of Congress, invokes James Madison in defense of the practice:

Earmarks have been part of the congressional process since the founding of our country. As James Madison, the father of the Constitution viewed it, appropriating funds is the job of the legislature. Writing in the Federalist, he noted that Congress holds the power of the purse for the very reason that it is closer to the people. The words of Madison and Article 1 Section 9 of the Constitution say that authorization and appropriations are exclusively the responsibility of the legislative branch. Congress should not cede this authority to the executive branch.

Yes, Sen. Inhofe, that’s why James Madison, the Father of the Constitution, vetoed the Bonus Bill of 1817 (a spending bill loading with pork and pet projects for members of Congress) explicitly because it was unconstitutional:

The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution, and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers, or that it falls by any just interpretation with the power to make laws necessary and proper for carrying into execution those or other powers vested by the Constitution in the Government of the United States.

Founding Fathers’ Facebook Statuses

House GOP and a new Contract with America

With the likelihood of a takeover of the House likely, Republicans are trying to repeat the magic of 1994 by coming up with a new “Contract with America”:

House Republicans are planning to roll out their election agenda over the next two weeks as they seek to take back the House majority, prepping a list of roughly 20 initiatives — including a few that seem driven by the tea party movement.

One of the GOP proposals would require bills to have a specific citation of constitutional authority, on the heels of criticism that Democrats breached their constitutional limits in Congress with big-ticket bills like health care reform. If a member questioned whether the House had constitutional authority to pass a bill, that challenge would receive debate and a vote.

The second major initiative would encourage — though not require — members of Congress to read bills before they vote. According to a senior House GOP source, Republicans plan to push for a new rule that would require the House to publish the text of a bill online at least three days before the House votes on it, also giving the public an opportunity to review legislation.

Other bills and initiatives that are likely to be launched alongside the agenda include tax policy proposals, health reform proposals and jobs-related measures, though GOP aides involved declined to release any specifics ahead of the unveiling.

The Case Against Nullification

The once discredited idea of nullification, the idea that the individual states have the authority to nullify Federal laws inconsistent with the Constitution, is making a comeback thanks largely to a new book entitled Nullification: How to Resist Federal Tyranny in the 21st Century by Thomas Woods. Today, over at The Volokh Conspiracy, law professor Randy Barnett casts a very skeptical eye on Woods’ argument:

While there are some interesting structural arguments to be made on behalf of a power of nullification, of course it is not recognized by the text. And my doubts that it was thought by the founders to be a power reserved to the states is fueled by James Madison’s famed Report of 1800 in which he defended the Virginia Resolution objecting to the constitutionality of the Aliens and Sedition Act. I include a lengthy excerpt from Madison’s report in my casebook, including this telling passage near the end. (So readers have the full context, I include the paragraphs in full while putting in bold the more crucial language):

State AGs Miss Target with Health Care Lawsuit says the Tenth Amendment Center

I received this press release yesterday from the Tenth Amendment Center, and I think that it gives calls attention to the long-forgotten ideas of nullification and interposition with regard to ObamaCare:

“Prominent founders such as Thomas Jefferson and James Madison warned us that if the federal government ever became the sole and exclusive arbiter of its own powers, those powers would continue to grow, regardless of elections, courts, separation of powers or other much-vaunted checks and balances in our system,” said Michael Boldin, founder of the Tenth Amendment Center.

Nullification, according to the Center, is the rightful remedy to an unconstitutional act, as it considers the recently-signed Patient Protection and Affordable Care Act to be. When a state nullifies a federal law, it is proclaiming that the law in question is void and inoperative, or non-effective, within the boundaries of that state; or, in other words, not a law as far as the state is concerned.

Today, the Tenth Amendment Center announced a different strategy for activists and state government. “We are pleased to announce model nullification legislation that is crafted to specifically address the Patient Protection and Affordable Care Act on a state level,” Boldin said. “We encourage grassroots activists and state legislators alike to work to get this bill passed in their home states.”

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