The Constitution and Regular Citizens
A lesson in self-governance.
By Michael Farris
[Editor: A time comes when it is important for every American to understand the concepts of the Constitution as they are followed (or not followed) by our government in today’s world. The following short lesson series describes what ails our Constitution and country today. And it is not rocket science!
It was presented by Michael Farris on his Facebook page and ran through July 15. There are 12 short parts with a summary at the end. This Constitutional lesson is intended to increase the awareness of America’s regular citizens.]
Part 1—A lot of us want to drain the swamp.
It is self-evident that something has been dreadfully wrong in Washington DC for decades.
It is not merely that the federal government spends too much. Nor is the problem merely that the wrong party is in power. And the swamp cannot be explained by pointing out that in general there is too little difference between the parties in Congress—maybe not during campaign season—but when they actually govern.
ll of these problems are real, and they matter. But it is not sufficient to explain why we are in the mess we are in.
ll of these listed problems point the finger at the ruling elites—and they certainly deserve our careful attention.
But the people vote.
We spend too much.
But the people vote.
We lose rights to an ever-growing bureaucracy.
But the people vote.
We feel powerless to stop the mess.
But the people vote.
If the people truly wanted to stop any of these things they could.
But the people need two basic tools for their votes to have the desired effect.
- They need facts. What is actually going on.
- They need a philosophy of government.
In the days of social media, it is much easier to get facts than it used to be.
But most people do not have a coherent philosophy of government.
A philosophy of government answers fundamental questions such as:
- What is the purpose of government?
- Where do the rights of the people come from?
- What are the legitimate subject matters for lawmakers?
- Which branches of government should have the power to make law?
- What are the limits on freedom?
A free people need to know the answers to such questions. There are right answers and wrong answers to these questions—at least if you want to live in a free country.
This, of course, begs another question of political philosophy: Why is freedom better than slavery?
I am going to quickly give you the answer to this one because you all know the right conclusion. But it helps to review why this is true.
- All men are sinners. This includes you and it includes all political leaders.
- You make better decisions for yourself, on average, than the government will ever make for you.
When government wants to make decisions for you because the leaders think they are either angels or geniuses, they are always wrong on the first count and nearly always wrong on the second.
You will live a better life as a fallible free person than you will ever live as a slave.
This is the norm. And, of course, there are exceptions. Children are not prepared to handle freedom in this manner. And there are a very small group of developmentally disabled persons who need supervision also.
But in both cases, that supervision comes more reliably from the family than from government.
Thus, a child protected by parents is more likely to have a successful life than a child in foster care or a government institution.
Yes, there are exceptions and those exceptions matter and there are philosophical issues which need to be addressed to understand the nature and limits of these exceptions.
But it is contrary to freedom to treat all people like slaves just because there are exceptions which require the application of a different principle.
For today, on the eve of July 4, let this suffice.
If we want freedom we have to understand the whys of freedom. That’s philosophy. And it matters.
If people don’t understand the philosophy of freedom, they end up asking for stuff from the government. And once that is your operating principle, you are a dependent and not a free citizen.
For the next two weeks, I plan to address these issues of philosophy.
When we have a plumb line knowing right from wrong—slave from citizen—tyrant from ruler—we become truly dangerous to those who wish to drown our freedom in the swamp.
Part 2—The Declaration of Independence contains this key passage:
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men….”
What is the purpose of government?
The Founders said (in the words of Thomas Jefferson) that the governments are instituted to guarantee our God-given rights.
The vast majority of government spending (combining state and federal budgets) is not for these purposes—but rather to provide for our needs.
There is a fundamental difference between a government with the chief aim to protect our God-given rights compared to a government aimed principally at providing for the needs of the people.
But some would say that the needs of the people are actually rights and thus there is no distinction.
In international human rights law there are positive rights (things the government must do for you) and negative rights (things the government cannot do to you).
Positive rights include food, clothing, medical care, education, recreation (yes, there is a right to play at government expense in the UN Convention on the Rights of the Child) etc.
Negative rights include free speech, religious freedom, fair trials, parental rights, etc.
In the Cold War era, the Soviet bloc refused to ratify the ICCPR—a treaty dedicated to negative rights. The US refused to ratify the ICESCR—a treaty dedicated to positive rights. (In fact, the US has never ratified a treaty that is principally aimed at positive rights. I have led the effort to stop some of these.)
But what is the philosophical difference between positive and negative rights?
When rights come from our Creator, they are above the whims of man. They cannot be legitimately denied no matter what any current regime says.
Our freedoms protected in the Bill of Rights follows this theory. These are God-given rights. The Bill of Rights don’t create these rights—our rights are created by God and secured by the Constitution.
Positive rights are not found in our Constitution. It is not because food, clothing, housing, or medical care are unimportant. These are essential needs. They are not in our Constitution because in God’s order the family was instituted to fill these needs.
Government secures rights. Families meet needs.
Knowing those two sentences is the key difference between freedom and socialism.
Some are asking: what happens when the family fails to meet needs? A difference principle is invoked. Government has a duty to punish evil. It is evil for a parent (having the capacity to do so) to refuse to feed their child.
A legal mechanism to enforce a parent’s duty is an example of the second great purpose of government. Governments punish wrong-doing.
The Bible tells us (in Romans 13) that rulers punish evil.
Punishing evil is often directly related to protecting rights. Someone steals a car. The car owner has a God-given right to property. The thief has violated the moral law of God and the rights of the owner.
A free nation requires understanding the proper purposes of government. Protecting our rights and punishing evil are the principal purposes for a legitimate government. Needs are to be supplied by the work of the individual and the family.
When government becomes deeply involved in supplying needs, inevitably the protection of rights become secondary. The Soviet Union understood this. It refused to ratify negative rights because it was on a positive rights agenda.
Free people need to understand this also.
Government should secure rights and punish evil. Individuals and families should meet needs.
That is the only philosophy consistent with freedom.
Part 3—The most important rule for any organization is the one that determines who has the authority to make rules.
The Founders knew how important this was so they placed this rule in Article I, Section 1 of the Constitution. It says that all laws shall be made by Congress.
This means that the President can’t make laws, nor the bureaucracy, nor the Supreme Court.
All legislative power is vested in Congress and all means all.
Of course, this rule is openly violated on a wholesale basis and the Supreme Court has no intention of stopping the violations of Article 1 Section 1.
The prevailing “wisdom” is that Congress may delegate its legislative power. I say, nay nay because it is not their power alone they are giving away.
The whole theory of a republican form of government is that the people pick the legislators who make the law. If we don’t like the laws, we can vote in new people.
But it is not possible for the people to vote out the bureaucracy.
For example, the law that employers had to include abortion coverage in Obamacare plans was not made by Congress but by the Secretary of HHS.
That is inconsistent with the republican form of government and all parties should be incensed that this rule was not made by Congress.
But we have lost our value of self-governance and just decide on whether we like the particular rule regardless of how it was made.
When laws are made by anyone other than elected legislators, it is an act of tyranny.
We should all oppose tyranny every time even if we like the immediate rule the tyrant is imposing on the nation.
Many, if not most, of the divisive issues of our day are not laws made by Congress but by unelected officials including judges.
If we want freedom, we need to return to the belief that only legislators can make law.
It’s due to the nature of mankind.
All men are sinners. One sinner can’t be trusted with law making power. Unelected sinners aren’t accountable and should not have this power.
Legislators are also sinners but sinners balance sinners in large numbers and are accountable to the largest group of sinners—the voters.
Behind all theories that justify law making by people other than legislators are two beliefs.
- Mankind is perfectible.
- The elites are smart enough to rule all of our lives better than we are.
Both of these are false. No one escapes the imperfections of sin. And the elites aren’t as smart as they think.
So, if you believe that man is marked by a sin nature and that you are wiser about your own life than an Ivy League professor would be—not about his life—but yours, then you believe that all legislative power should be vested in legislators accountable to voters.
The Founders knew the true nature of man and rejected the idea that America should be governed by the elites in England.
And they were right. And we need to share their views and convictions.
Only legislators should make law. And we must vote those out who make bad laws.
Part 4—A great truth is that all of our rights are intertwined.
Undermining the freedom of speech impacts religious freedom. If we lose our Second Amendment rights, parental rights are not safe either.
Nonetheless, there is no doubt that the drive for religious freedom was the catalyst that drove the entire battle for the rights of the people in general.
There are two specific clauses in the First Amendment which protect religious freedom—the Free Exercise Clause and the Establishment Clause.
The Free Exercise Clause deals with the right of individuals and groups to practice their faith. The Establishment Clause deals with the limits on government endorsement or encouragement of religious matters. For example, if a public school required its students to pray to Jesus or Allah, that would be a violation of the Establishment Clause because it would be the government compelling a religious act.
But if a public school prohibited a student from bowing his head and praying over his lunch, that would be a violation of the Free Exercise Clause.
Today, we will consider Free Exercise.
The central rule is this: every person of every faith has the right to freely exercise their religion.
This does not mean that any act is constitutionally protected if it was motivated by religion.
So, if a church wanted to execute heretics or a Muslim cleric wanted to execute someone for violating Shariah law, both acts would be murder and there would be no valid constitutional defense.
But before we try to understand the limits and exceptions to religious freedom, we need to nail down a few points.
First, religious freedom is for all faiths—not just Christianity.
Religious toleration under William & Mary in England was just for Christians and only those who didn’t differ too much from the Church of England.
But by the time of the American Revolution, we had rejected the idea of mere tolerance and had moved to the much stronger principle of religious liberty.
Here’s the key difference. In religious toleration, the government chooses an official view and offers some leeway for those who differ but not if the difference is too great. In religious liberty, the government has no jurisdiction over the soul of man—period.
It was not the Enlightenment that brought us religious liberty. Nor was it the Pilgrims—who were Puritans who wanted tolerance for themselves.
Religious liberty was brought by those who believed that jurisdiction over the soul belonged to God and not the state. This included Baptists, Quakers, New Light Presbyterians, and many others. Today, all major Christian groups take this view.
But this is the key issue. Do you want the government to decide which religious beliefs are true?
If you say no—-then you side with Madison, Jefferson, and the pastors who pushed them to act.
Second, the Free Exercise of religion is more than the freedom to believe. It is the freedom to act. It is also the freedom to refuse to act.
So, if the government says you may not do something that God requires you to do, that is a free exercise violation. Or if the government forces you to do something God prohibits, that also is a free exercise violation.
So, when the government tells Jack Phillips he must make a cake for a same sex wedding and his faith says no, that it a Free Exercise violation of the compelled act variety. And when the government told Mike Farris it was illegal to homeschool our kids, and God told me that I must, that was a free exercise violation of the prohibited act variety.
Ok. Back to the limits on free exercise.
Murder in the name of religion cannot be protected. What else? And what is the general rule?
The original advocates for free exercise, who were all Christians of one stripe or another, believed that religious freedom which came from God was also limited by God. This means, an action which violates the moral law of God cannot be justified in the name of religious freedom. Thus, murder, rape, adultery, theft, assault, etc. can never be justified as the legitimate exercise of religious freedom.
A more modern version of this same idea would be to say that the Founders did not believe that common law crimes were legitimate exercises of religious freedom.
The Supreme Court has really struggled with the issue of limitations on religious freedom.
For a long time, there was a judge-created balancing test which required an exceedingly important government interest advanced in the most narrow way possible to overcome a religious freedom claim. But in 1990, the Supreme Court gutted Free Exercise in a case called Employment Division v. Smith.
That case prohibited a free exercise claim in any case where the law is neutral and general. Example, the law says no gender discrimination in employment. If a church won’t hire women pastors, that is no longer protected under Free Exercise. (I would strongly argue that this is wrong and should be overturned—moreover, the Church should be protected by other rights including freedom of association. But free exercise should work as the first line of defense.)
This is why the Hobby Lobby case was decided using a federal statute (that I helped write)—the Religious Freedom Restoration Act.
So free exercise is a mess today. But we should be clear in what we believe.
Free exercise is for everyone. And the limits on free exercise should be akin to the rules at the time of the Founders—common law crimes are not protected.
I would have been executed for my faith in Colonial Massachusetts. I refused to baptize my children as infants. For that I could be executed.
If the government gets the ability to pick winners and losers based on what you believe, no one is safe.
We see the progressive left acting more and more like a dangerous cult that has seized the reins of power. And they are rejecting the very concept of religious freedom.
We must stand for religious freedom. And not just for ourselves. But for everyone.
Part 5—Long Term National Debt is Immoral and Unconstitutional
Thomas Jefferson wrote a lengthy letter to James Madison urging a rule against long term national debt.
He said: “would it not be wise and just for that nation to declare in the constitution they are forming that neither the legislature, nor the nation itself can validly contract more debt, than they may pay within their own age, or within the term of 19 years?”
Currently, there is no plan to actually retire any of our nation’s debt. We simply keep borrowing. So long as we can pay the interest on the continually mounting debt, our leaders seem content to keep spending like there’s no tomorrow.
The average age in Congress is 57 years old. They have no personal stake in the debt payments required 50 years from now. Those who are 1-17 years old today, have an enormous stake in the debts left in place 50 years from now.
But they can’t vote today and so those in Congress continue to buy votes with deficit spending being sure to load up the spending with things like free prescription drugs for seniors.
The Seniors don’t have to pay for the drugs. Congress doesn’t have to pay either. It just borrows the money. No one pays—today. But our grandchildren and great grandchildren for years to come will be paying for our “free drugs” Congress gave us.
Our grandchildren will be taxed for things they did not vote for. They will be taxed for things they didn’t use.
This is the ultimate taxation without representation.
That’s immoral and, I believe, unconstitutional.
The Constitution demands that Congress guarantees a republican form of government. Taxation without representation is the singular most well-known violation of this principle because of the prominence of this phrase during the American Revolution.
Paying off the existing debt is hard but not impossible. But it is impossible if we don’t stop spending on credit.
Congress benefits from this arrangement by buying votes without present pain of imposing current taxes sufficient to pay for all the spending. Lenders benefit because holding long term debt from the richest country on earth makes sense. My generation benefits because we get free stuff from Congress.
And until a sufficient number of Americans rise up and call this for what it is—stealing from the pockets of our grandchildren—it will continue.
We need to know the truth. Act on the truth. And spread the truth.
If the current generation wants stuff—we should pay for it today.
Part 6—Checks and Balances
The idea of checks and balances is usually considered in the context of the various branches of the federal government. The judiciary balances the legislative which balances the executive and vice versa.
The principle reason for this approach was the belief that tyranny results when any group or individual wields too much power.
Why did they think this? They believed what the Bible and common sense both say about mankind— we are all sinners.
James Madison summarized this view in Federalist No. 51:
“Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.”
When the President (or other members of the executive branch) holds legislative power, the potential for abuse is great. We have the entire Code of Federal Regulations as a demonstration of this abuse of accumulated power. It is tyranny because it contains thousands of laws not made by Congress.
All branches of the federal government exercise power in a similarly improper fashion.
Congress makes laws on subjects that were exclusively left to the states.
The Supreme Court makes laws by de facto amendments to the Constitution when it creates rights not found in either the text or our history.
And in addition to all the executive orders and administrative regulations, the executive branch has made thousands of treaties with other nations without ratification by the Senate. The State Department calls them “executive agreements” to avoid calling them treaties because treaties must be ratified. In international law they are called “treaties” because that’s what they are—legally binding agreements between nations.
As you can readily see, all violations lead to essentially the same result—we have more federal laws from every branch than the Constitution permits.
If you feel like we are drowning in federal control of our lives, this is why. If you want to know why the federal government is so expensive, this is why.
Rather than checking and balancing each other they have colluded to simply amass more federal power and share it among themselves.
But why didn’t the Founders give us a check against too much federal power?
Well, they did. But fear has kept us from using it.
Freedom requires a limited government with strictly observed checks and balances. We are losing our freedom because men love power more than they love either the people or freedom once they cross the Potomac.
Part 7—The Right to Life
Tonight (July 9, 2018), President Trump will announce his nominee to the Supreme Court of the United States. The speculation and hysteria from the left that this will lead to the reversal of Roe v. Wade will be deafening for weeks to come.
I don’t know if this will add a fifth Justice to a prolife majority or not. Only Justice Thomas is on record (in an opinion) calling for the reversal of Roe.
But the nation is asking, and we need an answer: is our Constitution prolife or pro-abortion?
There are both moral and constitutional considerations in dealing with this issue in general—and they overlap. But, in this context, I want to focus primarily on constitutional arguments.
The moral debate is easily resolved once we understand that the baby is alive at the moment of conception. Anyone who disputes this fact is a “science denier.” This fact has been settled beyond debate since the AMA study in the 1850s—more than 160 years ago. And this study is cited in the majority opinion in Roe v Wade.
Since it is a human life, killing the child is an immoral act. Period.
But what of the constitutional arguments?
First, we must get the right questions on the table.
The right question requires us to know the meaning of the 14th Amendment. Why is this the right text to analyze?
Homicides are state crimes. All laws against abortion at the time of Roe v Wade were state laws. The 14th Amendment is the principal constitutional text regarding state governments’ duties to honor the rights of the people.
There are two relevant terms in the 14th Amendment —life and liberty.
Prolife advocates say that the phrase “no person shall be denied life” is controlling. Pro-abortion advocates say that the phrase “no person shall be denied liberty” is controlling.
There are definitional issues imbedded in each argument. And those definitional questions need to be asked and answered in the correct constitutional framework; which is:
- When the 14th Amendment was written was an unborn child considered a “person” for the purposes of protecting his or her right to life?
- When the 14th Amendment was written was a woman’s right to abort her unborn child a protected “liberty” within the meaning of that text?
The questions are mutually exclusive. If the correct answer is “yes” to one of those questions, then the answer to the other question is necessarily “no.”
However, there is another alternative. It is possible that the answer to both questions could be “no.” This would mean that the 14th Amendment takes no position on the issue one way or the other.
If the 14th Amendment is silent, then the abortion issue is entirely left to the state legislatures. They are free to ban it or permit it as the state wishes.
Virtually all of the historical facts needed to answer these questions are found in the majority opinion in Roe.
In 1868, it was settled scientific fact that unborn children were “persons” whose lives should be protected. The American Medical Association did a lengthy study refuting the old idea that a child became alive at quickening. Instead, the AMA concluded that the child was alive at conception and that permitting abortion was utterly inconsistent with science and morality.
As a result of this scientific understanding, virtually every state legislature banned abortion. A few states reached the same result by court interpretation of the homicide laws.
In Roe, the Court said that the Texas law in question was typical of those in place about 100 years ago.
That was said in Roe in 1973. About 100 years earlier, the 14th Amendment was adopted in 1868.
So, at the time of the adoption of the 14th Amendment, science and law were agreed—unborn children were alive and should be protected like any other human being. They were persons for this purpose.
This does not mean that mothers needed to be criminally prosecuted for murder. But it was a homicide and at least the doctor would have criminal culpability. The states could dictate the details (murder vs manslaughter, years in prison, etc). But states would not be allowed to permit abortion under this historical understanding of the 14th Amendment.
This is the correct originalist interpretation of the text. To my knowledge, no justice on the Supreme Court agrees with me.
The conservative view, to my knowledge, is that there is no right to an abortion—for the same textual reasons I discussed—and the states are free to regulate it as they will. Whether there are five votes for this view, I don’t know.
You do not have to be religious to reach the view that the Constitution contains no right to an abortion. You don’t have to be politically prolife.
You only have to believe in the rule of law. This rule is that judges apply the law to cases. Only legislators can make law.
There is utterly no historical or textual basis for the decision of Roe v. Wade. Judges made up the “law” creating a right to abortion out of thin air.
But what of stare decisis (Latin: common law doctrine that court decisions should be guided by precedent)? Why should we disturb a precedent of long standing?
Let me quote the progressives’ favorite person of the Founders era—Thomas Paine.
“All power exercised over a nation must have some beginning. It must be either delegated or assumed. There are no other sources. All delegated power is trust, and all assumed power is usurpation. Time does not alter the nature and quality of either.”
It was usurpation when Roe was decided in 1973. That has not changed.
It is time to return to the rule of law.
Part 8—Why Federalism Matters More Than You Think
We have checks and balances (in theory) between the executive, legislative, and judicial branches. Again, the reason for this design was to ensure that there was not an excessive accumulation in any one branch.
Preventing the federal government from accumulating too much power is the chief reason that federalism is such a prominent feature of our constitutional system.
Here’s how it’s supposed to work:
The federal government was given 100% of the jurisdiction on a few key issues. The states retained 100% of the jurisdiction on everything else. The exceptions to these rules are exceedingly narrow.
In general, there is no such thing as shared federal-state jurisdiction.
States have jurisdiction over education. Thus, there is no federal jurisdiction over education.
(I will use education to illustrate how the rare exceptions work. Congress possesses the same power that states have over the District of Columbia. Thus, there is federal jurisdiction over public schools in DC. The same thing is true about schools on military bases. But no state has jurisdiction over either DC or military bases.)
States have jurisdiction over banking, mining, agriculture, manufacturing, environmental issues, and common law crimes. Also, the states have jurisdiction over marriage laws and child welfare. States have jurisdiction over welfare programs and police and fire.
Thus, the federal government has no jurisdiction over any of these subjects if we were following the Constitution.
Shared jurisdiction never produces twice the services for people, but it does ensure more bureaucracy, regulation, and taxes. In almost every case, shared jurisdiction is also unconstitutional.
Here is what our country would be like if we followed these rules.
- The National debt would be close to zero. The real drivers of the debt are entitlement programs—all of which fall within state jurisdiction.
- The size of the federal government would be at least 60% smaller.
- Federal taxes would be lower.
- It would be more important to be a member of the state legislature and less important to be a member of Congress.
- The federal courts would have far fewer cases and a much smaller impact on the nation.
- Because more decisions would be made close to home, the people would have more genuine access and control over the use of power.
- Congress could be more of a part time endeavor.
- Interest groups, unions, and lobbyists would spend far less in DC and far more in the states because that’s where the bulk of the decisions would be made.
I could go on.
The swamp festers in DC principally because the states have not insisted on strict enforcement of federalism.
The mechanism the Framers gave us is Article V. And because of the collusion of left wing nationalists and far right scare mongers, it has been difficult to use Article V to call a Convention of the States to reduce federal power.
The correct system was designed for us. We know that federalism would work. But we have let fear and lies rule the day.
Until the people demand a Convention of the States there will only be small changes in the rate of the growth of the swamp.
Article V is the true Federalist path. Will we take it?
Part 9—Conservatives Need to Defend Free Speech—the Left Has Officially Jettisoned Freedom
Louis Michael Seidman, a law professor at Georgetown, said, “When I was younger, I had more of the standard liberal view of civil liberties. And I’ve gradually changed my mind about it. What I have come to see is that it’s a mistake to think of free speech as an effective means to accomplish a more just society.”
Justice Kagan, in her dissent in the NIFLA case (which I argued in the Supreme Court) said that free speech has become a sword rather than a shield.
Here is what they both mean. When progressives grab control of government (think California), controls of speech advance the progressive theory of justice (think socialism and LGBT coercion). Such laws are good—not measured by freedom but by anti-traditional theories of “justice.”
Free speech is protected only when it advances progressive goals—or perhaps, at least, when it does not undermine progressive goals.
Under this theory, what would stop a President Maxine Waters (to skip past horrible to the utterly unimaginable) from ordering the FCC or some other agency to stop all Fox Broadcasting because it was undermining progressive goals of justice.
There will be enough memory of freedom for that to sound dubious, so President Waters will call Fox “perpetrators of hate speech.” Anything opposed to the progressive agenda is, by definition, “hate.”
So, what should we do about all of these horrible ideas that are now being touted by professors, judges, and a variety of leftist interest groups?
We let them speak. And we beat them in a fair and open debate in the public square.
To be sure, we shouldn’t give them any of our own money. So, don’t donate to your alma mater if it has a speech code.
But we should not do in reverse what they are trying to do to us. They want to use the law to silence us.
We want to use the truth to beat them in a fair debate.
This is why conservatives want to speak on college campuses. We want to advance truth. And this is why the left wants to shout, intimidate, or assault conservative speakers. This is why a college professor in California erased prolife messages from campus sidewalks (posted according to the rules). He said colleges are not for free speech.
By the way, we (Alliance Defending Freedom) sued him and won.
Free speech must be for every viewpoint—even those we detest.
This does not mean that defamation, obscenity, or treasonous speech are protected. They are not and never have been. But these limited examples cannot be used just to silence one side of a debate. The rule against taking sides based on viewpoint overrides even these limited exceptions.
Justice is found in fair trials where all are treated even handedly. True justice is not found by forcing your opponents to kneel in silent submission to your viewpoint.
When someone tells you that freedom and justice are incompatible, they have revealed that they don’t actually understand either concept.
This one is simple. Free speech is for everyone.
Part 10—Shakespeare & the Commerce Clause
In one of the best-known scenes in all of literature, Juliette cries out, “Romeo, wherefore art thou, Romeo?”
Romeo was hiding in the bushes. Why didn’t he answer? His love was asking where he was. If he had spoken up, he would have talked to Juliette and they would have worked everything out. Better for them. But a boring story.
But in reality, Juliette was not saying “Where are you, dude?” In Shakespeare’s day, “wherefore” meant “why”. She was asking, “Why did I fall in love with Romeo?” Out of all the guys in town, she fell for the enemy of her family and she was in anguish over the conflict.
Romeo wisely stayed hidden in the bushes.
Your understanding of this scene changes completely when you know the original meaning of the word “wherefore.”
The same thing is true of the Commerce Clause. Today “commerce” means “economic activity.” In 1789, “commerce” meant shipping stuff.”
Congress was not given the power to regulate banking, manufacturing, agriculture, mining, or any other kind of economic activity. Congress has the power to regulate shipping stuff.
The goal of the Commerce Clause was to give Congress the exclusive power to regulate shipping so that the states would not erect trade barriers between the states.
But Congress has taken this power to impose minimum wages for babysitters. Banned cheap light bulbs and makes us buy these horrible new bulbs. In short, every congressional economic regulation in this country—except for actual shipping—is unconstitutional.
All of these things can be regulated by the states. And the states have no power to regulate interstate commerce.
Basic banking law is all state law. And decades ago, the states decided it would be good to have a uniform national system. So, the states got together and drafted the Uniform Commercial Code—which was then passed by all 50 States (legislatures).
Banking cannot be interstate commerce because the states can and do regulate it. Since banking CAN be regulated by the states it CANNOT be regulated by Congress.
The banking example reveals that when we need national solutions for economic activity, the states can do it well. It is 50 state laws that make your ATM card work anywhere you go.
If Congress had made the law, the machines wouldn’t work and there would be a withdrawal tax for each transaction.
If states want to encourage jobs, they can do so. If states want to depress the economy with excessive regulation, they can do so.
But the overlay of bad and excessive federal regulation of the economy would totally disappear if we followed the Constitution.
If we want to drain the swamp, the number one place to start is to return to the original meaning of Commerce.
State lawmakers are closer to the people and less dependent on improper incentives from unions and corporations. Many federal regulations are not designed to help the people but are in place to help company A beat company B in some activity.
Winners and losers are chosen daily by the Federal government. Freedom and the people lose when this happens.
The original meaning leads to a more robust economy and less favoritism. And less improper union and corporate investments in federal elections.
Commerce means shipping. That’s it.
Part 11—Understanding General Welfare
We have an official national debt of $21.2 trillion. When the amount owed for vested social security benefits and other similar benefits is added, the amount is approximately $150 trillion.
Two words in the Constitution are responsible for this beyond-staggering debt. General Welfare.
Article 1 grants Congress the power to tax and spend for the “general welfare.”
So, the trillion-dollar question is: what is the original meaning of this phrase?
The first clue in solving this “mystery” is to note that under the Articles of Confederation, Congress was given this same exact power. If anyone suggests that the Confederation Congress could tax and spend for any fool thing they wanted, they demonstrate that they know nothing at all about that period of history. We changed from the Articles to the Constitution precisely because Congress lacked meaningful authority.
James Madison and Alexander Hamilton had different views on the meaning of this phrase.
Madison thought that, just as in under the Articles of Confederation, this phrase was not an independent grant of spending power. Rather, it was a direction on how that power was to be employed.
For example, Congress has the power to tax and spend to build postal roads. When it builds such roads, it cannot be done only for a local purpose of benefit. Nor can it be done to benefit particular favorites of the government. Rather all spending on postal roads must be for the general benefit of the country without favoritism.
There is utterly no doubt that Madison’s view was the dominant view among the Founders.
Hamilton thought, however, it was an independent grant of spending authority. Congress could spend on any truly national purpose so long as local and personal favoritism was avoided. Although, a minority view, Hamilton had important support for this view.
However, there was one huge (and now forgotten) additional limitation on Hamilton’s view. He believed that this grant of power was limited by the first resolution in the Constitutional Convention. The Constitution was designed to give power to the federal government only in the areas where the states lacked jurisdiction.
So, under Hamilton’s view, if states have the jurisdiction to spend money on a subject, the federal government has no power under the GW Clause (general welfare clause) to also spend money on that subject.
Since states can spend money on education, the federal government has no power to tax and spend for this purpose.
Over 70% of federal spending is unconstitutional under Hamilton’s view. Surprisingly, it is almost the same under Madison’s view.
Because in all of US history, the only things that I know of where the two tests produce different results are land purchases (e.g., Louisiana Purchase) and the space program. There is no enumerated power for either area of federal spending, so they would fall under Madison (interpretation). While under Hamilton’s rule they would be acceptable because: 1. The actions were truly national in character; and 2. The states had no jurisdiction on either topic.
Our national debt would be zero if we followed either man’s approach. And federal taxes could be cut approximately in half and still operate in the black.
A simple rule is this. If the states can spend money on a subject, the federal government cannot. Both key Founders agreed with this and so should we.
In 1868, the people (as represented by two-thirds of both Houses of Congress and a majority of three-fourths of the several states) adopted an Amendment in the aftermath of the Civil War.
One of the most important provisions of this Amendment was the Equal Protection Clause. Although the motivation for the Clause was racial equality, its words and original meaning enacted a general principle applicable outside of racial matters. If, for example, a state law required a man to be 21 to be married (without parental consent) while allowing women to get married at 18 (without parental consent), such a law would deny 20-year-old men equal protection of the law.
By the way, that actual law was in place in California when my wife and I were married in 1971. Vickie was 19 and needed no parental consent. I had been 20 for a whole week and had to give the officials a letter from my parents to get the wedding license.
However, if two 13-year-olds were to bring a case today which says, 18 year-olds can marry, we can’t. This is a denial of equal protection on the basis of age, they argue. They would have lost in 1868 and they will lose today.
To switch fields entirely, if California passed a law saying that doctors had to go to medical school in California to prescribe medicine, this would be a denial of equal protection—and a doctor with a license in California but with a degree from Kansas would win.
But if a chiropractor argues, I am a licensed medical professional also, it is a violation of equal protection for MDs to be able to write prescriptions while prohibiting me from doing the same, he would lose.
So, the question is: which kinds of distinctions in our law are unconstitutional denials of equal protection and which are not?
We start first with racial discrimination. This is at the center of the Amendment’s purpose. All racial discrimination is unconstitutional. Period. If the law treats blacks different than others it is unconstitutional. (I say black rather than “African-American”, because it applies to non-citizens also. My daughter-in-law is a lawful US resident but is a Nigerian citizen and she is fully protected by this rule. The rule also protects the white man from Switzerland lawfully living in the US. Any form of racial discrimination is illegal regardless of citizenship.)
If whites are treated unequally or brown or any other color or racial group. All racial discrimination is illegal.
But outside of race, the rule of equality is more limited. The principle here is found by asking: are these two things “similarly situated”?
Thus, a 20-year-old man and a 19 year old woman are similarly situated in terms of being mature enough to consent to marriage. Treating the man differently from the woman would be unconstitutional.
However, if the law said both partners had to be at least 18, and the woman was 19 and the man was 17, he would lose. Because now the genders are being treated equally. And moral common sense says that a line has to be drawn somewhere for marriage maturity and the legislature’s choice of 18 was not arbitrary.
Thus, if a brother and sister wanted to get married today and they argued that love is love, they would lose. From 1868 until today, our moral common sense says that this is different. They are not similarly situated compared to two unrelated people. This relationship is not asking for equal treatment of similarly situated people, it is asking for a new definition of marriage.
A man could not marry his horse nor his computer. (Alas, the computer example is real.) That is not consistent with the definition of marriage.
So even though it took some states a while to get this right, in 1868 marriage was legal between a man and woman of two different races because all racial distinctions were outlawed by the core meaning of the Amendment.
But siblings could not marry, nor an old man and a young girl, nor a man and an animal. All of those “inequalities” violated the common-sense morality imbedded in the definition of marriage.
But what if we become more enlightened? Why should we be stuck with the common-sense moral definition of marriage from 1868?
In short, we are not stuck. We can change. The question is, how do we change such matters in our constitutional system?
If the legislators of California become convinced that siblings should be allowed to marry, California is free to pass such a law. But the Supreme Court of the United States has no authority under the 14th Amendment to impose such a rule on all 50 states. Under the common understanding of marriage in 1868, the definition of marriage excluded two siblings. Any change in the definition of what marriage is must come from the legislatures not courts.
In 1868, marriage between two men was the same as marriage between two siblings. It was illegal because it was not within the definition of marriage.
States could adopt new marriage laws permitting same sex marriage. But it should be the legislators or the people not the judges making this decision.
Until judges started imposing their wills on this country, the people in over 30 states put traditional definitions of marriage into their state constitutions. This included the people of California who approved Prop 8 on the same day they voted for Barack Obama.
Equality in racial matters is clear and absolute. In everything else, the original meaning of equality was limited to things that were truly similarly situated in light of the moral common sense of the time of the Amendment’s adoption.
Marriage had a moral definition in 1868 and it continues to have one today. The Supreme Court did not obliterate all moral rules within the definition of marriage—only the one that they didn’t like. Only the people or legislators can constitutionally make these kinds of changes.
The people were smart enough to choose the moral common sense based on God’s definition of marriage. Judges rejected that premise AND the rule of law AND the meaning of the 14th Amendment when they invented same-sex marriage out of whole cloth.
It was an anti-constitutional act.
While on vacation, I endeavored to create a short-course in constitutional philosophy so that regular citizens could both understand and defend the reasons that we believe in freedom and self-government. This is a summation of the material that I was able to cover in twelve mini-lessons.
A philosophy of freedom starts with the moral premise that freedom is better than tyranny or slavery. Free people will, in the long run, make consistently better decisions for themselves than any elitist ruler. Since all men are flawed sinners—including (or perhaps especially) our rulers—there is no reason to prefer their decisions for our own. One-size rarely fits all and utopias are always fanciful lies because imperfect people can never create a perfect society.
A free society is not perfect. It allows for errors. It does not mean that errors—particularly deliberate errors—go unpunished. But a free country gives up the dangerous pretension that a perfect society can be created through laws, policies, and governments.
Our founders said that the purpose of government was to protect our God-created rights. Implicit in this is the government’s authority and responsibility to police and punish evil—keeping in mind that definitions of evil are dangerous when a current generation gets to manipulate the meanings of words to make their preferences “good” and while the preferences of others become “evil.”
This is why a fixed moral code not only brings stability to a society but also eliminates arbitrary and capricious rules by transient elite fads. And the only safe place to find such a code is the moral law of God which is written on the heart of every human being and wisely codified in the Scriptures. From a legal perspective, if we look to the common law definitions of crime we are in on a pretty solid basis for a moral foundation of law.
When the moral code is fixed and knowable, freedom and prosperity are possible. But when right and wrong are up for debates and re-definition, neither freedom nor prosperity are sustainable.
From these premises, we can see that the purposes of government are limited and thus the structure of government needs to contain many checks on the accumulation of power. Checks and balances between the branches of government are essential. Only the people and the legislative branch have the moral and constitutional authority to enact laws. Judges and executives (and the bureaucracies that serve executives) have no moral or constitutional authority to make laws. And the vast array of administrative laws we have are all in violation of the people’s right to elect the people who make the law.
Even more fundamentally, when judges change the meaning of the Constitution, they have violated the right of “We the People” to create the fundamental law through the processes outlined in Article V of the Constitution. When judges redefined marriage, they not only improperly entered the sphere of our moral code, but they arrogated to themselves raw legislative power. This was not the rule of law but a blatant act of unconstitutional assertion of power belonging to others—in particular, the states.
Because governments need to be limited for freedom to flourish, the federal government should be strictly limited to the powers it was given in the Constitution. When the federal government expands its power beyond its constitutional parameters, the ability of people to make their own decisions is dangerously diminished. Moreover, the right of the people to have the bulk of their laws made by state and local officials—with whom they have far more contact—is eviscerated. The Commerce Clause and General Welfare Clause have been the chief sources of the improper expansions of federal power. They both should be returned to their original meanings.
Not only have these Clauses resulted in a loss of freedom in our day, they have burdened future generations with taxes and debt on which they will never have a vote. This is not republican government. This is generational tyranny. It is both immoral and unconstitutional. If our generation wants stuff from the government—at a minimum—we need to pay for it ourselves. (Better yet, we would stop wanting so many things from the government.)
Limited government goes hand in hand with an expansive view of the rights of the people. This starts with the most fundamental of our rights—the right to life. It is clear from the legal, moral, and scientific understanding that were place when the 14th Amendment was adopted, that the term “person” included unborn children. Thus, any state which permits abortion violates both the transcendent moral law as well as the constitutional rights of such children.
Freedom of religion and speech are the bulwarks of truth. And government improperly invades the soul of man and the prerogatives of God when it seeks to limit speech, beliefs, and practices that it does not like. Freedom of belief, exercise, and speech need to be for all—even those with whom we disagree.
We should always be free as people to criticize views we think are in error, false, dangerous, or misinformed. But that is the right of one citizen to critique the other and not the business of the government to pick sides.
In sum, freedom is better than the tyranny foisted on us by elites in pursuit of a utopia. Fallible individuals make better decisions for themselves than fallible tyrants make for everyone. Limited government checks and balances, and federalism are the structures of freedom. If we don’t preserve the structures, we won’t have freedom. And freedom is for everyone. Every group wants freedom for itself. But if they are unwilling to grant it to others, they reveal in themselves the arrogant heart of every elitist utopian tyrant.
Elitist utopians have big dreams of what the world can be like if they can force everyone to follow them. Free people have big dreams of what they can accomplish through the blessing of God.
We should choose the path of freedom.
Michael Farris, July 15, 2018
Michael Farris is a Constitutional Scholar, founder of the Homeschool Defense League, founder of Patrick Henry College, professor and teacher, successfully litigated Article V at the Supreme Court, founder of Convention of States Project, CEO of Alliance Defending Freedom, a Pastor, married and the father of ten, grandfather of 22 and counting.