Santorum and Obama: Two Peas in a Pod?

You fail to acknowledge that the Federal Judiciary has gone beyond its limits as they were presented to the People of the Several States. You fail to acknowledge that case law does not rise above the U.S. Constitution. You cite usurpations to support your Constitutional view. You fail to see any way to advocate for a reversal of federal overreach with out the threat of violence (which I assume you were alluding to w/Nullification)...we do see a way...the Tenth Amendment. The Tenth Amendment has the full force of Constitutional legitimacy. We demand the U.S. Constitution be supported, defended, and upheld – every issue, every time, no exceptions, no excuses.

So where is that authority IN the U.S. Constitution for the President and Congress to impose a health insurance mandate or prohibit incandescent (not florescent...the new, wonderful ones are compact florescent) light bulbs?

Alexander Hamilton wrote in Federalist 78 to help convince New York to ratify: "The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments...It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers."

Hmmm, the weakest department and the general liberty (maximum absence of coercion) of the people can never be endangered by the judiciary? Hardly.

It seems James Wilson, the second most vocal delegate at the Federal Convention and ardent Federalist, speaks in the same terms and even suggests the President can refuse to carry into execution any unconstitutional law (even after a veto override) when he spoke at the Pennsylvania Convention: "I say, under this Constitution, the legislature may be restrained, and kept within its prescribed bounds, by the interposition of the judicial department. This I hope, sir, to explain clearly and satisfactorily. I had occasion, on a former day, to state that the power of the Constitution was paramount to the power of the legislature acting under that Constitution; for it is possible that the legislature, when acting in that capacity, may transgress the bounds assigned to it, and an act may pass, in the usual mode, notwithstanding that transgression; but when it comes to be discussed before the judges,--when they consider its principles, and find it to be incompatible with the superior power of the Constitution,--it is their duty to pronounce it void; and judges independent, and not obliged to look to every session for a continuance of their salaries, will behave with intrepidity, and refuse to the act the sanction of judicial authority. In the same manner, the President of the United States could shield himself, and refuse to carry into effect an act that violates the Constitution."

Has the legislature been restrained? Have they found the actual limits placed in the Constitution, the Tenth Amendment, above the legislative transgressions? It appears not.

Even the great and revered John Marshall, a Chief Justice himself, follows along during his speech at the Virginia Convention: "Has the Government of the United States power to make laws on every subject?--Does he understand it so?--Can they make laws affecting the mode of transferring property, or contracts, or claims between citizens of the same State? Can they go beyond the delegated powers? If they were to make a law not warranted by any of the powers enumerated, it would be considered by the Judges as an infringement of the Constitution which they are to guard:--They would not consider such a law as coming under their jurisdiction.--They would declare it void."

That's only a handful of Federalists explaining to the People the Federal Judiciary. Their words do not match what has transpired. We have less liberty today thanks to the Federal Judiciary, not more.

Let's however look at the explanations of few supporters (Federalists) of the Federal Judiciary...which became the Peoples understanding of its role and led to the Constitution's adoption (and mind you, no Amendment has been passed expanding the judicial authority, just the Eleventh which further restricts it):

Oliver Ellsworth, who bacame the second Chief Justice of the Supreme Court gave this description of the powers of the Supreme Court during the Connecticut Convention to ratify the Constitution: "The Constitution defines the...powers of the general government. If the general legislature should...overlap their limits, the judicial department is a constitutional check, If the United States go beyond their powers...the judicial power, the national judges, who, to secure their impartiality, are to be made independent, will declare it to be void. On the other hand, if the states go beyond their limits, if they make a law which is a usurpation upon the general government, the law is void; and upright, independent judges will declare it so."

It is not a stretch to say the Legislature has gone beyond its boundaries, but where its the Federal Judiciary? Oh, that's right, its legitimizing the overreach.

"Interpretation of the Constitution is the prerogative of the Supreme Court"...where does it say that in the Constitution? Would it not be more correct to say that all three branches are responsible, by Law, to uphold and defend the Constitution? Would it not be more correct to say that the Supreme Court is to police the borders of the enumerated powers and never let the other two branches extend beyond them? How is it the Supreme Court gets to make the final determination and the other two branches or the State or the People of the States have no say? If the Supreme Court is wrong, what is the remedy? We say its the Tenth Amendment.

Hugo Black made famous the idea that the Supreme Court as not made the court of final resort because it was infallible (obviously, see Dred Scott), but that it was infallible because it was the court of last resort. This is a powerful position, and the court has sometimes used it with respect for the Congress and the States, and sometimes almost arrogantly. But more and more the Court, and the Congress as well, seem to be viewing it, the Supreme Court, as possessing the full legislative power of the United States. Interpreting is one thing, legislation is another. Interpreting is one thing, shredding the boundaries of the Constitution is another.

The Tenth Amendment is the Law of the land. It is not a law made in pursuance of the Constitution up for constitutional debate, it is a written part of the Constitution adopted by the People of the several States. It is the key statement concerning the boundaries of the Constitution. "Decades-old case law" does not have the authority to usurp the actual Constitution. As Raoul Berger once famously wrote concerning this very problem of judicial usurpation: "Usurpation, the exercise of power not granted, is not legitimized through repetition." No matter how many times the Supreme Court legislates or expands its power or the power of Congress or the Executive, it is never legitimate under the U.S. Constitution. The Tenth Amendment is legitimate and the Law.

And....the over-arching goal in this greater fidelity to the Constitution is greater Federalism (not surprisingly, since that is the major concept and purpose behind the Constitution). I.e., checks and balances and imposed inexpediencies on Fed. government power, like separation of branches of the Fed government, state nullification of unconstitutional acts by the Feds, state sovereignty...and yes, even peaceful secession by the states.

The remedy that was intended was impeachment---even for Federal judges who made clearly unconstitutional rulings---since it would have been a "misdemeanor" as that term was understood in the 18th and 19th centuries. Unfortunately, case precedent was set (by Marshal's Supreme Court, not surprisingly!) in an early 19th century case where the Supremes judged that a lower federal court judge could not be impeached for his particular activity. I don't remember the case, but the whole country was watching with baited breath, and after that, no one even considered that the Supreme Court justices could be impeached for clearly self-serving or political rulings.

Yes, Shaman, it IS bad when states violate rights. but the issue being covered here is the role of the FEDERAL government when states violate rights. under the constitution - there is no role for those things not delegated to DC. Now you may not like that, and maybe you are even right about that system being bad, but that is not what is being covered in this article. This article is solely talking about the role of the feds. Madison made is clear. Is there something you did not understand?

I included Romney's issues (as you note them) in an early draft of this post, and ultimately removed them because (as you also note) he at least advocated a constitutional amendment for the marriage issue. Had he note, I definitely would have taken him to task. But since he went the amendment route, it would technically be constitutional (though a bad idea IMO) so the doublethink wouldn't apply.

I'm from Utah, but oh man, I'm the furthest thing from a ran of Romney's:

Examples:
http://www.connorboyack.com/blog/why-america-shou... http://www.connorboyack.com/blog/epitome-of-a-pol... http://www.connorboyack.com/blog/why-im-for-ron-p...

we can definitely talk about Romney! In fact we have previously. Mitt was, surprisingly, correct - when it came to the 10th and the Mass. health care program. But, he is still an idiot for supporting it! On the other hand, he opposes the founders vision for social issues in this country and advocates that marriage be dealt with on a national, not state and local, level.

The saving grace for Romney on the marriage issue? He actually advocates a constitutional amendment. When someone wants to give new powers to the feds, this is the ONLY way it should be proposed.

We would disagree with Romney on this, and I think that Connor would too, but do not want to speak for him. We have covered this quite extensively in relation to Rick Perry and his recent statements. We did a few segments on our radio show about it and I was interviewed by the LA times on the subject as well.

But, I digress. Bottom line? Nate Silver is correct. Romney, while taking correct constitutional positions on these, is no adherent to the principles of the founders.

Render unto Caesar what is Cesar's and render unto God what is God's. When you place the authority over the dominion of God, which belongs to God alone, into the hands of the governments of fallen men you are rendering unto Caesar what is God's. In doing so, you place the authority of fallen men over and above the authority of God and commit blasphemy. The creature is not greater than the Creator, and any of the laws of men which would place the creature into a position of authority over the Creator is a law that violates every principle of God.

Marriage, and morality are rightfully the sole dominion of God, and both are failing in America because the Church has abdicated her authority to govern such matters over to the state, who will universally fail in them. Marriage and morality are failing BECAUSE we lack faith in God and have instead turned to the government to enforce them with guns and prisons. The answer is not to lose whatever slim thread of faith in God that remains and finish the job of killing God in America by handing these matters over the rest of the way to government and completely shutting God out of all relevance.

"But," you might say, "most of the churches in America support this!" Yes, indeed they do. As it happens all of the churches who support this are 501(c)3 corporations that have as a part of their foundation the notion that government is allowed to tell God what he can and can not say from the pulpits of His own churches. Again placing fallen man above God, elevating the creature above the Creator. That is a blasphemy, and since all of the churches who support these measures are founded in blasphemy their word is corrupted from the foundation and cannot be trusted.

As for me, and my house, we WILL serve the Lord. That means rejecting any and all government control over the dominion of God. I have faith in God that should the churches be given back control over marriage and morality from the government, that God is able to restore our society. I place God first, and not the government. I will fight against the blasphemy of government controlled marriage and morality until the day I die, and that is BECAUSE I place God first in my life.

The failure of S.A. is clear. No real revolution ever took place. They changed the faces but did not challenge rule by force. Every new gov was fundamentally the same. It was based on the belief that rulers and ruled is the proper way a society should exist. That's a dog eat dog existence. The rulers rule at the ruled expense, e.g., an elite profits at the expense of freedom and prosperity of the many. The same can be said of the rest of the world. Every gov in the world violates individual sovereignty. Until the people respect the individual's right to life, liberty, and property, there will be no peace or prosperity. The poverty and suffering worldwide is a direct result of denial of this fact. No society can long exist that does not live in accordance with their nature as humans: reason before force, initiation of force is always and everywhere immoral and impractical.

I respectfully disagree with you. Mr. Boyack did not attack the Christian view point. The real issue here is not about values and morals; it's about the fact that the government has no business legislating morality. Morals and values are good; I'm the first one to defend morals and values, but the government should not be in the business of morals and values. That role is reserved for a priest, rabbi, minister or whomever an individual looks to for moral guidance and biblical instruction. If the church/religious community had been doing its job all along, then the government would not feel the urgent need to take up the slack in that area. Santorum's fantasy government bears a striking resemblance to Thomas Hobbes' Leviathan-state, where government replaces religion and evolves into the people's god.

I'm a Christian and I know where Connor is coming from and I don't believe he's attacking "the Christian view point." He would never do that. He's merely pointing out that marriage is not in the federal government's list of allowable duties/responsibilities as spelled out in Article 1, Section 8.

Stephen, you make a fair point. We always have to remember that the people are the sovereign. We delegate certain powers to our state governments through state constitutions. The people, through the states, delegated certain powers to the general government, reserving all other power to the states and the people. So the states retain the powers already delegated to them by the people, and the people hold all the rest.

In articles here at the TAC, we generally use the word states in the Madisonian sense.

In his famous report of 1800, Madison clarified that in the constitutional vision the word STATES refers to the PEOPLE OF THE SEVERAL STATES...

not always space to include that in every single article, but glad you brought it up.

On who has power over what - there is far too much to cover in your last sentence for one simple comment thread. Bottom line? the feds only have those powers delegated to it in the constitution. Nothing more. If they have not been empowered to stop, for example, people from drinking too much, they cannot do it.

The Santorum view is opposite. so is the Obama view. The former wants to force certain marriage, drug and other social laws nationally. the latter wants to force environmental laws, health insurance laws and others nationally.

both are SERIOUSLY wrong.

Sorry savecalifornia. I've got to pipe in here, too. We were not meant to be United in the way that the propagandists have implied, suggested, imposed. The point of the American experiment is that the individual be left alone to do what she chooses so long as she isn't hurting anybody else. Period. End of story. Everything that is said after that is just to satisfy humanity's obsession with making things that are inherently simple very complicated - usually to justify finding a way to make money.

Oh do tell us these common values that we white bread tenthers need to unite under for this Great Nation, My Führer?

Talk about white bread world... people like you, savecalifornia, seem to want us all to talk alike, walk alike, speak alike, and think alike while purporting to celebrate "diversity." That doublethink is just as bad as the doublethink illustrated in that superb article! What makes us "United" is our love of LIBERTY not that we all sing from the same hymnal. Liberals confuse me with their doublethink.

so, you don't like the Constitution? Just admit it...

scottb, it's this simple, were the US constitution in effect we would never have been in the Middle East in the first place. There is simply no authority under it to go beyond common defense.

And no we didn't get the culprit. Bin Laden died years ago. Why do you think there's no body? Why is seal team 6 dying all of a sudden? If you don't start from the premise that all governments manipulate, conspire and lie, you're just too naive to understand politics.

Actually, you are mistaken on the war issue. Ron Paul voted FOR the authorization for use of force in Afghanistan -- but only reluctantly because they had ignored his Constitutional bill for Marque and Reprisal (best case) and his Constitutional bill for a Declaration of War (worst case). He argued that we could not just ignore the 9/11 attacks and therefore something had to be done, and since Congress had ignored both Constitutional means of defense -- particularly the Letters of Marque and Reprisal (which would have immediately authorized the methodology which finally took our Bin Laden in 2011) he reluctantly voted in favor of the Afghanistan AUMF.

It has been my experience that 99% of the popular conception of Ron Paul on military and defense issues is pure media spin and propaganda. There is a very good reason that Ron Paul recieves more donations from active duty military members than all the other candidates combined, both in 2008 and today. And it's not because they all 'want to come home,' it's because he has the strongest policy on National Defense period.

You need to stop buying what the media is feeding on this issue.

But when you vote for wrong thinking people, not only will you not get to eat your cake, your cake will be taken away all together. That's how we got into this mess in the first place.