NDAA is the National Defense Authorization Act. Two sections of the bill permit the Kidnapping (arrest and indefinite detention without due process) of both citizens and non-citizens, charged with being tangentially related to terrorist groups or activities.

Members of Congress keep misleading constituents about what the bill actually does.

DownsizeDC.org already addressed the lie, “Don’t Worry, the NDAA exempts Americans” back on January 17. We consider that to be Part 1 in our responding to lies series.

The Latest Lie

A DC Downsizer writes, “Senator (blank)’s office is claiming that the NDAA gives the executive no new authority and only codifies a 2001 Supreme Court decision.”

This is supposed to make us feel better?

It doesn’t matter whether the office making this claim realizes they are prevaricating or they’re just ignorant and repeating a fable they’ve been told. Neither explanation of their behavior reflects well on them.

Let’s strip the cleverness. What are they’re ACTUALLY saying? 

“For years, the Executive Branch has usurped and used very similar powers. We, in Congress, have come along and brought the code of law in compliance with these acts. We have merely provided our endorsement and cover to them.”

Now, there’s actually a grain of truth in that statement, when it’s rendered that accurately. The Executive branch was outside the law. So what the Senator’s office is really saying is, “Two wrongs make a right.” 

But this answer is still misleading because this bill does NEW things . . . 

1) For the first time, America was declared part of the “battlefield” in the war on terrorism.

* Sen. Lindsey Graham (R-S.C.), who backed the bill, indicated that the bill “basically say(s) in law for the first time that the homeland is part of the battlefield,” and that people can be imprisoned without charge or trial “American citizen or not.”
* Another supporter, Sen. Kelly Ayotte (R-N.H.) also declared that the bill is needed because “America is part of the battlefield.”

2) Indefinite detention for American citizens was also novel.

Consider the following exchange between him and Senator Rand Paul from the Senate floor . . . 

MR. PAUL: My question would be, under the provisions, would it be possible that an American citizen could be declared an ‘enemy combatant’ and sent to Guantanamo Bay, and detained indefinitely?

MR. McCAIN: I think that as long as that individual, NO MATTER WHO THEY ARE, if they POSE A THREAT to the security of the United States of America, should not be allowed to continue the threat.

3) As of yet, no bill calls for total repeal of BOTH offending sections, 1021 and 1022. But there are bills by Senator Diane Feinstein, Ron Paul, and others, calling for modification or repeal of various aspects.

Why would such bills be necessary, and even more important, why are they being resisted, IF, no new power is represented here?

• Repeal 1021? Well, we don’t really need it because the power already existed, right? 
• Declare that America is not part of the battlefield, continuing with Posse Comitatus? Why not, since there’s nothing new here?
• Exempt Americans? Why object, if there’s nothing novel about this law?

By the way, since there’s an office saying that there’s a Supreme Court case, and they are merely “ratifying,” then I’m curious about two more things . . . 

1) What is the decision to which they are referring?

2) What clause in the Constitution permitted either the Executive Branch or the Supreme Court to create a law, and the Congress to come along and “ratify” it? Isn’t this EXPRESSLY the opposite of the Constitutional design, whereby the elected representatives of the people legislate?

I hate to name names because this “Don’t Worry” lying campaign is widespread amongst Congress-criminals. Call your Reps and Senators to find out if they are among the guilty.

*******

EDITOR’S NOTE – This post originally appeared at DownsizeDC.org

CLICK HERE – for state and local model legislation to stop the NDAA in your area.

“Diffusion of Responsibility” carries this definition: “a sociopsychological phenomenon whereby a person is less likely to take responsibility for an action or inaction when others are present.” This is not a new concept, of course. It was recognized and discussed by philosophers and students of human nature for thousands of years. It was used in discussing different forms of State and government to explain which is better under what circumstances, including the United States. Let us consider the phenomena of Diffusion of Responsibility and relate it to our constitution and government.

Illustration Concerning ‘U.S. Senator, Mr. Common Fiction’

A few members of the U.S. Senate introduce a bill, consisting of thousands of pages. The Committee initially reviewing the bill recommends it be discussed at large. It goes to the floor for debate and consideration, and then for vote.

Hearings are held and expert witnesses testify. Corporations present scientific data for consideration. Credible assurances are made that the bill is necessary and the wording is accurate to meet real-life needs. Private and government attorneys testify about the bill’s constitutionality—all of the government attorneys holding that the bill is constitutional, but a few reputable private attorneys insist it is not.

Major media sources make the bill appear one way; alternative media states near the opposite. Limbaugh disagrees with Beck; Hannity disagrees with Napolitano; and vice versa. Fox News shows polls that 45% of Americans polled oppose it and 55% support it. The political party elites are using every tool to influence the vote.

Constituents on both sides of the issue voice their opinion in support or opposition—but only .05% of the constituents contacted the Senators to express their opinion. However, hundreds of Lobby groups have bombarded the Senators, consuming the staff’s time to deal with anything else. Among the Tea Party polls, 20% support it; the rest oppose it. The Republican Party supports it in large part; the Democrat Party opposes it in part.

There is not much opportunity to debate the bill because the docket is full, time is short, and the session is about to end; but it “must be decided before recess”. There are some questionable provisions in particular (in conjunction with some other laws that exist but are not discussed or known) which make the bill covertly unconstitutional.

Among the chaos, Senator Common Fiction, who claims to be a “constitutional conservative”, has to make a decision. In reality, Senator Fiction is not certain about the bill’s constitutionality but thinks it may not be constitutional. At the least, he knows the bill will continue to grow the federal government—a trend he has criticized openly. But the pressure at every point is building; and if he does not vote a certain way, the political backlash will be too great. All the while, he considers that his reelection may be undermined if he votes the wrong way. In fact, the uppers in his party told him if he does not vote in favor of this bill, then it is conceivable they will not be able to find enough party support for his upcoming bill—which of course will tremendously increase commerce in his district, thus virtually guaranteeing his reelection.

Senator Common Fiction’s thought process:

“My vote will not decide the fate of this bill or its treatment in the future; it certainly won’t destroy America and the constitution in toto. We are a strong, freedom-loving people; we will never let these things get out of hand; we must live to fight another day.

“My constituents who contacted me supported this bill–for the most part; and the ones who don’t like it have opposed me from the beginning anyway, so they will not contribute to my next campaign regardless; plus, the media doesn’t like them so their opposition will not be publicized. Since I haven’t heard from the rest of my constituents, I feel certain they are not too concerned or else they would have contacted me.

“There are 99 other Senators involved in this process, and most of the Senators in my party support it. The House must consider and vote on this bill too. Many feel the House will not pass it, alternatives already being drafted. Plus, the President said he will veto the bill in its current form.

“In addition, there has been talk about non-profit organizations preparing and filing lawsuits against this bill if it passed, so it would wind up in federal court any way; and since the Supreme Court is the ‘final arbiter’ of the constitution, they can determine the fate of this bill if they choose to take the case—if it even becomes law, which I don’t think it will.

“And besides, the people can always nullify the federal government’s actions by passing a constitutional amendment—if it means that much to them. Sure, it is the most difficult form of redress in the constitution; but still, it is their right and power. And as they say, where the people do not oppose and change the law, they are deemed to have consented.

“Since the governor and attorney general of my State go along with federal laws fairly easily because of their view of the ‘Supremacy Clause’, I expect they will do nothing about this bill if it becomes law. I can say the same thing about our State legislators. The State government will not draw any more attention to this bill than lobbyists are already doing. I am safe there.

“What I cannot do is sacrifice my hard-earned political position in the Senate, which took me 15 years of climbing the political ladder, for this one vote. After all, I will do more good for the country by staying where I am and not jeopardizing my own position too much. Two steps forward, one step back is a better approach to politics. I can always attach a rationale reason for why I voted for this bill.”

“Ok. It’s settled: I’ll vote yes.”

‘Diffusion of Responsibility’ Inherent in the United States Constitution

The United States Constitution separates the function and power of the federal government into three branches. Each branch has distinct purposes, duties, and responsibilities. Within each branch, there are multiple parts which comprise its unit. The law’s existence and the constitution’s enforcement rely on each branch. In addition, there is a fourth “branch” within the structure: the people. Where the three branches have collectively or individually failed, the people can remedy and cure by replacing the officers or amending the constitution.

Theoretically, no one action unilaterally taken will irretrievably damage the constitution or country. It requires everyone’s “consent” (e.g. lack of physical opposition) to move in that direction. Inherent within the federal system is a diffusion of responsibility and power, horizontally and vertically. Any one person within the diffused system cannot be identified solely as the responsible party to a denounced action. Politicians have a lot of cover under which to hide and seemingly have faithful supporters regardless.

While this separation has advantages, it has some inherent flaws. These flaws namely involve (1) the inability of the people to identify the sources of the political problems, and (2) the tendency of office-holders to rely on the system to correct errors or biases in their own judgment. Both of these characteristics pull the system in a direction not necessarily created or intended in the constitution. Remedying problems can be quite daunting when the problems have cemented and multiplied over decades. In part, this is why we can continually elect Republicans and Democrats to replace each other but no substantive improvement is seen in the general direction of politics.

Comparative Facts: The Urinating Marines

A video of four U.S. Marines urinating on dead bodies of the “enemy” has been recently released, and the world is talking about it. As reported in the Miami Herald, psychologist Eric Zillmer discusses how easy it can become for soldiers engaged in war to violate laws and decency standards when there are a lot of participants and direct responsibility is diffused. Zillmer says, “the inhibitions against such misconduct tend to fall away as the number of participants increases, a phenomenon he calls ‘diffusion of responsibility’” (emphasis added). Still, some in the federal government are demanding punishment of the soldiers, including those under Obama’s direction.

While the Marine’s actions may deserve reprimand, the government’s hypocrisy is blaring: when a politician ignores or even disdains the Supreme Law of the Land, their violation is masked in terms of “the living constitution” or “reasonable disagreement”; but when a soldier violates a Geneva Convention rule of much less consequence to the liberty and freedom of people throughout the world, people cry out for justice. If you ask me, righteous indignation should be focused on our own politicians at home.

Application and Conclusion

Senator Common Fiction feels comfortable enough to vote for a constitutionally questionable bill because his responsibility is diffused amongst the system itself. He does not treat his position as an individual fiduciary duty, such that the fate of the country rests in his hands alone. Instead, he treats it with pure statistics, pragmatics, and economics. Where everyone else acts the same, it is little wonder why “politics as usual” is the rule, while the constitution continually reeks of hot, politician urine.

This diffusion of responsibility takes place on all levels. Observe the number of places Senator Common Fiction diffuses his responsibility in that simple scenario. The truth is, no one can point to the Senator alone and blame him for the distortion of the constitution or destruction of the country. The bill the Senator voted for may have been in theoretical works decades before he even took office. Politicians know this, and they act accordingly.

Can we ever “get back to the constitution” under these conditions? If America were talking more about the desecration of the United States Constitution than these Marines who have much more legitimate excuses than politicians who urinate on the Supreme Law of the Land, perhaps we could. But as long as the Diffusion of Responsibility remains strong in the system and is allowed to excuse the unconstitutional behavior of the government, expect the government to continue its desecration of the constitution.

Tim Baldwin is a published author, public speaker, and expounder of political philosophy. Baldwin is the author of Freedom For A Change, Romans 13-The True Meaning of Submission, and Political Discussions for People of States–all of which are available for purchase through Liberty Defense League and Romans13Truth.

It looks like Congress managed cobble together a budget deal that will fund government for the rest of the fiscal year.

At the last minute, lawmakers passed a short-term spending measure to fund the behemoth for another week, after substantively agreeing on a budget bill for the rest of the year.

Good work! That only took half of the year.

The proposed budget snips off about $38 billion in spending.

Lawmakers patted themselves on the back, calling themselves “courageous” for agreeing to the “biggest cuts in history.”

“Both sides have had to make tough choices.  But tough choices is what this job’s all about,” Sen. Harry Reid said.

Truth is, Congress just kicked the can down the road a little further and put off making any actual tough decisions until the next time around. They couldn’t even agree to defund Planned Parenthood, a no-brainer when you’re functionally broke.

And herein lies the problem – our so-called leaders can’t bring themselves to behave as if a problem actually exists. Few politicians have the guts to take the kind of action any half-witted family takes when faced with the prospect of spending more money that it takes in.

Here’s a little perspective.

According to the Treasury Department, the federal government spent $1.0528 trillion during the month of March – that’s trillion with a T – a staggering eight times more than it took in.

That’s like a family netting $2,000 per month spending $16, 000. It doesn’t take an accountant to figure out that kind of overspending represents a significant problem. Heck, you don’t even need to stay at a Holiday Inn Express to comprehend the looming fiscal disaster.

Clearly, that kind of deficit requires a significant change in spending; the kind of change in spending that hurts. The family can’t just switch from ordering steak to ordering salad at the nice restaurant. It must quit going to restaurants. Any restaurants. Period.

But lawmakers – indeed many Americans – can’t even bring themselves to make superfluous cuts in spending.

That’s because when it comes time to actually wield the budget axe, everybody suddenly believes their program “vital.”

Take the press release issued on behalf of the Wolf Creek National Fish Hatchery in Kentucky. The president’s budget planned proposed eliminating funding for the National Fish Hatcheries. The Wolf Creek hatchery operates on an annual budget of about $907,000 of federal tax dollars every year.

“This would be a needless monumental loss to the county and state,” Jeanie Schureman said in the release.

She goes on to justify the existence of the fish hatchery program, pointing out its income generation.

“A return of more than $53 for every tax dollar spent to operate the hatchery,” Schureman said.

She needs an economics lesson.

The fact that fish hatcheries need a tax subsidy to operate proves them an inefficient allocation of resources. If fish hatcheries really constituted a money-making opportunity, an enterprising private individual or entity would undoubtedly step in. That $907,000 dollars actually represents capital diverted from more economically viable activities to hatching fish. While it may create $53 for every dollar spent, that dollar spent in a market driven activity would undoubtedly yield far more.

Not to say fish hatching doesn’t benefit somebody. Perhaps many somebodies. But all too often, we only look at the visible benefits and fail to consider the less easily recognizable costs of government programs. While certain segments of the population reap the rewards, the nation as a whole loses out.

The reapers call the programs “vital.” The general public buys into the sob story. And the government keeps on spending. And spending. And spending.

Economic realities aside, a bigger issue exists.

Vital or not, the federal government lacks the constitutional authority to fund fish hatcheries.

In fact, the federal government lacks the constitutional authority to fund a vast majority of the things it funds. The framers intended the states to retain authority on such internal policies.

James Madison wrote, “The powers reserved to the several States will extend to all objects which, in the ordinary course of affairs, concern the lives, liberties and properties of the people, and the internal order, improvement and prosperity of the State.”

If Kentuckians really believe fish hatcheries vital, the state can set that priority and fund them. And some poor schmuck in Texas doesn’t have to bear the cost.

The federal government dug its fiscal hole with a backhoe powered by constitutional usurpation. The path back lies in limiting the fed to its constitutionally prescribed role.

This will require pain, sacrifice and time. We didn’t dig the hole in a day. It took over 75 years of ever-expanding government. It will require that Americans reject the notion that federal spending is “vital.” And it will require us to shed the notion that the solution to every problem lies among the marbled monuments in Washington D.C.

The stark reality is that the United States is functionally bankrupt. While we may like our various federally funded programs, and we may even personally reap the benefits, we can’t afford them.

We never could.

That’s why the framers sought to limit the power of the federal government. They understood bigger is generally badder.

It’s time to shrink the behemoth.

You can sympathize with the humanitarian motives of our Libyan intervention while still doubting its constitutionality.

The Constitution prescribes the rules about how the United States is to enter a war, and the Obama administration has violated those rules.

The administration argues that the hostilities, because limited, do not rise to the level of “war,” as the Constitution uses that word.  But that position is almost surely wrong: Founding-Era dictionaries and other sources, both legal and lay, tell us that when the Constitution was approved, “war” consisted of any hostilities initiated by a sovereign over opposition.  A very typical dictionary definition was, “the exercise of violence under sovereign command against such as oppose.”  (Barlow, 1772-73).  I have found no suggestion in any contemporaneous source that operations of the kind the U.S. is conducting were anything but “war.”

The Founders’ favorite authority on international law, Vattel, divided wars into three principal categories: defensive wars, offensive just wars, and offensive unjust wars. A nation fought a defensive war when it responded to an invasion.  It fought a just offensive war when it responded to an infringement of its rights short of invasion.  It fought an unjust offensive war if it attacked another country even though that other country had not infringed its rights.  Examples of unjust offensive wars were those fought for conquest or to limit an innocent neighbor’s power.

A defensive war did not require a declaration.  A just offensive war did require one, although it might be called something other than “declaration of war.”  The declaration triggered certain consequences under international law, but Vattel says its principal purpose was to give the other country a last chance to correct the injury it was inflicting.  Because unjust wars were those launched by a country that had not suffered legal injury, it follows that “declarations of war” issued by an aggressor were at least partially defective.

Now: The federal government has only those powers the Constitution grants it.  The Constitution grants the federal government authority to begin and wage a defensive war: “The United States shall . . . protect each [state] against Invasion” (IV-4).  (Protection of U.S. territories is impliedly authorized as well: IV-3-2) But the Constitution grants only Congressauthority to initiate a just offensive war€”that is, an American attack to vindicate our legitimate rights: “The Congress shall have Power . . . To declare War.” (I-8-11).  It can be inferred from the document that the government has no constitutional power to wage an unjust war.

The Constitution entrusts Congress with creating the means for waging war: “To raise and support Armies” (I-8-12),  “To provide and maintain a Navy” (I-8-13), and “To provide for calling forth the Militia to . . . repel Invasions” (I-8-15).  It grants the President authority to serve as Commander-in-Chief (II-2-1).  Under the latter provision, the President can oppose an invader (engage in defensive war) without prior congressional authorization, since “The United States [not just Congress] shall . . . protect each [state] against Invasion” (IV-4).   But there is no enumerated power authorizing the President to launch an offensive war without a congressional resolution that qualifies in substance as a declaration.

Many quotations from key Founders show that is was their understanding as well. For example, James Wilson, one of the greatest Founders, told the Pennsylvania ratifying convention:

“This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large: this declaration must be made with the concurrence of the House of Representatives. . . .”

(This quote is only one of several.)

Nevertheless, many well-meaning people have sought to find a presidential power to wage undeclared war.  In part they rely on practice arising decades, even centuries, after the Founding.  As I point out in The Original Constitution: What It Actually Said and Meant,such evidence is too remote to be a reliable source of original understanding.  The fact that the President sometimes has acted unconstitutionally does not render those acts constitutional.

The most sophisticated presidential defenders make the following argument:

*    What determines constitutional force is not how the ratifiers understood the document, but its objective “original public meaning” to the larger public;

*    the Constitution grants the President the “executive Power” (II-1-1);

*    although the Constitution does not mention undeclared wars, based on the practice of the British Crown the President’s “executive Power” included authority to initiate them.

Unfortunately for this argument, recent scholarship has largely destroyed the view that the phrase “the executive Power” conferred the King of England’s power on the President.  The most comprehensive study of the subject is Curtis A. Bradley & Martin S. Flaherty’s  article,Executive Power Essentialism and Foreign Affairs, 102 Mich. L. Rev. 545 (2004).  In addition,my own published investigation of Founding-Era legal drafting practices discovered that those practices were completely inconsistent with the conclusion that the phrase “executive Power” conferred any authority.

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As for the claim that the Constitution’s “original public meaning” trumps what the ratifiers understood, to my knowledge no one has contested the conclusions of my excruciatingly-footnoted 2007 study of Founding-Era interpretative methods.  It concluded that the Constitution was to be interpreted by the ratifiers’ understanding, with “original public meaning” being consulted only when a coherent understanding could not be found.  In the case of the war power, though, the ratifiers’ understanding is pretty clear.

Although the Obama administration’s Libya operations probably qualify as a constitutionally-authorized “just war” (because it is designed to assist an oppressed people who have risen in rebellion), launching those operations without prior congressional consent violated the Constitution.

In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitution’s original meaning have been published or cited by many top law journals. (See http://constitution.i2i.org/about/.) Most recently, he co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution (Tenth Amendment Center). After a quarter of a century as Professor of Law at the University of Montana, he recently retired to work full time at Colorado’s Independence Institute. Visit his blog there at http://constitution.i2i.org/

As a black conservative and Republican, Allen West is not your typical Tea Party member. West rode the Tea Party wave all the way to the U.S. House last November from Florida’s 22nd congressional district. He is the first black Republican to represent Florida since Reconstruction.

But in addition to being a member of both the Tea Party Caucus and the Congressional Black Caucus, Allen West is also a Tea Party statist.

Before his election to Congress, West was a lieutenant colonel in the army until his retirement after an investigation into his harsh interrogation techniques while fighting in the Iraq War resulted in a $5,000 fine. After his “service” in the military, West worked for a defense contractor as an advisor to the Afghan National Army. He run unsuccessfully in 2008 for the congressional seat he now holds. After speaking at CPAC in 2010 and being endorsed by Sarah Palin, West won the 2010 election against the same Democratic candidate who had earlier defeated him. He was the keynote speaker at the recent 2011 CPAC. West is a favorite of Tea Party members for his attacks on President Obama and government spending and his support for the military and the war on terror.

I have never been too impressed with the Tea Party movement, especially when it comes to issues like the war on drugs and U. S. foreign policy. And although most Tea Party supporters claim they are opposed to big government, in poll after poll a majority of Tea Party Republicans say they have a favorable view of former president George W. Bush. The George W. Bush who doubled the national debt, gave us the first trillion-dollar deficit, drastically expanded Medicare, and not only began two wars that unnecessarily shed American blood and drained the treasury, but waged another war on the domestic front””on the Bill of Rights.

I don’t know how West feels about Bush, but I do know that he is a Tea Party statist who supports the welfare state, the warfare state, and the national security state.

I want to briefly look at these in reverse order, focusing mainly on the welfare state that West would claim to oppose.

West voted in February three times in the affirmative on H.R. 514 to extend the PATRIOT Act. This is the nefarious legislation hurriedly passed soon after 9/11 with no debate in the House and only minimal debate in the Senate that Judge Napolitano called “the most abominable, unconstitutional governmental assaults on personal freedom since the Alien and Sedition Acts of 1798″ and “the most unpatriotic of the things that the Bush administration and this Congress could have visited upon us.” Thank you Mr. West.

West is a huge proponent of the warfare state. According to his congressional website, he favors increasing the size of the military and sees threats to the United States all over the world:

Make no mistake, we are a nation at war against a totalitarian theocratic political ideology that glorifies death rather than celebrating life. To defeat it, we must stay on the offensive. From Afghanistan and Iraq to the Greater Middle East and South America, radical Islam is on the march. And while our attention is focused on combating global terrorism, we must not forget other looming threats just on the horizon in China, North Korea, Venezuela, Russia & Iran. These nations and their leaders represent the biggest threat to our great nation. As your Congressman, I will work to reestablish American Exceptionalism by growing and modernizing America’s Armed forces to ensure that we are prepared for the strategic challenges ahead. I believe that peace is best kept through a strong national defense.

Increasing the size of the military will naturally entail an increase in defense spending. But how much defense spending is enough? The United States already spends on defense as much as the rest of the world combined. The true amount of U. S. defense spending is already over $1 trillion a year. It should come as no surprise to see that Congressman West recently voted against H.J. Con. Res. 28, “Directing the President, pursuant to section 5(c) of the War Powers Resolution, to remove the United States Armed Forces from Afghanistan.” Is there any U.S. war he wouldn’t support? Is there any U.S. military intervention he would oppose?

Make no mistake, the greatest threat to “our great nation” is not Afghanistan, Iraq, China, North Korea, Venezuela, Russia, or Iran. The greatest threat to the freedoms of Americans is not some country thousands of miles away; it is our own government. And as Founding Father James Madison said: “If tyranny and oppression come to this land, it will be in the guise of fighting a foreign enemy.”

It is unfortunate that someone who rails against out-of-control government spending and promises to carry the torch of conservative, small government principles with him to Washington is also a supporter of the welfare state.

First of all, when West addressed CPAC, he said federal spending should be capped at 18 percent to 20 percent of GDP. But why? All this does is ensure that federal spending will be at 20 percent of GDP no matter what GDP is. The whole statistic is meaningless. There is no necessary connection between the two figures. Spending as a percentage of GDP is generally used just to defend increased government spending. According to the Office of Management and Budget, federal spending as a percentage of GDP was 23.8 percent for fiscal year 2010. Now, 20 percent is certainly more desirable than 23 percent, but it is still higher than federal spending as a percentage of GDP during five of the eight Clinton years. It would still entail multi-trillion dollar budgets bloated with unconstitutional spending.

Second, although West touts in a press release dated March 15 that he voted on that day against a three-week continuing resolution (H.J. Res. 48) to keep the government operating until April 8, back on March 1 he voted for a similar resolution (H.J. Res. 44) to fund the government through March 18. West also recently voted in favor of H.R. 1, the “Full-Year Continuing Appropriations Act, 2011,” that appropriates billions of dollars to fund unconstitutional departments like the Departments of Labor, Agriculture, Health and Human Services, and Education, including $13.4 billion for well-known welfare programs like SSI and $81.7 million for little-known “Agricultural Programs, Agricultural Marketing Service, Marketing Services.”

And third, West announced in another press release dated March 16 the awarding of a $21 million federal grant to the Fort Lauderdale-Hollywood International Airport in his district. The airport director was “very glad that Congressman West was able to help us make this happen.” It seems that the airport needed a “second commercial runway.” Yet, the Fort Lauderdale-Hollywood International Airport “is ranked among the top 25 airports in the United States” and has “experienced 18 consecutive months of passenger growth.” It is also ranked “as one of the fastest growing major airports in the country.” With all this business, it seems as though the airport wouldn’t need a federal grant to expand. The real issue, though, is the federal government’s constitutional authority to fund airport expansions. According to the nature of our federal system of government, the enumerated powers of Congress in Article I, Section 8 of the Constitution, and confirmed by the Tenth Amendment, the federal government has absolutely no authority to fund the construction, development, maintenance, remodeling, or expansion of any airport or any other non-federal building, structure, or piece of land. If any entity besides the owner of the airport, the airlines that do business there, the customers that use the airport, individual philanthropists, or a group of investors is going to put money into the expansion of the airport it would have to be the state of Florida, not the federal government. Apparently, Allen West is opposed to out-of-control federal spending except when it benefits his district.

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It is hard to tell how much more of the welfare state that Representative West supports. On his website he lists twelve issues: Congressional Issues, Defense and National Security, Economy and Jobs, Education, Energy, Financial Services, Foreign Affairs, Health, Spending Cuts and Debt, Tax Reform, Transportation, Veterans. Three of them have no links and six of them have links to a statement that says to contact his DC office for more information. Only the issues of Defense and National Security, Economy and Jobs, and Energy have links to his positions on these issues.

Allen West may be highly educated, he may be a decorated war veteran, he may be a devoted family man, he may be a courageous black man who identifies as a conservative, he may be better than all the Democrats in Congress, but he is still a Tea Party statist.

Laurence M. Vance [send him mail] writes from Central, FL. He is the author of Christianity and War and Other Essays Against the Warfare State and The Revolution that Wasn’t. His newest book is Rethinking the Good War. Visit his website.

Senator Rand Paul (Ky.) released the following Dear Colleague letter to his fellow Senators on February 15, 2011 regarding the renewal of the USA PATRIOT Act.

*******

Dear Colleague:

James Otis argued against general warrants and writs of assistance that were issued by British soldiers without judicial review and that did not name the subject or items to be searched.

He condemned these general warrants as “the worst instrument[s] of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever w[ere] found in an English law book.” Otis objected to these writs of assistance because they “placed the liberty of every man in the hands of every petty officer.” The Fourth Amendment was intended to guarantee that only judges—not soldiers or policemen—would issue warrants. Otis’ battle against warrantless searches led to our Fourth Amendment guarantee against unreasonable government intrusion.

My main objection to the PATRIOT Act is that searches that should require a judge’s warrant are performed with a letter from an FBI agent—a National Security Letter (“NSL”).

I object to these warrantless searches being performed on United States citizens. I object to the 200,000 NSL searches that have been performed without a judge’s warrant.

I object to over 2 million searches of bank records, called Suspicious Activity Reports, performed on U.S. citizens without a judge’s warrant.

As February 28th approaches, with three provisions of the USA PATRIOT Act set to expire, it is time to re-consider this question: Do the many provisions of this bill, which were enacted in such haste after 9/11, have an actual basis in our Constitution, and are they even necessary to achieve valid law-enforcement goals?

The USA PATRIOT Act, passed in the wake of the worst act of terrorism in U.S. history, is no doubt well-intentioned. However, rather than examine what went wrong, and fix the problems, Congress instead hastily passed a long-standing wish list of power grabs like warrantless searches and roving wiretaps. The government greatly expanded its own power, ignoring obvious answers in favor of the permanent expansion of a police state.

It is not acceptable to willfully ignore the most basic provisions of our Constitution—in this case—the Fourth and First Amendments—in the name of “security.”

For example, one of the three provisions set to expire on February 28th—the “library provision,” section 215 of the PATRIOT Act—allows the government to obtain records from a person or entity by making only the minimal showing of “relevance” to an international terrorism or espionage investigation. This provision also imposes a year-long nondisclosure, or “gag” order. “Relevance” is a far cry from the Fourth Amendment’s requirement of probable cause. Likewise, the “roving wiretap” provision, section 206 of the PATRIOT Act, which is also scheduled to expire on the 28th, does not comply with the Fourth Amendment. This provision makes possible “John Doe roving wiretaps,” which do not require the government to name the target of the wiretap, nor to identify the specific place or facility to be monitored. This bears an uncanny resemblance to the Writs of Assistance fought against by Otis and the American colonists.

Other provisions of the PATRIOT Act previously made permanent and not scheduled to expire present even greater concerns. These include the use and abuse by the FBI of so-called National Security Letters. These secret demand letters, which allow the government to obtain financial records and other sensitive information held by Internet Service Providers, banks, credit companies, and telephone carriers—all without appropriate judicial oversight—also impose a gag order on recipients.

NSL abuse has been and likely continues to be rampant. The widely-circulated 2007 report issued by the Inspector General from the Department of Justice documents “widespread and serious misuse of the FBI’s national security letter authorities. In many instances, the FBI’s misuse of national security letters violated NSL statutes, Attorney General Guidelines, or the FBI’s own internal policies.” Another audit released in 2008 revealed similar abuses, including the fact that the FBI had issued inappropriate “blanket NSLs” that did not comply with FBI policy, and which allowed the FBI to obtain data on 3,860 telephone numbers by issuing only eleven “blanket NSLs.” The 2008 audit also confirmed that the FBI increasingly used NSLs to seek information on U.S. citizens. From 2003 to 2006, almost 200,000 NSL requests were issued. In 2006 alone, almost 60% of the 49,425 requests were issued specifically for investigations of U.S. citizens or legal aliens.

In addition, First Amendment advocates should be concerned about an especially troubling aspect of the 2008 audit, which documented a situation in which the FBI applied to the United States Foreign Intelligence Surveillance Court (FISC) to obtain a section 215 order. The Court denied the order on First Amendment grounds. Not to be deterred, the FBI simply used an NSL to obtain the same information.

A recent report released by the Electronic Frontier Foundation (“EFF”) entitled, “Patterns of Misconduct: FBI Intelligence Violations from 2001-2008,” documents further NSL abuse. EFF estimates that, based on the proportion of violations reported to the Intelligence Oversight Board and the FBI’s own statements regarding NSL violations, the actual number of violations that may have occurred since 2001 could approach 40,000 violations of law, Executive Order, and other regulations.

Yet another troublesome (and now permanent) provision of the PATRIOT Act is the expansion of Suspicious Activity Reports. Sections 356 and 359 expanded the types of financial institutions required to file reports under the Bank Secrecy Act. The personal and account information required by the reports is turned over to the Treasury Department and the FBI. In 2000, there were only 163,184 reports filed. By 2007, this had increased to 1,250,439. Again, as with NSLs, there is a complete lack of judicial oversight for SARs.

Finally, I wish to remind my colleagues that one of the many ironies of the rush to advance the PATRIOT Act following 9/11 is the well-documented fact that FBI incompetence caused the failure to search the computer of the alleged 20th hijacker, Zacarias Moussaoui. As FBI agent Coleen Rowley stated, “the FBI headquarters supervisory special agent handling the Moussaoui case ‘seemed to have been consistently almost deliberately thwarting the Minneapolis FBI agents’ efforts” to meet the FISA standard for a search warrant, and therefore no request was ever made for a warrant. Why, then, was the FBI rewarded with such expansive new powers in the aftermath of this institutional failure?

In the words of former Senator Russ Feingold, the only “no” vote against the original version of the PATRIOT Act,

“[T]here is no doubt that if we lived in a police state, it would be easier to catch terrorists. If we lived in a country that allowed the police to search your home at any time for any reason; if we lived in a country that allowed the government to open your mail, eavesdrop on your phone conversations, or intercept your email communications; if we lived in a country that allowed the government to hold people in jail indefinitely based on what they write or think, or based on mere suspicion that they are up to no good, then the government would no doubt discover and arrest more terrorists. But that probably would not be a country in which we would want to live. And that would not be a country for which we could, in good conscience, ask our young people to fight and die. In short, that would not be America.”

I call upon each of my Senate colleagues to seriously consider whether the time has come to re-evaluate many—if not all—provisions of the PATRIOT Act. Our oath to uphold the Constitution demands it.

Sincerely,

Rand Paul, M.D.
United States Senator

Recently, the New York Times published on op-ed piece advocating an increase in the size of the House of Representatives. Not the chamber itself, mind you, but the number of representatives serving therein.

The co-authors, Dalton Conley and Jacqueline Stevens, assert that the House has “lost touch with the public and been overtaken by special interests.”

After pointing out that the current number of representatives — 435 — is set not by Constitutional mandate, but rather by statute, Conley and Stevens rightly present the cold, hard figures that strain the definition of “representation.”

First, perhaps one wonders how we arrived at the magic number of 435 to begin with. It is because oflaws passed by Congress in 1911 and in 1929. At the time of the debate on the bill setting the arbitrary limit on the number of representatives, one clear-thinking congressmen made the following observation:

The bill seeks to prescribe a national policy under which the membership of the House shall never exceed 435 unless Congress, by affirmative action, overturns the formula and abandons the policy enunciated by this bill. I am unalterably opposed to limiting the membership of the House to the arbitrary number of 435. Why 435? Why not 400? Why not 300? Why not 250, 450, 535, or 600? Why is this number 435 sacred? What merit is there in having a membership of 435 that we would not have if the membership were 335 or 535? There is no sanctity in the number 435 … There is absolutely no reason, philosophy, or common sense in arbitrarily fixing the membership of the House at 435 or at any other number.

The opinion piece agrees:

The result [of the law passed in 1911 that set the number of representatives at 435] is that Americans today are numerically the worst-represented group of citizens in the country’s history. The average House member speaks for about 700,000 Americans. In contrast, in 1913 he represented roughly 200,000, a ratio that today would mean a House with 1,500 members – or 5,000 if we match the ration the founders awarded themselves.

That ratio — the one established by the Constitution — is set forth in Article I, Section 2. “The Number of Representative shall not exceed one for every thirty Thousand….” The Constitutional Convention in Philadelphia in 1787 settled on this number after considering proposals for setting the ratio at one representative per every 40,000 (the original ratio reported out of Committee) and one for every 35,000. Additionally, there was some heated debate over whether the relative wealth of a state, as well as population should be a factor in the equation determining representation in the House.

Upon reading the debates of the Convention in this matter and crunching the numbers, one realizes that the issue most concerning to the Framers was not that the House would be too small, but that it would be too large. James Madison himself expressed such a worry when he wrote in the Federalist Papers, “Had every Athenian been a Socrates, every Athenian assembly would still have been a mob.”

In the article printed in the Times, the effect of statutorily fiddling with the Constitution’s math is succinctly stated:

This disparity increases the influence of lobbyists and special interests: the more constituents one has, the easier it is for money to outshine individual voices. And it means that the representatives have a harder time connecting with the people back in their districts.

Well said. There is strong historical support for this theory, as well. Madison similarly expressed the need for constituents to feel connected to their representatives to the national legislature. In Federalist No. 57 he wrote,

The house of representatives . ..can make no law which will not have its full operation on themselves and their friends, as well as the great mass of society. This has always been deemed one of the strongest bonds by which human policy can connect the rulers and the people together. It creates between them that communion of interest, and sympathy of sentiments, of which few governments have furnished examples; but without which every government degenerates into tyranny.

And in another Federalist letter:

The members of the legislative department … are numerous. They are distributed and dwell among the people at large. Their connections of blood, of friendship, and of acquaintance embrace a great proportion of the most influential part of the society…they are more immediately the confidential guardians of their rights and liberties.

For at least a decade, scores of respected journalists, political scientists, and commentators have been calling for a repeal of the Reapportionment Act of 1929 that capped the size of the House at 435. In a November 2001 article printed in The Hill, Matthew Cossolotto muses:

What’s going on here? After all, the framers of the Constitution envisioned that the House would grow in size along with the country’s population. This was supposed to take place every 10 years as a party of the reapportionment process following each decennial census.

He’s right. James Madison participated in that debate and wrote, “I take for granted…that the number of representatives will be augmented from time to time in the manner provided by the Constitution.”

In his “Common Sense” column, Paul Jacobs made a point that was at once cogent, clever, and condemning:

Are career politicians likely to chop their own personal power to do what’s best for the country and the institution of Congress? Nope. But they do talk a lot about taking the big money out of politics. Well, if they’re serious, this is one way to do it without destroying the First Amendment and handing incumbents power to regulate their opponents.

Again, well said. To a man (and woman), nearly every Tea Party-supported Congressmen promised to take America back from special interest while restoring the First Amendment’s guarantee of free speech, particularly the right to express oneself by providing financial support to candidate in an amount they, and not the Congress or Supreme Court, deem sufficient.

In what is perhaps the most laudable espousal of a breaking of the 435 seal by a pundit, George Will put a very fine point on the topic. Praising the notion of how a larger House of Representatives will likely serve as a disincentive to those who seek office for their own aggrandizement.

Critics will say, correctly, that the House chamber cannot seat 1,000 members, that it would be crowded and uncomfortable, that office space would be so severely rationed that staffs would have to be trimmed, so the House, and therefore, Congress, could not do very much. Sensible people would be dry-eyed about such conditions, which would encourage representatives not to tarry here.

The concept of subtraction by addition is a difficult one to comprehend, perhaps. That is to say, no one who flies the flag of the Constitution advocates an increase in the size of government. However, there is a possibility that by removing the 435 ceiling and requiring representatives to reduce staff and take a significant pay cut (so as not to increase by one cent the amount of money spent on Congressional salaries and staff) a lifetime spent on the banks of the Potomac might not be so alluring and the increased turnover rate will be philosophically pleasing to those of a Jeffersonian bent who long for a “revolution” every couple of decades.

Finally, there is an organization dedicated to increasing awareness of the deracination of representatives from the represented. Thirty-thousand.org provides research and commentary on reasons for repeal of the Reapportionment Act of 1929. Primarily, of course, their documents focus on the lack of true representation in a body so detached from the legitimate fount of power.

The diverse views and values of the American people are currently being homogenized within super-sized political districts resulting in the election of politicians rather than Representatives. These elected politicians rarely represent or champion clearly defined principles; instead, many function as career conciliators who can derive greater success by serving the special interest groups than by bravely advancing principles.

In contrast, in a larger House the diverse views and values of the American people will find full expression through their Representatives. The House will return to being a people’s House in which the diverse interests and concerns of the American people can be openly championed. Of course, that does not mean that everyone’s positions will prevail; that can never happen, nor should it. However, you will at least hear one or more Representatives earnestly and unambiguously advocating your view (whatever that is). Perhaps in being heard, it will affect the outcome of the matter under consideration. Or perhaps it will not change the outcome at all but, at least, it will have been clearly articulated. Just as importantly, having been competently advocated in that eminent forum, the views expressed may eventually change the minds of others.

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Support for this movement among Constitutionalists is growing. The inertia it is experiencing makes sense as Americans committed to restoring the sovereignty of states should have an affinity for such a cause, as a likely effect of successfully repealing the current cap would be strengthening of the ties that should rightfully bind congressmen to constituents. Decreasing the size of districts makes congressmen more answerable to a smaller number of voters, thus those representatives become more apt to protect the sovereignty of the states from which they are sent as they are taught that it is the liberty of those states from which the federal government they seek to serve derives its powers.

Interested readers should peruse this article from the Daily Paul (a website dedicated to promoting the principles espoused by Congressman Ron Paul), as well as the interview of Mises Institute senior fellow, Dr. Mark Thornton posted on lewrockwell.com.

Apart from his work as a journalist, Joe Wolverton, II is a professor of American Government at Chattanooga State and was a practicing attorney until 2009. He lives in Chattanooga, Tennessee. Since 2000, Joe has been a featured contributor to The New American magazine. Most recently, he has written a cover story article on the Tea Party movement, as well as a five-part series on the unconstitutionality of Obamacare.

This article originally appeared in The New American magazine – and is republished here with permission of the author.

With the executive branch of the federal government making Obamacare headline news once again by issuing regulations regarding end-of-life counseling – while the same law silently threatens ‘to generate over 100,000 pages of enabling regulations’ absent any congressional debate or vote – now would be an excellent time to revisit Article I, Section 1, of the U.S. Constitution.

Art. I, Sec. 1, states simply enough, ‘All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.’

But is the Congress the only institution of the federal government currently exercising those legislative powers? The answer, as illustrated above, is clearly No. The bureaucracy of the executive branch is and has been unconstitutionally exercising the legislative power for decades.

And let there be no mistake: The rules and regulations issued by the executive bureaucracy are laws, though they are not called laws. The legal definition of ‘law’ should suffice to prove this. According to William Blackstone, a law is

“A rule of … conduct prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong.”

(See also other legal definitions from this web site.)

Furthermore, law is ‘binding’ on the people of the land and ‘enforced by a controlling authority.’

All of these characteristics of law apply to the rules promulgated by the federal executive.

But there is only one way prescribed in the Constitution for enacting a new law: passage of a proposed bill by both the House and the Senate. The role of the executive branch is secondary; it is Congress alone that is the primary cause in matters of legislation. The President may sign or not sign a bill, in either of which cases it becomes law. He may veto a bill passed by Congress, but his veto may be overridden, in which case the bill still becomes law. (See Article I, Sec. 7.)

Other than signing, not signing, or vetoing proposed laws, the only other function of the federal executive branch with regard to legislation is ‘to take Care that the Laws be faithfully executed’ (Art. II, Sec. 3).

If it be argued that the executive branch needs to have the flexibility to write rules to execute the laws passed by Congress, even this argument has been answered in the text of the Constitution in the famous Necessary and Proper Clause (Art. I, Sec. 8): ‘The Congress shall have Power … To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.’ The legislative branch alone – not the executive branch, or any other ‘Department or Officer’ of the federal government – is granted the power to write rules governing the execution of laws it passes.

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So the Congress is supreme according to our Constitution when it comes to passing new laws.

What does this mean, then? That there is another constitutional basis for declaring many federal regulations decreed by the executive bureaucracy ‘unauthoritative, void, and of no force’, whether regarding health care, the environment, agriculture, etc.

‘Legislative supremacy’ let us call this constitutional principle, and let us define it thusly: Only the U.S. Congress may pass laws, or any rule or regulation having the characteristics of law. Should any other branch, department, or officer of the federal government issue anything purporting to have the force of law, that fraud ought to be ignored and resisted by state and local governments and the citizens themselves in the way deemed most prudent.

If any of the constitutional scholars at the Tenth Amendment Center or elsewhere would like to help clarify and buttress this principle, such aid would be gratefully received.

Finally, I wish to thank the Texas Public Policy Foundation for giving me this idea in the first place via a wise proposal of their own:

‘Our representatives in Congress can have an important role in stopping federal overreach. A simple amendment to the Administrative Procedures Act could establish that the Supremacy Clause of the Constitution (Article VI) shall not apply to regulatory action, and that in cases of conflict between an administrative agency rulemaking and state law, state law prevails.’ (Ted Cruz and Mario Loyola, Reclaiming the Constitution: Towards an Agenda for State Action, P. 16. Available for download as a PDF file here

Walt Garlington is the founder of the Louisiana State Sovereignty Committee.

Copyright © 2010 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given

The debate in Congress over the extension of the Bush tax cuts has obscured the issue of government spending. After all, it is because members of Congress love to spend money that isn’t theirs that we “need” an income tax to begin with.

Government spending is out of control. The federal budget is fast approaching $4 trillion. The budget deficit is over a trillion dollars. The national debt will soon top $14 trillion, as it rises by billions of dollars each day.

This crisis is not just because the Democrats are in power. Under the Bush presidency for eight years and a mostly Republican Congress for six of those years a $150 billion surplus in 2001 turned into a $1 trillion deficit in 2008. The federal budget increased by over $1 trillion. The national debt doubled. And during the last six years of the Clinton presidency, it was the Republicans that controlled both the House and the Senate.

The fact that the Republicans recently regained control of the Congress won’t mean anything when it comes to reining in government spending since in their “Pledge to America” the Republicans promise to “protect our entitlement programs for seniors and future generations” and only call for a reduction in government spending to the level it was during the Bush presidency.

All the statist proposals in the Democratic and Republican parties to rein in government spending are nothing more than bandaids: baseline budgeting, a Balanced Budget Amendment, automatic across-the-board spending cuts, sunset provisions, spending increases limited to the rate of inflation, spending caps based on GDP, deficit reduction targets, budget enforcement rules, elimination of earmarks, deficit commissions, elimination of unnecessary spending, temporary freezes on certain categories of spending, rollbacks to some previous level, non-binding public voting on spending cuts, and, of course, cutting waste, fraud, and abuse.

The only way to rein in government spending is by the wholesale elimination of departments, agencies, commissions, administrations, corporations, councils, boards, and bureaus with all of their programs and personnel.

Of the sixteen executive branch Cabinet-level departments, a limited Constitutional case could be made only for the departments of State, Treasury, Justice, and Defense. Any legitimate operations of the Departments of Homeland Security and Veterans Affairs could be subsumed under the Department of Defense. This means that the functions and bureaucracies of the Departments of Agriculture, Commerce, Education, Energy, Health and Human Services, Housing and Urban Development, Interior, Labor, and Transportation should be eliminated in their entirety. The original four departments (Justice, State, Treasury, and War) might conceivably serve some useful purpose — but only if they were scaled down considerably, and especially the Defense Department, which spends most of its budget on empire and offense.

Next to go would have to be the alphabet soup of government agencies like the SEC, DEA, FEMA, FTC, FCC, OSHA, EPA, BATF, NASA, FDA, EEOC, LSC, TVA, NEA, FHA, NEH, CPB, SBA, NIH, NLRB, USAID, and NTSB.

This means no more funding for income redistribution schemes like Medicare, Medicaid, Social Security, SCHIP, food stamps, WIC, TANF, housing subsidies, foreign aid, refundable tax credits, Head Start, the National School Lunch Program, unemployment benefits, and farm subsidizes.

This also means no more funding for science, education, medical research, or climate change.

Oh, and there should be no office of surgeon general or drug czar, AIDS czar, or faith-based czar.

In other words, strictly limit government spending to only what is constitutionally authorized — just like James Madison, Grover Cleveland, and Davy Crockett believed.

When Congress appropriated $15,000 to assist some French refugees, Congressman Madison objected, saying: “I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents.”

President Cleveland vetoed a bill passed by Congress to provide financial assistance to farmers suffering from a drought. In his veto message Cleveland stated:

I can find no warrant for such an appropriation in the Constitution, and I do not believe that the power and duty of the general government ought to be extended to the relief of individual suffering which is in no manner properly related to the public service or benefit. A prevalent tendency to disregard the limited mission of this power and duty should, I think, be steadfastly resisted, to the end that the lesson should be constantly enforced that, though the people support the government, the government should not support the people.

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And Congressman Crockett responded to a congressional attempt to help the widow of a naval officer:

I will not go into an argument to prove that Congress has no power to appropriate this money as an act of charity. Every member upon this floor knows it. We have the right, as individuals, to give away as much of our own money as we please in charity; but as members of Congress we have no right so to appropriate a dollar of the public money.

Just a cursory reading of article I, section 8, of the Constitution, where the powers of Congress are enumerated, is enough to see that Madison, Cleveland, and Crockett hold the solution to the problem and every member of Congress that defends the welfare/warfare state — that is, every member of Congress except Ron Paul — is part of the problem.

Government spending must be reined in, by dismantling the illegitimate functions of the federal government. It is possible, it is necessary, and it is time.

Laurence M. Vance [send him mail] writes from Pensacola, FL. He is the author of Christianity and War and Other Essays Against the Warfare State and The Revolution that Wasn’t. His newest book is Rethinking the Good War. Visit his website.

Copyright © 2010 Future of Freedom Foundation

Modern American’s seem to have lost sight of essential truths clear to the country’s founders more than 200 years ago.

Today, everybody from mega agribusinesses executives to consumer advocates are lauding the Senate for passing a massive overhaul of the “food-safety” system. The legislation would grant broader inspection power to the F.D.A., allow the government to mandate product recalls, oversee farming and regulate the food production industry to an even greater degree.

“Everyone who eats will benefit,” said Caroline Smith DeWaal, food safety director of the Center for Science in the Public Interest, an advocacy group. “F.D.A. will have new tools to help ensure that we have a safer food supply that causes fewer outbreaks and illnesses.”

Benjamin Franklin would have likely taken a different view.

“They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”

In fact, the FDA Food Safety Modernization Act represents yet another massive expansion of federal power, much of it unconstitutional. (And before you send me emails justifying this monstrosity based on the commerce clause, please do us both a favor and do a little research on the meaning of commerce as understood by the framers. Click here.)

Sadly, if history provides any insight at all, and it usually does, this act will do nothing to actually protect the American people. It will instead serve as a tool for big corporations to gain a competitive advantage over small, local farms and food producers. Don’t believe me? Ask yourself this – why else would big companies support legislation that on its face will exact huge costs in time, money and resources?

And it will also give politicians and bureaucrats yet another lever to maneuver and manipulate for their own purposes.

True to form, power hungry politicians and progressive thinkers have churned up the American public with scare tactics to gin up support for another expansion of government power –  as always, at the expense of liberty.

Proponents say the act will protect Americans from foodborne illnesses. But does the problem justify such a massive, expensive, intrusive cure?

Not really.

According the the Centers For Disease Control, only about 1,500 people per year die from salmonella and other known foodborne pathogens. Another 3,500 people die  from illnesses stemming from unknown foodborne pathogens. Many of those deaths result from improper food handling and cooking after purchase.

Certainly, 5,000 deaths is 5,000 deaths too many. Nobody wants to see fellow Americans die. Nobody wants tainted food on grocery shelves. But protecting citizens from every danger, risk and threat is not the role of the federal government – or any government for that matter.

But nanny state politicians continue taking us for a spin on a never ending carousel. Several thousand deaths under a heavily regulated system creates the panic necessary to enact even more expansive, overreaching regulation.

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To live life invites the risk of death. No law, act or government edict can mitigate that reality. Franklin was right. When we begin looking to others for protection from every eventuality, we necessarily give up our freedom, and in the end enjoy no greater safety.

Alexander Hamilton wrote of the threat to liberty posed by war. His reasoning applies equally to government’s other attempts to “protect” its citizens.

“Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free.”

Note: the legislation passed 73-25. Click here to see how your Senators voted.