The New Federalism Part III: A More Perfect Union  

Friday, September 30, 2005

In part III of this series, I will look at section 3 of the New Federalist platform, A More Perfect Union. This section discusses the proper structure of the federal government and gives a possible set of actions that could be taken to achieve it.

A More Perfect Union

The Constitution provides that our government possesses a federal structure, in order to serve the objective of self-government through republican representation. As the Declaration of Independence makes clear, governments are instituted in order to secure the rights of individual citizens, and governments derive their just powers solely from the consent of the governed. We New Federalists believe that our nation has currently strayed from this understanding that the only valid purpose of government is as guarantor of individual citizens' rights, substituting in its place various purposes and intentions that, whether designed for good or ill, have abridged and infringed those rights. And because the nation has lost this perspective on the legitimate objectives of government, the federal structure outlined with detail and specificity in the Constitution is no longer honored. This straying from constitutional boundaries is worrisome in and of itself, both because it calls into question the legitimacy of the government and because it inhibits the government from carrying out those legitimate functions authorized by the Constitution. Further, though, a government that has lost focus on its only valid purpose will embark inexorably on a course of systematic violations -- and ultimate destruction -- of its citizens' rights. Coupled with the observation that the twentieth century has seen governments kill tens of millions of their own citizens, this is cause for deep concern.
Truer words were ne'er spake. Combine the dangers associated with government straying from its constitutional limits, calling its legitimacy into question and making it difficult for it to perform its legitmate role, with the systematic series of violations and yes, in many cases, destruction of citizens' rights, and you get the kind of government that kills its own citizens. Don't believe me? Go ask a few Iraqis about it ... or a few Russians ... or a few Cubans ... or a few citizens of ANY oppressive totalitarian state. Totalitarianism is the direct result of the erosion of the rights of the people.

The Declaration of Independence asserts plainly "that these United Colonies are, and of right ought to be, free and independent states." This was the basis of our nation's founding, and this remains the cornerstone that should guide understanding of the respective powers, duties and responsibilities for guaranteeing rights of citizens of the United States, under that "more perfect union" envisioned by the nation's Founders.
The Declaration established the philosophy and the rationale for our system of government, and is the basis for all of the provisions set forth in the Constitution.

The Constitution limits the powers of government by division of those powers into separate branches and levels of government. At the national level, the central governing powers are divided into the coequal legislative, executive and judicial branches, so as to offer checks and balances on the unbridled exercise of ruling authority over the states and individual citizens. Moreover, the Constitution is explicit in listing the few and restricted powers that are assigned to the United States, together with the powers that are prohibited to the several states. As the 10th Amendment makes clear, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." This means that only those powers, responsibilities and duties the Constitution explicitly authorizes are legitimate for the national government, and all that is not so authorized is forbidden.
In other words, the greatest power lies with the people, and each level of government gets progressively WEAKER as you make your way to Washington, DC. The federal government has virtually no authority at all under the Constitution, except that which secures the rights of the people. Every authority the federal government has under the Constitution has a specific purpose to this end.

We believe that the Constitutional Authorization Report, as described elsewhere in this Platform, would assist in returning the existing overgrowth of government power to the narrow channels of constitutionally limited federalism -- if honestly and faithfully followed by Congress and the state legislatures. However, more is certainly necessary to overturn the violations of federalist principles existing in this 21st century, in such an orderly way as to avoid wrenching dislocations of civic and governmental functions.
"If honestly and faithfully followed ..." I wonder if we New Federalists could somehow find a way to COMPEL the legislatures to utilize the Constitutional Authorization Report honestly and faithfully. So far, all I can think of is the ballot box. I do believe that the "sunset" concept outlined in Part II would be an appropriate way to handle the current overabundance of violations of constitutional limits.
The major sources of such violations of federalism involving the separation of powers have arisen through executive and judicial usurpations of legislative functions appropriately exercised only by Congress. These usurpations have, in turn, served to centralize power within the national government, violating the federalist principle of preserving states' rights and powers. As additional measures to restore a more perfect union to our country, as envisioned by our nation's Founding Documents, we propose the following.

Restoration of Congressional Powers Act

Congress should adopt legislation restoring to direct congressional jurisdiction and purview all the powers, duties and responsibilities explicitly entrusted to Congress under Article I, Section 8, of the Constitution, whether by this action Congress outright abolishes or merely transfers away from the executive branch any departments, regulatory agencies or federal bureaucracies, or whether by this action Congress rescinds any existing treaties or agreements with international and private agencies or organizations. Congress should further state that none of the agencies under its jurisdiction shall be empowered to promulgate any regulations, orders, statements or advisories that have the force of law, as the Constitution vests legislative powers only with Congress, and these legislative powers may not permissibly be transferred away to any other entity.

For example, the constitutional provision that "Congress shall have power to lay and collect taxes, duties, imposts and excises" in no way permits Congress to reassign this power to a tax collection agency such as the Internal Revenue Service, which currently exercises that power beyond the direct jurisdiction of Congress. Similarly, the constitutional provision that "Congress shall have power ... to regulate commerce with foreign nations" yields Congress no authorization to transfer this power away from itself and to an international body such as the World Trade Organization. And likewise, the constitutional provision that "Congress shall have power ... to establish an uniform rule of naturalization" does not properly allow an executive department bureaucracy like the Immigration and Naturalization Service to wrest exercise of this power from Congress.

Furthermore, we urge Congress, once having jurisdiction over such agencies as persist under its purview, to follow the guidelines for returning powers and responsibilities to the states that were laid down by President Ronald Reagan in Executive Order 12612, from October 26, 1987.
This is pretty straightforward. Congress shold be expected to read and follow the Constitution. This is all President Reagan asked in EO 12612.

Restoration of Executive Boundaries

Much of the mischievous violation of federalism has resulted from the profligate use of presidential orders (executive orders, presidential proclamations and presidential directives) exceeding the powers and responsibilities vested in the executive branch of government. Correctly viewed through constitutional authorization, presidential orders are limited in application and effect solely to the executive branch. We New Federalists therefore support actions of Congress to restore the separation of powers between the Congress and the President.

For example, we support as a minimal gesture legislation expressing the sense of the Congress that any executive order that infringes on the powers and duties of the Congress under Article I, Section 8, of the Constitution, or that would require the
expenditure of federal funds not specifically appropriated for the purpose of the executive order, is advisory only and has no force or effect unless enacted as law (such as 1999's H. Con. Res. 30).

More importantly, though, we urge effective measures to restore the separation of powers between Congress and the executive branch. Such measures include repeal of the War Powers Act, termination of states of emergency, termination of presidential or executive authority to declare states of emergency, and requirement that each presidential order include a statement of the specific constitutional or statutory provision granting authority for the proposed action (as in 1999's H. R. 2655).

We also encourage efforts to bring challenges to presidential orders in appropriate United States courts by Congress and its Members, by state and local governments, and by aggrieved individual citizens whose liberty and property rights have been adversely affected by presidential orders.

Moreover, a New Federalist President should reimplement President Ronald Reagan's Executive Order 12612, from October 26, 1987, directing all executive branch officers and agencies to operate according to federalist strictures limiting the role of the national government to solely its enumerated and authorized powers.

In other words, the President shouldn't be able to just sit around dictating to the Congress and the people what will and what will not be by way of executive order. We believe that executive orders should be challenged where appropriate, either by Congress or by those Americans whose rights have been violated by a particular executive order.

Restoration of Judicial Boundaries

The Constitution's Article III, Section 1, vests judicial power of the United States in the Supreme Court and "such inferior courts as the Congress may from time to time ordain and establish." Article III, Section 2, of the Constitution specifies the very limited extent of cases subject to judicial power. According to The Federalist Papers, the constitutionally authorized role of the judiciary in dealing with the Constitution and its impact upon the laws passed by Congress was certainly not to ascertain "the spirit of the Constitution," but rather it was to examine the words within the Constitution as "the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution."

Assuredly, our present-day federal courts have far exceeded the authority of their offices. Among other lines of faulty justification contrary to constitutional authorization, the federal judiciary in
recent times has cited the 14th Amendment in striking down state laws, in the process creating a single, centralized superstate unlike any national government projected by this nation's Founding Documents. This era of judicial activism, to date the most arrogant violation of the Constitution, can be traced to 1936, when in a U.S. Supreme Court decision, Justice Hugo Black penned the words, "We must attempt to ascertain the spirit of the Constitution to interpret it." That flawed statement, in contravention of the restrictions placed on the federal judiciary by the Constitution, upset the delicate system of checks and balances among the three branches of government designed under the Constitution's model of government.

We New Federalists thus support congressional actions intended to return the federal judiciary to the limited role described in precise terms in Article III of the Constitution. In particular, the
Constitution's statement that Congress "may from time to time ordain and establish" inferior federal courts surely implies that Congress may restrict the time during which such courts are ordained and established. We recommend Congress adopt a five-year sunset on authorization for each such federal court inferior to the Supreme Court, together with the five-year review of all judges assigned to such courts, to ascertain whether those judges have exhibited the "good behavior" of adherence to their oaths of office to support the Constitution, as described elsewhere in this Platform. This process of reconstituting the federal courts, in rotation every five years, should facilitate removal from office of judges not demonstrating this understanding of
"good behavior" prior to being once again being properly authorized by Congress.

Moreover, though, occasional unconstitutional lapses of the courts may necessitate immediate remedy, by actions of Congress, the President, or perhaps even both. We urge these other federal branches of government to be ever vigilant to excesses of the courts. We urge Congress to override any extra-constitutional decisions of the judiciary, by enacting legislation removing from judicial purview any matters in which the federal courts overstep permissible boundaries. We also urge the President, under Article II, Section 2, of the Constitution, to exercise the "power to grant reprieves and pardons for offenses" incorrectly decided by the Supreme Court or inferior federal courts and in contravention of the Constitution's plain meaning.
Perhaps instead of replenishing all of the courts every five years, a rotation could be worked out whereby one fifth of the courts would be recalled immediately, another fifth in a year, etc., with all courts rotating every five years after that. This would give the Congress plenty to do, as they would have courts to review every year, and would not then have to busy themselves with the writing and passing of unconstitutional legislation. It is important, in any case, and as this platform suggests, that the executive and legislative branches must exert the power they have over the courts in precisely the manner suggested. We cannot continue along the current road of rogue courts (and quite frankly, rogue executives and legislatures) who have no respect for the Constitution.

Restoration of States' Rights and Powers

The surest guarantee of states' rights is a federal government that restricts its operations only to the enumerated powers specifically listed in the Constitution, as part of honoring the 10th Amendment. Absent a self-limiting national government, the states have little recourse for
restoration of their rights and powers, beyond developing parallel programs solely within their respective jurisdictions and refusing participation in national mandates.

Nevertheless, we suggest states develop 10th Amendment strategies to reclaim their rights and powers, whether by bringing court cases or by lobbying Congress, and we urge the states to stand ready to reassume their proper constitutionally specified roles once federalism is
reimplemented throughout the nation.

However, there are two constitutional amendments, both dating from 1913, which have had supremely deleterious effects on the balance of power between the states and the national
government, and both of which should be repealed. We thus urge action to amend the Constitution by repeal of the 16th and 17th Amendments.
It is beyond question that states' rights have been violated time and again by the federal government. It is my view that this will continue until the states STOP ACCEPTING IT and STAND UP FOR THEMSELVES. I agree with the position on the repeal of the 16th and 17th Amendments ...

Repeal of the 16th Amendment

The 16th Amendment to the Constitution introduced direct taxation of incomes from United States citizens, replacing the indirect levies that had previously been used to fund the national government. In fact, this amendment overturned the Constitution's statement (Article I, Section 9)
that "no capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken."

We New Federalists would favor returning to the Constitution's original plan for funding the national government. We further support simultaneously repealing the 16th Amendment, in the process abolishing the Internal Revenue Service, and replacing this onerous, burdensome direct tax on incomes with an alternative levy, preferably in the form of a tax collected by the states on behalf of the national government and held within the jurisdiction of the states until Congress authorizes spending funds in the respective states on constitutionally authorized matters in adherence to federalist principles. We believe this change would substantially alter the skewed balance of power between the states and the national level of government, by no longer automatically amassing large funds to Washington, D.C., for subsequent redispersal to the states. (Only those few monies needed to fund the direct operations of the national government, such as congressional allowances and funding for operations of Congress, would be sent from the states' accounts to the nation's capital.)

One such alternate source of funding would be a flat-rate income tax collected by the states on
behalf of the central government. This replacement revenue source would have the benefit of gradualism in implementation, especially for those states whose residents are already subject to taxation of their incomes.

However, a national sales tax can be considered greatly preferable to a flat tax on incomes, because we believe such direct taxes necessarily are in violation of the 4th Amendment's guarantees of "the right of the people to be secure in their ... houses, papers, and effects, against unreasonable searches and seizures." We believe that the IRS has now amassed such a large collection of centralized information about individual American citizens, that the 4th Amendment cannot be realistically viewed as still having any force or effect in regard to personal, private financial dealings. And merely devolving maintenance of such intrusive
records by the states in data bases linked to the central government conveys no return of constitutional guarantees. Only destruction of existing collected records and replacement of such corollary information collection by an entirely different system will restore the full complement of individual rights acknowledged under the 4th Amendment.
When we allowed out government the right to decide which items in our pockets belonged to us and which belonged to them, we started down a "slippery slope" that has snowballed into a tax system that punishes people according to the will of liberal politicians. No tax cut is ever permanent, nor is any tax temporary. Our federal government is ALWAYS looking for more ways to take what is ours by simply taking a vote. The ideas expressed by the New Federalist platform are all good, and all better than what we have today.

Repeal of the 17th Amendment

The 17th Amendment to the Constitution brought election of Senators by direct voting of citizens in each state, replacing the previous method of election of Senators, as given in Article I, Section 3, of the Constitution, providing that Senators be chosen by each state's legislature. We New
Federalists believe that this amendment has had severely deleterious effects, both in reducing the relative power of states with respect to the national government and, ironically, in decreasing the level of "democratic" representation of citizens by their Senators. We thus support repeal of the 17th Amendment.

We view this proposal as seriously needed to return to a more appropriate balance between the states and the national government, as well as restoring a more appropriate balance between the two chambers of Congress. In the Constitution's original, thoughtful design, the House of Representatives was the only body whose Members were directly elected by citizens, the term of
office was purposely short at two years, and those actions of government of greatest effect on citizens were assigned to this chamber of Congress. By contrast, the Senate was designed as a more deliberative body, with Members providing a bridge between responsiveness to their respective state legislatures and the national level of government, and serving six-year terms of office.

However, with the advent of modern telecommunications and the growing expense of statewide campaigns, Senators now find themselves more responsive to monied "special" interest groups, which can provide campaign donations, thus less responsive to the concerns of their respective state legislatures, and so by extension, less responsive to direct appeal by their state's constituents.
I'm sure that th direct election of Senators seemed like a good idea at the time, but it has shown itself to be a mistake. The longer term of office a Senator has makes him more susceptible to lobbyists and special interests, while it makes him less accountable to those in the state governments that would have elected them. The lobbyists run the Senate these days, and changing the accountability structure of the Senate may help lessen the effect of this problem.

Restoration of Representative Republican Elections

In order to restore the faith and confidence of the American people in the representativeness and trustworthiness of elections, we New Federalists favor restoration of an electoral process controlled at the state and local level rather than by national-level judges and bureaucrats. All matters relevant to district boundaries, electoral procedures, and campaign activities are the
proper province of the states and the people. We support abolishing The Federal Election Campaign Act, together with its 1974 amendments, and we favor disbanding the Federal Election Commission.

The Electoral College was created in accordance with Article II, Section I of the Constitution, which provides, "Each state shall appoint, in such manner as the legislature thereof may direct, a number of electors, equal to the whole number of senators and representatives to which the state may be entitled in the Congress: but no senator or representative, or person holding an office of trust or profit under the United States, shall be appointed an elector." Although the Constitution does not specify methods for electing these electors or how they cast their votes, its wording suggests that prominent individuals from each congressional district, and from the state at large, should be elected or appointed as electors that represent that district. We favor returning to this arrangement, in which voters could vote for three individuals, one to represent the voter's district and two "at large" representatives to represent the voter's state.

We do not support voting by Internet, nor do we favor continuing any system of machine-readable ballots that are not simultaneously readily readable by visual scanning. We support a return to the use of paper ballots by all state and local election officials, together with an evidentiary chain of physical custody of ballots, which permits recourse to a manual counting process of ballots overseen by, and accountable to, voters of each respective precinct, should any challenge be lodged to the announced election results.
We are not advocating doing away with electronic voting altogether. We merely advocate that a hard-copy of every vote be recorded. The FEC has been nothing but a blight on the ability of the people to vote according to the concept of free speech, as guaranteed in the First Amendment. The FEC's zeal in enforcing the unconstitutional law known as McCain-Feingold is the perfect example of this.

English As Official Language

We New Federalists also support actions to declare English the official language of the United States and all states forming our union. We do not favor this proposal to denigrate any culture or national origin of citizens of this Republic, nor is this proposal intended to discourage citizens from learning and using other languages. We favor declaring English the official language of all levels of government in this country in order to promote greater understanding and to strengthen the bonds of commonality and community necessary for all citizens to understand each other and the laws and documents that in fact bind us together as a citizenry.
This isn't about dictating to people which language to speak in their homes. It's about helping new Americans to properly assimilate into the American culture. If you cannot understand English, how will you understand the important words of the Declaration and the Constitution, especially those portions which would lose something in the translation? American civil discourse takes place in English. American business is conducted in English. Successful Americans, though they may be fluent in other languages, speak English. This only makes sense in trying to form "a more perfect union".

The unity of our nation is a very important part of our growth together as a free people. We win together, and we lose together. While we may often disagree during the course of our discussions and/or arguments, Americans, as a people, stand together firmly on the final decisions. It's time we all took responsibility for the unity of our nation and worked toward these goals.