Citizenship and “Right-Wing Social Engineering”

This column originally appeared at Big Jolly Politics:

Last night, as I listened to Newt Gingrich’s victory speech after winning the South Carolina Republican Presidential Primary, he made several statements the caught my attention—but none more than his nod to Governor Perry’s endorsement and their shared commitment to the 10th Amendment and returning power to the states.  As he discussed this point he said that one of the reasons he was asking voters to be “with me not just for me” was because as “we shrink the federal bureaucracy” we must “grow citizenship back home to fill the vacuum.”

I could not agree more strongly.  As I’ve tried to challenge fellow Republicans over the last few years, if we are successful in electing Republican majorities at every level of government and a Republican President, in 2012; and if we are successful in passing the legislation needed to limit the size and scope of the federal government and balancing its budget—what then?  The needs of our fellow citizens that the left has tried to address through federal-government schemes over the last 50 years won’t miraculously disappear.  The divisions that Charles Murray discusses in this new article, The New American Divide, which culturally exist within every racial and ethnic community in this country, won’t magically dissolve.  No, the paradox of our victory will be that it only will start our job to fix this country, rather than end it.

For our victory to last, we must use our political freedom to re-assert our liberty, which includes our reciprocal responsibilities as citizens—responsibilities to govern ourselves, our families, our neighborhoods, our schools, and our states. This renewal of self-governance will require our active participation in the life of our communities, rather than continuing to delegate such participation to faceless bureaucrats in distant capitals.  This active participation is the growth in “citizenship back home to fill the vacuum” that Gingrich is championing.  If we don’t accept this responsibility, the activists of the collectivist left will re-emerge and re-take control of government from us—and our unique system won’t survive another spasm of leftist policies.

Now for those who think this is just another “off the cuff” idea from Gingrich, you’re wrong.  In fact, he has been tremendously consistent about the relationship between limiting the federal government and a re-assertion of citizenship for many years.  He made this point in his first major speech as Speaker-elect to the National Press Club in late 1994, and in the “American Civilization” college courses he taught in the mid-1990s.  Nor is this idea new and revolutionary—it formed the heart of our Settlers’ and Founders’ view of America that de Tocqueville observed in action, and it formed the foundation of Reagan’s blueprint for his “New Republican Party” in 1977.

In fact, in a uniquely Gingrichian way, his widely derided critique of Paul Ryan’s budget proposal last year was consistent with his view of the need for citizenship.  His point was not that he disagreed with the ends or the means of that budget, but that such broad and fundamental reforms contained in that budget would not work unless and until the people were ready to re-accept their responsibilities at the local level—it was putting the cart before the horse.  To force such a sweeping change on people until they are persuaded to accept what that change means to their lives, would be “social engineering” from the present status quo that depends on federal involvement.

Now, I agree that Newt’s choice of words was wrong, but his point was correct.  As we fix the federal government, we must persuade the American people to re-assert their citizenship and to accept the responsibilities that citizenship will require from all of us.  Like you, I want, and the country needs, Paul Ryan’s approach to fixing the budget and the federal government, but it won’t work, and it will only delay the day on which we become a European welfare state, if we don’t become real citizens of this great nation again.  In fact, look in the mirror and ask yourself—isn’t this re-commitment to citizenship what the Tea Party movement was all about?  I can tell you that this re-commitment to citizenship is what forms the basis for the “Renewing the American Community” plan that I and others have been working to develop for the last two years.

So, whether Newt, Rick, Ron or Mitt becomes our nominee, we must dedicate ourselves like our forefathers did—with our lives, our fortunes, and our sacred honor—to not just taking back the government from the left, but to rebuilding the bonds of citizenship with each other in order for our reforms to work and for America to remain the exceptional and indispensable nation—and Reagan’s ideal of a Shining City on a Hill.

To save the Reagan Revolution and the 10th Amendment, we may need a brokered convention

This column originally appeared at Big Jolly Politics:

In the wake of the Iowa Caucus results yesterday, it would be fair to say that I am disappointed with the direction in which the Republican nomination process is headed. There was essentially a three-way tie between a managerial Republican of the Eisenhower mold from Massachusetts, a pro-life statist Republican of the William Jennings Bryan mold who lost his last statewide election by 18%, and an anti-government libertarian who has never been elected to office outside his Congressional District in Texas. If this race continues along this course, I am afraid that the budding Reaganite movement to resurrect and implement the principles of the 10^th Amendment will die on the vine. In a year when we Conservatives have the greatest chance since 1980 of not only winning the Presidency, but changing the direction of the country, this development is depressing.

Then, I read here that a number of self-anointed leaders were being invited to convene at a Texas ranch to try to short-circuit the nomination process and pick a “conservative” candidate for us to support. Given the track record of the leaders of this group, I have no confidence that the candidate they choose to support will be Conservative, or will give a hoot about the 10^th Amendment. As depressed as I am at the current state of the race, this attempt to hijack the process is wrong. I, for one, am not inclined to support anyone anointed through such a process.

As hard as it is to watch this nomination process unfold, it should be allowed to unfold. It should be allowed to go through all of the primaries, and then to the convention. Let’s still give our 10^th Amendment candidates, like Perry and Gingrich, the chance to continue to make their case through the primaries, and let’s really see if any of these candidates has what it takes to win this nomination. Then, if no candidate receives a majority of the delegates before the convention starts, let the convention pick the nominee. Those are the rules of our party, and the rules under which we started this race, so let’s follow them.

In fact, the way that this race is unfolding, I believe that a brokered convention could lead to the nomination of a strong Conservative candidate—one who understands the real promise of the Reagan Revolution and the 10^th Amendment, and one who is fighting in the trenches to make conservatism work. One who believes the following:

… Americans, in a vast majority, are still a people born for self-governance. They are ready to summon the discipline to pay down our collective debts as they are now paying down their own; to put the future before the present, their children’s interest before their own. …
We should distinguish carefully skepticism about Big Government from contempt for all government. After all, it is a new government we hope to form, a government we will ask our fellow citizens to trust to make huge changes. …

… If freedom’s best friends cannot unify around a realistic, actionable program of fundamental change, one that attracts and persuades a broad majority of our fellow citizens, big change will not come. Or rather, big change will come, of the kind that the skeptics of all centuries have predicted for those naïve societies that believed that government of and by the people could long endure. …

The second worst outcome I can imagine for next year would be to lose to the current president and subject the nation to what might be a fatal last dose of statism. The worst would be to win the election and then prove ourselves incapable of turning the ship of state before it went on the rocks, with us at the helm.

The man who spoke these words was Governor Mitch Daniels of Indiana, in his address at last year’s CPAC convention (full text here). Daniels is one potential candidate, other than Perry or Gingrich, who the convention delegates could turn to, but there are others—like Governors Walker of Wisconsin, Snyder of Michigan, Kasich of Ohio and Christie of New Jersey, who are fighting to rebuild their state governments consistent with principles of Reagan’s New Republican Party, and like Paul Ryan, who has championed a new vision for government through his bold proposals. One or more of these men could still jump into this race before the April “winner-take-all” primaries begin if Perry or Gingrich don’t catch fire, or they could still answer the call of a brokered convention.

So, let this process unfold, and, while doing so, let’s fight for our future through the rules provided. Let’s not let any self-anointed group choose our nominee—let’s control this process to the very end. If we do, I still believe we will choose someone, either through the primaries or at the convention, who not only will beat Obama, but will lead us through the changes we need to implement to preserve the promise of the country for our children and grandchildren.

Can the 10th Amendment provide a path to address the “Immigration Issue”?

This column originally appeared at Big Jolly Politics:

Why can’t we seem to resolve the “immigration issue” this country has been debating, off and on, for the last forty years (and which we have debated intensely and incessantly for the last 4-5 years)?

This question has been nagging at me for more than a month now. It most recently arose during the November meeting of the Clear Lake Area Republicans, when our focus-group discussion identified several issues that we bundle together as the “immigration issue” as the most important local and federal issues we currently face. Then, in mid-December, I attended a debate about immigration policy between two well-intentioned and well-regarded local Republican leaders sponsored by a local chamber of commerce, which ended-up stirring the issues around rather than providing much clarity. I walked away from both of these events feeling that this issue—or bundle of issues—seems to be a wound that we can’t get to heal, no matter how hard we try. In fact, the harder we try to close this wound, the more we seem to bleed from it.

This feeling is exacerbated for me, because I deeply believe that the long-term solutions to many of this country’s problems will be solved, if at all, by re-balancing the allocation of responsibility and power of government based on the principles contained in the 10^th Amendment—and yet, effectively addressing the immigration issue has seemed to me to require a more coherent and aggressive federal, rather than a state and local response. Because Washington seems increasingly incapable of addressing its own responsibilities wisely and effectively, this problem has seemed impervious to resolution, which is why States have tried to act on their own to attack the issue.

But, just when I decided to stop thinking of this issue for a while, some thoughts came to me, which I want to share with you as we move into 2012. I am not promising that my thoughts provide all the right answers, or even the right path toward any of the right answers. But, I hope they will provide a different perspective that could get us closer to finding at least some answers.

I think the reason that the present immigration debate seems like it is beyond resolution, is because the current problem arises from a structural dilemma related to the federal structure of our governments. To understand this dilemma, I first want to digress to discuss that federal structure.

In Federalist 45, James Madison made this following observation about the nature of the different spheres of responsibility and powers delegated to the federal government and retained by the states:

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State government are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. 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.

Consistent with this view, the Supreme Court, after the Civil War and the passage of the post-war amendments that expanded the scope of federal authority over civil rights of citizens, articulated the difference this way:

… the United States is not only a government, but it is a national government, and the only government in this country that has the character of nationality. It is invested with power over all the foreign relations of the country, …, all of which are forbidden to the state governments. It has jurisdiction over all those general subjects of legislation and sovereignty which affect the interests of the whole people equally and alike, and which require uniformity of regulations and laws, …– all which subjects are expressly or impliedly prohibited to the state governments.

Knox v. Lee, 79 U.S. 457, 555 (1871).

While under our Constitution and form of government the great mass of local matters is controlled by local authorities, the United States, in their relation to foreign countries and their subjects or citizens, are one nation, invested with powers which belong to independent nations, the exercise of which can be invoked for the maintenance of its absolute independence and security throughout its entire territory.

The Chinese Exclusion Case, 130 U.S. 581, 604 (1889).
What these statements show is that the general division of responsibility and power between the federal and state governments was based on a division between authority over external and purely national issues on the one hand, and authority over local issues on the other hand; and on a further understanding that most issues faced by government were local in nature. With these general understandings in mind, Hamilton, in Federalist 32, describes the further idea of the limited nature of the delegation of authority to the federal government this way:

But as the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States.

He goes on to identify three types of exclusive delegation:

…where the Constitution in express terms granted an exclusive authority to the Union; where it granted in one instance the authority to the Union, and in another prohibited the States from exercising the like authority; and where it granted an authority to the Union to which a similar authority in the States would be absolutely and totally contradictory and repugnant.

Finally, Hamilton identifies the express delegation of the power to “establish an Uniform Rule of naturalization throughout the United States,” as an example of the third type of express delegation, and this view is elaborated upon by Madison in Federalist 42. So, what our Founders intended was to give us a federal government vested with expressly delegated responsibilities, which were intended to address external and purely national issues. One of those expressly delegated issues was Naturalization.

Now, before we return to the primary topic of this post, we need to address the difference between “naturalization” and “immigration”. Naturalization is the process by which a foreigner, once having arrived in the country, may stay and become a citizen. Immigration is the process by which a foreigner comes to, and enters the country. The power over naturalization was expressly delegated to the federal government, in large part because of the problems the colonists encountered with restrictions imposed by Britain prior to the Revolution, and inconsistencies created by the States under the Articles of Confederation. However, the Constitution is silent as to the power over immigration (except for an odd reference in the provision related to the continued importation of slaves until 1808). Consistent with this silence, and with the colonists’ anger over limitations on voluntary immigration imposed by Britain before the Revolution, the federal government did not impose restrictions on voluntary immigration until the 1880s.

When the federal government first imposed restrictions upon immigration, the action was not justified as an exercise of the “necessary and proper” power related to naturalization but, instead, was justified as enforcement of treaty provisions with China and Japan, which restricted immigration from those countries. Eventually, the Supreme Court ruled that the authority to regulate immigration was inherent in, and arose from all of the powers vested in the federal government to conduct foreign affairs—or, as the Founders would have said, from the delegation of powers over external issues. Then, as we in Texas remember all too well, about 30 years ago in Plyer v. Doe, the Supreme Court narrowed the ability of States to regulate the conduct and status of persons who had entered and stayed in the country in violation of federal immigration laws, by requiring that States provide the children of such persons equal access to public education. And that opinion has led, in large part, to the tremendous strain on States and communities caused by the “immigration problem” in this country ever since.

So what is the structural dilemma I spoke of earlier? Unlike most of the problems that have arisen from the allocation of power during our history, the current immigration problem is unique. During most of our history, we have battled over the adequacy, extent, or legitimacy of the power delegated to, or usurped by the federal government from the states or individuals. Whether the issues have been slavery, civil rights, economic, or social regulation, the debates normally centered on whether the national effects from local actions actually made the issues national in scope, and whether the power being debated could be exercised legally and effectively from Washington. The current immigration debate is the exact opposite. The immigration debate involves an issue that is expressly or inherently vested in the federal government to address (whether it be naturalization, immigration, or border security), but which creates negative effects that are almost exclusively local in nature. From the strain on public schools and hospitals, to the local insurance and job markets, communities are absorbing the brunt of federal inaction. In the meantime, communities and States have very limited legal means at their disposal to address these effects.

That the federal government has failed, and continues to fail, to address today’s immigration and naturalization issues is beyond serious debate. It has failed to develop and maintain an appropriate bilateral relationship with Mexico within which border security and immigration could and should be handled. It has failed to secure our borders to know who is coming and going, and to enforce current restrictions on entry. It has failed to address the problem of expired visas for students and temporary workers. It has failed to enforce laws on the books designed to stop the employment of persons who have entered and stayed in violation of law. It has failed to enforce deportation laws. It has failed to create positive laws that promote immigration of workers we need for today’s economy. These failures have created a de facto federal policy of non-enforcement of illegal entry restrictions.

Though this de facto federal policy has created stresses on State and local governments throughout the nation, the problem is most acute where the policy is most abused: in the States and communities closest to the border with Mexico. In the meantime (though we should get some clarification from the U.S. Supreme Court on this issue by June, 2012), current legal precedents limit the extent to which States and local governments can address the impact of this policy. While there is no question that State and local governments can, and constitutionally should enforce federal immigration laws, the current administration has been hostile to even modest attempts by state and local governments to cooperate in or assist with such enforcement. Beyond basic enforcement, state or local regulations that attempt to regulate the activity of people because of their immigration status, to deny benefits to people because of their immigration status, or to impose additional state-law penalties for violating the federal immigration laws, have rarely been upheld by the courts.

So, while the federal government continues to dither, what can we do? What should we do?

The simple answer is that we must do what we can do, and what we can do is take back control of our communities and States, consistent with the 10^th Amendment and with the federal structure I discussed above. To take back this control, we are going to have to embrace a paradigm shift in our thinking, though. This paradigm shift will require a more realistic and forgiving attitude toward those who have come here, or who have stayed here, in violation of the law; and it will require a more appropriate self-image of ourselves and our role in this process.

First, the realism: millions of people who crossed the Rio Grande and stayed illegally over the last generation, or who over-stayed their visas, will never go home. Whether it is because we won’t have the stomach or the resources to do it, we will not deport that many people; and many of them will have planted too many roots here to ever leave voluntarily, no matter how bad the economy gets. Moreover, for those who have established homes in the Southwestern U.S., why would they go home when they can build a better life in a place that is still culturally and historically familiar to them?

Second, the forgiveness: except for our most serious crimes, such as murder, every crime has a “statute of limitations” period, after which someone can no longer be prosecuted. Crossing the border and staying without complying with federal law in order to work and make a living are crimes, but they aren’t murder. Just as society forgives other crimes over time, we need to begin forgiveness (especially if it comes with repentance, such as compliance with payment of fines and prohibition against citizenship). We also need to remember that one of the hallmarks of our legal rights has been the principle that the “son is not liable for the sins of the father,” which is embodied in the Constitutional prohibition against bills of attainder, and to stop condemning children for the crimes of the parents. Finally, we have to understand that all of us—citizen and illegal immigrant alike—have been harmed by the failures of the U.S. and Mexican governments to address the problems that have caused and attracted this continued exodus into the U.S.

Third, and maybe most importantly, we have to stop wallowing as victims over this issue. For years, we have seen ourselves as the victims of a wave of illegal activity without protection from our federal government, and, to add insult to injury, we’ve seen ourselves as having to support the “villains” with public benefits. In response to this feeling of victimization, we’ve come to sound and act collectively like “Inspector Javert,” the character from Victor Hugo’s Les Miserables, who eventually loses his soul over his quest to bring the petty criminal Jean Valjean to “justice” long after Valjean had paid his penance.

Ladies and gentlemen, these “villains” are our neighbors, regardless of who they are, where they came from, or how they got here. And, as I noted before, most of them and their children will be here a very long time. The Democrats and other organizations know this, and they are advocating that these neighbors remain separate from the rest of the larger community, and, therefore, dependent on unions, government and their political party for years to come. As long as the Democrats can maintain the federal status quo, and we refuse to engage with these new neighbors, we condemn these newcomers to become wards of the long-term Democratic strategy for our country.

So, if the federal government won’t act, the paradigm shift requires us to use the principles of the 10^th Amendment positively and aggressively to build better communities for the future. To accomplish this shift, we will have to take control and build neighborhoods with these new neighbors. The only way to build these bonds of neighborhood is through assimilation, and real assimilation is hard work—and takes both parties to make it happen.

That means, it is time we roll-up our sleeves and help our new neighbors to assimilate: to privately establish the network of churches and private organizations that help neighbors and build communities; to teach English and help them become literate in our culture and history; and to mentor the establishment of private businesses and employment through which they can pay taxes, and support the public institutions that now support them. We can not, and should not, reward the adults among them who committed the initial crime by granting them amnesty through a citizenship path (and we couldn’t do that anyway because that is the essence of the power of naturalization delegated to federal responsibility), but we must begin to fold their families into our neighborhoods so that their children—who will stay here because this is the only home they have known—become productive neighbors, and their children and grandchildren become productive citizens.

I know this paradigm shift does not address the actual needs at the federal level. I do not address the federal problems, because, frankly, we know what needs to be done to secure the border and re-gain control over the legal flow of people into this country. Our elected leaders in Washington will either have the will to pass this legislation, or we will have to keep electing new leaders until we find those who will.

But we can not wait for the stalemates in Washington, and between Washington and Mexico City, to resolve themselves before we begin to retake control of our lives and our communities. That is the purpose of this idea of the paradigm shift—to use the ideas of the 10^th Amendment to positively address the problems created by federal inaction and build stronger citizens and communities in the future; rather than to use the 10^th Amendment as a negative argument to joust with the federal authorities over whether and how to should enforce federal law.

Some may label my paradigm shift as amnesty by another name, but it is not. Amnesty, or other such regulations, deal with naturalization, and that is a federal responsibility. In fact, if my idea would be implemented, there may indeed be neighbors who we help who eventually will be deported if and when the federal stalemate ends. But the conditions of our schools and our communities, and the demands on our local infrastructures, require that we take control of this situation here and now where we live and work. Frankly, this is what the Founders would have expected us to do.

I know many of you will disagree with what I have written here. Do me a favor—read it once, give it some thought, then read it again. Afterwards, give me your comments and let’s start a dialogue on this important issue.

The Importance of the 10th Amendment

This column originally appeared at Big Jolly Politics:

This past weekend, ABC News held a debate between George Will and Paul Ryan on one side, and Barney Frank and Robert Reich on the other, during which they argued over whether our government was too large and intrusive. The focus of the discussion was on the role of the federal government in Washington. By omitting any discussion of state and local governments, they impliedly equated the role of all government with the role of the federal government. This debate, though intelligent and interesting, appeared to ignore the real debate that is raging outside of Washington over the size and role of government.

There are two major concerns that have been percolating among voters over the size and role of government, especially among those who embraced the Tea Party movement in 2009. These concerns can be distilled as follows:

• Too much responsibility and power have shifted to Washington from individuals, local governments and state governments, which is contrary to the proper allocation of responsibilities under the Constitution, and which has created tremendous economic inefficiencies for, and imposed artificial costs on, society; and
• All levels of government—local, state, and national—have been operated without a proper focus on their primary responsibilities, and have been managed inefficiently and too expensively, which has caused them to incur an unsustainable debt burden to fund their operations.

Citizens now see that the net impact of these developments has been

• a transfer of power and revenue to the federal government with a commensurate reduction of individual liberty and wealth, and
• the creation of an unsustainable tax and debt burden for future generations.

Our neighbors want politicians who will address these concerns now and take the bold actions to fix them—not just manage them better. It is in this context that so many people have responded positively to the conservative argument to re-invigorate and apply the principles contained in the 10^th Amendment to the U.S. Constitution, which has been championed by Rick Perry and others.

For a guy like me, who studied Constitutional Law in the early 1980s, this new embrace of the 10^th Amendment is remarkable. Back then, the overwhelming view of the 10^th Amendment (and the 9^th Amendment, too) was that it was merely “surplusage” or a “truism”, which provided no real limit to the responsibility of the post-New Deal federal government. To understand this view, let’s look at the actual language of two constitutional provisions—the 10^th Amendment and the “Necessary and Proper Clause” of Article I, Section 8:

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.
******
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.

By the early 1980s, so many responsibilities and powers had been usurped by Congress, the President and the federal bureaucracy under Congress’ expanded application of the Necessary and Proper Clause (which was blessed by the Supreme Court), that the 10^th Amendment was viewed as simply recognizing that whatever power Congress had chosen not to usurp remained within the responsibility of the States or the people to exercise. Such an interpretation willfully ignored the concept of Federalism underlying the Constitution, and no longer provided any limitation on the power of the federal government.

In fact, judicial interpretations actually created a perversity of the Necessary and Proper power: as Congress broadened its authority, it expanded the scope of what was necessary and proper to exercise that authority; which, in turn, broadened the federal government’s authority into new areas of responsibility and, thus, broadened the scope of what was necessary and proper to exercise such new authority. It is this continuing and expanding spiral that has led the federal government to exercise the power to do things like regulate all forms of local economic development to protect the life of a local lizard or frog, as well as to underwrite our health and retirements.

Now it is true that the power of the federal government to legislate actually is a little broader than what is just necessary and proper to implement or enforce the responsibilities listed in Article I, Section 8. The specific list of responsibilities in that section are—

• to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; …
• to borrow Money on the credit of the United States;
• to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
• to establish an uniform Rule of Naturalization,
• [to establish] uniform Laws on the subject of Bankruptcies throughout the United States;
• to coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
• to provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
• to establish Post Offices and post Roads;
• to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
• to constitute Tribunals inferior to the supreme Court;
• to define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
• to declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
• to raise and support Armies, …
• to provide and maintain a Navy;
• to make Rules for the Government and Regulation of the land and naval Forces;
• to provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
• to provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; [and]
• to exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.

In addition to Article I, Section 8, the original text of the Constitution vests other powers in the federal government that Congress can pass laws to effectuate the following:

• to establish rules for its own procedures;
• to make or alter laws regulating the election of Senators and Representatives;
• to suspend the Writ of Habeas Corpus in cases of rebellion or invasion;
• to publish a regular statement and account of receipts and expenditures of public funds;
• to approve the receipt of any award by a citizen from a foreign government;
• to allow States to impose certain taxes on the movement of goods in commerce;
• to allow for States to keep a defense establishment in a time of peace;
• to provide for the conduct of the Executive functions outlined in Article II;
• to establish the scope of jurisdiction of the federal courts beyond the enumerated issues in Article III;
• to establish the place for federal criminal trials;
• to establish the punishment for treason;
• to proscribe the manner by which States may provide full faith and credit to the laws of other States;
• to allow States to form Compacts;
• to admit new States to the Union;
• to regulate Territories and other property of the Union;
• to guarantee a Republican form of government to every State; and
• to protect the States from domestic violence or invasion.

Finally, amendments to the Constitution have given these additional responsibilities to Congress since 1789:

• to prohibit slavery;
• to protect individual rights to due process and equal protection of the laws, and to the privilege and immunities of citizenship;
• to allow Confederates to have full citizenship;
• to lay income taxes;
• to provide for and protect the right to vote for former slaves, women, and 18-20 year-olds, and against poll-taxes;
• to provide for rules as to who will serve as President if no one qualifies to serve as President or Vice-President, or if those who would qualify would have died, by the time a Presidential term should start; and
• to allow for the appointment of Electors from the District of Columbia to serve in the Electoral College to elect the President and Vice-President.

Now, I don’t know about you, but, though these lists appear to be long, the listed powers are really pretty narrow and specific, which is consistent with the concept of Federalism. The sphere of responsibility delegated to the federal government was to be very narrow and specific. The trust to exercise these specific responsibilities were, in turn, vested in a group of representatives, while, closer to home, the people would be more directly involved in the politics of their States and communities where most of the work of government would continue to be done.

Not only did this allocation of responsibility protect and preserve the rights and obligations we call “liberty,” it also made profound economic sense. The specific allocation of the listed responsibilities to the federal government controlled the transaction and administrative costs associated with the operation of government, by reserving most governmental responsibility to local and state governments that could exercise those responsibilities with less bureaucracy and cost. Those activities closest to home—like providing for schools, roads, public safety, public hospitals and clinics, and community support—would be paid for and regulated through local and state governments in coordination with private organizations in each community. One government, one agency, and one bureaucracy would be needed to address each responsibility at each level.

But in today’s world, local and state governments have lost focus and fiscal discipline as the federal government has usurped their responsibilities (and while the federal government fails to perform its proper responsibilities effectively or efficiently). We now have multiple agencies and bureaucracies at each level of government, which overlap in responsibility and power. They each absorb scarce tax dollars to provide these redundant activities; the resulting redundant policies and enforcements often conflict; and the redundant bureaucracies often end up doing nothing because the bureaucrats assume another agency is addressing the problem. Add on to these layers of inefficiency the cost and inefficiency of redundant programs within each level of government (and a trend toward increasing salaries and benefits of public employees to a level that exceeds the level of private sector benefits), and you have the seeds of our current fiscal mess at all levels of government.

Therefore, resurrecting the 10^th Amendment is the natural first step to not only restoring the proper balance of power to protect our liberty, it also is the natural first step toward restoring fiscal sanity to government. But restoring this balance does not set-up the false choice that the debaters on ABC’s program seemed to be discussing—the false choice of government v. no-government. Under a proper application of the 10^th Amendment there will be government, there will be schools, there will be roads, there will be public safety, there will be public hospitals and clinics, and there will be help to those in our communities who need it—but those activities will return where they belong: to responsibility of the State and local governments, and to the people to provide. This re-balanced approach to government should produce less and more cost-effective government in the long-term, but it will not eradicate government—as progressives fear and libertarians hope.

The challenge to conservatives will be to commit to engage in the new balance that will arise if we are successful in resurrecting the 10^th Amendment. This new balance only will work if we individually engage and participate in the operation and oversight of our school districts, our cities, and our state to fix the fiscal messes they face, to hold our local elected officials accountable to re-focus their efforts on those responsibilities they should be exercising, to require that those functions be performed cost-effectively, and to participate in the private organizations that will be needed to help provide certain services in our communities.

If we don’t accept these responsibilities, then our demand for a return to the principles of the 10^th Amendment will be empty, and the vacuum eventually will be re-filled by those who want to centralize all power, responsibility and revenue in Washington.

Is There a Right to be Wrong?

This column originally appeared at US Daily Review.

Before the recent Iowa Straw Poll, Republican Presidential contender and former Pennsylvania Senator, Rick Santorum, paraphrased Abraham Lincoln during a debate on Fox News by saying that “the States don’t have the right to do wrong.” Santorum made this statement as a criticism of those conservatives, like Governor Rick Perry (and me), who believe in the application of Federalism and the limitations on federal responsibility confirmed in the 10thAmendment to the U.S. Constitution, even when those limitations are applied to certain moral issues that touch the very fabric of our society.

When Santorum made that statement, I was reminded of the statement made by another Republican Senator a generation ago. During the Iran-Contra Congressional hearings, Colonel Oliver North defended the Reagan administration’s decision to secretly facilitate the funding of rebels in Central America, in part, by claiming that Congress had been wrong to cut-off funding in the first place. In response, Senator Warren Rudman of New Hampshire said: “the American people have the Constitutional right to be wrong.”

As we conservatives attempt to re-establish limits on the role and responsibility of the federal government and return responsibility to individuals and states, we need to address the question posed by these apparently conflicting statements—who is right? I believe the answer is that both men are right, but Senator Santorum’s application of the principle is wrong.

I come to this answer by going back to the Declaration of Independence and the original conception of Federalism. Our Founders believed that the primary purpose of a legitimate government was to secure God’s gifts of “Life, Liberty, and the Pursuit of Happiness” to each individual. Any government—state or national—that deprived individuals of these gifts, or impaired an individual’s exercise of these basic rights without due process, committed a wrong that gave individuals the license to alter or abolish that government. When it came time to create a federal government, our Founders preserved State governments as the primary laboratories for the development of democracy by creating a unique, federal republic. The States’ role as the primary laboratories in this ongoing experiment was further secured by the 10th Amendment.

The Republican Party emerged from the great social and political upheavals in the America of the 1840s and 1850s. Central to all of the upheavals was the institution of slavery. Slavery was a wrong that deprived men and women of their God-given rights to Liberty and the Pursuit of Happiness. Slavery was a wrong that could not and should not have been condoned, and those governments that legalized it were altered and abolished through war and constitutional amendment. It was during a debate with Stephen Douglas in 1858, when talking about the wrong of slavery, that Lincoln said, “but if you admit that it [slavery] is wrong, he can not logically say that anybody has a right to do wrong.” It is that statement that Senator Santorum apparently paraphrased last week.

But the concept of liberty, arising from the gift of free will, requires that individuals, and the states they form, make choices. The very existence of the power of choice foresees the reality that some choices will be right and some choices will be wrong. In fact, the metaphor of the laboratory to describe the role of state governments implies that states will experiment with public policy choices, and the process of experimentation leads to many wrong choices during the search for a right result. Of course there are consequences that arise from our wrong choices that can be dire, and we arguably are now paying for many wrong choices that we have made and tolerated—as individuals, as communities, and through our governments—over the last 100 years, as we have confused liberty and the pursuit of happiness with license and irresponsibility. In fact, we theoretically can make enough wrong policy choices that we can destroy the fabric of our society and bankrupt our economy in the process—such is our right. But as severe as those consequences may be, liberty and federalism require that individuals and their governments have the right to be wrong—as long as our wrong choices do not deprive men and women of their God-given rights to Life, Liberty and the Pursuit of Happiness.

What our Founders hoped was that we would continue to value the development and use of responsibility, moral character and wisdom as a guard against making wrong choices; that we would make more right choices than wrong choices along the way; that those wrong choices would be relatively minor; that we would learn and grow from the experiences and consequences of our wrong choices—individually and as a people; and that we would not long tolerate either the wrong choices or the consequences arising from such choices, and eventually correct our mistakes and make right choices in the future.

So, both Senators Rudman and Santorum were right. Senator Rudman was right that, generally, we have the right to make mistakes in our public policy—moral, economic, diplomatic, and military—even to the point of being so irresponsible that we put the whole fabric of our society at risk. Senator Santorum was right, too, because when those wrongs transgress our inalienable rights, they can not be tolerated and they must trigger our right to alter or abolish the offending government—typically, and properly, by election or amendment.

So, why do I say that Senator Santorum’s application of his principle to the example of gay marriage is wrong, and Governor Perry’s position is right? It is because gay marriage, like it or not, does not deprive anyone of Life, Liberty or the Pursuit of Happiness. I happen to agree with Santorum and others who believe that licensing gay marriage is a wrong policy choice that reveals a collective collapse of responsibility, moral character, wisdom and judgment; and that such policies, if adopted throughout the country, may threaten, eventually, our social fabric. However, such policies do not threaten anyone’s inalienable rights. So, the states have the latitude in our system to experiment with this wrong policy, just as Texas had the right to adopt a constitutional amendment to prohibit such an experiment—this is the frustrating genius of the Federalism of our Founders.

One can only hope that as we conservatives win elections and re-invigorate the development and use of responsibility, moral character and wisdom through our families, our schools and our neighborhoods, that these wrong policies will be corrected. In the meantime, sadly, our citizens, and our governments must tolerate our right to be wrong if we are to preserve our Federal Republican form of government that our Founder’s designed.