My Letter to Mitt Romney

This letter originally appeared at Big Jolly Politics:

Well, as the Republican Presidential roadshow moves on to South Carolina, I must admit that the disappointment I expressed in my last post is turning, slowly, to a begrudging acceptance of the looming reality we face. No matter how much I still hope that another candidate will emerge during the primaries, or at the convention, whose views and experience show him or her to be a real Conservative reformer, history shows that such a development is highly unlikely now. Therefore, I must prepare to support Mitt Romney if he wins the nomination, because I can not stand by and let Obama’s Democratic Party win this election.

But, bowing to such reality does not mean that I, and those of you who agree with me, must drop our desire for reform based on Reagan’s New Republican Party blueprint of 1977, and the recent 10^th Amendment movement. Instead, we should work to give Governor Romney (or whoever may still emerge from this process) the tools and support he will need to make the reforms we want: retention of the GOP’s House majority; gaining a GOP majority in the Senate and changing the filibuster rules once and for all to allow the basic business of government, like the passage of a budget, to be done; and retention and expansion of our majority in state houses and governorships. Above all else, we must continue to remind Governor Romney of what we want to see our party accomplish if it wins this election.

To that last end, here is my open letter to the Governor:

Dear Governor Romney:

As a supporter of another candidate in the GOP field this year, I congratulate you on your victories to date, and on the progress you are making toward winning the nomination of our party for the Presidency. Though there are many contests still to be fought in this process, and through those contests I will remain part of the loyal opposition, I want you to know that, as a Reagan Conservative, I will support you and work for your election if you win the GOP nomination. That said, I want to share some thoughts with you about this race from someone who has not supported you to date.

I have been told from a close friend who worked with you after you took over the 2002 Winter Olympics, that you are one of the finest managers of people and of business with whom he has ever worked. That is high praise, indeed. Moreover, your history of accomplishments in the private sector, and as Governor of a very Democratic state, supports this praise of your managerial skills. But, many of us believe that we need more than just a better manager to fix what ails this country, and we desperately hope that you are ready for the challenges you must face if you win this election. In light of this concern, I, for one, was impressed by one of the answers you gave in a recent debate in which you outlined what you believed to be the core issue against Obama as a conflict of visions of this country and for its future.

I hope you will expand on this theme over the coming months in the context of addressing the deep, structural problems that we as a people must address, debate, and resolve if we are to climb out of the whole we have dug for ourselves over the last few years. Although others may articulate these problems differently, I believe we face three fundamental problems that underlie virtually every problem you and your fellow Republican candidates have been discussing and debating during this campaign:

• The American people need to decide what role they want government to have in their lives, in the lives of their families, and in the lives of their communities—and why government should have such a role. To make this decision, we will need to take a hard look at how and where we (currently, and will in the future) live and work in the 21^st Century, and what activities must remain within the responsibility of individuals, their families, and their private organizations and churches to address. Once we take that hard look, we then will need to determine what activities need the attention of the collective responsibility of government (by itself or in coordination with the private sector), as opposed to remaining solely within the responsibility of the private sector. My guess is that the outcome of this debate will result in a different allocation of responsibility than what our ancestors, and even our parents, would have made, but we will never be able to address the future spending and revenue needs of the public sector of this country unless we have a candid discussion of this issue.
• Once this basic decision is made, we need to determine which responsibilities involve international or interstate activities, and which involve local or intrastate activities. Based on that determination, we need to apply our constitutional rules to determine which level of government should address each responsibility.
• Once this determination is made, the federal government needs to be reformed—branch by branch, and department by department—to address its international and interstate responsibilities efficiently and cost-effectively, and state and local governments need to be encouraged to do the same. Then, budget and tax policies need to be reformed to provide the resources needed to address these responsibilities in a manner that recognizes that wealth and property, in the first instance, belong to those who created them.

Governor, my guess is that most people will want government to continue to take responsibility for many of the activities that government programs currently attempt to address. The difference will be that such responsibilities should be, and will be re-allocated so that they are addressed more efficiently and cost-effectively at the local and state levels, and at those levels will be more likely to share their work with the private sector in each community. Moreover, such re-allocation will naturally cut from government much of the bureaucratic duplication that leads to the growth in the size, cost and debt of government at all levels. Finally, if people realize that the GOP doesn’t want to throw their grandparents into poverty, or abandon safety nets for our neighbors in true need, but, instead, wants to reform government consistent with its properly limited structure to make it more effective and to engage our citizens again to become active participants in the lives of the neighbors and neighborhoods, much of the wind will be taken from the sails of the great Democratic argument that has portrayed Republicans as unfeeling and uncaring extremists for generations.

That last point leads me to the final part of this letter. You recently have been criticized over the activities of Bain Capital while you managed that company. While some conservative commentators are wringing their hands over this development, I believe that this criticism, coming now, is a blessing to your candidacy, because it gives you an opportunity to turn this criticism into a strength during the rest of the election cycle. To create this strength, you need to understand the fears that the stereotypes underlying these criticisms arouse, and address the country about how the free market works and how you would apply your experience from your role in the free market to reform the government.

Ever since Commodore Vanderbilt took advantage of the economic depression of the late 1830s at the dawn of the railroad boom, Americans have had a love-hate relationship with those who have provided the financial capital within our free market system. We know that we have needed the Vanderbilts, the Morgans, the Carnegies, the Mellons, … and the Bain Capitals, along with banks and bondholders, to provide the loans, the bonds and the equity entrepreneurs need to turn their ideas into products and services—and wealth. In turn, we know that the wealth that is created employs people, whose earnings support their families, their communities and their states, and the nation. But most Americans have never embraced the bankers and investors as the positive image of the free market.

Instead, we tend to identify the free market with the “Horatio Alger” story of the entrepreneur—the man or woman who has the initial idea, who puts his or her own money and labor into the development of the idea into a product or service, and who creates a successful business that employs people, and builds and spreads wealth, from such efforts. Meanwhile, we have come to view the bankers and the investors as necessary evils in the free-market process who obtain their wealth without rolling-up their sleeves and building a business, and who retain the interest and dividends they were paid even after the businesses fail. Indeed, a popular post-war novel that was later made into a popular movie—Cash McCall—had as its central character such an investor, who endured many of the same criticisms that are now being leveled at you and Bain Capital.

But the ending of that story is instructive. McCall buys a business that appears to be about to fail, and then merges it with its main customer and receives what appears to be a fast, windfall return for his investors. The founder of the business who sold it to McCall is irate and feels swindled, until he realizes that McCall’s fresh set of eyes found a nugget of value that the founder never understood and would have never marketed—patents on the products he had developed. Those patents, locked away and forgotten, had hidden value in the market for the company, and it took an outsider to find it. Companies like Bain Capital bring that fresh pair of outside eyes that are able to objectively reassess the value of an entity and reform it to make it more effective, in return for a fee and/or a dividend.

Like McCall, sometimes Bain’s efforts work, and sometimes there is no long-term value to find or develop and the company fails. Anyone who has ever laid-off or fired an employee, or closed a business, knows how hard that is—you’re not just asking a person to leave, you are ending a source of income and benefits that supports a family, and that indirectly supports a community. When that happens, stresses are put on families, neighborhoods, schools and churches—and governments—to help these people through their time of transition. In part, investors use many of the dividends they receive to pay, through contributions and taxes, to support the organizations and governments that provide the support to individuals in time of need and to create the infrastructure in our communities. In the end, investors and banks that provide capital play an indispensible role in the creation of wealth and employment in a free market, and in the maintenance of our communities.

Your experience from providing that fresh pair of eyes in the evaluation of businesses can translate well to the need we now have for reform—and you need to tell the American people about the relevance of that experience to the challenges we face. We need a fresh pair of eyes to look at the responsibilities that the federal government has assumed, and to re-allocate them; to look at how the federal government is structured, and to reform it; and to look at how the money is raised and spent by the federal government, and to stop deficit spending. The only difference between your time at Bain and the challenge you face is this—you can’t just close the federal government; but you can, and you must, close agencies and departments, and stop paying for activities, if their missions no longer fit the proper allocation of federal responsibility or an efficient allocation of federal resources.

Governor, you have been given a great opportunity to tell this story of the free market, of how your experience in the free market (coupled with your unique experience as a Republican Governor of an archetypal Democratic state) applies to the challenges you will have to address, and how our Republican vision contrasts with the economic vision of the Democrats. Please use the criticism you are now getting to further refine a positive narrative before the general election campaign, so that we truly can present a vision to the American people this fall that competes with the socialist vision of capitalists and the free market as evil. If you develop such a positive message that dovetails with a positive plan for government reform, you can carry the Reagan mantle into the fall election. I hope you will.

Sincerely,

Ed Hubbard

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.

A Most Misunderstood Man

This column originally appeared at US Daily Review.

Over the years I have come to the conclusion that many of our political and social problems here in the U.S. and in Europe stem from the fact that over the last 250 years we have misunderstood, misinterprete d and misapplied the teachings of Adam Smith and Charles Darwin. These

failings apply equally over the centuries to those who have purported to be their followers as well as to their critics. Moreover, these failings intertwined to fuel diabolical military, political and social misadventures that cursed the world from the 1930s and through the 1960s.

But this is not a post about either of these men or their teachings. It is about a third man—a man of the 20th Century—who, unfortunately, now is arguably among the most misunderstood of recent history: Ronald Reagan. As we head into a political season when his real ideas are needed as much as, if not more than ever, we need to address and correct the misunderstandings, misinterpretations and misapplications by both his followers and his critics, or else we could end up making matters far worse in the long run than they are today.

Let me start by saying that I don’t pretend to be a “Reagan Scholar”. On occasion over the years, I have shared with others the fact that I was lucky to have interacted with Reagan when I was young on a handful of occasions when I was between the ages of 10 and 17, and it was based on the last of those interactions that I became a steadfast follower of his ideas—and have remained such a follower ever since. Although I may at some point elaborate on those experiences, what I am going to say now has nothing to do with them. Instead, my observations come from years of following what the man actually wrote, said and did over many decades.

I want to start with the biggest misunderstanding that has permeated our memory of Reagan—the idea that his leadership was primarily a product of his unique speaking skills. Though this fallacy is embraced almost universally, it is the driving interpretation of Reagan from the left. They never saw Reagan as a man of substance, but rather as a “pied piper” who led through the hypnosis of his speaking skills and cue cards (that were written by others). As a character in John Ford’s famous movie The Man Who Shot Liberty Valance said, “once the legend becomes fact, print the legend.” For decades now, the idea that Reagan was simply “the Great Communicator” has become part of our social legend.

Reagan, himself, tried to dispel the myth in his Farewell Address in 1989, when he said that he was not a great communicator because of how he spoke, but because of the ideas he tried to convey. You see, Reagan had an understanding of himself and his purpose that few have ever comprehended.

The Democrats surely never have. After the Dukakis debacle in 1988, they went looking for “great communicators” and found a young, Southern Governor, with a folksy charm and an Ivy League degree, who could talk for hours about anything and say nothing; and in 2008, found an urbane young man who effectively used a teleprompter and vague, overwrought rhetoric to make his leftist ideas seem mainstream. Essentially, Democrats to this day believe Reagan simply fooled the American people into following Republicans, and they’ve chosen their leaders based on their ability to fool enough people to follow Democrats long enough to win an election. In the meantime, we on the right continue to feed the legend by referring to Reagan as “the Great Communicator,” forgetting the derisive origin of that label, and thereby unwittingly continuing to marginalize the real strength of the man’s intellect.

Recently, through the publication of more of Reagan’s papers and of his diaries, the public is finally getting a glimpse—but still only a glimpse—of a man who may have had one of the greatest minds for political philosophy in the last half of the 20th Century. After receiving a liberal arts education from Eureka College, and after becoming a leader in the labor movement in California after World War II, Reagan began re-thinking all of his political assumptions and absorbed historical and political writings like a sponge. Due to his unique schedule as an actor and labor leader, Reagan had plenty of time to study and reflect during the 1940s and 1950s. Then his chance to continue his study increased with a purpose, when he was engaged by General Electric to be its national spokesman.

By the early 1960s, Reagan had transformed himself intellectually into a force of nature. In one of his last books, The Reagan I Knew, William F. Buckley, Jr., describes this Reagan whom the public never knew. When Reagan burst into the country’s political consciousness with his famous televised speech for the Goldwater campaign in 1964, they saw not a man reading cue cards, but a formidable political intellectual, who wrote his own speech, and who spoke with a purpose using the skills honed over a decade of public speaking for General Electric. It is that politician who won two landslide victories for Governor of California over the best candidates the Democratic Party had in that state; who nearly stole the 1968 Republican Convention from Nixon; who came within an eyelash of beating the incumbent for the 1976 Republican nomination; who, from 1977 to 1980, started to change the Republican Party with a new vision; who, then, changed the political and economic trajectory of this country; and who, with the help of Margaret Thatcher and Pope John Paul II, changed the world.

This Reagan believed that economic conservatives who had traditionally supported the Republican Party, and social conservatives who had traditionally supported the Democratic Party, could be molded into a “new” Republican Party, and he worked to create that new party after his loss in 1976. Unfortunately, this new party has never fully formed. Almost from the instant of his great landslide re-election victory in 1984, factions formed within his party, which continue to this day. Although these factions have formed coalitions long enough to win three national elections since 1988, as well as to elect Republican Congresses through much of the last 20 years, they still have not formed the molded party of Reagan’s vision. This failure is the primary reason why Democrats remain viable as a political party, which has led to such disastrous policies since 2006.

The primary reason these factions within the GOP remain divided is that we conservatives still don’t embrace the real vision Reagan had for this party, and our field of Presidential candidates reflects this fundamental problem. Without going down the list of candidates and their misinterpretations of Reagan, let me just present a short list of examples of misunderstandings:

• Reagan’s whole view started with the individual, families and communities. He believed the genius of America arose from individuals, engaging in work in a free market, and engaging in self-governance through families, private organizations, churches, and local governments. Regulations, and government in general, should be focused on protecting those activities.

• Reagan did not believe in small and weak government. Instead, he believed in strong governments at each level whose powers were limited to specific responsibilities, and that we had delegated too much responsibility to the federal government. Responsibility and tax dollars needed to be returned to individuals, local governments and state governments (in that order) who were closer to the problems that needed to be addressed.

• Reagan did not view the reduction or elimination of taxes as a social and economic good in and of itself, but by the late 1970s reduction of taxes had become an economic and political imperative. There is no question that Reagan believed that individuals had the right to keep the fruits of their labor—it was their money that they had earned, and the government had no entitlement to it. He also relied on evidence from the Coolidge and Kennedy administrations that showed that lowering taxes often, if not always, had the effect of raising tax revenue because it increased economic activity. However, he also believed that taxes were needed to fund the legitimate activities of government at each level. The job of each level of government was to determine its legitimate needs based on its legitimate responsibilities and limits, and then raise enough revenue to pay for them. Ultimately, you can not understand Reagan’s views about taxes without understanding his belief in the limitations of the federal government. He often said during his race in 1976 that the tax base diverted to the federal government should be returned to the local and state governments, so that the dollars could be more effectively directed and spent where the local needs were. Over time, if such dollars were raised and spent locally, government would be more efficient and would cost less, so fewer tax dollars would need to be raised from each individual.

• One of the powers legitimately delegated to the federal government was national defense, and he believed in maintaining peace by maintaining a strong military.

• Reagan believed that much of our inherent strength came from our commitment to liberty at home, and that our most important diplomatic duty was to keep America as a beacon of liberty—as an example to others—and to defeat the biggest threat to liberty at that time—communism. He did not believe that every dispute in the world required American intervention; but most disputes at that time affected, or were affected by, the Cold War with the Soviet Union, so he believed in an active engagement in world affairs. His invasion of Grenada and his aid to rebels in Central America were messages to the Soviets and the Cubans, and his aid to Afghan rebels was part of his effort to defeat Soviet expansion. Even Reagan’s famed bombing of Ghadafi’s compound in Libya was a defensive action in response to an attack on American troops in Germany, and sent a message to the Soviets that any attack on our troops would be met with an armed response. However, he showed restraint and prudence when the Soviets shot down a Korean airliner with American passengers, when the Soviets tried to thwart Polish independence, and when our Marines were killed in Lebanon. He handled problems with our allies, including the peaceful transition of power in South Korea and the transition from apartheid in South Africa through diplomacy rather than confrontation. In the end, the accomplishments he set in motion were remarkable: the Soviets abandoned Afghanistan; the Soviet Union collapsed, Eastern Europe was freed, and the Cold War ended; South Korea transitioned to a democratic government and a free-market powerhouse; South Africa ended apartheid; and Nicaragua and El Salvador elected democratic governments.

• Reagan believed that the desire of people to come here, even illegally, was a sign of the strength of our beacon of liberty, not something to be feared. Although we can now see that the immigration law of the late 1980s and the grant of amnesty at the time, were wrong, they were part of a sensible approach to a problem from that vantage point, and recognized that it was our freedom—our ultimate strength—that attracted these people to become our neighbors, and that we should never abandon our strength out of fear.

• Reagan believed that America’s future would be strengthened through stronger ties with Mexico and Canada, and ultimately, with all of Central America. I don’t know how long he had held this idea, but by the time he opposed the Panama Canal Treaty, he was advocating a strong economic and political alliance with Mexico and Canada. His efforts ultimately were negotiated over his and G.H.W. Bush’s terms, and became the NAFTA treaty.

• Reagan was committed politically to the preservation of Israel, but also to building a balance of power in the Middle East in which Israel could live without fear and which would deter the Soviets from becoming re-involved in the region. I do not recall Reagan ever promoting our relationship with Israel purely because of its biblical importance, though I am sure one can find a sentence here or there where Israel’s place in our Judeo-Christian heritage would have been noted. In fact, such rhetoric would have inflamed tensions in that region and thwarted his goal of building a balance of power in the region. Reagan would have never abandoned Israel, but, as evidenced by his removal of troops from Lebanon, he did not believe our military presence necessarily made Israel safer.

• Reagan was a man of deep faith, and his faith combined with his knowledge of history and his political philosophy provided the foundation for his vision for the Republican Party and the country. Reagan spoke openly of his faith, the importance of faith to this nation, and the need for people of faith to be engaged in the “new” Republican Party. But, frankly, I think Reagan would have been perplexed by the level of engagement in the organizational structure of the Republican Party by agents of certain congregations and faiths, and by the exclusivity they have sometimes employed as criteria for participating in the GOP. Reagan always was clear that his was a political movement, not an ecclesiastical or ideological movement, and his blueprint for the new party he envisioned required inclusiveness, not exclusiveness.

Reagan was, at heart, a reformer, and he had a vision for reforming the GOP and this country. Although the times have changed (e.g.,there is no Soviet Union or Cold War, and the level of taxation is nowhere near what it was in the 1970s), and we have learned from mistakes during the years Reagan was President (e.g., amnesty is an inappropriate policy for addressing illegal immigration), I still adhere to Reagan’s vision for our party and our country:

• an inclusive view of conservatism that is based on the fundamental strength of character of individuals who recognize that liberty is comprised of both freedom and responsibility;

• the centrality of those individuals, their families, and their neighborhoods to the economic, political and social sustenance of the nation;

• the need for most social services to be provided by private organizations, churches and local governments;

• the preservation of strong, but limited governments at each level of government, with the revenue needed to meet their respective responsibilities;

• the preservation of our active role in the world as a beacon for liberty;

• the creation of a strong and lasting relationship with our closest neighbors, and their citizens, based on the strength of our liberty, and not on our fears; and

• the maintenance of a strong military here and abroad to maintain peace.

I hope over the next few months that the spirit of this vision will finally bring the GOP together as the “new” Republican Party that Reagan envisioned.

Is it a Ponzi Scheme?

This column originally appeared at Big Jolly Politics:

I don’t know about the rest of you, but I thought the last two Republican Presidential debates on MSNBC and CNN have produced pretty good political theater, in large part because of the participation of Governor Perry.  Although I may be a little biased, I think he has more than held his own and is, right now, the best candidate among the field (and I am still more than just a little amazed by all of this).  That is not to say that the other candidates would not make better Presidents than our current Commander-In-Chief—they all would—but Perry has impressed me the most so far.

The dust-up in the last debate over the vaccination-mandate fiasco of 2007 was to be expected, for it was one of the biggest blunders of Perry’s tenure as Governor.  To his credit, he has responded to the criticism the only way he should—he has explained why he did it, and acknowledged his mistake.  There will be some who will never forgive him for this blunder and try to decipher corrupt motives from his actions; but, for many others (including those, like me, who often have been skeptical of his leadership over the years), he showed in the last debate that he learned a lesson from his mistake and has grown from the experience—a valuable and, indeed, necessary trait for a leader in the times we face.

But the really interesting debate that has emerged is over Social Security—and what a welcome and instructive debate this has become.  Essentially, three lines of debate have formed:

1. Governor Perry has framed the debate by calling the current system a “Ponzi scheme” and a “monstrous lie”, by saying it was an improper use of federal authority when it was first enacted, and by committing himself to fixing the system for future beneficiaries;


2. Mitt Romney has confronted both Perry’s descriptions of the system, and his reflection on its history, as being too provocative, while also committing himself to fixing the system; and


3. The rest of the candidates have committed to fixing the system one way or another, while trying not to get in the middle of the argument over the wisdom of Perry’s remarks.

So, what is the net outcome of this debate so far?  It is now refreshingly clear that Republicans are united in fixing the Social Security system to make it solvent for future beneficiaries; but, so far, only a few of the candidates are willing to confront and describe the actual problem with the system and give us an indication as to how they would approach fixing the problem.  It is clear that Perry—and probably Cain and Gingrich, too—realize that you can’t fix Social Security by tinkering around the edges.  Instead, you have to be honest with the American people about the problem at the core of the system, and how it needs to be fixed.

With that said, is Perry’s criticism correct?  And, if it is, what should we be seeking as a fix to the system?

To answer the first question, we need to understand how Social Security has been marketed to the voters over the years.  Since its inception, the creators and supporters of the current Social Security system have referred to it as an old-age insurance system, as a public pension system, as a trust account, as a contractual promise to pay out in retirement an amount based on what was contributed during working years, and as a social safety net to protect the elderly from poverty.  Are any of these descriptions correct?  Upon close scrutiny, the answer is “no”.  It is neither insurance, nor a pension, nor a trust account because it is not based on either actuarial, investment, or fiduciary criteria that provides for a return to the taxpayer of what he or she paid into the system plus investment growth.  It is not even a promise to receive what you paid into the system, because the dollars you paid into the system were received by other beneficiaries as you paid your tax, and you will receive payments from other taxpayers when you retire.  Finally, there is no real correlation between Social Security payments and poverty prevention—Warren Buffet gets the same benefit that your Uncle Fred and Aunt Martha receive, who, in turn, get the same benefit the poorest of our elderly receive.

So, what is this system, really?  You and I are asked to pay into a system and are told periodically that we will receive an amount of money at a certain age based on these payments.  Our future payments are not derived from the amount we paid into the system plus investment growth, but rather from new payments into the system from other people.  The fact and amount of our future payments are based on whether new people continue to pay into the system, and are dictated by the decisions of the person(s) controlling the system—not by the market.  These are characteristics common to illegal Pyramid and Ponzi schemes.  The only differences are that

1. the Social Security system is not only legal, participation is mandatory; and
2. payments can continue, even if new taxpayers don’t materialize, because the federal government can print money to cover the shortfall.

That means, that, unlike a classic Pyramid or Ponzi scheme, payments can continue with freshly printed dollars—though the value of those dollars will plummet as more are printed.  Eventually, though, you’ll arrive at the same result:  if you rely on the printing press at the Mint to save the system, you really won’t get back the money you were promised (just like how a Pyramid or Ponzi scheme ends—though a little less abruptly).

Quite frankly, if you measure the promises surrounding Social Security against its reality, Governor Perry’s descriptions are fairly accurate—it’s like a Ponzi scheme, and the marketing of Social Security has been a “monstrous lie”.

Well, then…what’s the answer to the second question—what should we be seeking as a fix to the system?  As all of the Republican candidates have acknowledged, the promise of this system, and its protection for many elderly Americans, has existed too long with too much public reliance to end it now, if ever.  But I think it would be immoral to continue lying to each other about this system and to not address and fix its faults.  Over the last 30 years there have been a lot of good ideas floated and even practiced—as in the case of Chile (as Herman Cain often notes) and a handful of other nations in Eastern Europe, including Russia—so we don’t have to come up with answers out of thin air.  Whatever fix we adopt should incorporate most, if not all, of the following basic principles:

1. A cut-off age for beneficiaries should be set above which the system will continue as presently structured, and below which fundamental changes will be made;
2. The age at which benefits are to be paid eventually must be re-set to an older age, and then indexed to the life expectancy of the population, so that both the age at which benefits are received and the average projected period for receiving benefits can be affordably subsidized by the working population;
3. Incentives should be created for allowing older Americans to continue to contribute to the economy through paid or volunteer work, after they have reached a point when they physically may not be able to continue working in their original professions but prior to their receipt of benefits;
4. The system should be re-structured so that younger workers are able to split their Social Security tax payments between support for a safety net for means-tested elderly and the younger workers’ own personal retirement accounts; and
5. Eventually, the payment of benefits from a safety net that is fully supported by current tax dollars should be based on means-testing, so that those who have the means to support their own retirements through their private and public accounts do not receive direct transfer payments from the government; such direct transfer payments should be received only by those who are truly in need.

These principles are neither controversial, nor hard to implement, but for the vested interests and expectations surrounding the politics of Social Security.  Those vested interests and expectations will only be broken through candor coupled with new commitments.  To the extent Governor Perry has forced the Republican field of 2012 candidates to face and debate this issue, he has already met an important test for the leadership we will need over the next few years.

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.