We Must “Choose Wisely”

This column originally appeared at Big Jolly Politics:

But choose wisely, for while the true Grail will bring you life, the false Grail will take it from you.
Indiana Jones and the Last Crusade (1989)

I was reminded of this line, delivered in the soft, time-wearied voice of the Medieval knight from the third Indiana Jones movie, as I was reflecting on the remarkable string of events over the last two weeks—events that are changing and defining the nature of the 2012 election.

At the start of this period Romney looked as if he was going to walk away with the GOP nomination, and that the election would become a referendum on Obama’s economic policies. The emerging shape of the battle was reflected by two new and inconsistent reports coming from Washington. On the one hand, the CBO issued a report that should have scared the dickens out of everyone and made the case for a Republican sweep. It showed that the economy had lost more than 2 million jobs in just one month, and that the projected growth and unemployment figures would be anemic through 2013. On the other hand, the administration produced “seasonally adjusted” job numbers that magically showed a growth in jobs, and a drop in unemployment, which defied reality and made a mockery of government statistics, but which the chattering classes took as positive news and as gospel for the wisdom of Obama’s policies.

But, then the ground under our feet shifted, as foreign policy and social issues diverted everyone’s attention away from the economic debate. Every news report focused on the growing civil war in Syria, and our confrontation of Russia and China at the UN. Panetta and Obama sent mixed signals over Israel and Iran, and their words (and Israel’s intentions) became a focus of news reporting throughout the week. Progressives embroiled the Komen charity and the Catholic Church in controversies over abortion, contraceptives, and the First Amendment. Then, that never-ending source of liberal lunacy, the 9th Circuit Court of Appeals in San Francisco, gave us a double-whammy of cultural chaos:

• it reinstated the California Supreme Court’s construction of the California Constitution that changed and expanded the definition of “marriage” under California law to include same-sex couples; and,
• to do so, it determined that the people of California could not amend their own Constitution to re-instate a 3,000 year-old status quo that did not violate the federal constitution, because, once the California Supreme Court had decided to expand rights or privileges to a new class of people, the people could not change that decision.

Therefore, in one stroke the 9th Circuit stoked the fires of the culture wars and shredded the concept that the people, not the judiciary, are the ultimate source of power and authority in this country. Given these developments, and the predictable rise of Santorum in the polls in three states where, like Iowa, social conservatives make up a large portion of GOP activists, is it any wonder that Santorum, whose career has focused on these foreign policy and social issues, has risen from the ashes to upend the GOP race once again?

Before you get whiplash from all of this, let’s go back to the quote at the start of this post. We must remember that the story of America has been a story of choices made—some wise, and some not-so wise. And it now appears that recent developments are creating a new, epic choice for us to make this November. The choice will not be over the looming debt that is crushing individuals and governments alike, or what our position should be as to when or how Israel may attack Iran, or the wisdom of the Komen foundation’s changing decisions about funding Planned Parenthood, or the availability of contraceptives, or the future of religious freedom, or even the future definition of “marriage”. No, the choice is larger than all of these issues, though they each will be pieces that will fit together to ultimately form the puzzle picture in the end.

If you’ve followed any of my prior posts on Big Jolly Politics, you know I have a specific view of our history. Our Settlers—those dissident Protestants who began leaving England and the Netherlands in the 17th Century to come and start a new life on this continent, saw a “fork in the road” of human history and made a choice to go down what Robert Frost would call “the road less traveled.” They chose to come to America and begin an experiment not tried in human history—to live as free men and women in shared communities—rather than stay in Europe and continue on the age-old path of living under the thumbs of kings and bishops. Our experimental path was to preserve and promote man’s free will (the blessing of liberty) and to promote the exercise of that will to “pursue happiness” (“pursue a life well spent”, “love thy neighbor”) in local communities organized into states joined into a federal union. The paradox, as Franklin would allude to, was, whether we could “keep it” merely by depending on the preservation of a “Christian” character among our citizens.

Over the centuries, we became a people who were taught to look at our past as having been created from fundamental promises—a contract—that incorporated man’s greatest ideals. We were taught that even though the promises weren’t always properly or evenly enforced, our challenge was to fix those flaws to sustain the experiment. And we were taught that the experiment embodied in that contract was fragile, because it could always be derailed by undermining the character of the citizenry; meaning it could be derailed by one or more of four impulses:

• the impulse of man to believe in himself, and in nature, rather than God;
• the impulse of man to fight and die for false Gods;
• the impulse of some men to re-enslave the will of other men to keep the enslaved from pursuing their own impulses (good or bad); and
• the impulse of otherwise good people toward complacency and autonomy.

I believe our best leaders over the centuries recognized these enemies and rallied us against them. Since 1776, we have faced and defeated each of these enemies at one time or another. If we should ever lose this fight for the preservation of our experiment, or choose to no longer fight for our experiment when any of these impulses emerge, I believe the consequence will be both a political and a spiritual backslide, and the ensuing “darkness” will last a long, long time.

When we look around us we see evidence of that our experiment in self-government is backsliding, and I am not ready to choose to stop fighting the impulses that have brought us to this point. At some point between the election of FDR and the assassination of JFK, a core group in this country saw our nation, not as an imperfect experiment embodied in a contract to be enforced, but as historically illegitimate. These people worked quietly for decades to convince the last two generations of Americans to look at our past as having been illegitimate from the start; and to see America’s basic contract as so wrong that it needed to be reformed and replaced with a new contract that mirrored the social contract that had emerged within Europe since Bismark. To accomplish this task, they preyed on the four impulses that were always the enemy of our experiment, and have tried to rip-up the old contract. In its place, they have tried to re-assert a model of government by and for the elite that our Settlers rejected, and which has condemned a vast number of our neighbors to under-education and under-employment, and to an artificially low standard of living during a time of great wealth creation, while they have increasingly enjoyed unrivaled materialism and an autonomy from their responsibilities as citizens. Their efforts have torn deep holes in the fabric of our culture and society, and the policies they’ve implemented to create a new contract have nearly bankrupted our governments and our citizens.

What the developments over the last two weeks show is that the election this November presents another historical “fork in the road” for America—another time to choose. It presents a choice between—

• continuing the backslide to a form of society our Settlers rejected, and that thrives off a vast system of materialism, dependency and victimhood among so many of us that it has put our society on the road to societal bankruptcy; and

• re-committing our society to that experiment embodied in the original contract we inherited—a society of free men and women who believe that if our ideal promises are properly preserved and enforced, we can address all of the challenges that face us without bankrupting the system for our children.

We have a choice to make at this fork—we can’t take both paths from here, and the path we choose this year will determine the course of our history for generations to come. I for one, choose the path of the promise our ancestors made to preserve, protect and promote life, liberty and the pursuit of happiness to all our citizens, and of the commitment to share and enforce that promise and its benefits with all Americans; rather than the path of autonomous materialism and victimhood, and the ultimate dependency on elites, to which the other path will condemn the future.

I hope you will join me and “choose wisely” as this year unfolds toward the November election, for the stakes couldn’t be much higher.

A Basic “Conflict of Visions”

This column originally appeared at Big Jolly Politics:

In 1987, Thomas Sowell published a landmark book entitled “A Conflict of Visions,” in which he identified and explained the historical and intellectual roots of the differences between the modern worldview of Western liberals and that of Western conservatives. Since that first work, Sowell has published other works expanding on this theme. For any conservative who wants to fully understand the philosophical root cause of our political and cultural divisions with the modern left, these books are essential for your reading list.

But I want to focus on a more basic and practical conflict of visions facing us in 2012, and challenge you to listen to what our leaders say over the next two evenings. As you know, tonight the four remaining Republican Presidential candidates will debate in Florida on national television, to be followed tomorrow night by President Obama’s State of the Union speech. As you listen to these five men, I ask you to listen for their views on one topic: what provides for the general wellbeing of the people of this country? If you listen closely, the answer to this question will illustrate the basic conflict of visions between our two parties, and what is at stake in this election.

I believe you will find that the four Republicans, though they each will articulate the answer differently, will agree that the general well-being of the people is provided by private-sector jobs: jobs that employ people; jobs that provide for families and churches and neighborhoods; jobs that expand wealth by creating new goods and services, and return on investments to be re-invested to create new jobs; jobs that provide tax revenue for our infrastructure and schools; and jobs that channel and nourish individuals’ energies, hopes, dreams and ambitions. In turn, they see the role of government, like a private-sector business sees its staff or administrative departments—necessary to provide security and support for the people engaged in the creation of revenue for the company, or in this case for the creation of wealth by the private sector, but not as the primary creator of that revenue or wealth. For more than a generation, the private sector has been reducing the footprint of staff and administrative jobs, and making those functions more responsive to the needs of the people producing the goods and services, and the revenue, of their businesses, and conservatives believe that government at all levels should be similarly reformed. It doesn’t matter whether the conservative has been a lifetime elected official, a private-equity investor, or an entrepreneurial professional, conservatives share this fundamental view.

But what you will hear from President Obama is a completely different vision. He and his fellow travelers believe that government provides for the well-being of the people, and that all institutions, including private-sector businesses, function at the pleasure and direction of the government. Whether it is a re-distributive stimulus to try and spark employment, re-distributing resources to increase public-sector employment, or increasing taxes and then re-distributing them from providing security and infrastructure to providing entitlements, the underlying vision is that government owns and controls your wealth to use as it sees fit to provide for the “masses.”

Let’s see how the left’s vision works in the real world. Take public elementary and secondary education. The production of education occurs in the classroom between the teacher and the student. While we have re-distributed so much money to school districts over the last generation that we by far lead the world in per pupil expenditures, look at where it has gone. It hasn’t gone to the classroom, but instead to bloat the size and scope of staff and administration and their facilities to the extent that in many school districts the number of staff and administrators now equals or exceeds the number of teachers. When government sees itself as providing for the well-being of society, it increases its size, and runs every agency the same way—the perpetuation of the agency through increasing employment of staff and administration is seen as more important than the production of the service the agency was designed to provide. Because of this inherent inefficiency, little or no effective service is provided, and the wellbeing of the people is not furthered. Rather than reform this model, the left’s insane answer is to just continue to increase the wealth redistribution and the size of government until they “get it right.” The joke on all of us is that they’ll never get it right following this model.

The left’s model—its vision—simply doesn’t work in the real world over the long run. Not in Europe, and not here. And, as we are seeing in Greece, and throughout the Western world, we can’t afford (culturally, economically, or politically) indulging this vision anymore.

Regardless of who you are supporting in the Republican primaries this year, remember that it is this basic conflict of visions between the importance of a private sector job and the importance of bureaus and bureaucrats, which is at the foundation of our battle this year for our nation’s future.

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.

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.