The art of leadership is saying no, not saying yes.  It is very easy to say yes.

-Tony Blair

Much focus has been on the National Government since the election of 2010.  Of course, the real story of that election remains the overwhelming victory of Republicans in the state legislatures.  88 chambers had elections with Democrats dominating 52-33 (2 equal and 1 non-partisan), and now Republicans dominate 53-32 (2 equal and 1 non-partisan), picking up nearly 700 seats.

The importance of these legislators lies in the fact that they represent the first crop of tea party candidates that will reform the political process from the bottom up.  Yes, there are tea party candidates nationally, but the access to our state legislators makes it easier to maintain influence.

Missouri remained red, but with term-limits, many new legislators have come to office.  The Senate has a veto-proof majority, and the House is near veto-proof.  However, the influx of tea party influence has not been all roses and butterflies.  Leadership, especially on the House side, seems more intent on horse-trading politics than accommodating the new tea party mentality.

On the other hand, 4 state senators seem to get it.  Senators Jim Lembke (R-St. Louis), Brian Nieves (R-Washington), Rob Schaaf (R-St. Joseph) and Will Kraus (R-Lee’s Summit) have taken a principled stance on a number of issues, but one in particular has earned them the ire of Missouri’s establishment media and Democrat governor.

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Just when I thought I’d seen it all, I find out I haven’t.  On an issue that should not even register at the national level, the bad got the better of the good, and things turned ugly.

The point of this narrative is to highlight what can happen when Republicans think the tea party is not watching, but first some background.

Missouri did well November last.  Robin Carnahan (D), Missouri’s Secretary of State that aided ACORN in raiding state coffers, lost to Roy Blunt (R) in the Senate race, despite the fact that she received a state record for votes in 2008 (1,743,819 in 2008 to 768,241 in 2010).  Republicans knocked off the incumbent in the only state office up for election, auditor.  Vicky Hartzler (R) knocked off US Rep. Ike Skelton (D) (of “Stick it up your @$$!” fame) in Missouri’s 4th District, a seat he held since 1976.  Ed Martin (R) came within 1% of unseating US Rep. Russ Carnahan (D) (the least capable Carnahan) in a D+7 heavy union district, and in spite of the fact that he was a known tea partier before he was a candidate.  Not to mention Republican gains in the state assembly that left the Senate veto-proof and the House nearly veto-proof.

All should be well in Missouri, except it ain’t.

The issue is local control of the police department in St. Louis, where a vestige of the Civil War left the state in control of the St. Louis and Kansas City police through boards composed of city residents and the respective mayors.  Where one might think this would be an easy issue for the tea party and conservatives, one would be horribly wrong.  Strange coalitions have formed in Missouri.  Some members of the St. Louis Tea Party Coalition find themselves siding with the St. Louis Police Officers Association and Governor Jay Nixon (D) against Lt. Governor Peter Kinder (R), House Speaker Steven Tilley (R) and St. Louis Mayor Francis Slay (D).

To make a long story short, the tea party position revolves around whether granting Mayor Slay total control of the police would be an action of responsible governance.  St. Louis politics resemble Chicago politics, though on a smaller scale, and it appears many are concerned the dysfunctional nature of St. Louis government will infect the police in a city plagued by crime.  Those who support local control believe the police will be more accountable to the public through the mayor.  Obviously, the issue of local control is more complicated than the brief synopsis I have provided, but I do not have space to spell it all out.

Now that we have a basic understanding of the issue and the parties involved we can get down to the dirt. (more…)

Judge Henry Hudson’s recent decision in Virginia v. Sebelius rejected the notion that Obamacare’s individual mandate is constitutionally justified as either a regulation of interstate commerce or a tax for the general welfare.

First we will examine the individual mandate as a regulation of interstate commerce, but some basic background of Commerce Clause jurisprudence is in order.  In Perez v. United States (1971), the Supreme Court outlined three kinds of commerce for which Congress could regulate: (1) channels, (2) instrumentalities, and (3) activities which substantially affect interstate commerce.  If you have not seen these terms within the confines of the Constitution it is because they do not appear.  However, this understanding of the commerce clause has been drilled into the minds of attorneys for the last 40 years.  Frankly, Commerce Clause jurisprudence needs a re-examination, regardless of the health care issue.

A century of questionable precedents guides the courts.  One of the most egregious examples of government overreach occurred in Wickard v. Filburn (1942).  A farmer that grew more than his government mandated allotment of wheat, for personal use, was deemed to have substantially affected interstate commerce.  Interestingly, a similar case came up in 2005 involving (pay attention liberals) cultivation of marijuana for personal use in California, and in compliance with state law.  In Gonzalez v. Raich (2005), Justice Clarence Thomas dissented from an opinion confirming the federal government’s regulatory power over personal cultivation and use (yes, you read that correctly).  He rather presciently penned this statement:

If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything – and the Federal Government is no longer one of limited and enumerated powers.

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In the 3rd Congressional District of Missouri, a race for the ages is taking place.  Ed Martin (R), one of the originals involved with the St. Louis Tea Party Coalition and endorsed by that organization, is fighting to replace Russ Carnahan (D), representative of everything the tea party movement has been fighting against.

This was not supposed to be a competitive race.  The district was designed as a safe seat for Democrats, carving out pieces of St. Louis and the union stronghold of Jefferson County.  If it had not been a safe seat, Carnahan’s campaign would have been over a year ago when SEIU goons beat Kenneth Gladney at one of his health care town halls or a few months ago when the state passed the Missouri Health Care Freedom Act with 71% of the vote.

The 3rd District likes politicians that like to politic.  Traditionally, the representatives of this district have been fairly public figures that engage the voters.  This is not Russ Carnahan.  He cannot speak without his constituents laughing at him. He knows nothing about guns in a gun-friendly district.  He sends video of himself to speaker forums instead of showing up.  He does what he is told to do by Nancy Pelosi, and he sends taxpayer dollars outside of his district to support his brother’s windmill farm. (more…)

As an attorney and perpetual student of the law, I have never been comfortable with the idea of litigating constitutional issues.  Courts represent the last resort for citizens oppressed by their own government.

As Jonah Goldberg noted at National Review, many progressive journolists [sic] and constitutional “experts” seem nonplussed at the idea of anyone examining the constitutionality of legislation that is not a judge or justice.  The problem with that mentality is that the Constitution does not identify the Supreme Court as the sole arbiter of constitutional meaning.

The concept of judicial review came about in Marbury v. Madison.  Essentially, actions of the political branches would be subject to review and possible invalidation by the Supreme Court.  Mind you, this case revolved around a political dispute between the outgoing Federalists and the incoming Jeffersonian Republicans.  Chief Justice Marshall, an ally of the Federalists, ruled in favor of the Jeffersonian Republicans to garner support for the new role he had carved out for the judiciary.  Ever since, the Supreme Court has assumed the final say on constitutionality with few exceptions, though no explicit authority exists.

This decision provides the basis for progressive belief that the Supreme Court represents the only means for decisions on the constitutionality of legislation, and it is outright wrong.  This is the fall-back for progressives on the constitutionality of Obamacare.  “Shouldn’t we wait until the Supreme Court presents its opinion?”  Heck no! (more…)

In the words of our President: “Let me be clear,” Missouri’s Prop C represents a victory for individual freedom, not “states’ rights.”

I am not sure why I have to keep repeating this, but there is NO SUCH THING AS STATES’ RIGHTS!  And people that use that term, or the term “nullification,” do not help our cause.

States have powers, and while those powers diminish in the face of the progressive-statist attack upon our Constitution, powers run contrary to individual rights.  So let me break it down:

1) Prop C places a duty on the state of Missouri to defend its citizens from the IRS enforced individual mandate.

2) Prop C denies the federal government state resources to enforce the individual mandate.

Anyone with an ounce of constitutional knowledge knows that neither of those aspects of Prop C conflict directly with the Supremacy Clause. (more…)

The latest attack perpetrated by progressive-statists strikes at the republican nature of our constitutional system through the destruction of the electoral college.

No doubt Project Vote, the ACORN spawn and the Secretary of State Project are behind this tyrranical endeavor.  We already know how these groups sought to dilute the vote throught the NVRA and HAVA.  Opposition to Voter ID and a push for Election-Day Registration furthers the agendas of these groups by hijacking the popular vote, especially when the voter-rolls are not purged of fraudulent voters.

We can see the connection between all of these endeavors through the actions of Missouri’s own Secretary of State, Robin Carnahan.  While the current Missouri legislature would never pass the electoral college law being pushed by these groups, Carnahan’s meddling with the state elective process aims at diminishing the conservative vote within the state.  And the DOJ appears complicit in this attack through its failure to prosecute Carnahan for failing to clean the voter rolls, the same rolls she will rely on for her Senate run. (more…)

How was I to know [he] was with the Russians, too?

Justice Stevens’ opinion leaves him on the wrong side of history regarding the importance of the 2nd Amendment.

Part III deals with Justice Stevens’ dissenting opinion in McDonald v. Chicago, Justice Scalia’s responsive concurrence, and a general summary of the issues.  Part I dealt with the plurality decision written by Justice Alito, the dissenting opinion of Justice Breyer, and is relevant to a discussion on the doctrine of incorporation.  Part II dealt with Justice Thomas’ brilliant concurrence, rejecting the doctrine of incorporation for the “privileges and immunities” clause of the 14th Amendment.

You may recall that we addressed the legacy of Justice Stevens’ in a previous article:

Justice Stevens, a member of the Court since 1975, displayed distrust for freedom and voted on the wrong side of many significant constitutional issues.  He willingly eroded individual rights in favor of intrusive government policy.  Stevens’ uneasiness with freedom and individual rights led him to substitute textually sound, constitutional arguments with “intangibles” and fearful hypotheticals involving individuals abusing their rights at the expense of others.

Sure enough, he is up to the same shenanigans in what will be one of his last opinions.  To our benefit, Justice Scalia makes sure that Stevens leaves SCOTUS with a swift kick in the pants. (more…)

Send lawyers, guns and money…the sh%$ has hit the fan!

Seriously!  Justice Thomas opened a whole new chapter in constitutional jurisprudence with his concurring opinion regarding the 14th Amendment’s “privileges and immunities” clause.

Part II deals with Justice Thomas’ concurring opinion in McDonald v. Chicago. Part I dealt with the plurality decision written by Justice Alito, and the dissenting opinion of Justice Breyer, and is relevant to a discussion on the doctrine of incorporation.  Part III will address Justice Scalia’s concurrence directed at Justice Stevens’ dissent.

Let me preface this article by saying Justice Thomas is my favorite Supreme Court Justice.  Progressives often ridicule him for being “silent,” but why should he bother asking attorneys questions when their arguments focus on SCOTUS swing-vote, Justice Kennedy.  His textual approach to interpreting the Constitution makes the most sense.  While originalism and textualism both seek the original meaning of a statute or provision of the Constitution, originalism seeks the intent of the authors, where textualism focuses on the contemporary meaning of the text.  Primary sources on the intent of authors leads to a cogent argument, but primary sources on the meanings of words promotes a sound argument (and if you never learned logic then you have some studying to do; progressive arguments are rife with fallacies). (more…)

I’m the innocent bystander…not anymore!

In Heller, we held that the Second Amendment protects the right to possess a handgun in the home for the purpose of self-defense. Unless considerations of stare decisis counsel otherwise, a provision of the Bill of Rights that protects a right that is fundamental from an American perspective applies equally to the Federal Government and the States. See Duncan, 391 U. S., at 149, and n. 14. We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings.

It is so ordered.

And so, our 2nd Amendment right to firearms settles into its proper place among our pantheon of fundamental rights.  The truth of the matter is that we always retained that right, but the law had been interpreted contrary to the Constitution.

Two arguments were the focus of McDonald v. Chicago: (1) the narrow interpretation of the 14th Amendment’s “privileges and immunities” clause adopted in the Slaughter-House Cases should be rejected; and (2) the 14th Amendment’s “due process” clause incorporates the 2nd Amendment right.  Justice Thomas addressed the first argument in a concurring opinion (arguably the bigger precedent), but we will turn to that topic in Part II.  Justice Scalia skewered Justice Stevens’ dissenting opinion in another concurring opinion, but that will be the topic of Part III.  First let us examine Justice Alito’s plurality opinion concerning the second argument, and the dissent of Justice Breyer. (more…)

No, not because this is the day that the 30th President of the United States, Calvin Coolidge, was sworn into office; although the words of “Silent Cal” lend credence to the modern movement in opposition to progressive-statism.  Take a gander:

Civilization and profit go hand in hand.

Don’t expect to build up the weak by pulling down the strong.

There is no dignity quite so impressive, and no one independence quite so important, as living within your means.

Collecting more taxes than is absolutely necessary is legalized robbery.

Perhaps one of the most important accomplishments of my administration has been minding my own business.

To live under the American Constitution is the greatest political privilege that was ever accorded to the human race.

President Coolidge may be the most under-rated president in American history, but his words do little to roll back the progressive machine now.  The beginning of that roll-back does not occur on November 2, but much earlier.  On August 3, 2010, Missouri voters will be tasked with the responsibility of taking the first stand against Obamacare, the progressive panacea, by voting for the Missouri Health Care Freedom Act (MHCFA) in a public referendum.

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Repealing Obamacare via Article V is a means of last resort, or rather a threat to the national bureaucratic government should those in Washington not jump on board.  In the meantime, states, those individual laboratories of liberty, are attempting a number of remedies.

States have filed lawsuits, but my legal background makes me wary of relying on the judicial branch to make the ultimate decisions on policy.  Marbury v. Madison established the Supreme Court’s role as the ultimate arbiter in conflicts involving the Constitution, but that does not guarantee that correct decisions will result.  So first we will examine the legislative solutions.

Many states across the country are either introducing laws or revising constitutions to protect Americans from the tyranny of Obamacare.  The progress of these Health Care Freedom Acts or Amendments are being tracked by various groups.  Most of this legislation is fairly simple to read and understand.  Basically, states are refusing to enforce or enact Obamacare, which is perfectly reasonable under the present legal understanding of federalism.  The national government cannot force states to enforce unfunded federal law.  A perfect example of this is the increasing decriminalization of marijuana in communities across America.  Local police are handing out tickets (much better for revenue than throwing people in jail). (more…)

The 17th Amendment is stupid:

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years….

But let me start at the beginning.  Article I § 3 cl. 1 of the Constitution originally established the election of Senators through the state legislatures.  The Federalist #62 laid out numerous arguments for the Constitutional framework of the Senate and its method of selection.

The senatorial trust, which, requiring greater extent of information and stability of character, requires at the same time that the senator should have reached a period of life most likely to supply these advantages….

Years later, Alexis de Tocqueville made some observations about the Senate in “Democracy in America.”

The Senate is composed of eloquent advocates, distinguished generals, wise magistrates, and statesmen of note, whose arguments would do honor to the most remarkable parliamentary debates of Europe.

We went from great statesmen like Henry Clay, Daniel Webster and John Calhoun prior to the 17th Amendment, to that of Al Franken.

This man would never have been elected to the Senate prior to the 17th Amendment.  (more…)

I have been perusing the paper trail for SCOTUS nominee Elena Kagan, but most of it is mere puffery written for the purposes of a future nomination.  I will continue to examine her record and analyze her work (because politicians and the press clearly have more important things to do), but I did come across one gem early.

“Richard Posner is the most important legal thinker of our time, and for generations to come legal scholars will dissect and analyze, will praise and criticize, his distinctive legal vision,” gushed Elena Kagan in 2007.  “Rifle through the pages of whatever casebook you have at hand (nearly any subject, common law or statutory, will do) and you will find a grossly disproportionate number of Posner opinions.  Perhaps consciously, perhaps not, Judge Posner writes for the casebooks: for two and a half decades, he has produced simply remarkable teaching materials.  Love them, hate them, agree or disagree with them, Judge Posner’s opinions make people think -about what the law is doing, about what the law should be doing, about why it all matters.  Law professors – actually, anyone who cares about our legal system – should esteem these opinions for this quality.”

Any person with any legal background with an ounce of credibility knows 7th Circuit Appellate Judge Richard Posner to be a brilliant jurist.  So why are we not elevating “the most important legal thinker of our time,” in Kagan’s own words, to the most important institution in shaping the law of our land? (more…)

Although words and the meaning they convey mean everything in the law; words mean very little to people with agendas.  This is bad news.  Worse yet, the U.S. Constitution is filled with old words and phrases that, when read out of context, lose meaning over time.  Most frightening, legal commentators who prefer to sidestep our Constitution to accomplish the progressive-statist agenda continue to bash the virtue of seeking our Constitution’s original meaning.

In lockstep with progressive reforms, a recent book, “Keeping Faith with the Constitution,” adopted the term “constitutional fidelity.”  Goodwin Liu was one of the authors, and the focus of another contributor on this topic.  It is asserted that this term “respects the endurance of our written Constitution” and also “explains how its text and principles retain their authority and legitimacy.”  Filled with anti-Justice Scalia propaganda and criticism, it intends – but fails – to strike the middle ground between those who think original meaning controls and those who think meaning should account for the needs of our “progressing” society.  It does nothing of the sort.

At its core, constitutional fidelity asserts that original meaning (which the authors correctly concede is not strict constructionalism, but rather, an exercise of reading words in the context in which the words were enacted) should be sought when interpreting “concrete provisions,” but not the “broad and general principles.”  It is these broad principles, they assert, that should adapt “in light of the conditions and challenges faced by future generations.”  But constitutional fidelity ignores that there is no principled manner to determine which provisions of the constitution are broad, as opposed to concrete.  One might suppose that any provision best suited to confront society’s next “challenge” would be interpreted in such a way.  This is not law. (more…)

Alexis de Tocqueville traveled to the United States of America in 1831 on assignment from the French government to study the American prison system.  One result of those travels was a rather prophetic study of American society, “Democracy in America.” The study consists of two volumes.  The first considers American political society, and the second considers American civil society.  The entire study is a must read, but my focus is on one of the last chapters.

What Sort of Despotism Democratic Nations Have to Fear

It would seem that, if despotism were to be established amongst the democratic nations of our days, it might assume a different character; it would be more extensive and more mild; it would degrade men without tormenting them.

In essence, the sort of despotism we might find in America today would not be of the sort found in ancient Rome or imperial Russia.  The tyrants exercising that sort of despotism were confined to tyranny upon the ruling classes.  The vast majority of people would have been unaffected by the actions of one tyrant to another because they were not a source of power.  Democracies derive their power from the people, which means despotism cannot exist openly, but that it also affects more people.  It becomes “soft despotism,” operating both in the name, and at the expense, of the people.

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Despite praise as a civil libertarian and liberal advocate, Justice Stevens’ real friend was government.

Justice John Paul Stevens, retiring before the United States Supreme Court’s fall term, has long been considered the leader of the liberal’s intellectual bloc on the Court.  While praise from the Left for Stevens will continue throughout the summer, the Obama administration has made it clear it plans to replace the Justice with a “like-minded” liberal.

Stevens penned the majority opinion in Hamdan v. Rumsfeld (2006), concerning the Bush Administration’s treatment of Guantanamo Bay detainees after 9/11.  He held that the administration’s conduct violated the Uniform Code of Military Justice and Common Article 3 of the Geneva Convention.  He was also influential in establishing the privilege of habeas corpus for suspected terrorists in Boumediene v. Bush (2008).  For his role in these cases, many liberals and civil libertarians have held Stevens in high regard.  In addition, Stevens joined the conservative bloc of the Court in Crawford v. Washington (2006), overturning years of bad law regarding the Confrontation Clause of the Sixth Amendment and providing bright-line protections against out-of-court statements used against the accused at trial.  With government intrusion and involvement already secured and guaranteed, Stevens frequently voted to scrutinize government procedure and broaden protections for the accused.

Stevens, however, was not so friendly to the cause of freedom and the protection of individuals from such interference.  Stevens was skeptical, sometimes fearful of individual rights, consistently deferring to government power and tolerating its expansion into private lives. (more…)

There is much talk of repealing socialized medicine, though the rhetoric has waffled a bit since passage.  The problem is that even if we gain majorities in Congress we still need 60 votes in the Senate to avoid a filibuster, not to mention the 2/3 majorities we need in both houses to override a presidential veto.  Meet Article V of the Constitution:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, SHALL call a convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate. (emphasis added)

Dark thoughts are on American minds these days, despite the optimism in the American system.  It is not the first time, nor will it be the last.  Travel backwards to the Spring of 1786.  The Articles of Confederation were the “Supreme Law of the Land,” but one Charles Pinckney of South Carolina proposed a revision.  Congress represented the sole institution of our national government, and Congress was rather weak.  The states retained much of their sovereignty, and Congress, with the few powers it actually wielded, could only operate with unanimous consent.  Rebellion and credit issues abounded, not to mention the threat of foreign invasion, without effective centralized governance.  And so, the Constitutional Convention eventually convened in May 1787 to revise our system of government, and prevent disaster.

The Articles of Confederation were completely replaced by the Constitution when New Hampshire ratified it as the ninth state on June 21, 1788.  The United States of America under the Constitution came into existence without a bloody revolution or civil war.  And the Constitution provided a means to revision in Article V. (more…)

I know a little something about coffins.  And I know when I’m being lied to.

An email arrived in my inbox this afternoon from Missouri Secretary of State Robin Carnahan’s baby-brother, Congressman Russ Carnahan (D-Missouri).  In this email, Carnahan pledges to not be intimidated by Coffingate, and then asks me for money.  This email may be the most despicable yet of the campaign season.  After a brutal 48 hours of press retractions about an incident regarding a coffin placed near his house, Carnahan is attempting to hustle money for intimidation that did not occur.

Carnahan provides a link to a piece in Politico – the very piece that was suggested to Politico reporter Jake Sherman by a Carnahan spokesperson, (and subsequently corrected).  Here is some text from his email.

They’ve tried every dirty trick in the book to block critical reforms that will stop insurance companies from rejecting children with preexisting conditions or denying care to those who are sick. Try as they may, we will not be intimidated.
Help me send a message that threats and extreme tactics will not work. Please contribute $100, $50 or even $25 right now to help me fight back against those who will stop at nothing to block health care reform for Missouri families….

It must be hard to get good help these days.  At the center of the controversy is Sara Howard, Congressman Carnahan’s spokesperson for his re-election campaign.  Howard comes from SEIU, where she spent a number of years learning the ins and outs of labor-press relations.

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[Do not read this article without a copy of the Constitution, and if you do not have one handy, shame on you (link here).]

A line is being drawn in the sand between the statists and Americans, and I use the term American in the grandest sense.  The United States of America represents one of the last bastions of traditional liberalism, which is why the Left should no longer be identified as liberal, but rather we should continue to identify its members as progressive statists.  The Left believes the precepts of our Constitution have failed society, and thus, we must look towards the “enlightened democracies” of socialized Europe for guidance in the progression of American society.

We hear the mantra of rights professed daily by the progressives: education, work, social security, health care, etc.  And since we do not live in a state of nature, the guarantor of those rights must be the government.  This is the definition of a statist, and adherence to these beliefs is inherently in opposition to the Constitution.  The Founders recognized that government could NEVER be the guarantor of rights which is why so much of the Constitution is written in terms of limiting powers conferred upon the government.

Take for example Article I § 1:

All legislative Powers herein granted shall be vested in a Congress of the United States which shall consist of a Senate and House of Representatives (emphasis added).

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