On Sunday, former Secretary of State under George Bush, and purported Conservative visited with Christiane Amanpour on the Sunday news show This Week. Powell made some interesting comments about America’s founding fathers and compromise.

It was as if someone was trying to send me a message. It seemed as though every radio talk show, every commentary, each political debate during the past twenty-four hours centered on the issue of individual power vs. collectivism in American society. It is my contention that individual power based on a trust in the “goodness” of man is at the heart of what made the United States great. Secondarily I believe that the difference in that trust in the ultimate intention of the American citizenry is the main issue that divides the Conservative and the Liberal/Progressive movements.

Allow me to explain, but first  please understand that for the purpose of this discussion I will be speaking in absolutes. It simply makes it easier to argue. We should all understand  that in-between the polar opposites of of which are discussed are thousands of gradients of gray. The two polar opposites of which I speak are of course Liberalism and Conservatism.

The Conservative philosophy is based on a belief in the ultimate goodness of man. That is given the choice between doing “good” and doing “bad.” Conservatives believe that when free enough to make the decision, man will do the right thing. After all man, as the bible says, was created in God’s image. Like God, man will strive to do good, either for the benefit of himself and family and/or for the benefit of the nation itself. Therefore as your beliefs move closer to conservatism along the political spectrum those beliefs will include that lesser government is needed because man can govern himself.

Conservatives focus on the individual and because that individual is born with the inclination to do well, any rights that come with that inherent goodness, come from God who also gave man that inherent goodness. Hence the belief expressed in the Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

In Conservative thought, government’s primary role is to protect those unalienable rights.

Thus when you understand the Declaration of Independence you also understand that the American Revolution was based on conservative principles.

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Civil rights.  Inalienable rights.  Human rights.  Animal rights.  Individual rights.  Group rights.  God-given rights.  Sacred rights.  Natural rights.  Positive rights.  Negative rights.  Children’s rights.  Parent’s rights.  Patient’s rights.  Property rights.  Personal rights.  Basics rights.  Fundamental rights.

Just what is a right?  Can some rights be more basics or fundamental than others?  Which is more important, a basic right or a fundamental right?  Do the rights of the many outweigh the rights of the few?  Are rights absolute?  One could assert whole new kinds of rights and then argue about where they fit in among all the other rights.  How about essential rights, or core rights, or perhaps preeminent rights?

Definitions of the nature and origin of rights vary widely – from a gift from God, to one of Thomas Jefferson or James Madison’s tenets, all the way down to “a good thing” – but these disputes can be left to theologians and historians and scatterbrains.  Let constitutional scholars debate the fine points of original intent or understanding (of each delegate?  or the drafter of a particular clause?  or the Convention as a whole?  or Congress?  or the ratifying state conventions?).  What really matters is how rights function within our constitutional system.

A person saying he has the right to XYZ, for instance, is saying that regardless of what other people want, he must have XYZ and society must give it to him.  To admit there is such a right is to accept that the opinion of the majority on his having XYZ is meaningless; it is to accept that your opinion on the issue is meaningless, too.  As anti-democratic limitations on the scope of majority rule, rights are like provisions of the Constitution.  Indeed, they are one and the same, because in a practical sense – the only sense that matters – a right is a government policy that must be so regardless of majority will.

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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…)

Thomas Paine said that “It is the duty of every patriot to protect his country from its government.”  He did so amidst the long shadow of a centralized government which regarded individual rights as secondary to its own.  Today, “56% of people questioned in a CNN/Opinion Research Corporation survey  . . . say they think the federal government’s become so large and powerful that it poses an immediate threat to the rights and freedoms of ordinary citizens.”  They do so in the shadow of a government seeking to take control of nearly 17% of the US economy, if not that portion of our lives, in the name of caring for our health.

For any that have cared to listen to the debates over multi-trillion dollar spending programs, tax hikes, cap and trade or health care, at issue is not simply whether those huge government programs would provide lasting solutions – they will not – at issue is our basic right to Liberty.  Quite frankly, it was never the assumption of the Founding Fathers that it was the role of government to provide a moving target standard of living for Americans.  It was their sincere hope that the government of limited powers they set up would allow people to pursue their lives, Liberty and happiness.  To do so they, wanted to hamstring government’s ability to act – not ours.

Since then, of course, the scale has tipped in favor of government power over our pursuits.  Each step along the way, those concerned with our Liberty have heard the echoes of Senator Daniel Webster when he said:

“Good intentions will always be pleaded for every assumption of authority. It is hardly too strong to say that the Constitution was made to guard the people against the dangers of good intentions. There are men in all ages who mean to govern well, but they mean to govern. They promise to be good masters, but they mean to be masters.”

As you consider his words, it may worthy to also consider the lives of Americans, at the dawn of these United States, and the lives of Americans today.

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It’s Not About the Recall, It’s About the First Amendment

Review of case briefs, case law research, and consultation with a number of attorneys, judges, and legal professionals contributed to the writing of this article.

Tea Party activists might be smarter than some would like to think.  And depending upon the outcome of a court case later this month, they might also play a role in setting legal precedent.

When New Jersey state election officials denied their submission to initiate a recall effort against U.S. Senator Robert Menendez, calling it unconstitutional, a grass-roots recall committee’s constitutional instincts kicked into full gear.  Attorneys for the committee, themselves Tea Party activists, filed to appeal the agency decision and began writing their supporting brief.

Meanwhile, seemingly everyone was now weighing in as a legal expert.  Some insist the decision is simple:  NJ has no constitutional authority to recall a US Senator; despite what its state constitution says, that authority is reserved for the federal government alone.  For weeks now, legal scholars, political pundits and the media have been chattering online about the case, now before the Appellate Division in the Superior Court of New Jersey, some treating it more like a sideshow and an outlet to take pot shots at Tea Partiers than a legitimate court proceeding with real constitutional significance.

But Dan Silberstein and Richard Luzzi, attorneys for the Committee to Recall Robert Menendez, a committee initiated by members of the Sussex County Tea Party, see this case in an entirely different light.  They insist this case is not about whether a recall order from the state is judicially enforceable against a United States Senator, rather, it’s all about protecting the first amendment right to free speech. And they are taking the matter very seriously.  Based upon recent developments in the case, apparently so are several others, including some high profile legal experts and the courts.

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To the People of the State of New York:

THE Constitution proposed by the convention may be considered under two general points of view. The FIRST relates to the sum or quantity of power which it vests in the government, including the restraints imposed on the States. The SECOND, to the particular structure of the government, and the distribution of this power among its several branches.

Under the FIRST view of the subject, two important questions arise: 1. Whether any part of the powers transferred to the general government be unnecessary or improper? 2. Whether the entire mass of them be dangerous to the portion of jurisdiction left in the several States?

Is the aggregate power of the general government greater than ought to have been vested in it? This is the FIRST question.

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Today, in 1777, the Continental Congress ratified the Articles of Confederation, creating the first framework for our new nation. In 1864, Sherman began his “March to the Sea,” effectively ending the Civil War. In 1942, U.S. Forces won a decisive victory at Guadalcanal, in the Pacific. On this day, however, we are digesting this photo:

Yes, everyone bows to everyone in Japan. But to shake hands while bowing…well…There is also the question of whether this is strictly a protocol issue or a continuation of the One’s Global Apology Tour. Color us cynical.