The Tea Party has stopped President Barack Obama and the Democrats from bailing out profligate state governments, from passing new so-called “stimulus” spending, and from raising tax rates. It has even begun to win bipartisan support for major entitlement reform.

However, the Tea Party has failed thus far to stop the overall growth in the size and cost of government. It passed over a dozen bills that would accelerate economic growth and create new jobs, only to see those bills languish in Harry Reid’s Senate.

In both the debt ceiling and the payroll tax debates, the Tea Party saw its sensible bills rejected in favor of absurd compromises–then found itself being blamed for congressional gridlock.

The key to the Tea Party’s fortunes has been its relationship with the very establishment it dislikes. Where it has found common ground–for example, with House budget chair Paul Ryan–it has been able to promote its agenda of limited government. But when the Tea Party has clashed with Republican leaders–starting with key Senate races in 2010–Democrats have won by dividing conservatives from moderates, House from Senate.

The Obama camp is exultant about its political victory in the payroll tax debate. They do not care about the substance of the issue; if they did, they would worry that lower payroll taxes are gutting the Social Security system. They simply want to win–on any issue, at almost any cost.

As Democrat strategist (and convicted felon) Robert Creamer wrote today: “People follow–and vote–for winners….Human beings like to travel in packs.”

That remark, equating voters with animals, betrays the contempt Democrat leaders have for the American people–a contempt packaged more subtly in the misleading, divisive term “middle class.”

The United States is not a class-based society. Democrats adopted “middle class” to disguise redistributive tax-and-spend policies from the voters who had rejected them, in much the way that “progressive” came to replace the tainted “liberal.”

President Obama’s re-election campaign is largely based on contrived class warfare. His message has been amplified by a media that eagerly repeated the false “1%” meme of the Occupy Wall Street movement. The Tea Party, reading Madison instead of Marx, has lacked the language to respond. And the likely Republican presidential nominee, Gov. Mitt Romney, has simply capitulated to the Democrats’ “middle class” conceit.

American voters want an alternative, which is why Rep. Ron Paul’s rhetoric about liberty is winning support in Iowa, despite his controversial social views and his reprehensible foreign policy. Other candidates, who might have bridged the Tea Party-establishment divide, have abdicated not only the race, but the debate. Without clear leadership and strategy, the Tea Party may fail–and the country may pass the fiscal point of no return.

The Tea Party still needs leaders outside Washington, like Sarah Palin, to help carry its message. It should fight Obama’s class war, but on conservative terms, focusing on the “crony socialism” through which Obama enriches his friends at the expense of broader economic growth. That strategy will appeal to voters–and will encourage new leaders with the right political priorities to emerge from the establishment’s shadow.

There is little similarity. While the Tea Parties were neat and orderly, the Occupy protests are noisy, juvenile, and stinky. The Tea Parties were friendly while the Occupy movement is violent, angry, and crime ridden; they have the same problem with lawlessness that plagues most Democrat-controlled cities.

#OccupyBastille

This explains why there is such a vast difference between the two. The Occupy movement is not only mostly Democrat; it is also democratic. Likewise, the Tea Parties are both a republic and Republican. They are microcosms of the political philosophies they each represent.

Tea parties are controlled by the rule of law and are planned in advance. They acquire proper permits, rent PA systems, Porti-Potties, and Tents. When they’re over, people pick up the trash and go home.

Occupy is famous for creepy chanting after every speaker finishes a sentence and a guy relieving himself against the side of a police car.  Some of the Occupy residents have, ironically, used the facilities of McDonalds and Starbucks and even took ironic shelter from the rain in a Bank of America ATM kiosk (I’m sure the irony is lost on them, though).  They loudly proclaim that “this is what Democracy looks like!”

Constitutional author James Madison would agree. In Federalist # 10 he wrote: “Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.“

Two years later, the French Revolution made his words almost prophetic. Absent an existing governmental structure to fill the vacuum, post-revolutionary France exploded into chaos. A Republic is necessary to defend the rights of the minority. Without such protections, government degenerates into mob rule.

And mob rule is exactly what we’re seeing in the Occupy protests. Their rally cry of “We Are the 99%” takes a triumphant delight in announcing that the opposition is way outnumbered. There is no clear message outside of anger. Attempts to write a list of demands have been hindered by the very democratic process they cherish.

In their miniature utopia, there is no personal security or right to property. They could not even maintain enough civility to protect their drums from vandals. The OWS drummers had $8,000 worth of damage done to their kits. When it came time to vote for reimbursement out of  the OWS Treasury (lately estimated at $500,000), they couldn’t even find the consensus to replace them. The drum owners were told to beat sand.

The Tea Party wants to change the system from within the existing structure. They seek to use the electoral process, to vote out the big spenders and restore fiscal sanity to a republic that has already proven its viability. The Occupy movement wants to tear down the system, and replace it with… replace it with… well, they’ll figure that out, after they grab something to satiate their munchies.

We are certainly in trouble if these people get hold of a guillotine.

On today’s edition of Coffee and Markets, Pejman Yousefzadeh and Kevin Holtsberry are joined by Richard Brookhiser to discuss his new biography of James Madison, his battle with Hamilton, his break with Washington, and the last years of Madison’s life, when he foresaw the secession of states from the Union.

We’re brought to you as always by BigGovernment and Stephen Clouse and Associates. If you’d like to email us, you can do so at coffee[at]newledger.com. We hope you enjoy the show.

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This is how they were “pulled.”

Under the rules of the 4th Circuit, judges are picked to sit on particular cases by “a computer program designed to achieve total random selection,” the court said. The third member of the panel, Judge Diana Motz of Maryland, is a President Clinton appointee.

Even if this comes off as a setback to those who find the law it’s very likely the appeals will wind up at the steps of the Supreme Court.

James Madison wrote in Federalist No. 46 that the state and federal governments “are in fact but different agents and trustees of the people, constituted with different powers.” In Federalist No. 28 Hamilton explained citizens could use one against the other to keep the system in balance. “If the rights are invaded by either, they can make use of the other as the instrument of regress.”

There are dozens of states – 37 by my latest count –appealing to states’ sovereignty as a legal way to challenge federal encroachment to be delivered in the coming Washington mandate. Indeed these states are well within their rights to challenge the federal government. State and local units of government do their part to establish decentralization and they would cease to be federal units the moment they stop existing independent of the national government. This is not a unitary system for good reasons. Our Constitution and system of government was derived from the beliefs and dispositions of America. A careful agreement was decided from the beginning that distributed power well enough to fit a “large and extended Republic” for many years to follow. Provided, of course, we could maintain the agreement.

Whether the 10^th Amendment and the 5^th Amendment will hold up in the courts against Article I of the constitution and the “necessary and proper” clause are other matters and remains to be seen. However, calling on Madison once more, he stated in Federalist  No. 45, “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”

Obamacare will certainly challenge the nation over if it wants a national system to be dependent on Washington even more so than was the case in the 1930s on into the 1960s, or continue to build upon the reemergence of dual federalism that began in the 1980s. Federalism allows for a division in power and how laws and policies can vary from state to state. To what extent has been the real concern. Every American generation has dealt — either successfully or unsuccessfully — with the issue. As President Wilson observed, “Because it is a question of growth, every successive state of our political and economical development gives it a new aspect, makes it a new question.”

Indeed, so lets have equal opportunity to answer it.

In essence, Breyer was saying that Madison was not interested in an individual’s right to gun ownership and self-protection and for that reason his dissenting opinions against that individual right accorded well with what the founder’s thought on the issue.

But Breyer’s assumption that a citizen’s right to bear arms is not sacrosanct and his following contention that the founders would agree seems to ignore much of the history of the era not to mention the precedents in law and the historical record upon which the founders relied to define their political ideas — including Madison.

Of course, it is a bit ridiculous to take one lone founder’s words and assume that it represents the opinion of all of them. It is quite easy, after all, to find quotes from any particular founder that in no way reflected even a minority opinion of the day. For instance, Thomas Jefferson once advocated that all laws be dumped every few decades so that the next generation could start over with their own ideas unencumbered by past generations. Even Madison thought that idea was absurd. Hamilton found that many of his most dearly held financial ideas left his fellows cold. John Adams thought that we should call the president “your majesty,” an idea that earned him much derision. And Poor Richard himself, Benjamin Franklin, once proposed that each galaxy had it’s own “God” that ruled in his own sphere meaning that there were infinite gods for infinite galaxies. Not every idea the founders had were gems, to be sure.

Still, Madison spoke with most of his contemporaries, not outside them, when he considered the meaning of the Second Amendment.

It is certainly true that the founder’s chief interest in creating the Second Amendment was to serve two important roles. One was to create a citizen army, a militia that could be called upon to defend the nascent nation. The second was to prevent the necessity of a large standing army, a body that most of the founders feared. Based on a clear reading of history, the prevailing opinion of the day was that a standing, powerful army served the forces of tyranny far more often than it served those of liberty. Consequently they wanted to figure out a way to make sure that the U.S. Army was small and too weak to threaten the citizenry.

This fact is what Breyer pointed to in order to prove his contention that Madison was not concerned with an individual’s right to own firearms.

On the Fox News show, after Wallace brought up Breyer’s dissenting opinions the Justice developed his thesis.

“It is a matter of what those framers intended. And you saw that first phrase,” Breyer told Wallace. “‘A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.’ What does that mean, the militia? Historians told us, and the dissenters thought they were right, that what that meant was that James Madison, thinking, ‘I’ve got to get this document ratified,’ was worried about opponents who would think Congress would call up state militias and nationalize them. ‘That can’t happen,” said Madison.’”

Breyer went on saying, “And therefore, he wrote the Second Amendment to prove it. Now, if that was his motive historically, the dissenters were right. And I think more of the historians were with us.”

In other words, Breyer was saying that Madison added the Second Amendment to assure the states that the U.S. Army could not be called together to oppress the states. That the focus seemed to be on precluding the federal government from using the army against the states, Breyer feels this means that the individual’s rights was not something “the founders” meant to assure with the Second Amendment.

But Breyer’s assumption ignores several key factors that influenced the founder’s ideas.

One important source of law that the founder’s relied on was the English Common Law. In fact, the founders felt that they were more true to the Common Law than the British themselves were. Just before the American Revolution, a most complete treatise of the English Common Law was published in England. This book was Commentaries on the Laws of England written by Sir William Blackstone, a famed British jurist. These volumes quickly made their way to the colonies and were soon found in the library of nearly every founder of means. At least by 1771 the books were also being reprinted in the colonies.

It was a well-accepted point that the right of self-defense was an important part of the rights of a full citizen. Here is what Blackstone said of those rights in volume 2 of his treatise.

I. The defence of one’s self, or the mutual and reciprocal defence of such as stand in the relations of husband and wife, parent and child, master and servant. In these cases, if the party himself, or any of these his relations (1), be forcibly attacked in his person or property, it is lawful for him to repel force by force; and the breach of the peace, which happens, is chargeable upon him only who began the affray (d). For the law, in this case, respects the passions of the human mind ; and (when external violence is offered to a man himself, or those to whom he bears a near connexion) makes it lawful in him to do himself that immediate justice, to which he *is prompted by nature, and which no pnidential motives are strong enough to restrain. It considers that the future process of law is by no means an adequate remedy for injuries accompanied with force; since it is impossible to say, to what wanton lengths of rapine or cruelty outrages of this sort might be carried, unless it were permitted a man immediately to oppose one violence with another. Self-defence therefore, as it is justly called the primary law of nature, so it is not, neither can it be in fact, taken away by the law of society, hi the English law particularly, it is held an excuse for breaches of the peace, nay even for homicide itself: but care must be taken, that the resistance does not exceed the bounds of mere defence and prevention ; for then the defender would himself become an aggressor (2).

As Blackstone understood self-defense, it was a “primary law of nature,” a natural right. This being assumed, the founder’s didn’t likely feel the need to explain this in the Second Amendment. After all, if they were going to footnote every basic assumption of their day the footnotes would have been ten times longer than the Constitution itself!

It wasn’t left unsaid in all the writings of the founding era, though. Many quotes along these lines can be found. Both Sam Adams and Jefferson, for instance, said that the people had an individual right to bear arms. “No free man shall ever be debarred the use of arms,” said Jefferson. For his part Sam Adams hoped that, “The said Constitution be never construed…to prevent the people of the United States who are peaceable citizens from keeping their own arms.”

In his own famous treatise on the U.S. Constitution early Supreme Court Justice Joseph Story also address the Second Amendment. Story wrote, “The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.”

Further more, many of the various state’s constitutions similarly assured that the right to keep and bear arms were an individual’s rights.

The fact is, the founders had a basic assumption that the right of the individual to keep and bear arms was fundamental not just to the Constitution, but to the natural rights of men. They didn’t feel a need to explain this basic assumption because their whole edifice was built upon it. When one talks of the sky, for example, most people immediately get the impression of a blue canopy with white clouds. One need not explain those colors every time one speaks of the sky. It is simply assumed. The idea that the individual has a right to bear arms was as commonly assumed by the founders as the idea that the sky is blue is to us.

This is not to say that all the founders felt that there should be no regulation of firearms, of course. But these facts do tend to make Justice Breyer’s concept risible, in any case.

Of course, the reason Breyer and his ilk want to ignore the entire history of the founding era and focus so closely on the mere words of the Constitution that all intent is invalid is because they want the Constitution to be that elastic, “living document” that has no fixed meaning at all. In that way they can make fungible our nation’s basic law and they can make of it anything they want to push their agenda.

Simply put, Breyer is completely wrong. The founders were not solely interested in using the Constitution to stop an out of control army from oppressing the people and were otherwise unconcerned with the individual’s right to bear arms. Yes they were interested in the danger the army might pose but it was fully assumed by all of them that the individual had that right to self-protection.

In fact, it is absurd to assume that there could be both a right of government to legislate guns away and still even have that ability of the citizens to rise up to put down an out of control government.

After all, if the courts could legislate away the guns themselves it would destroy the individual’s right to firearms and it would necessarily eliminate the Second Amendment even if all you thought the Amendment was for was for a check on tyranny. We can use Jefferson’s words again to enlighten us here.

In his Report on Navigation of the Mississippi in 1792, Jefferson wrote, “It is a principle that the right to a thing gives a right to the means without which it could not be used, that is to say, that the means follow their end.”

In other words, if the government can legislate away firearms, saying they “could not be used,” then this would essentially take away the natural right of self-protection, the “means” being the firearms, that nearly every founder agreed existed.

In summation, Breyer is wrong. Madison wasn’t dismissive of an individual’s right to bear arms. He and his fellows assumed the right existed as a basic tenet of our natural rights.

(Another great little piece on the Second Amendment was written by Stephen P. Halbrook. It can be found at Roanoke.com.)

Transcript of the segment of Fox News Sunday in question can be found at the Fox News Sunday website.

Now, for the election analysis — including lots of good news from the events of Nov. 2.

There’s no doubt the American electorate in many, many places rejected the Obama-Pelosi-Reid anti-Constitutional approach to government, i.e. Progressivism.

That’s clear, even though the Republican pickup in the Senate was disappointing, especially with the re-election of Harry Reid. Take a look at Republican gains in the State legislatures: 650-700 seats, compared to 505 in 1994. That’s huge.

There’s bad news to be sure.

Boxer won, and by a surprisingly comfortable margin. Polls can still be wildly wrong, apparently. Henry Waxman and Nancy Pelosi coasted to easy wins, Moonbeam Brown became Governor of California again. State legislators there are their younger clones. All that seals that state’s fate. It will be at least 25 years before the once-Golden State recovers, if ever, no matter who is elected two, four, or six years from now.

Worse still, the majority of voters in Nevada betrayed their fellow citizens by re-electing Harry Reid, who will almost certainly remain Majority Leader. This is bad news far beyond the re-election of one of the six most dangerous Federal employees in the country. (Obama, Reid, Bernanke, EPA head Lisa Jackson, Sec. Sebelius, and any swing vote on the Supreme Court.)

The reason is simple: Reid can now tie up any pro-freedom legislation introduced in the House while Obama has Executive Branch bureaus ensnare the populace through administrative regulations. That means among other things that repeal of any part of ObamaCare will have to wait until 2013. Luckily, the major handouts don’t start until 2014, so there’s time.

Now to leaven our depression with a little more good news.

Russ Feingold got his pink slip. The prime author of legislation that violated the First Amendment’s guarantee of free speech is now unemployed. He has been replaced by a very promising Republican.

The other author of that odious bill, John McCain, conned his way into a six-year reprieve by donning a new conservative suit. However, despite his desire to appear the maverick, McCain can often be relied on to go along with his Republican peers, especially on defense issues. Since Cap-and-Tax is essentially dead for the next two years at least, he can’t do any damage on that score. Better still, he had a close brush with unemployment and may be more cautious for a while.

In more good news, the loathsome Blanche Lincoln — she was a major driver of the ruinous Farm Bill and voted for ObamaCare — has been shown the door with a healthy boot (58% for Boozman v 37% for her) to assist her on her way. With so many nearby states turning Red too, maybe the south really is rising again.

Perhaps best of all, Marco Rubio tromped the opposition in Florida, a state where most voters normally have no idea who they are. Rubio is young, a relatively reliable pro-freedom voice, and he’s being touted as Vice Presidential material. He’s also Cuban-American. While discussions of ethnicity in politics are generally loathsome, it’s a clear indication that Hispanics won’t always vote Democrat.

There are some heartening results in the House races, too. Walt Minnick lost his Idaho seat by a 10% margin. Far from the worst Democrat around — he voted against ObamaCare — he still voted with his party 70% of the time. That’s interesting not so much because Raul Labrador is a Republican — Idaho is firmly a Red State and Minnick’s election a fluke — but because he was such a weak candidate with far inferior TV ads and still won.

All these disparate results offer a clear overall theme: with exceptions like the utterly hopeless Massachusetts, California, and New York, the majority of the American people are now saying they strongly favor fiscal conservatism and limited government — at least for now.

To keep them favoring it will require a continued educational campaign that demonstrates every day the rightness of those positions. Republicans could easily blow it. They have many times before. But there is beginning to build in the House (and to some extent in the Senate) a consensus around Madison’s view of government.

If we help stiffen Congressional spines daily, America has a good chance to gain needed breathing room from the 50-year-long onslaught of Progressivism in government. (Even Reagan had to deal with a Congress that tilted left much of the time.)

Into that gap can slip the cultural changes that are essential to keeping the political momentum going.

That means educating the American people about why every piece of Progressive legislation has harmed them, including Social Security and Medicare — the immoral, impractical, and unconstitutional twin programs that are bankrupting the country.

It means teaching citizens why the Constitution is not just a bunch of rules of thumb. Though the Supreme Court shouldn’t be, they’re heavily influenced by the tone of Congress and public sentiment. If the people believe more firmly in the Constitution, SCOTUS will uphold it more consistently.

It means re-creating a country that broke all the precedents set by the 2,000 years before its founding to become the freest, most innovative, most prosperous, and most moral society in history.

It’s now up to the American people to decide the future they desire. The odds of them choosing wisely, and their chances of success, have just improved by an order of magnitude.

James Madison, referring to a bill to subsidize cod fishermen introduced to the First Congress said,

If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands;they may appoint teachers in every State, county and parish and pay them out of their public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may assume the provision of the poor; they may undertake the regulation of all roads other than post-roads; in short, everything, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress…. Were the power of Congress to be established in the latitude contended for, it would subvert the very foundations, and transmute the very nature of the limited Government established by the people of America.”

Prior to that, in Federalist 41, Madison wrote,

Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the power “to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,” amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.”

Madison’s incredible forethought underscores exactly what all Americans are facing today as we move into the November 2^nd Election.

With all the important national issues of the jobless recovery, the obvious need and desire to repeal Obamacare, the runaway National Debt and all the financially unsustainable government spending, the one overriding issue that is not being clearly debated is the choice between central authority control of all aspects of our lives and the restoration of individual liberty as our Founders intended.  Make no mistake about it, and James Madison knew this, the shortest distance in a free society is the distance between being citizens living free and being subjects whose lives are controlled by government.

From before the ratification of the Constitution, as is evidenced by the necessity of the Federalist Papers arguing for its passage, to the early beginnings of the First Congress there were those who sought to establish themselves as rulers rather than representatives of the people.  These individuals wanted the government to be the basis for their rule and sought more power for such government than originally granted to it by the Constitution.

Our current 111^th Congress controlled by the Democratic Party, along with the Obama Administration, honestly believes that government should be the final arbiter in most if not all aspects of our lives.  They want education, health care, energy usage, wages, prices and even private property rights to be distributed as government deems to be fair.  This is the main issue while all those areas they seek to control are only related to it.

The opposing view is that all of these areas should be left to individual citizens to determine for themselves; that we have equal opportunity in America not the guarantee of equal outcome; that we have the God given right to the pursuit of happiness not to the achievement of the same; that we have the freedom to fail as much as we have the freedom to succeed; and that our toil and persistence will determine winning from losing, not some central authority.

There has never before in our history as a nation been a distinction as clear as this one, a choice between living under governmental control and living free.  The coming election may be the most important election in our history.  Yes, it is about the candidates, local issues, broad national themes relative to the economy and national defense, but at its core is the fundamental structure of our society.  We have a choice that will determine not only how various issues will be worked out, but how our children and generations to come will define themselves relative to government.

When we go to the polls on November 2^nd, we need to keep James Madison’s words in our minds and a desire for individual liberty in our hearts.  We need to vote out those who seek to consolidate more power to the government and elect those who will restore more liberty to the people.  We need to reject the sweet siren call of government entitlements, which is a false call that will collapse under the weight of fiscal irresponsibility.  We must accept the more difficult path of self-reliance and individual liberty, so that our children will live in a society where they are higher than the government and have the right to live free of arbitrary authority.