The meaning of American independence

The national holiday we celebrate today is more often referred to as the Fourth of July than Independence Day, but at least that makes clear what date we are marking. We should, however, commemorate the historical event and all that it symbolizes, for the common world calendar ensures that the whole world has a July 4^th just we like do. American independence has transcendent constitutional significance. No other nation in the world before 1776 had ever established (constituted) itself in the world on the basis of political principles which are true for all times and places. The most famous part of the Declaration of Independence is "all men are created equal," rather than merely all Americans, or all whites or even all males.

Cynics are fond of ridiculing the language of the Declaration because they think they really know that its authors didn’t mean to include everybody. After all, the pre-revolutionary institution of slavery was not immediately abolished, women were not generally regarded as equal in rights to men, and the vote was not even extended to all males. So it was all a pretense, right?

Wrong. Northern states prohibited slavery by the time the Constitution was ratified, women had the right to vote in several states, north and south, and the voting franchise was extended to most white males within a generation or two.

Of course, we had no power to "secure these rights" anywhere else but on our own soil, and that was hard enough, as the Civil War and the long struggle for civil rights attest. But the meaning of independence, in the first place, is that the American people, through their chosen representatives, were free to throw off ancient shackles as soon as possible, however much they might disagree about the timing or even the wisdom of that welcome change.

In other words, no European nation, however powerful or influential, could impede the progress of the American people toward their fullest security for equality and liberty. America would long remain the only country so free, as Europeans underwent a cycle of violent revolutions and even world wars before that greatest of all battles was won. And the rest of the world took even longer, with a decidedly mixed record of success.

For much of our history we have been a beacon to other nations and peoples, drawing millions to our shores and inspiring revolutions abroad. An almost inevitable consequence of the influence was that the growing power of the United States has spared the world some of its greatest evils.

Depending on their agenda or what part of the Constitution they are talking about, both liberals and conservatives like to argue that the American government is severely restricted in its power and authority in order to ensure our freedoms against infringement. But they fail to understand what Alexander Hamilton, for example, understood, which was that "the vigor of government is essential to the security of liberty; [and] that, in the contemplation of a sound and well-informed judgment, their interest can never be separated . . . "

The most fundamental obligations of the government of the United States are to "provide for the common defense" and "promote the general welfare." In the midst of revolution without a national government, the Continental Congress had to find a way to fulfill these obligations, and barely succeeded. The object of the Constitution was not to give us a weak government but rather a powerful one.

Living in a world of monarchical governments, hostile Indian tribes and fierce pirates, the government needed to be, in Hamilton’s words, "energetic," not lethargic. The world is a dangerous place always, the only difference at any time being the nature and scope of the dangers. Had the national government not possessed the requisite power, the authority of the Union would not have been upheld against secession.

A united America is a boon to the world. Consider if our nation had not been united under one energetic government when in 1916 German submarines began to sink our ships and patrol our Atlantic and Gulf coastlines, not to mention block our shipping lines overseas. Only a strong American government could have kept the Gulf of Mexico from becoming a German lake.

More ominously still, consider the horrendous consequences if we had not had the means to keep Great Britain in the war against Nazi Germany until such time as the Japanese attacked Pearl Harbor and brought us into a two-front war. Our military, industrial and financial power was critical.

In both world wars, American power was decisive. In the earlier conflict, Germany defeated Czarist Russia at about the same time as America entered the war on the side of the Allies.  Absent American intervention, how does the thought of a Prussian dictatorship all over Europe strike you?

In the later war, an even more tyrannical German regime left unchecked would have held sway all over Europe, the Middle East and North Africa, and perhaps farther, doubtless putting an end to liberty for decades, if not centuries.

The superpower status of the United States kept most of the world safe from Soviet domination and ultimately proved too much for that evil empire to survive its own inherent weakness and inferiority. Today our government is the primary check on the world's despots and their blood brothers, the Islamist fanatics plotting against our freedom.

In sum, American independence means that we Americans alone decide how we are to be governed, and our formidable power has blocked or ended the rule of overbearing empires. This great good we celebrate today is a blessing for all mankind.

Abortion, slavery both founded in violence

The recent murder of George Tiller, the famous late-term abortionist in Kansas, brought differing reactions from the pro- and anti-abortion movements. The former saw it as the predictable consequence of anti-abortion speech and the latter reaffirmed their commitment to peaceful political action to overturn abortion on demand, the decree of Roe v. Wade (1973). The defenders of "reproductive choice" have declared in statements to the media that it is not enough that Tiller’s murderer be charged and ultimately convicted of that crime, but that it be treated as a form of "domestic terrorism." U.S. Attorney General Eric Holder is already pursuing that course.

The pro-life movement is very concerned that it will be unfairly besmirched by the actions of a tiny few. I don’t know if the acts of violence against abortion clinics or practitioners are as numerous as abortion supporters say or as few as abortion critics maintain. But I do know that pro-life organizations do not endorse violence.

In any case, abortion is an act of violence. If successful, it always results in the death of a preborn human being, developing in the mother’s womb. As such, it is a violation of the natural right to life, not to mention liberty and the pursuit of happiness, with which all human beings are endowed by their Creator.

However, it has been the law of the land for 36 years and it must be obeyed. Laws can be changed, and this one ought to be as soon as a majority of both houses of Congress and the President pass a law removing the regulation of abortion from the U.S. Supreme Court’s jurisdiction.

That will be a long time, I fear. If it is any consolation to all of us who are pro life, slavery was legal in this nation for 250 years before its demise, the latter thanks to Abraham Lincoln’s Emancipation Proclamation (1863) and the passage of the Thirteen Amendment (1865). I pray that we do not have to wait that long, but I know that it will never happen unless Americans come to look upon it as a wrong, just as they did slavery.

It so happens that an event akin to the murder of George Tiller occurred in October, 1859, when the radical abolitionist John Brown led a raid on Harper’s Ferry, a military outpost in Virginia, in order to seize arms and ammunition for the purpose of equipping slaves sofor an insurrection to destroy slavery. The plan failed and culminated in the hanging of Brown and his collaborators.

Soon slaveholders and their allies were demanding a federal law to suppress all speech and writings against slavery, on the grounds that it incites violence against an institution which was, sad to say, protected by the U.S. Constitution. President-elect Lincoln made it clear that he would never sign such a law, not because he believed no speech whatsoever should be curbed, but because it would be wrong to prosecute anyone for speaking the truth!

In a letter Lincoln wrote to his life-long friend Joshua Speed in 1855 when violence broke out over the attempt to introduce slavery into the Kansas Territory, the future president saw a link between  introducing slavery and the violence that resulted. The Kansas-Nebraska Act of 1854, he wrote,

"was conceived in violence, and is being executed in violence. I say it was conceived in violence, because the destruction of the Missouri Compromise [which had kept slavery out of the Louisiana Territory], under the circumstances, was nothing less than violence. It was passed in violence, because it could not have passed at all but for the votes of many members [of Congress] in violence of the known will of their constituents. It is maintained in violence, because the elections since clearly demand its repeal; and the demand is openly disregarded."

These strong words are no less applicable to Roe v. Wade, which legitimated the violent act of abortion, was made supreme law without the action of our elected representatives, and has been declared a "super precedent" that cannot be overturned even by peaceful means. In the wake of the Tiller murder, we are seeing calls to suppress the opinions of those who oppose the "procedure" which has resulted in the lawful deaths of more than 45 million babies.

We should condemn the murder of anyone, whether it be a man empowered by an unjust law, or the victims of his despicable acts.

The Constitution is still the supreme law

"We must never forget it is a Constitution we are expounding"- Chief Justice John Marshall Last week I discussed the controversy over the nomination of Sonia Sotomayor as Associate Justice of the United States Supreme Court, focusing on the standard for evaluating nominees. This week I will examine our Constitution, the basis for that standard.

Ours is a limited constitution, one that delegates powers to a federal government and denies certain powers to state governments which they had exercised to the detriment of our prosperity. It is necessary to recall these circumstances which originally gave rise to the Constitution in order to appreciate its authority and legitimacy today.

The Constitution did not come into being in a vacuum. What we now call the founding generation could not be sure that their nation would survive. Partly because of a suspicion of distant centralized authority and partly because of an attachment to their states, many Americans were far from assenting to a national government.

The Continental Congress (1774-81) and the Articles of Confederation (1781-89) were based on the good faith of the colonies until Independence (1776), and then the states which formed in that fragile union. Nothing of consequence could be accomplished without the approval of nine of the 13 states, and no independent and powerful national legislative, executive or judicial branches existed.

The major domestic threat to our nation was faction. The comparatively small size of the states which rendered them responsive to the wishes of their constituents also made them vulnerable to domination by majority factions determined to assert their rights but loathe to accept their responsibilities.

In the midst of a depression caused by the end of wartime production and the lack of access to continental and foreign markets, many Americans were broke and in debt. The war had been financed by an almost worthless Continental currency, made worse by the states' issuance of paper money as well. As debtors and their allies soon outnumbered their creditors, state after state passed laws which, in one way or another, repudiated debts.

Such legislative acts constituted more than an attack on the property rights of one class of people by another, as wrong as that was. They also sent a signal to nations from whom we borrowed money to finance the War that those debts were susceptible to repudiation too. After all, the same factions that controlled state governments dominated the weak Confederation Congress.

Reverence for the Constitution and the laws was not necessarily in the hearts of many of our ancestors at their moment of great crisis. How to counter this? As vital to the defense of our rights as a strong legislative and executive branch are, the courts have more immediate impact than either on the lives of our people. It is there that contracts are upheld and private property protected.

Thus, the Constitution, in Article III, provides for a supreme court, and "inferior courts" established by Congress, the judges of which hold their offices "during good behavior." When combined with Article VI, which declares the Constitution, federal laws and treaties to be "the supreme law of the land," binding every state judge, we gained a truly national judicial branch. This was soon to be the chief restraint on the states which, at that time, were coining or printing money, and passing bills of attainder, ex post facto laws, and "laws impairing the obligation of contracts."

It would be strange for the Constitution to permit at the federal level what had been curbed at the state level. Thus, the Fifth Amendment to the Constitution forbids the federal government from taking private property for public use without just compensation.

But since New Deal days, Congress has passed laws which have encroached on rather than merely regulated our trade and commerce. In other words, it has been doing what the states long ago had been restrained from doing by our Constitution. And just as it once took state judges of uncommon fortitude to resist what James Madison denounced as the states’ "rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project," so now it requires federal judges of equal fortitude to resist that same impulse in Congress.

For as Alexander Hamilton put it so forcefully, we must turn for the defense of our property and other rights to "courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void."

Coalition opposes Sotomayor

(Denver, June 5) A coalition of Colorado groups and concerned citizens joined forces today in opposition to President Obama's nomination of Sonia Sotomayor to the United States Supreme Court. Organized as the Colorado Judicial Network, they are urging the US Senate confirm only highly qualified individuals who put the rule of law ahead of personal political agendas. As former State Sen. John Andrews put it: “Barack Obama said he wanted to remake the Supreme Court with his judicial nominees. Yet we are told by the administration that this is a 'middle of the road' judge who sides with conservatives more often than liberals. The White House is attempting to confuse the American people, who deserve an honest airing of the differences between the Obama-Sotomayor view of the law and the Roberts-Alito-Scalia-Thomas approach to the Constitution and the role of the Court.” “Sonia Sotomayor's statement that a 'wise Latina woman' would generally make better decisions because of 'the richness of her experiences' than a white male reveals the extent to which political and personal agendas have supplanted the rule of law in selecting nominees.” said former State Treasurer Mark Hillman. “Rule of law requires that laws be written, accessible, understandable and uniformly applied. Obama understands his nominee has little interest in impartially applying the law. He also understands that this undermines the rule of law. He just doesn’t want the American people to understand. “

“We reject the notion that Sonia Sotomayor is a 'racist,'” said Jim Pfaff who heads the Judicial Confirmation Network's efforts in Colorado. “What motivates her to say a 'Latina woman' would make a better decision than a white male—as with her statement in 2004 that the courts make law—is a belief that the Rule of Law can be ignored whenever she wants to accomplish a favored political end.”

The Colorado Judicial Network is an organization of citizens joined together to support the confirmation of highly qualified individuals to the Supreme Court of the United States. They seek judicial nominees who stand for the Rule of Law and are committed to uphold the principles of judicial restraint and fidelity to the original meaning of the United States Constitution

The Colorado Judicial Netowrk Steering Committee includes:

** John Andrews, Chairman, Backbone America Citizens Alliance and former Colorado Senate President.

** Jon Caldara, President, Independence Institute.

** Mark Hillman, former State Treasurer.

** Jeff Crank, State Director, Americans for Prosperity.

** Jim Pfaff, former State Director, Americans for Prosperity and President/CEO, Colorado Family Institute.

Pfaff serves as press contact for the coalition and can be reached at jim@iresearchanddata.com or 303.957.8600

Judicial impartiality and the Constitution

With President Barack Obama’s nomination of federal judge Sonia Sotomayor to replace retiring Supreme Court Justice David Souter, the nation is in a debate about both the qualifications of the nominee and the proper criteria for selection. That the nation is divided over both obligates us to clarify their relationship to each other. Judge Sotomayor, whose Puerto Rican descent should not matter but it does because the President and she have that said it matters, is undergoing the by-now familiar microscopic examination that has attended these nominations since Judge Robert Bork was savaged by Senate Democrats in 1986. On paper the lady who has made much of her ethnicity is qualified, and she will be confirmed because her party has the votes.

I oppose this nomination for the simple reason that Judge Sotomayor does not understand, if she does not actively oppose, the United States Constitution as it was understood by its framers and ratifiers. But it is more important to set forth the grounds upon which this decision should be made than to emphasize the reasons why she should be rejected.

Both liberals and conservatives have a legitimate point about the requirements of constitutional jurisprudence but both have a blind spot. Liberals make much of the fact that the judges will inevitably bring to the table certain predispositions and preconceptions which will shape their decisions. This can hardly be doubted, but the question is whether the judges’ "baggage" will keep them from performing their duties well.

For if those predispositions and preconceptions are inconsistent with the character of the Constitution, not to mention the political philosophy which informs it in the Declaration of Independence, they carry no weight and should be disregarded. Hence, what race or gender one belongs to is irrelevant.

Conservatives contend that judges should not legislate from the bench but apply the Constitution and laws to the case before them. Their logic is unassailable but they are too prone to give bad laws the benefit of the doubt when they may in fact be unconstitutional. After all, most conservatives believe that Roe v. Wade (1973) was wrongly decided and even unconstitutional.

If this criticism seems unfair, consider the oft-repeated conservative criticism of "activist" judges who, pretty much as conservatives claim, go well beyond the role of judge and make up constitutional law that has no warrant in either the language of the Constitution or the judicial precedents relevant to a case. Is a judge who upholds the Constitution by striking down a state or federal statue in conflict with it a "passivist" judge?

Liberals criticize conservatives on the grounds that judges of their political philosophy are no less activist than liberals when it comes to their constitutional priorities. I grant the criticism, at least to this extent, that defense of the Constitution demands more of judges than simply applying the laws to a case.

However, judging is fundamentally different from legislating, as the former deals with specific cases and the latter devises general rules. We don’t want a Congress to decide who has violated its laws or to affix penalties for doing so. But we want all our public officials to abide by the Constitution because it is the supreme law and because it embodies justice.

The Constitution requires judges to be neutral between the parties in the cases which they decide, but it is not neutral about the requirements of justice. Its conception of justice entails "secur[ing] the blessings of liberty to ourselves and our posterity." The document empowers the federal and state governments to rule but also limits their powers in numerous ways. Beyond these limitations, ours is a republican constitution, that establishes rule by the people through their chosen representatives on behalf of purposes which their constitution spells out.

Our quarrel with judicial activism should be focused on a judge’s predilection to corrupt our Constitution with doctrines calculated to "transform" it from a guarantee of equal rights for all to a device for empowering government officials to favor allegedly underprivileged groups at the expense of everyone else. It is no accident that President Obama nominated a Latina woman with a class-based notion of justice, for such is what both of them want.

Our Constitution should be protected from the efforts of anyone to subvert it for unjust ends. The judges’ impartiality is in the service not of a neutral constitution but one which favors equal justice over class rule.