** Updated March 2, 2014 to include the video of the exchange with Dina Titus
The People Aren’t The People … We Are The People
For years now, I have repeatedly made the case that many politicians who quote or cite the U.S. Constitution have never actually taken the time to read the document. This is in spite of the fact that any U.S. citizen can obtain a free copy from their congressional representative through a simple visit to his/her office. You’d think that an elected official who distributes this document might at some point actually pick it up and see what all the fuss is about.
Over the past several elections, many politicians have tried to corner the market as the ‘Constitution guy’ in order to secure votes. Unfortunately, they’re just as ignorant of the wording in the US Constitution as the next guy. They always get caught misquoting it, or providing their own interpretation of what the founding fathers were ‘really’ thinking.
My biggest issue comes from the Tenth Amendment. The Tenth Amendment is a part of the Bill of Rights and is known as the “Reserved Powers” amendment. Why? Because it reserves powers, of course. Many listeners have asked me over the years why Congress gets away with their unconstitutional power grabs when the Tenth Amendment clarifies their limited authority quite well. I always have the same answer. Members of the US Congress believe THEY are “the people.”
Congressional representatives have determined that the Tenth Amendment’s “or to the people” provision is actually talking about THEM. The people elected them, so they are the people’s representatives. Therefore, they are the people.
The more I talk about this issue, the more examples surface to prove my point.
See I Told You So
KXNT’s Ciara Turns attended the recent health care town hall held by Dina Titus (D-NV) and got to speak with Rep. Titus for a few minutes. During their conversation, Ciara asked Titus what part of the US Constitution granted the federal government the authority to intrude on the private sector as it is doing with health care reform. The response: “The Tenth Amendment.”
Here’s the video of that exchange:
See, I told you so.
Titus said that the Tenth Amendment “allows anything not prohibited in the first nine amendments to be done by states or by government.” That is a direct quote from video taken at the public event.
Titus then went on to say that the US Constitution was a document that was “written to be flexible over time.” After which she went on to argue against freedom of speech by citing the example of yelling fire in a theater and some other nonsense. Those darn strict constructionists!
Looks like the whole ‘living, breathing document’ theory is alive and well in Nevada politics. Titus completely ignores the way in which our constitution is actually designed to be flexible – and it is. The flexibility exists in that a constitutional amendment to the Constitution can be proposed, and then ratified – not in the ability to reinterpret the words written by our founding fathers. To amend the document requires a ¾ approval from state legislatures, or the approval of a constitutional convention. So: it is flexible, but only after tremendous effort.
Rep. Titus believes that the Tenth Amendment grants the federal government the authority to address health care the way it is doing. She is misguided, and this is evident in her inability to cite the meaning of the Tenth Amendment correctly in her discussion with Ciara. (Wasn’t she a political science professor?)
For the record, the Tenth Amendment states:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Notice it says that authority reverts back to the states, or “to the people” … not to government. Nor does the Tenth Amendment apply only to the first nine amendments, as Titus seemed to indicate. This is where my statement that Congressmen believe they are the people is relevant. Perhaps it was a Freudian slip when she said government instead of people.
Today, House Majority Leader Steny Hoyer (D-MD) stated that the US Constitution’s ‘General Welfare’ clause granted the government the authority to require American citizens to buy health insurance.
Funny … the General Welfare clause is not in the Tenth Amendment. Someone should tell Dina Titus. It would seem these two Democrats can’t agree on what part of the US Constitution grants them the authority to impose mandated health insurance. In other words, they are grasping at straws. Let’s hope they prick their fingers on a needle instead.
Article I, Section 8, outlines the powers of Congress, including raising taxes. It does not allow for Congress to mandate the purchasing of any item, good, or service. You can read it here.
Now what did the Tenth Amendment teach us earlier about authority not granted to the federal government by the Constitution? It is supposed to revert to the states, or to the people. And, just like Titus: Hoyer believes he is the people.
Three’s Not A Crowd, It’s The Forming Of A Pack
In my last interview with Majority Leader Harry Reid (D-NV), which got national attention, I brought up the fact that Congress was passing unconstitutional bills. He was perplexed and asked which were unconstitutional. I began bringing up the retroactive legislation Congress was enacting in dealing with the AIG bonuses. Again, he was perplexed and asked how those were unconstitutional.
Now, before I go further, we have to understand that he is the Majority Leader in the US Senate. He’s the highest ranking official in the more prominent of the two houses of our federal legislature. Shouldn’t he be able to understand these issues? It is, after all, his job.
I answered Reid’s question by stating that Congress had violated the Ex Post Facto clauses. To which he responded that, no, they didn’t. Here we go again. Another member of our US Congress who doesn’t understand basic constitutional law. I’d give you a big “SURPISE!” here, but somehow a “ho-hum” feels more appropriate.
Ex Post Facto laws are governed by two clauses in the US Constitution: Art 1, § 9 and Art. 1 § 10. These clauses forbid Congress from passing retroactive legislation. Which is exactly what Congress was doing at the time I interviewed Reid, soon after he went on tirade about how evil AIG was for those bonuses. And before I asked him about this issue.
In 1798, in the case of Calder v Bull (3 US 386), the US Supreme Court ruled:
1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender.
The Pandemic Is Upon Us
In recent years the constitutional ignorance, or bemoaning – take your pick – from elected officials has become much more common and mainstream.
I’m reminded of Pittsburgh Councilwoman, Tonya Payne, who last November gave a statement about an unconstitutional bill just passed by the Pittsburgh City Council requiring a citizen to report a stolen firearm within 24 hours or face a fine. She said:
“Who really cares about it being unconstitutional? This is what’s right to do.”
Damn that pesky piece of parchment!
While my citations here are just a few recent examples and center on Democratic officials, this problem is in no way unique to Democrats. Republicans are ‘almost‘ just as guilty.
When you ask a conservative to name a Republican who respects and adheres to the Constitution, you will likely get Newt Gingrich’s name. But I’ve been screaming at the top of my lungs for years to beware of this man. He is a fraud. Finally, some are starting to heed my warnings. My good friend Mark Levin is among them.
Gingrich defended William Jefferson (D-LA) when the FBI raided his congressional office. Jefferson is the guy who hid his bribe money in his freezer, took over rescue equipment after Hurricane Katrina so he could rescue his personal belongings, and was still promoted by Pelosi.
Gingrich said the FBI raid violated the Speech and Debate Clause of the Constitution. Gingrich would argue repeatedly on TV and radio that the FBI has no right to raid any congressional office … no matter the crime being investigated, simply because they were a part of the Executive Branch.
The Constitution disagrees with him, and so did the US Circuit Court of Appeals that ruled the search did not in fact violate the Constitution. The Supreme Court also had previously ruled that such a search is not unconstitutional, but Newt apparently couldn’t care less about either.
The Speech and Debate clause is found in Article I, Section 6, Clause 1 of the US Constitution, and it reads as follows:
“Sec. 6. The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony, and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House they shall not be questioned in any other Place.”
Jefferson was being investigated for a felony, and was eventually convicted.
In the case of Williamson v. United States (1908) the Supreme Court wrote:
“It is not asserted that it has ever been finally settled by this court that the constitutional privilege does not prohibit the arrest and punishment of a member of Congress for the commission of any criminal offense. The contention must rest, therefore, upon the assumption that the text of the Constitution so plainly excludes all criminal prosecutions from the privilege which that instrument accords a congressman as to cause the contrary assertion to be frivolous.”
Until the American people begin to hold their politicians accountable for their meandering ways, we are doomed to live out Lord Christopher Monckton’s eulogy for the United States. Lord Monckton was speaking about the UN Climate Change Treaty on Oct. 14, 2009 when he said:
“Thank you America. You WERE the beacon of freedom for the world. It is a privilege to merely stand on this soil of freedom while it is still free.”
Enjoy it while it lasts.