Impeach Antonin Scalia

Antonin Scalia's partly concurring and partly dissenting opinion in Arizona v. United States is not a simple prejudiced, racist misreading of the laws of the United States. It is as close to treason as one can get in the United States of America without actually, as the Constitution defines treason, "levying war against them, or in adhering to their enemies."

Justice Scalia begins his argument by asserting "The United States is an indivisible 'Union of sovereign States.' Highlander v. La Plata River & Cherry Creek Ditch Co. 305 U.S. 92, 104 (1938)." That individual States are not sovereign is obvious from hundreds of Supreme Court Decisions, even infamous ones like Dred Scott. Scalia's argument is totally dependent on presenting careful selections from U.S. history as if they were strong precedents.

In fact the cases and historic examples he uses have been discredited, or have only minor significance. Given his attitude, it is surprising that Scalia did not cite the declarations of independence of the States that joined the Confederacy, and then forget to remind us that the Confederate States lost the Civil War and had no Supreme Court ever ruled that they had a right to declare independence.

Scalia even cites the (pre-Constitution) Articles of Confederation, neglecting that they were superceded by our Constitution, which created a nation with a federal system in which the national government, including its Supreme Court, are the supreme law of the land.

My opposition to Scalia's opinion is not meant to detract from the rights of States, and of the People, and of the limitations of the power of the central government outlined in the Constitution. It is not a problem for me when Scalia or any American argues for states rights when they actually exist. Scalia goes much further: he joins the rebels of the Confederacy, using their very arguments, and asserting boldly each individual State is sovereign.

Justice Scalia cites the Kentucky and Virginia Resolutions to support his views, as did the rebels of the Confederacy. These Resolutions are part of our history, but they amount to an opinion that was not ultimately supported by our people or government. Not by most individual states most of the time, not by any Congress, never by a President (not even by their authors, Jefferson and Madison, once they became Presidents), and not by any Supreme Court justice except the rebel Scalia. States cannot judge laws passed by Congress (and signed by a President) to be unconstitutional. That judgment is a duty of the Supreme Court.

A Supreme Court judge is not supposed to cite the losing sides of arguments as precedents. True, the Supreme Court occasionally overrules precedent, as when Brown v. Board of Education began correcting prior decisions that had limited the human rights of non-white citizens. Scalia, in Arizona v. United States, is not simply re-interpreting the Constitution, straightening out some flaw in its prior application. He is attempting to re-write history, law, and the Constitution, and to break up the United States into 50 separate nations.

At the beginning of Section II Scalia writes "One would conclude from the foregoing that after the adoption of the Constitution there was some doubt about the power of the Federal Government to control immigration, but no doubt about the power of the States to do so." But one's conclusion would be based on Scalia's editing of history to distort the whole cloth of law.

Scalia only reluctantly accepts that the federal government can control immigration "not because of the Naturalization Clause but because it is an inherent attribute of sovereignty no less for the United States than for the States."

So we see the rebel's reasoning clearly: Sovereignty is Supreme, and Scalia and his gang of right-wind legal thugs are to be the interpreters of the meaning of Sovereignty. Does Sovereignty mean trampling on human rights? To Scalia it does. Does it mean trampling on the U.S. Constitution? That is apparent from Scalia's opinion.

After falsely declaring each individual state to be Sovereign (in which case there is no real need for a United States) Scalia claims the case was "about a federal law going to the core of state sovereignty: the power to exclude."

Scalia would exclude illegal immigrants from Arizona. That is not a radical opinion. The problem is the basis of his opinion. Scalia earlier stated who can be removed by a sovereign State: "certain persons, or for certain particular purposes, according as he may think it to the advantage of the state," "obnoxious aliens" (even perhaps bearing Green Cards), "paupers, vagabonds," "persons with contagious diseases," and "freed blacks."

In other words, Scalia would exile anyone Scalia did not like. And a State could exile anyone it did not like. Perhaps Jews, Arabs, Blacks, Hispanics, homosexuals, atheists and agnostics, or the unemployed. Perhaps a state ruled by the Republican Party would exile Democratic Party members. The sick and disabled might be cast out. It all depends on who controls a State.

This is madness. Preaching this poison, which is done all too much within the United States of America, is protected by our rights to freedom of speech and freedom of the press. Sitting on the Supreme Court trying to rule based on this poison is not protected.

Antonin Scalia has exceeded the bounds of his appointment. He should resign. If he does not resign, he should be impeached. If Congress fails to impeach him, human rights in this nation will be gravely in danger of disappearing.

Federal Education, Cordell Hull, and States Rights

I am reading Cordell Hull's Memoirs. This is the last major work I plan to take notes on before starting on the final draft of The U.S. War Against Asia. I knew little about Cordell Hull except that he was Secretary of State under President Franklin D. Roosevelt, which meant he played a major part in the events leading up to the Battle of Pearl Harbor. This just illustrates how even history buffs like myself tend to think in terms of Presidents, when actually Congress is the body that is entrusted to govern our nation. Problem is, there is a lot of history, so it is a lot easier to remember the names and actions of a few Presidents, rather than the tens of thousands of citizens who have been elected to Congress since 1776.

Cordell Hull was from a Confederate family in the hills of eastern Tennessee, and he took an interest in politics from an early age. He reports:

"It was at that age, and at Celina, that I saw my first daily newspaper. This was the Nashville American. In that year, 1886, a Senator from New Hampshire, Henry W. Blair, introduced a bill for Federal aid to State education. That was the major issue in the 1886 campaign. I read about it avidly in the newspaper, and we discussed it among ourselves. The bill was considered to be an attempt to infringe on State rights and to give the Federal Government power to go down into the States and interfere with their education systems. The amount of Federal aid the Senator proposed was only nominal at the time, but the incident is illustrative of how serious such issues could be in those days." [Memoirs of Cordell Hull, New York, The Macmillan Company, 1948, p. 17-19]

The U.S. Constitution says nothing about education. It is a fair argument that for a very long time education was a matter reserved to states and localities. On the other hand, the Constitution says nothing about education. It does not explicitly say that Congress can't spend money on education.

I don't know the full history of federal funding of education. Aside from research grants to universities, I believe Head Start and the School Lunch program were among the earliest large scale programs. Head Start was authorized in 1964. But the School Lunch program was initiated much earlier, in 1946. Federal money for school lunches for children from poor families would not, in itself, have any effect on how local schools were run, like the curriculum or teaching methods. It was not even used as a wedge to desegregate (black and white) schools.

I was on a local school board for 7 years, and I can only describe federal funding of public schools as a mixed blessing. The amount of "paperwork" involved, mostly computer work now, was staggering. The federal money was not just targeted, in the sense that it could only be spent on one type of thing (hence the paperwork to prove that). It often brought rules with it that were really unrelated to the cause for which the money was given. This included the school lunch program. Do this, don't do that, or we will take the school lunch money away.

I'm not sure how effective the federal rules are, including No Child Left Behind. Intentions, I think, were good. It just is not possible to legislate good behavior of students, parents, or teachers (or school boards, for that matter). I used to joke that my School Board should just pass a resolution that "All children in the district shall behave all the time." Like that would put an end to our discipline problems. Behave, Suzy, or we'll send you to detention at the White House Oval Office. Fail to read at grade level, and the First Lady will read with you at night when you would rather be playing video games.

I believe that, on the whole, schools would be better off if they were governed by local school boards using local (including statewide) funds. Sure, some districts would be poorly governed, but most would not, and none of them would be stuck with federal paperwork and misguided guidelines. The main problem with the all-state and local solution is that not all states and localities have healthy economies that can easily support good schools. You can see how a collapsing rust belt city, or a poor rural area, would be unable to provide good schools with local funding. Worse, anti-tax states and localities might refuse to raise taxes needed to fund good schools, even though their economies were strong enough to support the additional taxation.
Leaving this educator, on the whole, feeling that we need a more pragmatic approach to funding.

Those who believe in the wisdom of a national education system should work for an amendment to the Constitution that would give Congress the power to run or at least oversee the public schools of the entire nation, using a federal tax base. Those who want a states-only education system should try to pass an amendment to forbid the federal government from interfering with state education systems.

The rest of us should aim for excellence and hope to muddle through. Send federal money, not a complex set of rules and regulations that take up too much teacher and administration time. Increase the local tax base for public education. Focus, district by district and school by school, on what (and who) works. Some things may work in every district in America, but a lot of actions need to be district specific, school specific, even child specific. Large bureaucracies can have their beneficial moments, but they are notoriously bad at dealing with rapidly changing specific situations.

States Rights and the Federal Reserve

"Such is the character of human language, that no word conveys to the mind, in all situations, one single definite idea; and nothing is more common that to use words in a figurative sense."

—John Marshall in McCulloch vs. Maryland, 1819

If your knowledge of American history is shallow enough, you might think that the question of states' rights was answered by the Civil War. The Republican Party opined that for a state to secede from the Union was an act of treason. A lot of people died to make the point. Yet states did not become mere administrators of Federal law. They retained important rights and duties.

Before considering how the Federal Reserve fits into our system of governance, it is worth a bit of review about the Bank of the United States. America had no banks at all in 1776, which at least proves it is possible to get along without them. Great Britain had a number of banks, including the Bank of England, which had been created by the British government, but which had not branches in the American colonies.

The first Bank of the United States was chartered by the first Congress under the new Constitution in 1791 for twenty years, based on a proposal from Alexander Hamilton, the Secretary of the Treasury under President George Washington. Like the Bank of England, it was set up as a private company that would hold federal funds, but act as a bank to commercial enterprises. From the beginning some political figures (anti-federalists) opposed it and believed that its creation was not a power granted to Congress by the Constitution. In 1811 Congress refused to recharter the bank (by a vote of 64 to 65). The War of 1812 created such financial chaos in the United States that the bank was issue a new charter in 1816.

In 1818, to prevent the Bank of the United States from competing with local banks, the State of Maryland passed a tax on all banks not chartered by the State. The Bank cashier, McCulloch, refused to pay the tax. The Bank lost in the Maryland courts, but appealed to the Supreme Court of the United States. By a vote of 8 to 1 the Supreme Court found the Maryland law to be unconstitutional. [See McCulloch vs. Maryland, 17 US 316 (1819)]

In the ruling John Marshall discusses the nature of the federal system at some length. He discusses how sovereignty can be shared or split by states and the federal government. He discusses the phrase "necessary and proper" at some length. He also splits the hair of the 10th Amendment by noting that it differs by one important word from the wording of its predecessor in the Articles of Confederation.

Even Marshall, the federalist, noted that the Constitution gives the Congress some responsibilities, and prohibits certain types of legislation, while reserving others to the states. Two basic problems remain, even if you are convinced by Marshall's reading of the Constitution. You may not agree with how the Constitution divides up responsibilities between the states and federal government. That could be fixed by amendments, although amending the Constitution is difficult, and what is already in place is favored.

The more difficult question arises when specific situations cross multiple issues, or when there are shades of gray within a single issue. The Supreme Court itself has often made differing rulings on the same subject during different periods of American history.

President Andrew Jackson did not like the Bank of the United States; he thought its powers exceeded those grantable under the Constitution. Jackson, like most Americans, wanted states' rights when he agreed with the states, and was against states' rights when he wanted to impose his ideas on the entire nation. When the people of South Carolina nullified an oppressive tariff (import customers duty), Jackson threatened to use military force. But when George asserted states' rights to evict the Cherokee nation, and the Supreme Court backed the Cherokee in Worcester v. Georgia (31 US 515), Jackson (and later President Van Buren) refused to use federal troops to enforce the Supreme Court's decision. In 1833 President Jackson took federal money out of the Bank of the United States, and its charter was allowed to expire in 1836.

The Federal Reserve was controversial when it was created in 1913 it was no less controversial than the Bank of the United States. However, it did not compete directly with private commercial banks, instead using its function as a reserve bank to maintain a money supply consistent with economic health. Recently the Tea Party and Republican presidential candidates have been attacking the Federal Reserve. Partly the attacks are pragmatic, partly they raise yet again the ancient question of what are the powers of the federal government under the Constitution.

Anyone can criticize the Fed on pragmatic grounds. Take your choice: the Fed created too much money, or the Fed created too little money. Heck, the Fed insiders debate that question among themselves.

Questioning the Federal Reserve's constitutionality is wacky, except perhaps as an academic exercise. The Tea Party has no good answers for the reasoning in McCulloch vs. Maryland. Congress has the power to regulate interstate commerce and to establish a system of currency, both of which it chooses to do through the Federal Reserve. Congress has the power to change the Federal Reserve, to replace it with something different, or to abolish it outright.

Many in the Tea Party now hold there is an Original Constitution, written by God himself, and easily interpreted by anyone with a rudimentary knowledge of English and the Ten Commandments, the amount you would get from their home schooling program. For them it is simple: the Constitution does not mention the Federal Reserve, so having one cannot be constitutional.

The first Congress (admittedly a rogue's gallery of corrupt men) chartered the Bank of the United States, and it was signed into law by George Washington. Who do you think is in a better position to opine on the meaning of the U.S. Constitution, the village idiots of the Tea Party, or the first Congress? The men who knew the men, sometimes even were the men, who wrote the Constitution, or Michele Bachmann?

We do not need to return to some mythic original Constitution. We need to amend the Constitution to bring it into line with what we, the people, have learned in the past 200 years. The problem with Congress is not that it has exceeded the power granted to it, though it probably has at times. The problem with Congress is that it has not done everything necessary and proper to "promote the general Welfare." Neither, for that matter, have the various state legislatures.

Democracy, Federalism and the Tea Party Constitution

The Tea Party may be able to win the occasional Republican Party primary, but its views are way out of the mainstream. People like to complain, and may join the complaining of anyone who whines about the economy and government these days, but most people will reject Tea Party solutions to our problems. On the other hand the mainstream has been a big failure; Tea Party ideas are worth examining, even if we ultimately reject them.

The Tea Party is diverse; I don't mean to say that they all think alike on every issue by making some generalizations here. However, I believe it is fair to say that in general they are for low taxes, a decreased role for federal government, and a rolling back of the U.S. Constitution to its fundamentalist form, still including its first ten amendments. They also favor a republican form of government over democracy.

I find it strange that they are so in love with the U.S. Constitution and act as if it was written by their God, however they imagine that entity. Historical reality clearly indicates that the Tea Party folk of the Constitutional Convention era were in favor of keeping the Articles of Confederation, and with good reason. They did not like taxes imposed on them for other people's benefit either.

Who is a conservative? The word conservative is a tricky word to use in the era between the signing of the Declaration of Independence and the imposition of the Constitution upon the early peoples of the United States of America. Conservatives in 1776 could be defined as those who wanted to remain a set of colonies of England; the signers of the Declaration of Independence were radicals. Yet most of the 1776 leaders were economic conservatives within their communities. Were those who wrote the Constitution radical because they broke with those who wanted to keep the Articles (including Patrick Henry), or were they conservative men who felt that radicals were getting the upper hand under the Articles and in their respective sovereign States? I favor the later interpretation, but when using labels like conservative, one has to know what era one is talking about.

Now, take taxes. It is true that by going back to the original Constitution the Federal Government would lose its ability to collect income taxes (granted in the XVI Amendment). But that does not mean the government would collect or spend less money. It certainly would not stop the military industrial complex. Taxes could be raised by a Congress that "shall have the power to collect Taxes, Posts, Duties and Excises" (Article I, Section 8) constrained only by the phrase "No Capitation, or other direct, Tax shall be laid, unless in proportion to the Census." (Article 1, Section 9). Instead of paying income tax, you would pay more for goods and services. So for low federal taxing power you need to go back to the Articles.

Now consider the idea that the Constitution was explicitly undemocratic. It was not written by the people themselves, so it is not surprising that its democratic elements are minimal. The various states were, on the whole, more democratic in structure. The Constitution was largely written because of concerns that the people of Pennsylvania and Massachusetts were pushing too hard for democracy and justice for all.

Yet the Federal Government under the original Constitution had strong democratic elements. Those elements were shored up by the growing idea that all people really are created equal and should have an equal say in government. The trend towards perfecting what was mere propaganda in the Declaration of Independence would lead to a lessening of the republican Constitutional elements, and increasing of the democratic elements, over the next two centuries.

First, the House of Representatives "shall be composed of Members chosen every second Year by the People of the several States." Chosen by the people. That is democracy, especially when you admit that every human is a member of the people, not just property-owning white males.

Second, "All Bills for raising Revenue shall originate in the House of Representatives;" note they did not give this, the taxing power, to the Senate or President or Courts. That is because the historical experience then, as now, is that it is the fat cats who want to raise taxes to enrich themselves. To keep taxes low for most people it is safer to keep that power in the democratically elected lower house of Congress. It isn't fool proof, but it is better than allowing the Senate to run amok with that power.

But no constitutional framework can, in and of itself, guarantee justice and prosperity. People can, and some will, act badly within any system. We reached a point in after 2000 where business and political ethics just about completely disintegrated in the United States. People where so angry at a few dozen crazy Islamic militants that they took their eyes off what was happening in the U.S. We can't all be governing all the time; we need elected officials. But the people need to keep a close watch on their officials and the jackals (mostly corporate lobbyists) who beguile them.

Should the Seventeenth Amendment be Repealed?

The other day I learned, through commercial media, that some Tea Party activists have included the repeal of the Seventeenth Amendment (17th or XVII) to the U.S. Constitution on their agenda. The 17th Amendment changes the way that U.S. Senators are elected. Before its ratification the Senators were selected by their state legislatures, as per Article I, Section 3. Since its adoption Senators, two per state, have been directly elected by the voting citizens of their states. [See also brief history of 17th Amendment]

I mentioned in America: Republic or Democracy? that "The main Amendment that tipped the scales from the national government of the United States being a mere republic to being a true representative democracy was the often-overlooked Seventeenth Amendment, which took effect in 1913. Since 1913 the U.S. Senate has been elected directly by the voters, rather than being appointed by the state legislatures. That makes the national government democratic in form, as well as being a republic."

Just last year the idea of repealing the 17th Amendment, to help return America, formally, to a minority-ruled republic, was considered quaint fringe material. But recently repealing the 17th made news because a few Republican Party candidates for major offices included this idea in their speeches. Response from the public was negative, so they have backed off the idea, for now. [See, for instance, Repeal the 17th Amendment by Gene Healy or Should We Repeal the 17th Amendment by John A. Tures.]

While I follow mainstream wisdom here, that electing U.S. Senators is better than having them selected by state legislatures, the Tea Party people have at least one interesting point mixed in with other arguments. The Federal Government was intended to be federal, that is, only a limited degree of sovereignty was given up by the states to the national aspect of the system. The idea that the states had any real sovereignty was decided not by a vote or by the Supreme Court's interpretation of the U.S. Constitution, but by the Civil War. Post civil war, states had little or no real power. The nation has been ruled from Washington D.C. ever since. Which most Americans believe is a good thing, most of the time. I have my doubts.

Suppose we allow that the more centralized a government is, the more autocratic it becomes. Then we (those of us who prefer democracy) would want to keep decision making not only democratic in form, but decentralized. We would want local governments - counties, cities, and states - to have more authority.

You might even want the Federal government limited to doing its task list in Article I, Section 8, and tasks scattered about in a few other places in the Constitution. The states, the counties, or the people themselves would take care of everything else.

You also might want the national aspect of the Federal government to be kept under control by the states (too late for that!).

In which case, you might want to repeal the 17th Amendment. If it would allow the federal Senate to be controlled by the people of individual states.

Only it would not do that. The strengthening of federal authority over the states and people took place over a long period of time, with a variety of driving forces. The single most important factor: the Constitution itself. If you want to get the states back in the saddle, you would want to go back to the Articles of Confederation. The Constitution was created by a powerful minority of rich white Americans specifically for the purpose of taking power away from the ordinary residents of the states and centralizing it in the Congress, President, Supreme Court, and military. The writers of the Constitution did not get everything they wanted. They just got as much as they could at the time.

Here is a project for the Tea Party, Mad Hatter and all: let take our Way Back machine way back. Forget amending the Constitution, let's write something along the lines of the Articles of Confederation to be our governing document.