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New material is no longer being added to this website, and it shortly will be closed down.
For Rob Natelson’s latest comments and updates, click here.
This column was first published in The Hill on February 20, 2018.
The web has been ablaze over the ignorance displayed by Senator Brian Schatz (D-Hawaii), who showed himself unaware of the Anglo-American legal heritage. Schatz revealed his lack of knowledge by mistaking Attorney General Jeff Session’s reference to that heritage for a racist dog whistle.
For those who have been living on Pluto — or serving in Congress — the phrases “Anglo-American heritage” and “Anglo-American legal system” are standard ways of referring to the jurisprudence America inherited from England. To a considerable extent, we still share that jurisprudence with our mother country. The Constitution itself is filled with English legal terms (such as habeas corpus, and privileges and immunities) that cannot be fully grasped without understanding the English heritage. Many, if not most, states — including Schatz’s state of Hawaii — have constitutional provisions or “reception statutes” formally adopting the common law of England.
If Schatz’s comment were unique, it would simply mark him as uniquely unfit to be a lawmaker. Unfortunately, in recent years other top officials have revealed similar deep ignorance. By this I mean ignorance not merely of academic or esoteric facts but of matters central to an officeholder’s responsibilities — and sometimes central to citizenship itself.
Readers may recall that in 2010 a reporter asked U.S. Rep. John Conyers(D-Mich.) what provision of the Constitution supported Obamacare’s individual insurance mandate. A video camera caught Conyers’ response:
Under several clauses. The good and welfare clause, and a couple others. All the scholars, all the constitutional scholars that I know— I’m chairman of the Judiciary Committee, as you know — they all say there’s nothing unconstitutional in this bill.
Of course, the Constitution contains no “good and welfare clause.” What is just as disturbing is that Conyers apparently did not know that legal scholars had issued constitutional warnings about ObamaCare on several fronts, including its mandates on the states and the procedure Congress used in adopting it. (Some of these warnings were later vindicated by the Supreme Court.)
As Conyers observed, he was then chairman of the House Judiciary Committee. According to its website, that committee “has been called the lawyer for the House of Representatives because of its jurisdiction over matters relating to the administration of justice in federal courts, administrative bodies, and law enforcement agencies.” Because the Constitution is the federal government’s basic rule book, the committee is deeply immersed in constitutional issues. Conyers was not only its chairman; he had served on the committee for 45 years!
Educated citizens who enter politics eventually learn that deep ignorance is not unusual among elected officials. To idealists, the discovery can be a shock.
It was a shock to me. As a Montana political activist and candidate during the 1990s, I was stunned to learn that the incumbent Republican governor did not know whether the state budget he had approved was smaller or larger than the previous budget. He also was uninformed of the contents of other major bills he had signed into law. And after four years in office supposedly dealing with education issues, his second lieutenant governor still had no clue what a charter school was.
Deep ignorance is not limited to matters of law and policy. The “you didn’t build that” comments in 2012 by President Obama and Senator Elizabeth Warren (D-Mass.) represent a case in point. Claiming an entrepreneur did not build his business because he used pre-existing resources is like saying to an employee that he didn’t earn his salary because the employer provided the job. The comment reveals fundamental unawareness of how creativity and effort operate in a free enterprise context. This is a risk of electing people who have little or no private sector experience.
To be sure, deep ignorance is not the biggest problem in government right now. A more basic problem is that government has gotten too massive for officials to do their jobs, even if they all had the extraordinary knowledge and capacity of, say, the late Sen. Daniel Patrick Moynihan (D-N.Y.). Still, electing ignorant people to office aggravates the federal dysfunction so concerning to most Americans.
After a year of delays,* an article on how the Constitution uses the word “emoluments” has finally appeared. The study indirectly absolves President Trump of claims that he is violating the Constitution by receiving profits from enterprises whose customers include foreign governments.
The article is called The Original Meaning of “Emoluments” in the Constitution, and it was published by Georgia Law Review. It was the result of impartial research: Unlike most articles of the type, it was not designed to serve as a brief for or against a particular political or litigation position.
The article reports that during the Founding Era, the word “emolument” carried several different meanings—some wider, some narrower. The wider meanings included business profits and the narrower meanings did not. To determine which usage the Constitution adopts, the article examines the text and the surrounding history.
The surrounding history includes proceedings in the Continental and Confederation Congress, how the word “emolument” was used in other important American documents (such as state constitutions), and the debates over the Constitution. Perhaps most importantly, the surrounding history included a massive then-current reform movement in both Britain and America. The reform movement was designed to shift public employee compensation away from certain fees and other fringe benefits and toward fixed salaries. The Constitution’s three anti-emoluments provisions all are typical of such reforms, which targeted almost entirely fees and other fringe benefits, not unrelated profits from outside enterprises.
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* Delays of this kind are associated generally with law reviews (legal journals). The reasons and effects will be topics of a future article.
In recent months, Hillary Clinton has made numerous inaccurate statements about those Americans working for what the Constitution calls a “convention for proposing amendments.” Because of Clinton’s national standing, her claims merit a response.
Under Article V of the Constitution, when two-thirds of the state legislatures (34) pass matching resolutions called “applications,” Congress must call a convention to propose, not enact, constitutional reforms. The idea is to allow Americans, working through their state legislatures, to propose amendments the Washington, DC establishment opposes.
Because of dissatisfaction with the federal government, several campaigns have sprung up favoring corrective amendments. Although they span the political spectrum, collectively they are referred to as the “Article V movement.”
This article lists some of Clinton’s statements and corrects each:
Clinton: “There’s a big move for change coming from the right that I think would be disastrous for our country.”
Correction: Only one of the major Article V campaigns is based primarily on the right. It is the “Convention of States” organization—assuming one defines reducing federal power as solely a “right wing” cause. The other campaigns promote solutions also favored by the center and left. For example, despite recent efforts by establishment politicians to marginalize the campaign for a balanced budget amendment, its cause is broadly bipartisan. Several state legislatures have signed on with unanimous or overwhelming bipartisan votes. Similarly, U.S. Term Limits enjoys broad bipartisan support.
On the left is the WolfPAC organization. It favors campaign finance reform and has the support of several liberal-leaning state legislatures.
It’s important to remember the Constitution established the amendments convention procedure for all Americans, not just for those on any particular side of the political spectrum.
Clinton: “They want radical, ‘pull ’em up by the roots’ change.”
Correction: None of the amendment campaigns—right, center, or left—favors the open-ended convention needed for radical change. All of their model legislative applications severely limit the convention’s scope.
Clinton: “They want to have a constitutional convention to rewrite our Constitution, to make it friendlier to business, to inject religious and ideological elements.”
Correction: The Constitution does not authorize a constitutional convention, and none of the amendments campaigns advocates one. They favor only a limited gathering—what the Constitution calls a “convention for proposing amendments.” This idea is not unique: American history has witnessed several conventions that suggested constitutional amendments, although none of those conventions had formal proposal power.
Moreover, a convention for proposing amendments has no power to “rewrite” the Constitution. As its name indicates, it may only propose amendments. To be effective, any amendment must be approved by three-fourths of the states (38). This formidable requirement ensures that any amendment enjoys support from the overwhelming majority of the American people’s representatives.
Clinton’s comments about business and “religious and ideological elements” are pure fantasy. None of the legislative applications being promoted by the Article V Movement contain anything specifically pertaining to business, religion, or ideology.
Clinton: “So talk about radical change! They are pursuing it, they are funding it, and they are electing people that are either true believers or are willing vehicles for it.”
Correction: Clinton has the funding situation exactly reversed. All the Article V campaigns have budgets ranging from minimal to modest. None has the financial power to elect anyone. By contrast, their leading opponents—such as the Washington, DC pressure groups Common Cause and the Center for Budget and Policy Priorities—enjoy annual budgets in the tens-of-millions.
Clinton: “The right wing, aided and funded by Mercers, Koch brothers, etc. is very serious about calling a constitutional convention.”
Correction: Again, the Article V campaigns are not seeking a “constitutional convention.” They are simply trying to exercise a constitutional right akin to the right to vote.
Furthermore, the Article V movement cuts across ideological lines. Some right-wingers favor it, as do some left-wingers. Other right-wingers oppose it, as do some left-wingers. My constitutional research helped renew the movement, and I’ve been involved with it for over eight years. I’m personally unaware of any Article V funding from either the Mercer or Koch families. Like the overwhelming majority of those involved in the cause, I do most of my work as a volunteer.
Clinton: “Part of their gerrymandering is to control state legislatures, elect Republican governors.”
Correction: All the Article V campaigns are nonpartisan. Several draw wide support from both liberals and conservatives. Incidentally, the comment about Republican governors is further evidence that Clinton’s is ignorant of the process: State governors have no role in the Article V process.
Clinton: “If you really get deep into what they’re advocating: limits on the First Amendment, no limits on the Second Amendment, limits on criminal justice.”
Correction: The only Article V campaign favoring changes in the First Amendment is WolfPAC, which is based on the left, not the right. Neither the Second Amendment nor criminal justice are the subjects of any Article V campaign.
An earlier version of his column appeared in The Hill on February 6, 2018.
Once again, this year we were threatened with a federal government “shutdown.”
Well, for the future this citizen out in the hinterland says, “Bring it on!”
Most of the interrupted functions aren’t really constitutional anyway, and we could do well without them. In fact, we should defund some of them permanently to help close the federal deficit. Most of the affected workers wouldn’t be out of work for long: Right now the private sector is desperate to use more efficiently the kind of skilled people now employed, and sometimes ineptly utilized, by the federal government.
I put the word “shutdown” in quotation marks because it is really a misnomer. Labeling it as such has been a huge rhetorical coup by apologists for unbridled federal power. In fact, it’s just a temporary pause in the otherwise-inexorable growth of federal spending.
Sometimes this pause occurs because members of Congress can’t agree how much to increase expenditures. (They rarely propose reducing them.) Sometimes it happens because they can’t agree on raising the debt limit. The D.C. crowd considers not raising the debt limit particularly disastrous because it actually forces the federal government to balance its budget in the interim.
Now, let’s look at the agencies whose operations may be interrupted in event of a “shutdown.” The list comes courtesy of thebalance.com. Keep in mind, however, that the list is misleading because funding for some of their major operations is on statutory auto-pilot — “mandatory spending,” which is D.C.-speak for “we let it continue without renewing it annually.”
For example, even though the Department of Health and Human Services is on the list below, during a “shutdown” it will continue to cut checks for Social Security and for most of ObamaCare.
So, with that caveat in mind, let’s review the list of agencies that may suffer partial closure:
Retrieve your pocket Constitution. Look through it and identify those functions the Constitution actually authorizes. Then go over the list of “shutdown” agencies again.
The Constitution empowers the federal government to regulate commerce, which encompasses many functions of the Commerce Department and the Food and Drug Administration. The Constitution also authorizes national defense (including, in part, NASA), and administration of the District of Columbia (including, by implication, the Smithsonian).
But otherwise you won’t find much overlap between what the Constitution authorizes and what a shutdown would interrupt. The Constitution contains not a single word about regulating or funding urban development, education, or labor. But it does contain the Ninth and Tenth Amendments, which reserve such matters to the states and the people.
Some agencies subject to closure already are duplicated, or can be duplicated, by the private sector or by interstate compact, rendering federal involvement unnecessary. Others are operations state governments could handle easily.
For example, during the 2013 shutdown, the Department of the Interior announced it was closing Rocky Mountain National Park in Colorado. No problem: Colorado state government kicked in the money necessary to keep the park open, and it stayed open. A few Coloradans began to ask, “Who needs the feds to run the park after all?”
That kind of question is the real threat of a prolonged government shutdown. It is a threat to federal politicians, functionaries, grant recipients, and the complicit segment of the mass media: Americans might come to realize they can get along very nicely without much of the federal bureaucracy. The ease with which Colorado funded Rocky Mountain National Park is a case in point. In fact, it may be the reason the federal government will not be closing the parks this time.
If, unlike me, you really are worried about a government shutdown, then be assured: Congress will not allow it to continue for too long. Otherwise, Americans might discover just how disposable most federal agencies are.