by Martin

I attended an interesting event last night with fellow WWTFT author, James Best. It was the 9th annual Bill of Rights celebration. The event was held at the Wrigley Mansion in Phoenix.

There were several guest speakers, and of course, I bought a book written by one of them. Robert Levy, author of The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom, spoke for about 20 minutes and provided an oral preview to his book. He briefly described six of the twelve cases covered in the book. With each of the cases he explained how the court’s decision directly contradicted what was stipulated in the Constitution. He did it in an incredibly clear and concise manner. He managed to convey, without saying so explicitly, that the Constitution was designed to avoid vague terminology. Perhaps most interesting was his discussion of the 1937 case, Helvering vs. Davis, in which the court had to decide on the constitutionality of Social Security. The arguments for constitutionality were based on Hamilton’s interpretation of the concept of promoting the general welfare, while those against were based on the writings of Madison (the author of the Constitution).

According to Madison, the General Welfare clause was nothing but a convenient shorthand to summarize the powers enumerated in Article I section 8 of the Constitution. Per Madison in Federalist No. 41,

Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter.

Hamilton, on the other hand, argued that promoting the general welfare was a separate source of congressional authority to “lay and collect taxes” and then spend the proceeds to implement the enumerated powers (and others).

Peeking ahead a little in the book, Mr. Levy delves a bit deeper than he had time for in his speech. He makes a convincing argument that the court got it wrong in choosing Hamilton’s interpretation.

With this and each of the other cases, Mr. Levy explained the original case and what the ramifications are for today. It looks like a pretty interesting book.

The other speaker for the event was former New Mexico Governor Gary Johnson. His speech went over quite well with the event’s largely libertarian crowd. He had a lot to say that I could agree with, but nearly as much with which I could not. I think I surprised him at the end of the event when I shook his hand and told him that I didn’t necessarily agree with him, but at least thought he was sincere. In retrospect, I suppose it was a rather backhanded compliment. It didn’t come out exactly as I might have liked.

So, what did he have to say?

He talked a lot about his tenure as a two-term NM Governor and about how he vetoed over 700 bills and took line-item vetoes to a whole new level. I liked that. He explained that he was able to be re-elected as a Republican in a state where Jack-Asses outnumber Elephants by a factor of 2 to 1, because the people could respect a good steward of their money. That seemed reasonable to me.

And then he went off course – in my opinion, anyway, if not that of much of the room.

He went into a big spiel on the need to legalize drugs, in particular marijuana. Now, I must admit that I have not decided entirely on this issue myself, and some of his arguments about the cost of enforcement are compelling. However, I don’t think he adequately explains how abuse will be prevented and nor does he appear to have a plan for dealing with the consequences of irresponsible behavior.

All that being said, this issue is one I might be able to overlook. After all, there probably isn’t a politician that I can agree with on every thing.

However, when he spoke about illegal immigration, I found his position delusional if not infuriating. He started out OK by talking about how ridiculous it is to send highly trained professionals back to their native countries because there is no legitimate or practicable path for citizenship. I agree. As someone who has several people in precisely this position working for him, I know that there is a real problem with stupidly designed quotas that prevent good people from immigrating. But, Governor Johnson immediately made a very long leap of logic to suggest granting what amounts to amnesty in the form of work permits for people who entered the country illegally! On the one hand he argued for allowing highly educated professionals, who entered the country legally, a more straightforward path to citizenship, and then he switched the terms of the discussion to pertain to criminals who break the law, steal identities, pay no taxes, and enter the country illegally.

Convoluted logic about immigration reform aside, it was his position on enforcing our sovereign border that probably disqualifies him for my vote. He estimates that it will take $200,000,000 to build an impregnable fence across the southern border and admits that it is feasible to do so. He also points out that we are broke, and so is willing to abdicate a Constitutionally mandated responsibility of the federal government – “provide for the common defense.”

Now, I would agree that we shouldn’t spend additional money on a border fence. But, there are other ways to pay for this. There is unused stimulus money that is being held in reserve as a Democratic slush fund. There is money that we could reapportion from military spending instead of basing troops in Europe. There are many other things we need less. Governor Johnson evidently doesn’t view securing the border as a significant issue. In his mind, the magic bullet is to legalize drugs and leave the borders porous. I think this is simplistic and unrealistic.

Consequently, I don’t think I could vote for him, even as tantalizing as all those vetoes are. Of course, this is hypothetical. He’s not officially running just yet.

After Governor Johnson’s speech, a group of individuals from various and sundry organizations ranging from the ACLU to the AZ CDL each read one of the first 10 amendments. The event’s organizer, a guy named Alan Korwin, kicked things off by explaining the purpose of government:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, …

When you hear the Bill of Rights read aloud, in total, you realize what a bulwark they have provided and continue to provide, for our liberty.

Amendment I Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. Amendment II 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. Amendment III No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law. Amendment IV The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Amendment V No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. Amendment VI In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. Amendment VII In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law. Amendment VIII Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Amendment IX The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. Amendment X 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.

After the reading of the Bill of Rights there was an impromptu debate held amongst the audience and moderated by Alan Korwin. Audience members stood to discuss their ideas on what should be done to “fix” things. A number of interesting ideas were bantered about. Some of them were:

Exercise Nullification – just don’t enforce federal law

Get a repeal amendment passed so that if 2/3’s of states decide a law is either bad policy or unconstitutional, it can be repealed.

bad policy or unconstitutional, it can be repealed. Term limits for judges

Mandatory sunset for all laws

Term limits and proscribed periods of time for politicians to be in D.C. and local

Prohibit unionization for all public employees

Personal responsibility

There were many others as well. The discussion was actually a pretty interesting way to end the evening. Imagine, citizens were actually discussing issues and suggesting solutions. Some of them were kind of interesting.

I’ll probably go next year too.