Testimony before the House Judiciary Committee, July 25, 2008

Mr. Chairman and distinguished Members of this Committee, on which I was privileged to serve throughout my eight years as a Member of the House of Representatives, it is an honor to appear today to speak on the importance of the separation of powers in the federal government as a tool for protecting the people’s liberties. Many vital issues confront our nation, but few are more important than repairing and maintaining the constitutional bulwarks that guarantee individual liberty and limit government power.

Mr. Chairman, today I appear as a private citizen, and also as a former Member of this Committee and as a once-again practicing attorney. I am also honored to be serving as the presidential nominee of the Libertarian Party.

It is axiomatic that no matter how much power government has, it always wants more. While the executive branch under George W. Bush has taken this truism to new heights, it is not unique in its quest for power. Unfortunately, the other branches of government have failed to do enough to maintain the constitutional balance. Particularly disturbing has been Congress’ recent reluctance, in the face of aggressive executive branch claims, to make the laws and ensure that the laws are properly applied. This failure has inhibited the operation of the separation of powers, necessary to provide the checks and balances which undergird our system of constitutional liberty.

CHECKS AND BALANCES

The Constitution employs several techniques to preserve our liberties and privacy. One is to limit federal authority to enumerated powers. Another is to explicitly restrict government power, most notably through the Bill of Rights. The Founders also used the basic structure of government to protect the people from abuse, relying upon federalism, dividing power between state and national governments, as well as the separation of powers within the federal government itself.

The latter concept goes back to ancient Greece and was explicated by such political philosophers as John Locke and most famously by Baron de Montesquieu, who was much studied by America’s Founders. Many countries have implemented the same principle, though with different government structures, ranging up to six branches in Germany. In the U.S. the Founders established the executive, legislative, and judicial branches. The result is intentional inefficiency: the three branches are expected to constantly check and balance each other.

For instance, James Madison declared in Federalist No. 51: “the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.” He went on to explain that, “[i]n framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” This means “the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other.”

Despite the inevitable problems which will afflict any political system, the original constitutional scheme has worked extremely well. Although the relative power of the different branches has varied over time, checks and balances have always operated.

More than two centuries have passed, and the constitutional limits on both the legislative and judicial branches remain robust – at least in theory. The president appoints and the Senate confirms judges, for instance. Presidents veto legislation and administer the laws, while the judiciary assesses the constitutionality of and interprets statutes.

In contrast, however, the constitutional constraints on the executive branch have eroded, with some breaking down substantially or entirely. The process has been underway for many years, but has greatly accelerated since 2001. In particular, President Bush and his appointees have used his power as commander in chief—of the military, not American society, it should be noted—to disregard congressional authority and override explicit constitutional provisions. Indeed, since 9/11, the president has let few opportunities slip by without reminding us that he is not only commander in chief but also a “wartime president,” and to argue that this status justifies whatever new power he claims to possess and wishes to utilize.

The president’s authority is substantial, but limited by law. The Constitution directs him or her to “take care that the laws be faithfully executed.” However, Congress is vested with the sole power to legislate, thereby determining the laws to be executed. Moreover, the president’s administration of the law is constrained by the Bill of Rights, including the Fourth Amendment, which bars searches and seizures absent a warrant based on probable cause. Further, though the president by the nature of his office has a lead role in shaping foreign and military policy, the Constitution shares powers in these areas between the legislative and executive branches.

Since the nation’s founding, Congress and the executive have struggled for supremacy. The 20th Century witnessed a steady if irregular expansion of presidential authority, which has carried over into this first decade of the 21st Century. The role of the president as the military’s commander in chief has taken on increasing importance as it has been used to justify the aggrandizement of the executive’s authority at the expense of that of both Congress and the judiciary. The issue is not just an abstract struggle between different government officials. Rather, this expansion of presidential power has increasingly put the people’s liberties and privacy at risk.

WAR-MAKING POWERS
One of the most important expansions of executive authority has been transforming the president’s power to conduct a war into that of starting a war. Congress is vested with the sole power to declare, meaning to start, war; the Constitution’s framers explicitly intended to diverge from the British system and vest the authority to initiate war with the many in the legislature rather than the one in the executive. The Constitution also empowers Congress to create the military and enact rules governing both the military and the conduct of war. Although the constitutional convention changed the term from “make” to “declare” to allow the president to respond to a surprise attack, and the president’s authority to conduct war as commander in chief suggests that Congress cannot second guess his tactical judgments, he is to exercise all his powers within the larger framework created by the legislative branch.

Yet modern presidents increasingly assert their unilateral authority to bomb and invade other nations, without legislative approval, and to conduct military operations for years even after the original circumstances giving rise to a congressional authorization to use force have changed. This trend did not originate with the Bush administration, but has continued and grown under it. For instance, in 2002 President George W. Bush insisted that Congress not tie his hands, and refused to acknowledge the constitutional necessity of winning legislative approval to invade Iraq. Rather than make the decision for or against war, Congress transferred discretion to initiate war against Iraq to the president.

After launching the Iraq invasion in 2003 based on a 2002 congressionally-passed resolution to do so, the current administration has rejected the argument that a multi-year occupation violates Congress’ authorization of force, which legally controls the executive’s war objectives. The president also has resisted congressional oversight of its objectives and policies, which is an essential aspect of Congress’ authority. Although acknowledging that Congress controls the budgetary purse strings, the president and his aides have fought any attempt to condition appropriations—conveniently bundled in “emergency” supplementals in order to reduce the opportunity for legislative review.

EROSION OF LIBERTY

The administration has attempted to use the same commander in chief power, as well as Congress’ Authorization for Use of Military Force (AUMF), approved after 9/11, to trump constitutional protections for civil liberties and privacy. Yet the Constitution does not create a national security exception to the Bill of Rights or separation of powers, and no member of Congress imagined that voting to authorize the use of force abroad simultaneously authorized the president to engage in unspecified and otherwise unconstitutional conduct at home. There is no basis for the argument the president’s authority as commander in chief in effect swallows and trumps the rest of the Constitution.

For instance, the administration undertook warrantless surveillance of Americans without court order or supervision. Conducted by the National Security Agency, the program was inaugurated shortly after the terrorist attacks of 9/11 and was inaccurately dubbed the Terrorist Surveillance Program, since in fact it targeted American citizens with no reason to believe they were engaged in any actions involving terrorism. The eavesdropping directly violated even the relaxed warrant requirements of the 1978 Foreign Intelligence Surveillance Act.

Under Republican control, Congress unashamedly refused to conduct serious inquiry into the obviously improper NSA surveillance program. Unfortunately, the GOP majority put partisan comity ahead of fidelity to the law and Constitution. Although more members of the Democratic majority, which took over in January 2007, indicated concern about administration lawlessness, this Congress recently caved in to administration demands and amended FISA to grant the government unprecedented power to surreptitiously spy on the phone calls and emails of American citizens in our own country, based on nothing more then a belief they are communicating with someone not in the U.S. The measure also granted immunity – retro-active and prospective — to telephone companies which aided government law-breaking.

Thus did a genuine need to modernize certain of FISA’s technical provisions—for example, to reverse the court interpretation that monitoring calls sent by modern routing mechanisms through the U.S., even though both parties were located abroad, required a court order—became an opportunity to greatly expand the law’s reach. The result is to make virtually every international call or email subject to monitoring without court oversight. Thereby carving out an entire class of communication from constitutional protection is a breathtaking decision with the potential to do enormous damage to the very meaning of the Fourth Amendment and to the essential foundation of limited government. This law also has effectively neutered the oversight role the Congress or the Foreign Intelligence Surveillance Court should play in this area.

Similarly extravagant has been the administration’s claimed right, as an adjunct of both the president’s constitutional warpowers and the AUMF, to designate American citizens arrested in America as well as alleged terrorists captured overseas as “enemy combatants” beyond the reach of the U.S. Constitution and courts. The detention of combatants captured in battle is a natural adjunct to war, but not the suspension of all constitutional and legislative oversight of the executive’s power to imprison anyone it claims to be a combatant for as long as it desires. The argument that the president has the unique power to suspend basic constitutional guarantees, including the “Great Writ” of habeas corpus, whereby a person has a fundamental right to be brought before a court to determine the lawfulness of his or her detention or deprivation, is particularly dangerous in the midst of a potentially endless “war” where the American homeland is considered to be a — and perhaps the chief — battlefield.

There is nothing in Article II of the Constitution which provides that the president is the military’s commander in chief, to suggest that he thereby gains the power to suspend any law and any constitutional provision at his discretion. Indeed, the very next section reminds the president that at all times he has a responsibility to “take Care that the Laws be faithfully executed,” with no hint of an exception whenever he decides he is acting as commander in chief. In Youngstown Sheet & Tube Co. v. Sawyer (1952), the Supreme Court rejected a similar claim by the Truman administration — that the president’s powers as commander in chief allowed him to seize steel mills despite Congress’ refusal to authorize such an act.

Nor is it plausible that Congress believed that by authorizing military action in response to 9/11 it was empowering the president to deny American citizens their constitutional rights at home. Authorizing military action overseas does not logically mean authorizing every conceivable use of surveillance, arrest, and imprisonment by the federal government at home. Indeed, if the administration had believed this theory at the time, there would have been no reason for it to have proposed the Patriot Act, since all those powers, too, should have been included in the AUMF. Equally important, Congress itself only has the authority to suspend—and only if our country is invaded or faced with overt “Rebellion”—not eliminate, habeas corpus. Congress cannot authorize the president to limit that right in additional circumstances.

SIGNING STATEMENTS

Another example of a direct presidential assault on the separation of powers, and thus the constitutional structure undergirding our free society, are presidential signing statements. Throughout history, signing statements have been used to thank supporters, provide reasons for signing a bill or express satisfaction or displeasure with legislation passed by Congress. Presidents Ronald Reagan, George H.W. Bush, and Bill Clinton all used signing statements to express constitutional and other objections to legislation, influence judicial interpretation, and otherwise advance policy goals.

President George W. Bush has more aggressively – to an historically unprecedented degree — employed the presidential signing statement to challenge or deny effect to legislation that he considers unconstitutional, but nonetheless signs. As the Congressional Research Service reported last year, a much higher share of President Bush’s signing statements have contained a constitutional challenge, and they “are typified by multiple constitutional and statutory objections, containing challenges to more than 1,000 distinct provisions of the law.” This tactic, adds CRS, is “an integral part of the administration’s efforts to further its broad view of presidential prerogatives and to assert functional and determinative control over all elements of the executive decision making process.”

In scores of cases President Bush has claimed that legislation has improperly interfered with presidential authority. In a democracy, such assertions of power—most fundamentally the underlying failure to comply rather than the explanatory signing statement—do not happen in a vacuum. They affect the careful balance of power in our system of government. The executive branch is not free to unilaterally change that balance; our Constitution requires legislative and judicial involvement in lawmaking to ensure public debate and oversight and to guard against centralization of power.
Article I of the Constitution gives Congress the power to make the laws. Under Article II, the president has the duty to ensure that the laws are faithfully executed. The Constitution also provides that if the president

objects to a proposed law, he can veto it. This gives Congress the chance to override his veto, enacting the law despite his opposition, or to sustain his veto, and then work to address the president’s objections. A president may also challenge a law he believes to be unconstitutional in court.

Instead, the current president, especially, has used signing statements, and a refusal to enforce the law, as a sub rosa form of unreviewable veto, usurping the power of Congress and aggrandizing the power of the executive.

EXECUTIVE PRIVILEGE

Another tool of executive aggrandizement has been the doctrine of executive privilege. No where spelled out in the Constitution itself, the claim has been advanced by presidents starting with George Washington. The doctrine is most persuasively rooted in national security, but presidents often have more generally contended that confidentiality is necessary for the operation of the executive branch.
Although the argument at its core is not without force, executive privilege has become an all-purpose shield and boilerplate excuse to hide embarrassing and potentially incriminating information from Congress and the public. That a claim for executive privilege had to be balanced with other interests was evident in 1807 when Aaron Burr, on trial for treason, sued President Thomas Jefferson to produce a supposedly exculpatory letter. Chief Justice John Marshall rejected Jefferson’s argument that disclosure risked public safety and ordered the president to comply. In 1974 the climactic case of United States v. Nixon confronted President Richard M. Nixon’s attempt to use the claim of executive privilege to avoid having to turn over evidence of criminal misbehavior to Watergate special prosecutor Leon Jaworski. The Supreme Court unanimously acknowledged a generalized right of confidentiality, but ruled that this privilege must yield to other government interests, most notably the criminal process. The order that he yield up the tapes recording his Oval Office conversations led to his resignation.

Other presidents have relied on the doctrine to shield their operations from scrutiny. The Clinton administration avoided disclosure of the deliberations of the president’s health care reform task force because First Lady Hillary Clinton was considered to be a government employee under the relevant legislation. This admittedly strained interpretation allowed the courts to avoid ruling on the question of whether executive privilege applied to conversations between government officials and people outside of government.

As in other areas, the Bush administration has even more energetically sought to keep information about many of its activities, even those with no sensitive national security implications, from public view. For instance, the administration resisted a request for disclosure, based on legislation covering “advisory committees,” of the names of participants and results of discussions by members of the Vice President’s National Energy Policy Development Group. The administration lost in the lower courts, but was partially upheld by the U.S. Supreme Court, which sent the case back to the District Court for reconsideration. The D.C. Circuit Court of Appeals ultimately refused to order disclosure based on its interpretation of the relevant statute, based on the fact that several government officials served on the Group.

Elsewhere the administration’s case for secrecy has been more frivolous and less well received. For instance, the administration attempted to keep secret visitor logs detailing Christian leaders who visited the White House and vice president’s residence. Earlier this month the D.C. Circuit distinguished this case from the energy group decision and ruled that the logs were not the property of the White House—which took custody from the Secret Service (part of the Treasury Department) in order to thwart a request under the Freedom of Information Act—and ordered their release.

These cases centered on statutory interpretation. The Bush administration also has more directly used the doctrine of executive privilege to resist disclosures to Congress, even as part of investigations of potential executive wrong-doing. For instance, at a recent hearing of this Committee, Karl Rove refused to appear, based on advice of the White House Counsel, to discuss his role in possible meddling in Justice Department prosecutions. Last year White House Chief of Staff Josh Bolten and former White House Counsel Harriet Miers similarly refused to obey committee subpoenas to appear to discuss the firing of U.S. attorneys; the House voted to hold them in contempt.

The House Committee on Oversight and Government Reform has been investigating the White House’s involvement in the disclosure of Valerie Plame’s employment by the CIA. In June Chairman Henry Waxman pointed out to Attorney General Michael B. Mukasey that “In his interview with the FBI, Mr. Libby stated that it was ‘possible’ that Vice President Cheney instructed him to disseminate information about Ambassador Wilson’s wife to the press. This is a significant revelation and, if true, a serious matter. It cannot be responsibly investigated without access to the Vice President’s FBI interview.” However, in an echo of the Watergate controversies, Mukasey refused to comply, citing fear of “the chilling effect that compliance with the committee’s subpoena would have on future White House deliberations.” The White House cited executive privilege in refusing to turn over the FBI interview, even though the vice president’s chief of staff had been convicted of perjury.

In an extraordinary twist on the doctrine of executive privilege, the Bush administration announced last year that it would not allow any U.S. Attorney to pursue a contempt citation on behalf of Congress. By attempting to control federal employees who also are officers of the courts, the administration attempted to place itself beyond effective accountability by any person or institution. Mark Rozell of George Mason University termed this position “astonishing” and “a breathtakingly broad view of the president’s role in this system of separation of powers. What this statement is saying is the president’s claim of executive privilege trumps all.” Indeed, if sustained, Rozell added, this position will allow “the executive to define the scope and limits of its own powers.” As a result, the House has filed suit to enforce its subpoena, the first such lawsuit in history.

“STATE SECRETS” DOCTRINE

Another doctrine used by the executive branch to the detriment of the constitutional separation of powers is the so-called “state secrets privilege.” According to this doctrine, the executive branch refuses to release information in court cases on the grounds that disclosure would harm “national security.” First recognized by the U.S. Supreme Court in 1953, the doctrine has been treated as well-nigh absolute by some judges.

In this case, like many others, there is an obvious basis for shielding sensitive information in extraordinary instances from public view, even to the detriment of a valid lawsuit. However, again, a legitimate doctrine has been twisted to frustrate cases that might expose government wrong-doing and executive misconduct. As a result, government accountability, and redress of wrongs suffered by individuals as the result of government action, have suffered greatly.

For instance, Khalid El-Masri filed a civil case against the U.S. government in a case involving “extraordinary rendition,” in which the government illegally detained Mr. El-Masri in a case of mistaken identity. The trial court judge accepted the government’s claimed “state secrets privilege,” which thwarted disclosures necessary to prosecute the case. A similar result was reached in a similar case by Canadian Maher Arar, who was deported, based on false information, by the U.S. to Syria (he was a dual citizen), where he was apparently tortured. The Bush administration also invoked the state secrets privilege to defeat lawsuits challenging the government’s unlawful FISA surveillance program.

Although judges can order, and have ordered, disclosure of disputed documents and other information to them for in camera screening, too often courts have given inordinate deference to executive branch claims. But the privilege should be treated as qualified, not absolute. A government refusal to allow judicial inspection could be met with forfeiture of the case. Congress could assist the judiciary by holding hearings and drafting legislation clarifying the authority of judges, procedures to be used to adjudicate executive claims of state secrecy, and sanctions to be imposed for the executive branch’s refusal to comply.

CONGRESSIONAL OVERSIGHT

Unfortunately, Congress has been at least impartially complicit in this and other presidential “power grabs.” It repeatedly has acquiesced to President Bush’s unilateral actions. It has failed in its constitutional obligation to make the laws and to oversee the executive branch to ensure that the latter properly implements the laws passed by Congress.

Enforcing presidential compliance with the law is not easy, especially since a pattern of executive law-breaking has been established. However, the people—the citizens in whose name this House and the rest of the government act—can and should insist that those elected president, this coming November and in the future, respect the separation of powers and other constitutional limits on their authority.

Taking an oath to “preserve, protect and defend the Constitution of the United States” requires no less.

Moreover, the legislature has many tools at its disposal to promote respect for the nation’s fundamental law. It can enlist the courts, of course. It can use its power to hold oversight hearings, backed by the power to subpoena and hold executive officers in contempt. It can refuse to confirm presidential appointments.

Most fundamental is its power to control appropriations. Congress can shape funding in the relevant area to encourage compliance with the law. Moreover, broader retaliation, though less desirable, is another possibility. For instance, the Reagan administration’s attempt to thwart explicit congressional guidelines over federal contracting led to a vote by this Committee to defund the Office of the Attorney General. A compromise was reached: Congress funded the Attorney General’s Office while the administration complied with the law.

The most important requirement is that Congress treat seriously its responsibility to uphold the Constitution. Neither the Bill of Rights nor the separation of powers are self-enforcing documents or principles. The legislative branch has a critical role to play.

The Constitution creates explicit guarantees for individual liberty and limits on government power out of the recognition that even the best-intentioned public officials working to achieve the most public-spirited aims make mistakes. That surely has been evident during the so-called “Global War on Terror,” in which more than a few innocent people have been not just detained, but also imprisoned and tortured. The Bill of Rights and the separation of powers are not mere technicalities, but essentials of our government and our entire system of ordered liberty.

I know this Committee understands that the president’s quest for intelligence and desire for flexibility, legitimate as they are, should not be allowed to serve as a subterfuge for circumventing constitutional protections for liberty and restrictions on presidential power. U.S. District Court Judge Royce Lamberth, appointed by President Ronald Reagan, has reminded us that, “[w]e have to understand you can fight the war [on terrorism] and lose everything if you have no civil liberties left when you get through fighting the war.”

The temptation to cut constitutional corners is not the province of any one party. Rather, it grows when one party controls both the executive and legislature. Then party comity sometimes overrides institutional differences, as it did most recently between 2001 and 2006.

But our constitutional system, and its commitment to limited government and individual liberty, is based both on a series of explicit guarantees that constrain the use of government authority, and a structure that divides government authority. As such, the separation of powers, with the checks and balances expected to naturally follow, is the bedrock foundation of American constitutional government. It is a foundation clearly in danger of crumbling.

Bob Barr is the Libertarian Party candidate for President and a former member of Congress from Georgia.

It is a project long overdue. We know how America runs best, when it worked best and what levels of government are most appropriate. We just need to back up and pare down. I do not know anyone who thinks the Post Office mentality operates any organization better than free people do.

We know our Declaration of Independence qualifies the role of free people and their government, and we know our Federal Constitution, as originally put forth, helped shape the way America functioned organizationally. If that is so, then we need only move back to a time when everything was best. America proved best for all people when compared to all other styles and forms of civil organization.

We know, from our history, government closest to the people works best. When a majority decides how things must run and those elected to do it, people do best. The Cities and Counties are the basic seats of government. Beyond those levels, responsible for the tasks involving everyone in all the cities, counties and even the states, are the State and Federal Governments.

The people-to-people relationships once defined in local charters, state constitutions, and the Federal Constitution and its first ten amendments, suited our needs. Most everything beyond these early charters has been to confuse, disrupt, meddle and dislocate, and to assign to free people a view of their inability to care for themselves.

The growth of Federal Departments, with Cabinet Secretaries, has served to confuse and disrupt duties, which are, for the most part, 10th Amendment functions for the local and state governments, and the people.

We need a State Department to deal with our foreign relations. We need a Defense Department to be responsible for defending our nation. We need a Treasury Department to make certain our monetary relationships are stable. We can even say we need an Interior Department to coordinate relationships between homeland governments. We need a Justice Department to handle federal laws, courts and the FBI.

How can we justify all the other Departments, such as Education, Energy, Housing and Urban Development, Commerce, Labor, Health and Human Services, Transportation and Veteran’s Affairs? Most of their functions ordinarily belong, if at all, to the local governments and the people.

Get rid of the excess Departments and pare the Fed down. All those departments do is duplicate functions of local and state governments, and interfere with them. They contribute nothing to the efficiency or operation of local agencies involved in their responsibilities. Things worked well before they got involved.

The 10th Amendment to the Constitution was right and proper and should be observed.

Ridding the Fed of these Departments removes much of the money-magnets attracting lobbyists and corrupting Representatives, Senators and bureaucrats. A Constitutional Convention called to do this job would invite irreparable harm by special interests and social tinkering. Too many altruistically bent do-gooders out there see themselves as needed elite to manage the affairs of Americans.

Give them a hand in the process and we are back to communalism, socialism and communism, where the representatives of the unwilling and incapable crush the efforts of the doers and builders of a free society. Allow the contents of the Treasury to shape the process, and greed sets the tone. Avoid revocation of Constitutional Amendments, as it would slow the process in getting enough people to accept changes. I speak here of the 16th Amendment, allowing direct taxation, and the 17th Amendment allowing direct election of United States Senators.

To simplify it all, just revoke laws establishing departments and bureaus that have no real value to liberty. It would be an easier task. Only those who now profit from one or another agency will fight when their purses are deprived.

A Party Convention should find and nominate candidates who will pledge to reduce the size and scope of the Federal Government. They would provide voters with a plan and approach to stop all new hiring at the Federal Level, drastically cut the budgets for each Department to be phased out, sending whatever essential functions they have back to the states. They would campaign on returning the Republic back to its best times, keeping whatever changes do not conflict.

It would be a tall order. It would require each candidate to step out and sing the praises of the Republic in its hey-day, not the rewritten historical views of Hollywood and the left.

This would be the approach least encumbered by legal roadblocks, but it would be the program demanding the most courage and commitment on the part of candidates. It would also require control of both Houses of Congress as well as the White House.

The Latin term “fiat” roughly translates to “there shall be”. When we refer to fiat money, we are referring to money that exists because the government declares it into existence. It is not based on production or earnings, and not backed by any commodity. It is solely based on trusting the government.

Fiat money is exchanged in the economy as long as there is faith in the government that issues it.

Some are blaming the recent shakeup in the markets to “whining” or financial fear-mongering, which misses the whole point. History has shown that fiat money, or “faith-based currency” always fails, because when governments claim this power, they always behave irresponsibly.

When government has the ability to create and spend all the money it wants, priorities shift, and the concept of budgeting, as most Americans know it, loses all meaning. Hand a teenager a credit card, and tell him there is no limit and no accountability for what he spends, and the effect would be the same. You see, this problem is not unique to our government.

It is a predictable outcome based on human nature, and we’ve seen variations of what we are experiencing now happen over and over throughout history. I didn’t have a crystal ball or a fortune teller when I predicted this 3, 7, or even 30 years ago. Actions have logical consequences. The government becomes the reckless teenager with the credit card, and in the end, the taxpaying citizens get the bill. What happens after that is never pretty.

This is why our founding fathers considered, but decidedly rejected the creation of a national central bank. They understood that governments, even the best of governments, cannot control spending. Even the current administration, which promised strict fiscal responsibility, has had to increase the national debt limit by 65 percent to keep up with its spending sprees.

Every dollar created and spent by government makes the dollars in your pocket worth less and less. Eventually any currency controlled by government will be debased to worthlessness, and will wipe out the savings of the citizens who put faith in that currency.

Hard currencies, on the other hand, force governments to remain in check, strictly limited to the revenues they can raise from the country’s economic health. This is also an incentive for government to stay out of the way of productivity. The hyper-regulation in today’s economy demonstrates that this is no longer the case. What does it matter if the economy is crippled and the tax-base eroded, if government can create whatever dollars they need to keep the special interests happy?

We have been building economic castles on the sand, and the tide is coming in. The answer is not to bring in more sand, but to move to more solid foundation.

So yes, it is true that many are complaining about our economic trouble, but our economic trouble is not caused by their complaining. Many are being forced to wake up to the predictable troubles associated with faith-based currency. As more people notice the hardships, more will lose faith.

We are long overdue for a course correction and I can only hope that this awakening translates to a solid approach to currency reform.

Ron Paul is a republican member of congress from Texas.

At the time, the two major political parties were the Federalists (led by John Adams and Alexander Hamilton) and the Democratic-Republicans (led by Thomas Jefferson and Aaron Burr - who actually killed Hamilton in a duel!).

The Sedition act was an effort, in practice, to silence opposition press and stifle Democratic-Republican criticism of the Federalists.  Sounds familiar, doesn’t it?

It outlawed conspiracies “to oppose any measure or measures of the government” and made “false, scandalous and malicious writing” against Congress or the president punishable by fine or imprisonment.

First Amendment and free speech be damned!

Democratic-Republican Vice President Thomas Jefferson argued that the act granted too much power to an already authoritative government. He asserted that the 10th Amendment rendered the Sedition Act unconstitutional.  This was on the basis that the 10th reserves to the states and people all powers not specifically granted to the federal government by the Constitution.

But, as to be expected in political battles, Federalists contended that the Sedition Act was “necessary” to ensure that Adams could fulfill his obligations as President without interference - and maintain peace against a threat of war with France.

So, right from the beginning, politicians in the United States have used fear and security as a pretext for passing legislation that violates the Constitution - and severely limits liberty.

The act remained in place until 1801, when it expired upon Jefferson’s inauguration as president. Jefferson pardoned all 24 citizens who had been prosecuted under the statute.

The important thing to note here, though, is the correctness of Jefferson’s position - powers not granted to the US Federal Government are prohibited.  The 10th Amendment makes this quite clear:

“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.”

“Sedition” is part of the American tradition - the Founding Fathers were traitors to England and patriots to a not-yet-formed new country.  This is why free speech and limitations on the powers of government much be enforced.

Frank I. Cobb had something to say on this too:

“The Bill of Rights is a born rebel. It reeks with sedition. In every clause it shakes its fist in the face of constituted authority… it is the one guaranty of human freedom to the American people.”

One of the unappreciated casualties of the War of 1861, erroneously called a Civil War, was its contribution to the erosion of constitutional guarantees of state sovereignty. It settled the issue of secession, making it possible for the federal government to increasingly run roughshod over Ninth and 10th Amendment guarantees.

A civil war, by the way, is a struggle where two or more parties try to take over the central government. Confederate President Jefferson Davis no more wanted to take over Washington, D.C., than George Washington wanted to take over London. Both wars are more properly described as wars of independence.

Oklahomans are trying to recover some of their lost state sovereignty by House Joint Resolution 1089, introduced by State Rep. Charles Key.

The resolution’s language, in part, reads:

“Whereas, the Tenth Amendment to the Constitution of the United States reads as follows: ‘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.’; and Whereas, the Tenth Amendment defines the total scope of federal power as being that specifically granted by the Constitution of the United States and no more; and whereas, the scope of power defined by the Tenth Amendment means that the federal government was created by the states specifically to be an agent of the states; and Whereas, today, in 2008, the states are demonstrably treated as agents of the federal government. … Now, therefore, be it resolved by the House of Representatives and the Senate of the 2nd session of the 51st Oklahoma Legislature: that the State of Oklahoma hereby claims sovereignty under the Tenth Amendment to the Constitution of the United States over all powers not otherwise enumerated and granted to the federal government by the Constitution of the United States. That this serve as Notice and Demand to the federal government, as our agent, to cease and desist, effective immediately, mandates that are beyond the scope of these constitutionally delegated powers.”

Key’s resolution passed in the Oklahoma House of Representatives with a 92 to 3 vote, but it reached a bottleneck in the Senate where it languished until adjournment.

However, Key plans to reintroduce the measure when the legislature reconvenes.

Federal usurpation goes beyond anything the Constitution’s framers would have imagined. James Madison, explaining the constitution, in Federalist Paper 45, said, “The powers delegated … to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, [such] as war, peace, negotiation, and foreign commerce. … The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people.”

Thomas Jefferson emphasized that the states are not “subordinate” to the national government, but rather the two are “coordinate departments of one simple and integral whole. … The one is the domestic, the other the foreign branch of the same government.”

Both parties and all branches of the federal government have made a mockery of the checks and balances, separation of powers and the republican form of government envisioned by the founders. One of the more disgusting sights for me to is to watch a president, congressman or federal judge take an oath to uphold and defend the United States Constitution, when in reality they either hold constitutional principles in contempt or they are ignorant of those principles.

State efforts, such as Oklahoma’s, create a glimmer of hope that one day Americans and their elected representatives will realize that the federal government is the creation of the states. A bit of rebellion by officials in other states will speed that process along.

Walter E. Williams is a professor of economics at George Mason University.

COPYRIGHT 2008 CREATORS SYNDICATE, INC

When looking at the constitutionality of government programs, it’s not necessary to be a law student, or an “expert” of any kind.  The founding fathers wrote the Constitution in plain English - so that ordinary people would be able to understand the law…that governs the government.

First, we need to understand just what the federal government is authorized to do.  John Munchmeyer put it quite well:

Article I, Section 8 of the Constitution specifically lists or enumerates the powers of the federal government.  They include a military, federal courts, etc.  The 10th Amendment clearly says that unless a function is specifically listed in the Constitution, it is left to the states or the people.  The founders set up a system where there was competition among the states for the best ideas.

On any given topic, some states would perform well, some would pass imprudent laws, and some would stay out of it completely (which is my particular favorite option).  But there was competition, and competition breeds excellence.

Yes, you would have a couple bad apples, but these would soon reform under the pressure of that competition.  It is better than focusing all of the power in Washington and having one huge rotten apple.  The top-down, centralized government model is a failure, just like it was in the former Soviet Union.

The guiding principle under which the founders drew up the Constitution was this little thing called “positive grant.”

What this means is quite simple. The federal government is authorized to exercise only those powers which are positively granted to it by the Constitution. If a power is specifically listed in the Constitution, the federal government can do it. And, vice versa.

This principle was so important to the founding fathers that they codified it in law as the 10th Amendment:

“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.”

Simple, right? Well, you’d think so, but it’s in the nature of government - and politicians - to ignore any rules that limit their power. And that’s why we see both the 10th Amendment, and the entire Constitution, becoming more and more irrelevant in political discussions in Washington D.C.

In short, the 10th Amendment specifically limits the federal government to just those powers and functions named in the Constitution. And the 9th Amendment makes it clear that the people also have many other rights the government must respect, extending far beyond those actually named in the Bill of Rights:

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

A quick glance at most federal legislation would make virtually any honest person see that almost everything the federal government does is in direct violation of the Constitution.

This holds quite true for Freddie and Fannie - and for taking your money to keep these failing organizations in business.

Steve Austin chimes in as well:

I know this is going to be a shock to some, but the Federal Gov’t under the Constitution has absolutely no reason or excuse to involve itself in housing for the poor or to help people who got themselves into troubled mortgage loans.

They may have a tort, they certainly merit our concern, and perhaps the several states may wish to help them out depending of the gullibility of their citizenry and the political weakness of their legislatures, but, NO - there is no room for such as Title 8, Fannie Mae, Freddie Mac, or any of the literally dozens of housing program piglets suckling off the sow known as the U.S. Treasury. Not in this universe.

Any leader evn talking positively about this intervention would be a stranger to the Founding Fathers.

So, while many would argue that jobs will be saved, or that it’s “essential” to the economy - it doesn’t really matter if those positions are right or wrong.

Under the system of government that the founders enshrined in the US Constitution - the very existence of Freddie Mac and Fannie Mae (as anything other than a purely private business) is a violation of the Constitution.

Thus, taking more of your money to pay for its failures a far more in line with something that would’ve fit far better in a government under Joe Stalin than that of Jefferson, Washington and the rest.

What will it take to get our troops out of Iraq?   The roughly 70 percent of Americans who are firmly against the war often ask this question.  Those in power are reluctant to give conditions, but when they do and those conditions are met, the goal post is quietly moved.

Voters were promised, passionately and vehemently, that the new Congress would bring our troops home.  Many were explicitly elected in 2006 under that banner.  But our troops are still overseas, funding has been increased even beyond the administration’s wish list, and troop withdrawal has been negotiated away.

When things are going badly in Iraq, they say we must stay until the situation improves.  When things improve, they tell us we must stay because our gains cannot be jeopardized.

We are told that we must establish a functioning democracy there, and train Iraqi armed forces so they can keep order in our absence.  Iraq now has a Constitution, an elected parliament, and hundreds of thousands of security forces.  The problem now is that their troops are supposedly not trained quite well enough, and that could take many more years.  Defining an adequate training level for Iraqi troops is highly nebulous and its anyone’s guess when or how that criteria could be satisfied.

The latest outrage came last week.  For years we heard the administration claim over and over that the Iraqi government wants us there, and is begging us to stay.  On the other hand, all they had to do was ask and we would respect their wishes and leave.  That also has now happened.  Al-Maliki perhaps took his cue from his challenger, al-Sadr, who has been clamouring for us to leave for years.  Popular opinion in Iraq now mirrors that in the United States, with about 70percent of Iraqis wishing us to leave.

At the end of the year, our Status of Forces Agreement expires.  Without a new agreement and understanding with the Iraqi government regarding our presence there, we officially become occupiers.

Eventually our troops will leave Iraq.  The overwhelming will of the people, in both countries, can’t seem to get them out.  Things going well can’t get them out.  Things going badly can’t get them out.  Iraqis telling us to leave can’t get them out.  Perhaps not even the UN can get them out.  My hope is that it does not take the complete collapse of our financial system, but if we don’t leave under any other circumstances, economic chaos is inevitable, and will make it impossible to fund the war, even through debt and inflation.

We have been financing this war through inflation, and attempting to paper over reality with misleading economic indicators.  The government has changed the methodology of calculating things like CPI and GDP to hide the bad news.  They won’t even publish M3, the total money supply statistic anymore.  But reality is hitting the American people at gas pumps and grocery stores, sending more Americans into foreclosure and unemployment lines.  More are hurting while Washington keeps forgetting its promises.  Eventually, this will all come to a head.

Perhaps an even greater fear is that even if our financial trouble doesn’t get our troops out of Iraq, moving them over to fight a new war in Iran, will.  Washington should be crystal clear on this very important point – just getting the troops out of Iraq means nothing.  Bringing them HOME means everything, and that is what the people in both countries demand.

Article II, Section 2 of the Constitution gives to the Executive Branch the command of the nation’s armed forces, while Article I, Section 8 gives to the Legislative Branch the power to decide when the United States goes to war.

Presidential candidate, Bob Barr has taken a strong stand in support of the Constitution in a recent post on his website:

“Former Secretaries of State James Baker and Warren Christopher have proposed a new statute to encourage the president and Congress to cooperate in going to war.  But the Constitution already sets forth a clear rule:  Congress, and only Congress, is tasked with declaring war,” explains Bob Barr, the Libertarian Party presidential candidate.  “Absent exigent circumstances, like defending against a surprise attack, only Congress has the authority to take America into a conflict.”

When crafting the Constitution, the founders weighed the individual will of the Executive against the deliberative function of the Legislature, whose constituents would bear the full costs of any war.

Thus, the framers deliberately separated the powers of declaring and waging war; they confined these powers in such a way so as to thwart the tyranny of kings.

Despite being known as one of the greatest champions of centralized power of the times, even Alexander Hamilton felt that the President must generally bow to Congressional directions in times of peace and also in times of war. He stated this clearly in Federalist #69:

“The President is to be commander-in-chief of the army and navy of the United States. In this respect, his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces.; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies - all which, by the Constitution under consideration, would appertain to the legislature.”

Our nation’s founders were far from perfect, and at times, inconsistent and unjust; but, on the powers of war, they were unwavering, and their principles were sound.

Barr again shines in his recognition of the separation of war-declaring vs war-making powers:

“presidents must acknowledge that being military commander-in-chief does not entitle them to take the nation into war.  Rather, they are to fight only conflicts authorized by Congress,” Barr observes.  “At the same time, Congresses must be willing to confront tough issues, rather than leave them for the president.  Legislators have no higher responsibility under the Constitution and to the voters than to decide when Americans must fight abroad.”

One obvious reason for dividing the war powers was to prevent such massive powers from being placed in the hands of one person, the President.

The framers understood that, throughout history, rulers of nations worldwide had begun wars strictly on the basis of international politics or personal desires.

They clearly understood that rulers would often get the urge to remove foreign public officials, or dictate the policies of foreign nations, and that such urges are dangerous to liberty, no matter what the reason.

The reason for entrusting the Legislature with the power to declare war was to ensure that the People would be involved in the decision as much as was physically possible.

What the Framers did not imagine was a weak and ineffectual Congress that failed to claim its rightful authority in deciding when the nation would go to war, or a power-hungry President that wouldn’t refuse an extra-constitutional transfer of such power from Congress.

By rejecting the advice and the rules laid down by the founders and early Presidents, our recent leaders have gone so far astray from warnings against entangling alliances, that the founders would hardly recognize the government they created.

Policing the world and “spreading democracy” is not our calling. Additionally, no such action is permitted by the Constitution.

A quick perusal of the Declaration of Independence makes it quite clear:

That all people are created equal.

That they are endowed with certain unalienable rights, among which are life, liberty and the pursuit of happiness.

That to secure these rights, people form institutions known as governments - to rule over them - by their own consent.

That, when a government becomes destructive to these ends, it is the right of the people to alter or abolish it.

The founders eventually drew up the US Constitution to form a government that would protect these rights.  While there were some who would’ve preferred a different form of government, what they ended up with was one that was supposed to be strictly limited to specific functions only.

Why did they do this?  Well, it’s quite simple.  When just a few people can determine the rules for an entire nation, people have nowhere to run to - nowhere to escape - when bad leaders create and enforce bad laws.

Think about it.  If Hitler had ruled just Berlin and Stalin had ruled just Moscow, the whole world might be a different place today.

Jacob Hornberger at the Future of Freedom Foundation shed a little more light on this issue in a recent post:

Why did Americans deem it desirable and necessary to limit the powers of the federal government? Because they feared the possibility that their new government would become like their former government against which they had had to take up arms.

While they recognized the necessity for government - as a means to protect their rights - they also recognized that the federal government was the greatest threat to their rights. By severely limiting the powers of the federal government to those enumerated within the Constitution, the Framers intended to encase the federal government within a straitjacket.

This was a serious issue to the founders - so they wrote the Constitution under what’s known as “positive grant.”  This meant that the government would have the authority to exercise only those powers which were specifically given to it in the Constitution.

Nothing more and nothing less.

This principle was so important to them that they codified it in law under the “straitjacket” of the 10th Amendment, which reads:

“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.”

Hornberger clearly recognized this principle when he writes:

Governments are called into existence by the people - and exist at their pleasure - for one purpose: to protect the exercise of these inherent rights.

Hopefully, people in America will someday start recognizing that the role of the Federal Government should be simple and limited - and that, while far from perfect, the founders showed great wisdom when setting up a government in such a manner.

When that day comes, we’ll surely see liberty and prosperity reign.

If there were ever a time where the founding principle of America, as a nation, is justified again, it is the issue of state sovereignty.  The notion of multiple governing entities, contractually united for a few common and limited purposes, where all else are functions of each state, is apparent in the campaign of 2008.

Here’s why.  On the one hand, we have a young, highly intellectual, quick-thinking, ambitious, good-looking man seeking to be our new compassionate socialist dictator running for office against an old airhead.  The old airhead, easily manipulated because of his arrogance, self-centeredness and vacancy of intellect, is always in a corner defending and speaking without factual knowledge.

McCain assumes any attack from the other side against his people is immediately correct, and his reaction is to condemn his people before checking the facts.  He also tries to justify his older positions, which have been shown unjustifiable, by compromise, as he always seeks to compromise with his opposition even before debating on an issue.  This is driven by a fear of looking bad; a weakness the other side orchestrates.

The young man, Obama, wants everyone to simply hand over his or her liberty to him.  He says he will watch over it and hand back that which he decides is needed from time to time, but use the rest in order to better manage the nation and its economy, all of which he wants us to accept that he is capable of doing.

If we were still holding onto the principles of the founder’s of America, maintaining the position of sovereignty of each state, then the damage done by people like Obama and McCain would be limited to a state, as was the ruin of Louisiana by Huey Long. 

The limits placed upon the central government would allow little damage by men like these tinkering as they plan to do.  After all, the central government’s only role was to protect our nation and make sure one state did not intervene in the business of another.

We dismantled those principles under Lincoln, and continued the march to dictatorship ever since, and now we have Obama who will run the whole shootin’ match as he sees fit, because we love him and want change.