If Unconstitutional Republicanism Triumphs, The Constitutional Standard Is History

I recently posted about what I think is a practical and necessary prescription for campaigning, pursuing, and unifying all Republicans. It is hardly a novel ambition, but has become ever more so in the popular culture, only nominal in the Democrat party, and unfortunately quite endangered in the Republican Party. I modified those comments and asked for another posting days later. I hoped to generate more comments and acknowledgment on what is a critically important matter: that a conservative party in The United States should unite in advocating for and pursuing the principles of The Constitution. The overt response was still not like some postings. I know some subjects and suggestions are provocative, but I don’t write merely to provoke. I would hope that the subject of respect for The Constitution would inspire interest and reaction.

But recent discussion about health care raises a useful measure for distinguishing between two types of Republicans. And I don’t mean between conservatives and heretics, liberals or epithetically so-called “RINOS,” which is not a very illuminating description. Let’s define a clear distinction that doesn’t hinge on specific litmus test issues. One conservative holds not only to an ideal but also to an objective of constitutional principle. That ambition calls for a leader, especially today. Another conservative may have similar ideals. But his major appeals will be to polls and pop-culture doctrines. Bob Dole was a good man when he won the Republican nomination in 1996. But he was not a statesman for American values. He was administrator still in the pre-Reagan wake of the New Deal. I was a delegate to the Texas Republican Convention in San Antonio that year. But I had no interest in trying to become a delegate to the national convention in San Diego for the coronation of the man to whom I had applied the saying, “Yonder go my people. I must hurry for I am their leader.”

And many Republicans are still operating in that way. I hear Republicans including good and smart ones who have truly conservative beliefs of what works in society, saying that Republicans should offer an alternative to Obamacare that keeps coverage for preexisting conditions and maybe retains keeping children under 26 years of age on their parents plan, which essentially implies that they should retain a federal mandate that insurers must cover preexisting conditions. A) This is idiotic! It is not even insurance, and it guarantees rapidly escalating costs for as long as insurance companies can hold on. And what then? This is the kind of foolish half-Democrat foolishness that finds Republicans in the middle of social messes of their own making for which they are thrown out of office in favor of greater “progressivism!” A federal mandate of this sort is unconstitutional just as the current so-called (and typically misnamed) Affordable Care Act is. That is clear. A majority of The Supreme Court does not make falsehood true.

But it is law school convention today, that The U.S. Supreme Court is the final arbiter of what is constitutional. But The Constitution does not say that. Who said that? The Supreme Court itself ruled that The Supreme Court is the final arbiter. How CONVENIENT! This was first asserted by The Supreme Court in the case of Marbury vs. Madison in 1803 during Thomas Jefferson’s first term as president. But Jefferson himself scorned the idea of a judicial oligarchy, saying The Constitution describes no such thing. He said the 3 branches of government are co-equal and each should make the final determination in their own duties. They may take counsel in the opinion of The Supreme Court, but are not bound to it. Jefferson wrote in many places on authority regarding constitutionality, but here are just a few comments on what he describes as a potential despotism of the judiciary:

"The Constitution... meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch." --Thomas Jefferson to Abigail Adams, 1804.

"To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves." --Thomas Jefferson to William C. Jarvis, 1820.

"In denying the right [the Supreme Court usurps] of exclusively explaining the Constitution, I go further than [others] do, if I understand rightly [this] quotation from the Federalist of an opinion that 'the judiciary is the last resort in relation to the other departments of the government, but not in relation to the rights of the parties to the compact under which the judiciary is derived.' If this opinion be sound, then indeed is our Constitution a complete felo de se [act of suicide]. For intending to establish three departments, coordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone the right to prescribe rules for the government of the others, and to that one, too, which is unelected by and independent of the nation. For experience has already shown that the impeachment it has provided is not even a scare-crow... The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please." --Thomas Jefferson to Spencer Roane, 1819.

"This member of the Government was at first considered as the most harmless and helpless of all its organs. But it has proved that the power of declaring what the law is, ad libitum, by sapping and mining slyly and without alarm the foundations of the Constitution, can do what open force would not dare to attempt." --Thomas Jefferson to Edward Livingston, 1825.

And that is exactly what is implied with the Democrat doctrine of “a living document” and the clear indifference of “progressive” judges to the original intent of the framers of The Constitution. I supported Newt Gingrich for president in 2012, mostly because he unlike any national candidate in my lifetime, thought the court was out of control and, looking at history not contemporary legal consensus, thought it should be brought to account by the other two branches to explain apparently unconstitutional opinions.

There must be Republicans who know very well that the framers of The Constitution would be scandalized at and summarily reject the notion of the federal government mandating the purchase of a health care plan; particularly one that is defined and controlled by the federal government. Even Democrats may understand this. The difference is that they make little pretense of caring. For them, The Constitution is “a living document” you know, which is basically to say that The Constitution means whatever we wish it to mean in our circumstances. Effectively, The Constitution objectively means nothing but what we say it means. Bluntly, in this case I say burn it and honestly declare the United States a pure democracy, not a constitutional republic. The American founders had contempt for the tyranny of a pure democracy, just as any other tyranny. That’s why The Constitution was written to protect the rights and liberties of people and states against tyranny of any sort.

Polls are said to tell us that most people like these provisions of Obamacare that some Republicans think must be preserved. That’s why they need a leader to tell them that “affordable” mandated insurance with mandated provisions is a fantasy. Even insurance companies that are now established and moneyed enough cannot carry this out for real long. With the mandate, they may collect a short-term dollar for as long as they can. Less moneyed insurers will just fold up sooner, which may extend the life of the surviving ones. But what happens next is a complete government takeover. But that won’t stop the cost escalation. And the American government is now the most indebted entity in the history of planet earth. The only thing that government has over insurance companies is the ability of The Fed to fabricate currency from thin air, which only decreases the value of each dollar against the goods and services in the market. And aside from accumulating debt, America has already also fabricated unprecedented amounts of unsubstantiated currency.

Given both facts, there is a point ahead where American bond purchases will slow or stop. I think a more sudden stop is likely after any or a combination of a) loss of reserve currency status, b) a big credit downgrade, or c) a sharp economic downturn and/or general price inflation. These could set off economic quakes and panic. A reform to a constitutional standard can put the nation on a path of recovery that tells creditors we will continue to function even with the debt and currency devaluation on our back. An America liberated from unconstitutional legislation and regulation can grow and at least encourage creditors that we might be good for the long haul of servicing our stupendous debt. Then perhaps rather than slamming the window on our credit, they might accept what we’d pay over time. We could be like a once solid borrower who got into impossible debt, but regained a good income and was allowed to pay what he could over time. In those cases, something beats nothing.

But if Republicans will propose an unconstitutional alternative to Obamacare, it will also eventuate in problems. And who but they will be responsible then? But also, America succeeded like no nation in history because of its constitutional principles of liberty on a foundation of fundamental civil rights of life, liberty and property. America has already invaded liberty and property in other legislation like Social Security and Medicare. What we need is for projects like these to be remanded back to the states. I never supported Mitt Romney in presidential primaries. But one thing he was right about is that such mandates were not unconstitutional for a state but were for the federal government. States can be laboratories where ideas can be tested and accepted or revoked. Nationwide that is another matter. But if both political parties are going to throw those principles of The Constitution in on the table of political negotiation, America will fail like every other nation in history. This constitutional republic will probably be doomed.


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