American constitution

Conned about marriage, constitution and ‘states’ rights’

by Ilana Mercer

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The ban on the ban is unconstitutional.

This was the gist of broadcaster Mark Levin’s angry tirade against the humdrum, and certainly predicable, decision of a federal judge to strike down “Oklahoma’s voter-approved ban” on gay marriage.

At the center of conservative contretemps are similar decisions in California, New Mexico and Utah, following on which U.S. District Judge Terence Kern had “determined that Oklahoma’s constitutional amendment” violated the 14th Amendment’s Equal Protection Clause. It stipulates that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Broadly speaking, WND’s Alan Keyes concurred with Levin, alluding to the Constitution’s 10th and Ninth Amendments by which “the judges and justices of the federal judiciary are forbidden to … deny the antecedent rights retained by the people.”

Indeed, “the prevailing view in 1791,” observed The Honorable Robert T. Donnelly, former chief justice of the Supreme Court of the state of Missouri, “was that the national government had only delegated powers and that reserved to the people was an undefined sphere of non-government within which people may not be interfered with by government.”

But that was then.

In voiding “voter-approved law,” Justice Kern has resorted to perfectly proper 14th Amendment judicial activism. Deploying the Equal Protection Clause of the 14th Amendment, Kern nullified the 10th. It specifies that, “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.”

As expressed in the once-impregnable 10th Amendment, the Constitution’s federal scheme has long since been obliterated by the 14th Amendment and the attendant Incorporation Doctrine.

What does this mean?

If the Bill of Rights was intended to place strict limits on federal power and protect individual and locality from the national government—the 14th Amendment effectively defeated that purpose by placing the power to enforce the Bill of Rights in federal hands, where it was never intended to be.

In their love of Lincoln and the 14th, conservative constitutional originalists will disagree. They’ll say the 14th was meant to limit the power of the states and enlarge the power of Congress, not the Courts. “Congress, not the Court,” was to “implement the provisions of the 14th Amendment,” subject to judicial review.

And that’s somehow a good thing?

They “say tomato, I say tomahto.” As I see it, the 14th Amendment was a gargantuan grant of power to the federal government. That the judiciary has done what was left undone by Congress does nothing to alter the dismal outcome for liberty. The 14th spelt the demise of our Constitution’s decentralized dispensation.

Either way, the freedoms afforded by federalism are no longer because American federalism is no longer.

“The natural progress of things [being] for liberty to yield, and government to gain ground,” this inevitable momentum, in the form of the invented legal doctrine of “selective incorporation,” soon progressed—regressed is the right word—to complete incorporation.

A précis of Incorporation-Doctrine jurisprudence in the legal dictionary admits that “most provisions of the Bill of Rights were eventually incorporated to apply to the states.”

Put differently, matters previously subject to state jurisdiction have been pulled into the orbit of the judiciary.

Among other legal decisions to have been implicated by Justice Donnelly in expunging federalism from the Constitution is Cooper v. Aaron. In 1958, “the United States Supreme Court asserted for the first time in its history and in the history of the nation that its interpretations of the written Constitution in a particular case in one State constitute the ‘supreme law of the land’ under Article VI of the Constitution and are of binding effect in all of the States.”

“It is emphatically the province and duty of the judicial department to say what the law is,” declared the Court. (See Cooper v. Aaron, 358 U.S. 1, 1958.)

So much for Alexander Hamilton’s promise, in Federalist No. 78 (May 28, 1788), that the Judiciary would be the weakest of the three branches of his proposed government.

“Instead of protecting the legitimate interests of the states,” surmised Justice Donnelly (in “The Demise of Federalism: With Consent of the Governed?”), “the Supreme Court competes with Congress to dictate to the states their ‘legitimate’ interests.”

Commensurate with the power they’ve amassed, nine unaccountable, unelected, Supreme-Court judges now sit as “a Council of Revision over the states.”

Just as the interpretation of the 14th Amendment in Brown v. Board of Education became the supreme law of the land, so, too, will the states likely lose their (petty) marriage-licensing jurisdiction, once that coven of casuists, the Supreme Court, embroils itself in setting social policy for all the states.

Conservatives as astute as Mr. Levin, Esq., ought to quit misleading their readers and listeners about the restoration of a constitutional structure that has suffered death by a thousand cuts, long before the dreadful cur Obama appeared on the scene.

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Obama to move on gun control

President Barack Obama is launching the most sweeping effort to curb American gun violence in nearly two decades, and New York lawmakers easily passed the toughest gun control law in the country, as gun control advocates move to act swiftly after a massacre at an elementary school last month.

Obama is urging a reluctant Congress to ban military-style assault weapons and high-capacity ammunition magazines like those used in the Dec. 14 massacre of 20 elementary school children in Newtown, Connecticut.

The broad package Obama will announce Wednesday is also expected to include more than a dozen steps the president can take on his own through executive action. Those measures will provide a pathway for skirting opposing lawmakers, but they will be limited in scope, and in some cases, focused simply on enforcing existing laws.

But Congress would have to approve the bans on assault weapons and ammunition magazines holding more than 10 bullets, along with a requirement for universal background checks on gun buyers. Some gun control advocates worry that opposition from Republicans and conservative Democrats, as well as the National Rifle Association, will be too great to overcome.

The NRA released an online video Tuesday that called Obama an “elitist hypocrite” for having armed Secret Service agents protect his daughters at school while not committing to installing armed guards in all schools.

White House officials signaled that Obama would seek to rally public support for the measures he puts forward, perhaps holding events around the country or relying on Organizing for America, his still-operational presidential campaign.

For many Americans, gun ownership is a cherished right protected by the Second Amendment of the U.S. Constitution. Others argue that the country’s founders in the 18th century could never have envisioned the sort of high-powered assault weapons used in the Newtown attack.

White House officials, seeking to avoid setting the president up for failure, have emphasized that no single measure – even an assault weapons ban – would solve a scourge of gun violence across the country. But without such a ban, or other sweeping Congress-approved measures, it’s unclear whether executive actions alone can make any noticeable difference.

“It is a simple fact that there are limits to what can be done within existing law,” White House spokesman Jay Carney said Tuesday. “Congress has to act on the kinds of measures we’ve already mentioned because the power to do that is reserved by Congress.”

Obama will announce his proposals in a midday event at the White House, flanked by children who wrote to him about gun violence following the massacre of 20 students and six adults at Sandy Hook Elementary School. Law enforcement officials, mayors from across the country and supportive congressional lawmakers are also expected to attend.

According to a lobbyist briefed Tuesday, Obama will present a three-part plan focused on gun violence, education and mental health.

The president will call for a focus on universal background checks. Some 40 percent of gun sales take place without background checks, including those by private sellers at gun shows or over the Internet, according to the Brady Campaign to Prevent Gun Violence.

The president will call for banning assault weapons and limiting ammunition magazines to 10 rounds or fewer, and also propose a federal statute to stop “straw man” purchases of guns and crack down on trafficking rings. He’ll order federal agencies to conduct more research on gun use and crimes, something Republican congressional majorities have limited through language in budget bills, the lobbyist said.

Obama has pledged urgent action to prevent future mass shootings, and his plan – coming just one month after the Newtown attacks – is swift by Washington standards.

The president’s framework is based on recommendations from Vice President Joe Biden, who led a wide-ranging task force on gun violence. Beyond the gun control measures, Biden also gave Obama suggestions for improving mental health care and addressing violent images in video games, movies and television.

The vice president’s proposals included 19 steps that could be achieved through executive action.

Obama may order the Justice Department to crack down on people who lie on background checks; only a tiny number are now prosecuted. Such a step has support from the National Rifle Association, which has consistently argued that existing laws must be enforced before new ones are considered.

He also could take steps ordering federal agencies to make more data on gun crimes available and conduct more research on the issue, something Republican congressional majorities have limited through language in budget bills. And he may order tougher penalties against gun trafficking and give schools flexibility to use grant money to improve safety.

Gun control proponent Rep. Bobby Scott, a Democrat who met with Biden on Monday, said the president is also likely to take executive action to ensure better state reporting of mental health and other records that go into the federal background check database. But he, too, acknowledged there were clear limits to what Obama can do without Congress’ say-so.

“You can’t change the law through executive order,” Scott said.

States and cities have been moving against gun violence as well.

New York’s Assembly voted 104-43 on Tuesday to approve a law calling for a tougher assault weapons ban and provisions to try to keep guns out of the hands of the mentally ill who make threats. Democratic Gov. Andrew Cuomo quickly signed the measure into law.

“Common sense can win,” Cuomo said. “You can overpower the extremists with intelligence and with reason and with common sense.”

The NRA criticized the bill in statement. “These gun control schemes have failed in the past and will have no impact on public safety and crime,” the group said.

The measure also calls for restrictions on ammunition and the sale of guns.

Under current state law, assault weapons are defined by having two “military rifle” features such as folding stock, muzzle flash suppressor or bayonet mount. The proposal reduces that to one feature and includes the popular pistol grip.

Private sales of assault weapons to someone other than an immediate family will be subject to a background check through a dealer. New Yorkers also would be barred from buying assault weapons over the Internet, and failing to safely store a weapon could lead to a misdemeanor charge.

Ammunition magazines will be restricted to seven bullets, from the current 10, and current owners of higher-capacity magazines will have a year to sell them out of state. An owner caught at home with eight or more bullets in a magazine will face a misdemeanor charge.

White House officials signaled that Obama would seek to rally public support for the measures he puts forward Wednesday, perhaps holding events around the country or relying on Organizing for America, his still-operational presidential campaign.

“The president’s success in using this strategy, I think, is pretty notable,” Carney said of Obama’s efforts to engage the public in previous legislative fights.

Still, it’s unclear how much political capital Obama will exert in pressing for congressional action.

The White House and Congress will soon be consumed by three looming fiscal deadlines, each of which is expected to be contentious. And the president has also pledged to tackle comprehensive immigration reform early this year, another effort that will require Republicans’ support and one in which Obama may be more likely to get their backing.

Sen. Mitch McConnell, the chamber’s top Republican, has warned the White House that it will be at least three months before the Senate considers gun legislation. And Senate Majority Leader Harry Reid, a Democrat, has said immigration, not gun control, is at the top of his priority list after the fiscal fights. – AP

Why Canada is richer than the US

On July 1, Canada Day, this year, Canadians awoke to a startling, if pleasant, piece of news: For the first time in recent history, the average Canadian is richer than the average American.

According to data from Environics Analytics WealthScapes published in the Globe and Mail, the net worth of the average Canadian household in 2011 was $363,202, while the average American household’s net worth was $319,970.

A few days later, Canada and the U.S. both released the latest job figures. Canada’s unemployment rate fell, again, to 7.2 percent, and America’s was a stagnant 8.2 percent. Canada continues to thrive while the U.S. struggles to find its way out of an intractable economic crisis and a political sine curve of hope and despair.

The difference grows starker by the month: The Canadian system is working; the American system is not. And it’s not just Canadians who are noticing. As Iceland considers switching to a currency other than the krona, its leaders’ primary focus of interest is the loonie — the Canadian dollar.

As a study recently published in the New York University Law Review pointed out, national constitutions based on the American model are quickly disappearing. Justice Ruth Bader Ginsburg, in an interview on Egyptian television, admitted, “I would not look to the United States Constitution if I were drafting a constitution in the year 2012.” The natural replacement? The Canadian Charter of Rights and Freedoms, achieving the status of legal superstar as it reaches its 30th birthday.

Good politics do not account entirely for recent economic triumphs. Luck has played a major part. The Alberta tar sands — an environmental catastrophe in waiting — are the third-largest oil reserves in the world, and if America is too squeamish to buy our filthy energy, there’s always China. We also have softwood lumber, potash and other natural resources in abundance.

Policy has played a significant part as well, though. Both liberals and conservatives in the U.S. have tried to use the Canadian example to promote their arguments: The left says Canada shows the rewards of financial regulation and socialism, while the right likes to vaunt the brutal cuts made to Canadian social programs in the 1990s, which set the stage for economic recovery.

The truth is that both sides are right. Since the 1990s, Canada has pursued a hardheaded (even ruthless), fiscally conservative form of socialism. Its originator was Paul Martin, who was finance minister for most of the ’90s, and served a stint as prime minister from 2003 to 2006. Alone among finance ministers in the Group of Eight nations, he “resisted the siren call of deregulation,” in his words, and insisted that the banks tighten their loan-loss and reserve requirements. He also made a courageous decision not to allow Canadian banks to merge, even though their chief executives claimed they would never be globally competitive unless they did. The stability of Canadian banks and the concomitant stability in the housing market provide the clearest explanation for why Canadians are richer than Americans today.

Martin also slashed funding to social programs. He foresaw that crippling deficits imperiled Canada’s education and health- care systems, which even his Conservative predecessor, Brian Mulroney, described as a “sacred trust.” He cut corporate taxes, too. Growth is required to pay for social programs, and social programs that increase opportunity and social integration are the best way to ensure growth over the long term. Social programs and robust capitalism are not, as so many would have you believe, inherently opposed propositions. Both are required for meaningful national prosperity.

Martin’s balanced policies emerged organically out of Canadian culture, which is fair-minded and rule-following to a fault. The Canadian obsession with order can make for strange politics, at least in an American context. For example, of all the world’s societies, Canada’s is one of the most open to immigrants, as anyone who has been to Toronto or Vancouver will have seen. Yet Canada also imposes a mandatory one-year prison sentence on illegal immigrants, and the majority of Canadians favor deportation. Canadians insist that their compassion be orderly, too.

This immigration policy is neither “liberal” nor “conservative” in the American political sense. It just works. You could say exactly the same thing about Canada’s economic policies.

Canada has been, and always will be, overshadowed by its neighbor, by America’s vastness and its incredible versatility and capacity for reinvention. But occasionally, at key moments, the northern wasteland can surprise. Two hundred years ago last month, the War of 1812 began. Thomas Jefferson declared, “The acquisition of Canada, this year, as far as the neighborhood of Quebec, will be a mere matter of marching.” The U.S. was comparatively enormous — with almost 8 million people, compared with Canada’s 300,000. The Canadians nonetheless turned back the assault.

Through good luck, excellent policy and even some heroism, Canada survived the war. But it has taken 200 years for Canada to become winners.

(Stephen Marche is a novelist and columnist for Esquire Magazine. His most recent book is “How Shakespeare Changed Everything.” The opinions expressed are his own.)