2011 Congress: Evidence of a brilliantly designed Constitution

Founder Edmund Randolph, in the Constitutional Debates said:

Will not the people choose men of integrity, and in similar circumstances with themselves, to represent them? What laws can they make that will not operate on themselves and friends, as well as on the rest of the people? Will the people reelect the same men to repeat oppressive legislation? Will the people commit suicide against themselves, and discard all those maxims and principles of interest and self-preservation, which actuate mankind in all their transactions?

Unfortunately, the history of the last century has shown what happens when a citizenry ignores the self-inflicted wounds of apathy that Randolph argues against. One might argue that, defending the power of the House to direct election, and thus representation of the people—as a counter to the representation of the Senate on behalf of the states—was ill-conceived, or at least a naïve notion. That was at least until Friday, February 18, 2011.

Elected by the people from virtually every state across the nation in the preceding November election of 2010, the House of Representatives took remarkable and historic action. They refused to fund major sections of many departments within the Executive branch, mostly created by more liberal past Congresses. The Healthcare Act is not funded. Planned Parenthood, responsible for the bulk of nearly a half million abortions yearly, was not funded. The EPA was not funded. “Pet-projects” in districts of the Representatives supporting these measures were not funded.

While some are saying conservative representatives, as a trade off to liberals, voted to ‘defund’ projects and entities within their own districts, it may actually show Representatives’ understanding of the very concept Edmund Randolph spoke to when defending the right of the people to direct representation. The Representatives are subject to their own actions. Additionally, critics are viewing funding from the eye of socialistic paradigms, assuming that if the government doesn’t fund a project, it simply will not happen.

But contrary to the illusion portrayed by President Obama in his State of the Union address just a couple weeks ago that government funding is needed for innovation, great inventions, ingenuity and progress from our past were not projects funded by Federal grants. They were funded through the non-governmental ingenuity, imagination, and creative—sometimes very patient—collection of resources individuals and private enterprise could muster. The current House of Representatives understand this.

All the above give understanding then, to why this band of courageous legislators are cutting spending anywhere it is deemed either inappropriate, irresponsible in the context of Constitutionality, or fiscal nonsense for the government to continue to support.

But the most phenomenal occurrence is this: A witness that our Constitution works. The Congress’ most recent action proves the beauty of a highly complicated and well thought out system of checks and balances between, not just the three branches of our government, but the powers of our country: the People, the States (via the governors solely, since the 17th Amendment has rendered the Senate impotent to represent the states as originally designed), the Executive Branch (namely, the President, himself), the Senate, the House, and the Judiciary. While past Senates and Houses of Representatives, may vote in unconstitutional acts, and the President may promote them, even actively push them, in the end it is the people’s representatives who have the last say. They have been given sole power not to act on Acts of Congress. No other branch can stop the House from not acting. No other power can force the House against the will of the people. And while a president may impose his or her own agenda upon Americans, either directly, through deceptive actions or usurpation of their power, or indirectly via unfamiliar U.N. resolutions even supported by the Senate, or “closed door” legislation” (read: “back-room dealing”), in the end, the answer back on funding, may be “no, and end of debate.”

So, while Americans may slide, to suffer the consequences of neglect, current history answers Randolph’s questions, “Will the people reelect the same men to repeat oppressive legislation? Will the people commit suicide against themselves, and discard all those maxims and principles of interest and self-preservation which actuate mankind in all their transactions?”

Ultimately, the answer is no.

Our Reality

Not every reality is worth sharing. But some realities are imperative.

I was listening to NPR this morning. Granted, it is usually pretty liberal and I take many reports with a grain of salt. But this morning there was one interview that intrigued me. It was with Tina Brown. Tina Brown, best known for her work with the Daily Beast and Newsweek, which are now one, had made a recent visit to Russia for a special project.

It seems some creative and entrepreneurial spirit here decided Russia needed a dose of good old-fashioned American First Amendment enterprise. A group of producers decided Russia was ripe for a reality show. When it aired, they discovered an interesting thing about Russia: They wanted no part in it.

It seems that part of their cultural paradigm is to disbelieve any reality as reality. While in America, we know some of reality TV is scripted; we also are entertained by the spontaneity of the overall experience. For many Americans--depending on the show's subject--reality shows are mere amusement; while, for others it is more akin to watching a bullfight, where the matador is the object and his prey hasn't a clue why it is in the ring with the man throwing spears at it; and still others might see it as a looking glass of their own emotions. But to Russians, growing up with the media as nothing more than propaganda, watching such a show is a frustrating exercise of wondering what the point is. Tina Brown was amused.

As Ms.Brown put it to NPR, with half a chuckle I her voice, "they just rolled their eyes" and "shrugged their shoulders." Suffice to say the idea of reality in Russia failed.

The nature of ethnocentrism.

The interview recalled to my mind my undergraduate prerequisite courses in cultural anthropology. All societies have certain characteristics in common. These integral components are what keep each culture viable. But beyond that, there are some cultures--some societies--whose basic paradigm suggests more. They believe their society is the right society, and they are duty bound to 'help' other societies understand that. This phenomenon is called ethnocentrism--a belief that one's own culture is the predominantly right--or perfect one, and therefore should be imposed upon others.

America, very guilty of such an endeavor, is not alone, however. Many cultures throughout the course of time have suffered from the same social malady. Usually, but not always, it stems from a religious belief that God has ordained them in their circumstances. This would be true of America, whose Judeo-Christian founding was certainly all about religious freedom and God given individual liberty to live as consciously driven. Ironically, the very religious sects who established themselves early in the Colonial, and pre-Colonial periods were just as vehement about their society's rightness, as the one they escaped. One main difference is that most of these sects, the Puritans, and other original Protestant sects, were not seeking to convert others, but to simply live in their perfect communities. But they did expect everyone within their community to live "in conformity." There are, however, some historical 'hot spots' of zealous Puritans who expected nearby areas to live as they. The religious persecution of the Quakers at the Bay Colony is one of the more profound historical examples. It was something of an "elbow-nudging" behavior akin to roller derby, for the most part. Again, it was ethnocentric.

Our heritage is our culture.

But the reality is that the original concept of freedom of religion has been modified over the course of 200-plus years. In reality, each group coming to America felt strongly that they had the right course and spiritual stream heavenward, hence, their need to find a refuge to practice that stream. They did not, however, believe that everyone should come to America to practice their favorite religious philosophy.

So, interestingly, while America has abandoned its early religious ideal of a place where expatriates of England go to escape worshiping as the King demanded, it has not surrendered the paradigm that America has the right culture. It is still ethnocentric. Moreover, America has come to be known as the big brother solving the world's issues through its own binoculars. When another society asks for the assistance, it is not ethnocentric. It is charity. When we shove our philosophy onto another society, there is trouble. We are seen as invaders. Likely, we are seen as confusion as well. Many societies simply do not understand a representative form of government. (We barely do.) To expect they will understand our efforts to "save" them from the travesties of their law, or dictatorial governance is ignorance of understanding that, while they may not be happy in their circumstance, they also do not understand ours or how to get here. We are ethnocentric in expecting that simply through our perceived rescue to them, they have the ability to change from their current paradigm to ours in one clean sweep.

We are not alone: Even from biblical times ethnocentrism existed. The Tribes of Judah and Ben (considered the Hebrews) thought little of the other Ten Tribes of Judah, and blamed the latter's capture into Samaria on their unrighteousness. One hundred thirty years later, the Southern Judah, befell the same fate as the Northern. Interestingly, in modern excavations of Hebrew tells, thousands of pendants with the pagan goddess of fertility embossed upon them were discovered. It correlates with the Biblical texts citing the God of the Old Testament who is repeatedly admonishing Judah to stay clear of idolatry. It appears that the Southern Tribe of Judah was not as pure as they had perceived of themselves. Though, certainly they were justified through their cultural perceptions.

There are plenty of societies whose ethnocentric behavior has mandated an Empirical order: One that means, like America, we expand our philosophy beyond the eyes' view. While, for the most part, America, until late, has not used force as an excuse to expand its view of social mores and morals upon others, there are many in history who have used brute force to expand their view of the world. The Huns, the Muslims, the Catholics, Nazi Germany, Japan, all are examples of societies that took part in an expansionist ideal of their society by force. The problem, if not already obvious, is that no society is blameless, or perfect. Some are more enlightened than others. The latter of which can be determined when observing the treatment of their own people. Those whose oppressive paradigms severely damage people of their own society, yet desire to expand their view by force upon others will ultimately cause reparations rather than enlightenment. History has made a note of it.

There is a more powerful way.

The question then, becomes, how is good will expanded? If a society is more enlightened than another (and cultural anthropologists would argue whether that is possible--or a fair analysis--since it requires one society to subjectively define another), how do they teach, mentor, or persuade another society without blatant ethnocentrism? Is there such ability? Or, should all societies stay strictly to themselves and leave others to their own paradigms, even if their own philosophical view requires 'spreading the good news" or their system and culture?

The answer, I feel, may go back to the start--with fortifying the essential elements of all societies. Those elements--characteristics, if you will, are: Enculturation; the ability and desire to pass along to the rising generations the beliefs, mores and morals of their culture; Universal language; the vested establishment of a main, universal language as a binding tie; Religion, the importance of believing similarly in a Higher Being whose dictates are universal to all in the culture; cultural modes and mores, the expected, yet oft times unspoken ways in which we conduct ourselves in public and in private; propagation, the ability and desire to carry on through generations, the people of that society; adaptability, particularly to outside forces, which threaten the viability of the culture, such as natural and unnatural calamity and devastation, war, invasions of all sorts, and so forth; and lastly, to support a system of order (governance).

Cultural Anthropologists discovered long ago, that these seven elements are essential to each other, and exist in all cultures. They are intertwined. If any one of these elements begins to unravel, they will all eventually fail; and thus, the society will dissolve. If a society is truly enlightened, living it with vigor and commitment is the singularly most effective way to ensure its success. It is also the most effective way to instill in other societies the enlightenment and "rightness" of that society. In other words, other societies will copy the example. For instance, prior to 1798, there was no other national constitution such as that in the United States. It was the first. From it, however, over 200 other nations have since copied the idea of our constitution in some part or form.

While those nations may not have copied verbatim the system held within our document, many elements have pervaded elsewhere. As America lives her founding principles, and as we rebuild losses in the links of societal elements that make up our American system and culture, our influence upon other nations is worthy of emulation without throwing it upon others.

In addition, America, to preserve our inheritance of her specific culture, and in order to sustain our viability, must, in our effort to thrive and adapt, be vigilantly on the look out of other cultures whose system of order holds a devastating paradigm to America by invasion of any kind. The Huns are no longer a threat. Hitler's regime ended. But Communists pervade throughout the world, and in America, where they are bent on destroying our unique economic system and liberties. Fundamentalist Islam would have America living Sharia Law, rather than the Rule of Law--that based upon Judeo-Christian morals and mores. Some Libertarian groups, though they would claim otherwise, are a threat to our heritage, which, while built upon principles of liberty, is also beholden to Rule of Law, and a shared culture with England to soem degree.

So long as America is a land to covet, she will be a land in danger of loosing her cultural elements and character. But more importantly, she must oblige--from within--those elements while respecting other cultures. To do anything less, may bring the kind of response that Russians did to reality they don't see as reality. Would that we would never roll our eyes and shrug our shoulders at the reality of America's cultural character.

Sources:

Living Ideas in America, H.S. Commager; Harper Bros. NY 1951

http://www.academicamerican.com/colonial/topics/religion.html

Making of America, C. Skousen; National Center for Constitutional Studies, 1985

The Great Republic, Bailyn, et.al; D.C.Heath & Co, 1977

Research writing in Colonial History, Brigham Young University; 2001

Dismissal of Mississippi Case Did Not Dismiss Unconstitutionality of “Obamacare”

While I had not read the brief yet, it was not surprising that the latest court case against the federal Healthcare Law in Mississippi was dismissed. (I have since read the brief.) In truth, it is not only fully understandable; it would not have been prudent to do anything otherwise than to dismiss the case. Contrary to the media hype, or whatever comments may come from the federal government about a victory, this case was actually not about the constitutionality of the law. It was about the specific loss to a number of individuals who filed the suit. While the issue of constitutionality is still an ominous, looming concern, the principle of the laws constitutionality was not considered and thus, cannot be considered a victory for the Administration on those grounds.

What Americans who have not been in the court system, nor studied or observed it first hand, need to understand, is that law suits are not necessarily dismissed because they are frivolous, or without merit. Many times it is simply about the strategy of a complaint and how it is presented in argument. In this case, the argument was that certain individuals, through the Attorney General of the State of Mississippi, would incur loss because of the Healthcare Law. This is extremely problematic from the outset. District Courts are designed to hear concrete evidence. The matter at heart in the Healthcare Law is actually one of the abstract—the principles behind the practice as laid out in the Constitution. But District courts are designed for the practice of the principles.

For instance, if a crime is committed, evidence of the crime is brought to court. Whether the case is won or lost is not as must about whether the crime was actually committed, but whether sufficient evidence—the concrete—was brought before the court to render a guilty verdict. Nor is it about whether the law is a just one. One cannot take a neighbor to court because one suspects the neighbor will rob them, even if they just might. There are no facts of loss to support such a verdict. We don’t convict people on possibility, but upon what has happened.

The same holds true for civil cases. I may bring a suit against my neighbor because I suspect they are drug dealers and therefore the value of my home will drop because of the unsafe and undesirable element, but I cannot prove that is the case without substantial evidence. Indeed, hypothetically, just the opposite may be true. I might attract drug dealers to my home as a ‘safe haven’ neighborhood for them to do their dastardly deeds. And they may be willing to pay more for my home than I would otherwise get. While that scenario is not likely, it cannot be ruled out. Since I cannot prove a loss, I won’t be awarded, nor action taken in my behalf, based upon my concerns. They are not concrete and I don’t have sufficient evidence to prove my theory. However, I might call the police or press charges against the neighbor, provided I can bring forth enough evidence for the police to file a criminal warrant—such as being in the home, knowing where the drugs are, and to whom they have been sold

Hence it is with this case. The bottom line on this case is that there was not sufficient concrete evidence to show that a loss was imminent or already occurring. For instance, there are several loopholes in the Healthcare Law, as the exact wording puts it, “exceptions,” to those who are subject to the law. They are:

1)persons who are subject to certain religious exemptions;
2) persons who are not lawfully present in this country; and
3) persons who are incarcerated. 26 U.S.C. § 5000A(d).

Additionally,

“Minimum essential coverage” is defined as health insurance coverage obtained through certain government-sponsored programs, eligible employer-sponsored insurance plans, or other eligible insurance plans obtained through the individual market. 26 U.S.C. § 5000A(f)(1).

But the law also has certain other loopholes. And here is where the judge would have the most difficulty deciding in favor of the Plaintiffs. Even if an individual is not among those exempted from the law, no penalty can be imposed for those who cannot afford medical insurance, or those whose income is so low that they are not required to file an income tax return, or

…members of Native American tribes; 4) those who experience only a short gap in coverage; and 5) those who, subject to the determination of the Secretary of Health and Human Services, “have suffered a hardship with respect to the capability to obtain coverage under a qualified health plan.” 26 U.S.C. § 5000A(e).

The above clause in the law allows a wild card that cannot be substantially determined unless the conditions are in play. Hence the reason the court used the legal term that the case criterion were not “ripe” under the above circumstances: It is too early to tell just how the law might incur a loss for the plaintiffs. The facts of this case were that one plaintiff is currently insured through an employer. Hence, the federal Healthcare Law would appear to have no effect upon this person, thus no apparent loss. Another person did not have a medical insurance plan and did not want one. But there was no evidence showing the loss if this person was required to have it.

The judge wisely reminded the plaintiffs that they had 30 days to modify their original complaint. This is a hint. The judge did not even consider the constitutionality of the law, on its own merits. He had no opportunity, since the way in which the complaint was brought allowed him no way to progress to that point, as in the Florida ruling. If the Plaintiffs want to succeed in this case, they must show the concrete loss, as other cases that have won have done.

It is possible for the plaintiffs to show this, but it may be an uphill battle. For instance, if the individual who currently has insurance knew that once the Healthcare Law was instituted, his employer was going to mandate that everyone have coverage, whether they wanted it or not, or be fired, that could possibly show the loss needed, provided the employer was willing to go into court and testify to that fact. Testimony is considered fact, thus the circumstances surrounding the plaintiff’s employment might warrant loss, provided all other “what ifs” were eliminated against the plaintiff’s complaint.

While the court ruled to dismissal, but granting 30 days to redress the claims, the Obama Administration could hardly call this a sound success toward solidifying the legitimacy of the Healthcare Law. Its constitutional legitimacy was never the point of this case.