Lawmaking Conundrums: Understanding the Relationship Between the Policy and Underlying Principles that Produce Good and Bad Law

One of the most fundamental problems with lawmaking is the ability to see the difference between the underlying principles and how the practice of those principles is applied to law. The practice of principles is what becomes policy. Ignoring or misunderstanding how an idea translates into practice can be as bad as a misguided principle.

When the sides of an issue brew debate about their ideology in support or defense of a bill, it usually circles each side accusing the other sides of misguided principles. Debate degenerates into attacks that scurvy politicians, whose nefarious intentions are designed to rob and plunder society or destroy Constitutional ideals, have based a certain piece of legislation on some lack of correct principles or even a deliberate derailing of our constitutional foundations. Since usually all sides play one Constitutional card or another in their defense or attack of another viewpoint, it becomes a dizzyingly moot point of debate for most people. For those bills that are seriously flawed Constitutionally—and we could discuss many here—there is obvious evidence of a serious need for education by the American public (from whence legislators come) on Constitutional studies. We will lay that discussion aside, noting that an article illustrating that need was previously written by this author.

Sometimes the rhetoric about a principle is so thick, legislators—and the public—cannot see straight enough to realize there are other reasons a bill is bad: It may not be a matter of a bad ideal but a bad way of going about it. Upon scrutiny, this may consequently reveal an even larger principle that was overlooked. There are several reasons for bad policy slipping through the legislative process. And they have to do with skill sets.

One critical skill needed to differentiate good legislation from bad is the ability to see ahead what will happen upon taking the steps engrossed in a bill. I taught my children, when young, to play Chess . The game requires of its participants the ability to look at all possibilities of their actions and their opponent’s. It is the perfect trainer for anticipating multiple cause and effect actions. It also trains players to think well in advance to prevent losses. A perfect example of this lack of skill by legislators occurred last year when the City of Houston had a resolution on the November ballot relating to the city’s serious flood problems.

The idea of providing a mechanism for controlling flooding is good. But the way the bill was written lacked foresight. It gave a spending minimum but no maximum, with 20 years to spend—carte blanche. The bill did not specify which sections of the massive city would be affected. And while it provided a formula for calculating the new tax, the mayor, who had a great part in creating the bill, insinuated that no one would be exempt from the tax, including already tax-exempt entities. The bill passed on the claimed idea of providing needed infrastructure rather than being rejected for its enactment policies–or total lack of them. After the fact, public hearings are being conducted to establish what should be done, but the final decision is the Council and Mayor’s to make. Because the effect of policy was ignored, the perceived principle was trumped when a more fundamental one manifested itself–that elected officials could have absolute power, with no caveats, over the people. This was obviously not the intention of the public that voted in record numbers to oust elected officials on the spending abuse in that very same election. This demonstrates that the voters simply did not have the skills to see how the flooding policy impacted future moves.

Another reason bad policy is implemented is through bad math. It is not enough to understand the principles. It is not enough to think through the various ways a bill will play out. One needs to hone logic skills and see when something doesn’t add up. If you asked a legislator what two plus two is, they would most likely roll their insulted eyes, and wonder why you would ask such a question when the obvious answer is four. But many times we look at ”five” and don’t pay attention to the fact that their original equation was two plus two–not two plus three.

And while these specific examples are fresh today, there are plenty of similar examples from year to year. The problem is chronic and universal. (Hence the need for understanding.) And thankfully for the intent of this article, only, there is an ample supply of examples. Here is another one: The Texas legislature is currently considering House Bill 3451, produced with the idea that good nutrition is vital to the health of people; and that tax dollars should not promote poor nutrition. It could hardly be doubted that these are sound principles. But, using those principles, the bill forces those in the food stamp program to restrain from purchasing foods the government does not deem fit for consumption, prohibiting foods with “minimal nutritional value”. That sounds logical enough. And it sounds like a wholesome bill. But there is a problem with two plus two equaling four. It does not. The bill lists a plethora of unhealthy dietary ingredients and their supposed health conditions that result. Sodium increases high blood pressure; sugar leads to diabetes; fat and high cholesterol lead to heart disease, and so forth. The problem is those correlations aren’t necessarily accurate. Some people actually have a reverse problem to high blood pressure, needing high volumes of salt intake. While the arguments in the bill relate sugar to diabetes, it does not acknowledge that sugar—usually candy—is needed for diabetics on insulin to balance their insulin intake or they can go into insulin shock. The suppositions also do not account for differences in body metabolism and so forth. While they are generally true, they are not specifically so. It brings to the forefront how the government is able to legislate individual needs?

The bill also raises questions about whether those on food stamp subsidies should be penalized for such. Will potato chips hit the banned list? If a family barbecues hamburgers, should the traditional chips that go with the nutrition be banned? What about the hamburger its self? Based upon the opening arguments for the bill, those would be banned as well because the fat may cause clogged arteries and an eventual heart attack. To what end will the government go, if this bill passes, in determining what foods are good and which are not? Two plus two is not adding up to four here. This policy could actually cause as many problems as it solves; and be dangerous: For those with the less common opposite conditions than sited in the bill, the damage caused could potentially create more health problems and consequently more Medicaid or Medicare expenses on the back side to say nothing of law suits. This is very bad math.

The policies created in HB3451 expose a larger principle to challenge: In the face of a public demanding less government interference, it assumes that if the government is in a citizen’s business, it should be in it even more, and to whatever extent it deems justified, rather than the opposite stance of less interference. It brings up the question: Can the government decide to increase its interference because it is already interfering? —Bad math, bad Chess playing, and bad lawmaking.

But other governments–states, municipalities and counties–are certainly not immune to this kind of problem. A bill just passed in the Utah State Legislature is a masterpiece of bad legislation and should be the model for text books teaching public policy. A set of bills claiming to prevent and remedy illegal immigration problems, and complaining that the federal government is doing nothing, is so latent with the sort of problems mentioned above that it will more than likely do anything but eliminate illegal immigration. Inspired by Arizona’s tenacity, HB116, part of the Utah Compact, goes far and beyond the imagination, creating its own guest worker program, collecting federal withholding taxes of illegal aliens and allowing anyone and everyone so long as they can get to Utah before sometime in May of 2011 to reside there.

To hone in on specific illustrations, let’s pretend there is no controversy over the legitimacy of guest worker programs on the whole, and no argument about the Constitutionality of federal income tax so we stay focused on problems with policy specific to this incidence. A state with a guest worker program at all becomes problematic. In theory, a state could actually be culpable of harboring fugitives with its own guest worker program, if they provide an incentive for illegal aliens rather than following a federal program. Crossing not just the U.S. international border, but other states’ lines to get to Utah violates other state’s rights to manage illegal immigration by their laws. Utah does not have the right to force other states to oblige illegal aliens crossing their land to make their way to Utah.

Assuming the Federal Government would go along with this without accusing the state of encroaching upon its duties, the basic premise of the bill goes against the clause in HB70 that states there shall be no encouragement of illegal immigration. As we have seen already, what is not in a bill can be as problematic as what is in a bill. Because 116 has no set number of allowable work permits, it sets no limit to the number of illegal aliens that can come into the state to work, thus creating an open invitation for illegal aliens to come to Utah. Not even the Federal Government designs guest worker bills in that way. Federal bills have a cap on numbers of participants in the program with a set of qualifications stipulated.

Whenever a law is designed to provide funding through the very problem it claims to remove, it is designed to perpetuate the problem instead of eliminating it. In this case, penalties, fees, and fines by the illegal criminal pay for the program. Thus, it needs criminals to fund it and keep the program in existence. Historically, this circular type of funding mechanism never manages to accomplish anything but perpetuate the bureaucracy, increase the government’s burden, and the taxpayer bill down the road.

Additionally, the way the law is written, the program will not receive its operating funds until after an illegal alien is found guilty. One is only called a criminal after due process. Fiscal notes define how much a bill will cost to start the enactment of a law, not how much it will cost over time to maintain it. The fiscal note claims there is no fiscal impact. That is not so. It cannot be so. There must be people in place–training for police, lawyers, judges, clerks, administrative personnel, and so forth–before the first incident takes place. The system begs the question: where do the initial funds to operate this program come from if there is no note to provide them? Extremely bad math.

Another section calls for a “mechanism” for collecting state and federal taxes but does not specify what that is. Lacking specific details, and without specifying the “mechanism” in the bill, like the Houston Council and Mayor who have full power after the vote to do whatever they desire with flood taxes, a bureaucracy is going to have a hay-day designing whatever they want to increase their authority and power. Moreover, and more importantly, it is not in the scope of the state to collect or enforce federal withholding of any kind. This is going to be a jurisdictional and constitutional issue. Not visualizing the moves this policy will cause endless "Checks" quite possibly ending in a Check mate" against Utah if they do not amend their policy.

Regardless of who collects for these taxes, the policy creates a new level of bureaucracy on at least the state level and more than likely the federal level, who will then claim to oversee Utah's collection methods at best.

The bottom line is that there are some major constitutional, jurisdictional, and public policy problems with implementing UT HB116. There are so many policy problems that they overwhelm and even confuse what the principles behind them really are. It is critical for the public to understand the nuances of policy and lawmaking with respect to the principles in order to understand when their favorite issue is destroyed in the legislative process or the courts. More importantly, the public needs to understand how policies work in real life just in case a bad bill goes through because no one can add two plus two or play a good game of Chess.

(This article can also be read on The Moral Liberal.com; Examiner.com/political_buzz_in_houston, and soon to be posted to DIYgovernment.us/thinktank)

A Republican Form of Government: Wisconsin As a Case Study

Every state should be sitting up and taking copious notes on the political situation unfolding in Wisconsin. What started as a fight between union and state is now far more than that and other states should take heed.

Clearly there is a debate on union power as a lopsided faction the Founders would have cringed at over the rights of individuals trampled by such. But that is a problem that pales in consideration of what is really at stake in Wisconsin as a case study for the rest of the states. Because 14 cowardly senators have gone AWOL on the state of Wisconsin citizens across the entire state are held hostage of the Republican form of government not only granted but also required of all the states in the U.S. Constitution. So important is this one universal government among all the states that the Constitution actually required the federal government protect all states’ right to it.

The 14 senators are not only acting in poor faith to their duty to represent their constituencies—as they are not taking a vote or legislating and their stand does not represent anyone, least of all their own constituents, they are preventing a representative form of government—a republican form of government—from being used in Wisconsin. Their acts actually are a form of tyranny, preventing a vote by other Senators wanting to represent their respective districts. They are violating their oath of office to support the U.S. Constitution, which expressly provides that republican government to Wisconsin.

This is even more complicated because the same clause that protects the state’s right to a Republican government specifies that the Executive branch defend that right. Another problem just availed itself: President Obama has come out in support of the unions, which by default means he has no intention of obliging Article IV, Section 4 stipulating he take action to support Wisconsin’s Republic.

But even if there is not a method of compelling and/or penalizing the AWOL senators in Senate rules, as stipulated in the Wisconsin Constitution, and even if the President of the United States is derelict in his office, Governor Walker still has recourse. He has the judicial system left and should, through the Attorney General’s office attempt to sue the individual senators for damages because they have infringed upon the constitutional right of every citizen in the state to a republican form of government.

This is a critical lesson for all other states: They should immediately enact legislation that penalizes any legislator with automatic expulsion and replacement who does not act upon his or her duty to provide a representative form of government for the people they represent, the state they are beholden to, and the United States Constitution they are sworn to support.

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.

American Studies—The Lost Art of Studying the U.S. Constitution

What and why

American public schools require instruction in American history. But they lack the essential study of what makes Americans distinctly American. American Studies is, in a nutshell, Constitutional Studies.

There is no significant difference between America and other societies and governments without noting this definitive and peculiar difference. (The two terms will be used interchangeably in this article.) And because for generations there has not been an emphasis on the thorough study of the Constitution, the current interest and resurgence in studying and defending it is problematic. One would naturally consider this interest good, since we have had a long sabbatical from such. The problem is that there is such a prevailing illiteracy on the subject that genuine students studying from a knowledge of nothing assume, upon learning a little, knowledge of everything. Though the concepts behind the Constitution are simple, the article itself is not so because the impetus and understanding that created it are not written in the document.
Laying the foundations of study

The first rule of logic—whether in math or reasoning, such as debate—and in study, is to never assume anything that isn’t a proven fact. Assumptions lead to misguidance and are the basis for incorrect premises. That is a treacherous practice.

If I assume the Constitution is designed from today’s perspective, or, conversely, to be taken only in the context of what is precisely, word for word, written in the document—nothing more and nothing less—I most assuredly will misunderstand our nation’s purposes. The former will lead me to assume I can do anything with it. The latter will lead me to assume the Constitution is not the sum total of many premises and paradigms with impact upon its formation. Unfortunately these are poor assumptions that will lead to a false premise, as they are not based in fact.

The fact is: the Constitution actually is the sum total of many premises and cannot be understood effectively without an understanding of those. These are some of the premises: The founders appreciated the culture from whence they and earlier immigrants came. But they also revered the teachings of several master philosophers, common law and all the rules of construction, Judeo-Christian religious mores and morals, and a thorough understanding of world history. Copious study of the Constitution will give understanding of our government and country. But it is not enough. We must understand these.

We must put ourselves in the footsteps of the Founders, reading their sources, their words, and their actions to discover the purpose and intent of the Constitution when the document was crafted, and after, when applied to proposed Acts of Congress. To that, we must add the early opinions of Justices, who added their input when a stalemate occurred between the states and Congress. These show the original role and purpose of the Supreme Court.

We will focus on those aspects least known or understood by the body of Americans: Common Law, Rules of Construction, and study of journals of various debates, and the legislative record to demonstrate the importance of a broad study of events, concepts and the people who created them in an effort to truly understand American Studies.

Common Law

Common law is described as that law, whether by judge or by tradition, that governs a people in their social norms and mores. It is not the letter of law, but the expected behavior through enculturation. What those are at the formation of a country or government determine the purpose and define the meaning of a law from that time forward. In the case of the United States, common law was actually English judicial precedence, combined with English customs, social norms and mores. It is misguidance to believe the Constitution separated the United States from its English roots. It did not. It was actually quite the contrary.

The Founders considered it a subconscious “given” and only acted to improve upon their roots. But that is not visible in the reading of the Constitution. It must be understood through study of several primary sources, such as Elliot’s Debates, Cooke’s Reports, and other journals in the early years of America, as well as the legislative record and documents. Common Law from England is not obsolete. It is still often used to support the basis of law in the U.S. Just one example is in the definition of criminal recklessness or destruction. The American definition changed following two English court case as late as the 1980’s forward, which modified the definition there first.

Rules of Construction and their import on Constitutional themes

Rules of Construction are simply those tools used to decipher the validity of a law or clause, especially pertaining to the Constitution. They are a consortium of reasoning, which, when combined, help determine what is appropriate law and what is not. Among the more common rules of reasoning are the Plain Meaning Rule (Literal Rule), which considers the meaning of a law by the regularly accepted language in the text at the time it was written and is not to be modified from its original form; the Golden Rule, found in Judeo-Christian Holy Writ, which is the basis for Natural Law and the subsequent Social Contract designed by John Locke reference by the Founders; The Mischief Rule—an important rule, it is at once critically ignored and the most abused method in determining the value of legislation. This rule questions the intent behind an Act. Does an act preserve or destroy the purpose of the Constitution? Does the legislation create harm to one over others—reducing the intent of inalienable rights? —And so forth. The danger in applying this rule is when a legislator applies intent, or a judge interprets intent in a way other than what was original, using instead his/her own definition of it. One must be familiar with all of history and the record in order to accurately assess whether mischief to the original intent will occur.

Even with the inherent flaws, this rule (coupled with the Common Law Rule) was most used by the Founders when deciphering the legitimacy of a proposed piece of legislation. Did it go to the intent of the Constitution? [Graham, Principles of Confederacy; pp6-11]

The Purposive Rule requires an understanding of history. Herein lays one of the fundamental laps in the Constitutional student’s education, to say nothing of most of our society who should understand the Constitution. Looking solely at the text of the Constitution without an historical narrative will most surely end in miscalculations and inappropriate legislation, to say nothing of Americans’ expectations. Two perfect examples lay in the ongoing debate about immigration, and in the resurgence of the theory that states have a right to “nullify” unwanted or unwarranted Federal legislation. To be clear, the scope of this discussion is in demonstrating the importance of thorough study of the Constitution as the basis of our American Studies. It is not a debate about the theories of nullification or the proper role of immigration law. That is saved for another day.

The former debate has led many groups to many varying conclusions. Some say immigration is not a federal responsibility because it is not literally listed among the duties of Article I, Sec. 8. They are using the Plain Meaning Rule, alone, for their interpretation. Others claim, by the same exact article and section that immigration is indeed included as a duty as it goes to naturalization. They are using the Mischief Rule to determine immigration law’s legitimacy. So too, are those who claim immigration is a natural action to oblige the mandate in Articles I, II, and IV, which protect the states from invasion.

Then, there are those who claim history proved immigration is not a duty of the Federal government at all because the Virginia and Kentucky Resolutions of 1798 declare it. This would be a form of the Purposive Rule except for one fatal flaw: the historical research into the purpose of immigration in relation to the Resolves of 1798 are not a thorough study of the issue or the Resolves. (We will discuss these Resolutions further when looking at the issue of nullification.) This rule is most difficult, as it requires in this day and age a high level of effort in researching all the history on any given issue. It is very easy to miss a critical historical fact or original perspective and thus miss entirely, a point or purpose in the Constitution, as research surrounding the Resolves demonstrates.

The Virginia and Kentucky Resolutions of 1798

In 1798, James Madison and his good friend Thomas Jefferson, one the governor of his state of Virginia, the other Vice President and residing in Kentucky secretly constructed a lengthy list of perceived infractions by the Federal Government regarding a number of issues, including immigration and silencing insults laid at the President (The Alien and Sedition Acts). Their list culminated in the resolutions. But the two parted ways on one main issue. nullification, which demanded and declared a right of states to nullify a federal law it deemed unconstitutional was the brainchild of Jefferson alone. Today, proponents of nullification and immigration laws on the state level only, and opponents of federal immigration legislation will cite the Resolves as their justification. There are inherent problems with using the Resolutions as support of any position, however.

While some of Jefferson and Madison’s grievances were well justified—those concerning curbing freedom of speech, for one, the two make some remarkably large errors in their arguments. In the Virginia Resolution is this statement:

…powers not delegated are reserved, another and more special provision, inserted in the Constitution from abundant caution, has declared that ‘the migration or importation of such persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year 1808;’ that this commonwealth does admit the migration of alien friends, described as the subject of the said act concerning aliens:

While James Madison, in this segment of one resolution, claims the states have a right to immigration laws using this phrase in support of “migration of alien friends,” and Congress has none, he was a partner to the construction of the Constitution, and clearly knew the clause to which he refers regarding the “migration and importation” of people was referring to slaves and part of a compromise to end the practice of slavery by 1808. Madison knew the intent of that clause, spoke to it, himself, but knowingly ignored the Mischief and Purposive Rules in crafting his resolutions. The student of American Studies, having read both Madison’s notes and Elliot’s at least, will notice that Madison misuses the clause, understanding well its intended purpose as solely in regard to the slave trade and its eventual dissolution. That fact was cemented in the record to which Madison contributed, including this commentary about The 1808 Clause:

It were doubtless to be wished that the power of prohibiting the importation of slaves had not been postponed until the year 1808, or rather that it had been suffered to have immediate operation. But it is not difficult to account either for their restriction on the general government, or for the manner in which the whole clause is expressed. It ought to be considered as a great point gained in favor of humanity that a period of twenty years may terminate forever, within these States, a traffic which has so long and so loudly unbraided the barbarism of modern policy; that within that period it will receive a considerable discouragement from the federal government, and may be totally abolished.

Concurrently, in the Kentucky Resolution is this: “the [Alien Act]…exercises a power no where delegated to the federal government.” Jefferson destroys his argument using the Plain Meaning Rule to justify his objection to new immigration laws enacted in Congress. Using a literal meaning rule to argue against the immigration laws automatically condemned the Resolutions themselves for usurping a power delegated to the Supreme Court—not the states. The Supreme Court declared it so. Neither did the other states actively support the Resolves. Madison, Jefferson, and their state legislatures were grossly outnumbered by the rest of the nation, who simply did not buy their arguments.

Some supporters of nullification will claim Jefferson was elected to President to remedy the Alien and Sedition Acts, and that as President, he successfully reversed those. While it is true that as President he pardoned those sentenced and jailed, Jefferson had nothing to do with the reversal of the Acts. Those Acts expired through a Sunset Clause, (which was customary in legislation of the day), on Mar. 3, 1801.

If a student of the Constitution is familiar—as they should and must be—with the debates of the Convention, and understands rules of construction the Founders used, they will dismiss the resolutions as, not only obsolete, but invalid. Madison, sideswiped the intent of them by ignoring the history of the Debates, even though he himself was not only party to the discussion but also vocally encouraged Federal involvement in state slavery immigration—contrary to his later stand with the Resolutions that the Federal government had no right to interfere in immigration. Thus, the student of the Constitution inquiring whether the Resolves of 1798 are justification for the states to nullify an Act of Congress will understand them to be an incredible source in support of nullification, and against federal immigration law.

The popularity of worshiping some Early Americans and vilifying others is of interesting note. This is caused from the lack of thorough reading about all the initiatives, comments and efforts of all the Founders. Case in point: The art of American Studies requires reading enough to note that while Jefferson was the author of the Declaration of Independence, he was not an author to the Constitution at all. He was in France. Yet, he is often quoted as a reference to the clauses and intent of the Constitution as if he were a major contributor. His comments were an afterthought—film critic commentary. Jefferson was a Founder but not technically a Framer. It would be excellent literacy for the student of American History to avail themselves of all the Framers who contributed during the Convention.

Additionally, the student of American Studies will recognize that singling out one Early American hero as the unquestionable resource for all things American and Constitutional is relegating the United States, not to the inspired consensus of a body of great and diverse men—thus creating balance, but the single mind of one. This defies the beauty of the American system that takes into consideration the efforts of all as the necessary injunction of our government. Thomas Jefferson was not “The People.” Nor was Washington. Hamilton was not a rouge charlatan. There were many great, and some under appreciated, contributors to the construction of the Constitution, who need to be completely studied. All of these men were imperfect but combined they were genius. Schools must provide and encourage thorough reading of our history, rather than cherry picking pieces, or worse, focusing upon little known and even less consequential records that are more politically correct than historically compelling. Effort to deeply study what actually makes us American will help us gain a proper perspective and understand the full intent and merit of our great American heritage.


Sources:
Elliot’s Debates
Madison’s Notes
Cooke’s Reports
The Federalist Papers
Kentucky Resolution of 1789; Thomas, Library of Congress
Virginia Resolution of 1789, Thomas, Library of Congress
Principles of Confederacy; John Remington Graham, Northwest Publishing Co. SLC]
First & Second Treatise of Civil Government, John Locke
Blackstone’s Commentaries
Thomas, Library of Congress: www.Thomas.LOC.gov

(Note: Sources hyper linked in text are not listed directly above and are for the reader’s easy access to information in the context of this writing, but not recommended for thorough study.)

The U.S. Dollar: Hyperinflation & Its Destiny in Our Current Monetary and Economic System

The Zero-Value Dollar and It’s Inevitable Destiny

It is difficult to miss the news and commentaries of late about the U.S. dollar's fall in value, the popularity and rise in gold value, whether or not we are making purchases, and the ever vigilant watch of securities (stocks). What we Americans do not understand is their relationship in our free market system. We might know they are related, but not why. Since the removal of the gold standard, two verities exist with respect to our economy. First, without growth, there is death; and, secondly, only in America do you save money by spending it. Both are unfortunate truths not intended by the Founders.

The latter is funny only in respect to checkout clerks who tell you that you saved $10 without reminding you that you spent $100 to do it. A video simulation, called "The Day the Dollar Died," illustrates what its producers believe will happen to the dollar in just a few short years from obsessive compulsive spending that leads to printing money.

The problem with the video is that many people will shrug it off as "gloom & doom" fortune telling. Others will feel overwhelmed and ignore it to preserve sanity. Education will help with both reactions. Not only is it not "gloom and doom", it is, in actuality, the end effect of removing a base value (gold & silver standard) from the dollar bill—especially when the point of removing it was to allow continued spending beyond means to pay.

The dollar bill holds no value in its own right. What Americans need to understand is that commodities are the only way to provide value to the dollar. Simplified: take all the goods and services traded with a dollar, divide that amount by the number of dollars in existence and you have the average value of the dollar. But there is a problem that interferes with that value: Printing money. Printing money increases the number of dollars against goods and services sold, which reduces the dollar’s worth below its actual market value. This causes inflation.

Under the gold standard, money cannot simply be printed. There is only so much gold. And therefore, only a set number of bills could be produced unless more gold was also produced. But remove the value, and printing money becomes not only possible, but also convenient. The gold standard was removed in the first place so the federal government could continue spending outside the value of the dollar—primarily by borrowing, rather than reining in their budgets.


Double Jeopardy

Because the bill has no value if nothing is purchased, the only way for a saved bill to be worth something is through spending it rather than any ability to build equity through the value of gold. Borrowing against savings accounts allows that money to circulate back through the markets by spending and the saver receives a portion of the interest on the borrowers’ loan in return. If money in saving accounts are not moved—if it sits idle—the money could not produce value. There must be borrowers and constant spending in order for our saving system to work. If it doesn’t grow, it dies. There is no such thing as simply maintaining. It is why savings assets do not stay idle in banks. Your money in a savings account is actually invested by your institution in order to preserve and, hopefully, increase the dollar value. Your money is also “sold” to other entities that provide equity assets that, under certain market conditions, might make more money than simply investing in securities, with a small portion of the gain, either way, returned to the saver in compensation for the use of their money for something tangible. Hence, in America, "you only save money by spending it."

But the day you pull your money out of a savings plan it also pulls the investment. It is like "calling" a loan. Hence, the reason the federal government tries to maintain balance between the loan rate and flow of spending through the Federal Reserve and legislation monitoring banks. They are trying to prevent the inevitable breakdown of the system should too many people stop the constant shuffle of money cycling through the system.

The flip side of divesting comes when the dollar value drops through constant printing. Businesses suffer a bleed, usually a small, chronic one, that is out of their own control. They subsequently could go out of business through the fault of the government that prints money to solve its budget problems without realizing it. Homes also feel the pinch over time.

Here is what happens: The Federal government borrows money—a lot of it—then prints money in order to reduce their debt ratio. Basically, the point is to devalue Federal loans with the intention of giving them more money to “play” with. But they have also devalued our private money by it. Congress appears blameless in the dollar devaluation, in their estimation. Yet, in reality the process is tantamount to a very expensive tax increase—the very action they claim, heroically, to be avoiding—because more of your money is now needed for the same products (goods and services), and savings than prior to the government printing more bills. You and I must work harder to be able to acquire our same needs. In addition, the debt still needs repaying. Worst of all is Congress’ complete lack of realizing that because they devalued the dollar more (from printing), the government is also decreasing its own ability to pay for the same services it provided to the public prior to printing. Thus, they must borrow more, then print more, then borrow, print, and on and on. Through this vicious cycle we are able to see how inflation is not just created but keeps increasing. The deceptive game by Congress and the Fed is nothing more than the squirrel chasing its own tail. It’s constant use will lead to hyperinflation. —The scenario in the video.

The saddest indictment is not even bad economics, poor budgeting skills in Congress, nor a lack of foresight in pushing off debt for the future. It is the federal government’s willingness to sacrifice the Constitution, which requires the Federal government to manage, not eliminate, the gold standard. Were that still in place, the dollar would have a set stability of its own. Purchases would be on a need basis rather than by compulsion, savings would be actual equity in a commodity rather than a gamble against others to spend beyond their means. The states would not be in violation of the Constitution that specifically mandates repayment of debts with gold or silver. The gold standard was a control for government spending as well: Spend all your dollars, you are done spending unless you borrow. Reach you maximum ability to pay debt? You are done borrowing. Despite how many irresponsible legislators there are, most would avoid this situation to avoid the public ridicule and humiliation had they not been allowed to circumvent the system by destroying the base value of the dollar. The present system allows them to hide their actions behind a delay in consequences that are felt long after they have left the scene.


Symptoms of Monetary Illness and Coming Death

Over time, the build up of debt becomes insurmountable. One of the tell tale signs of rapid depreciation of the dollar is when the very commodity that used to back the dollar, gold, starts rising in value. Eventually silver rises as well. This is a strong indicator of the weak dollar and the lack of faith—some say foresight—of those who are in a position to compensate for the devaluation of the dollar by hording gold.

The higher the demand and subsequent value of gold, the stronger an indicator it becomes of the dollar’s devaluation. This is why we should watch the gold value, stocks (a primary engine of the spending and borrowing cycle), the inflation index, and the gross national product (GNP)—or the amount of “stuff” we buy. This quadrille of American economics should be learned and understood by regular citizens, as it will tell them volumes about what is going on in Congress.

The GNP is most important because when printing causes inflation, the natural counter offense is for consumers to reign in spending. This reduces the value of goods and services against the dollar, and a raise in the latter’s value because the demand for goods and services declines. But this situation causes recessions and depressions. Americans by in large, don’t understand that a recession isn’t normally caused by some consumer error, but is the byproduct of a reaction caused by the government’s printing of money that devalued the dollar in the first place.

This is where the scenario in the video becomes real time. The solution is twofold: Abandon this zero-value economic model and reinstate the gold standard. The other solution, even more important than the first, irrespective of Constitutional mandates, is force Congress and the President to stop spending obscenely. The combination of spending within budget limits and terminating printing of money is as solid a solution as the gold and silver to back it.


The World Economy in U.S Hands

To show just how far reaching this scenario is we need to understand that all other currencies depend on the value of the U.S. dollar for their value. Other currencies do not drop in value as a copycat of America because they have warm fuzzies about us. Their money is directly tied to ours. If the U.S. dollar collapses, so go all other currencies—unless other nations are wise to the situation and divest interest in the dollar. When you read of countries, such as China, scrutinizing our government’s spending habits, (read: printing of money to cover debts) you now know why. Their money is directly invested in our system which would naturally bring concern over their monetary system as well. This is also the reason current federal law allows goods and services to be bought with any currency you care to accept. Bartering goods and services is also allowed and considered currency.

Every American should be mindful of what they can do, independent of the government, as a solution and hedge against monetary collapse. The reality is that there are many—probably the majority—who cannot invest in gold and silver. In an economic/monetary collapse, gold and silver, as currency, would only circulate among those who already have it. Those without would have no means to purchase needs. I suggest a more practical solution that can provide initial relief to all: Invest in commodities that have no bearing on a monetary system. A supply of food, clothing, and other basic needs that can be stored might arguably be the most important countermeasure to a monetary collapse through the reorganization phase.

Albeit unlikely, the prevention of the problem in the first place would be more powerful: Elect only those who are committed to spending within the government's means, and observe and defend the Constitution, in part by reversing the Act that removed the gold standard. That goes directly to the intent of the general welfare clause, which they swore to protect.