03 May 2009

You can only betray those that trust you

President Obama was, once upon a time, noted as a Constitutional teacher. Not a tenured Professor or anything like that, just teaching Constitutional law at Chicago University (I believe it was).

Yet he has a strange problem understanding that the Constitution is a negative rights document: it only grants certain, limited rights and powers to government and all of those not listed are retained by the States and the people under Amendments IX & X. This means that whenever government at the federal level wants to do something that we the people haven't given it, that it must come to the States and the people to amend the Constitution to give it that. That was done for Amendments to allow the federal government to directly and disproportionately tax the people. This was also done to center elections for the Senate with the people and dilute the State's role in the federal government, which is an internal check and balance.

Or was one, at any rate.

Those were 'Progressive' ideals - to have a more powerful central government that could demonstrate bias against 'the rich' and remove the stumbling block of the Statehouses from federal legislation. All in the name of 'efficiency'. As if representative democracy to run a Republic is meant to be 'efficient'.

President Obama, when teaching Constitutional law, couldn't get this idea that all liberty and rights are vested in the people by Natural Law and not given to government. In an interview with WBEZ.FM in 2001 he went through his idea that the Constitution would, somehow, be made better if it took the other view: that government gets to give a few rights to people and retains the rest for itself via the concept of positive rights. Government, under that view, does not become a representative institution, but an authoritarian caretaker of the people. In wanting a Constitution that would say what government 'must do' on your behalf, he relegates that decision to government, not the people. To get something like, say, clothing to people, the government gets to decide what kind, what type and how much clothing goes to which people by its own dictates. That similarly goes for [far beyond] clothing. A good job. Health care for government to decide.

If you get the idea this is what America was set up to be against, then you are absolutely correct. The rights of those in a Constitutional Monarchy flow from the top-downward based on the prior concept of Divine Right Monarchy in which the Monarch is vested with power from the Almighty to run a Nation and decide its fate. In England, then later Great Britain, another form of law hit square on with that: Common Law.

Common Law is bottom-up law: the laws are known to everyone, the laws apply to everyone equally (even Monarchs!) and the law is decided by peers and lawgivers who tell what the law is and how it is to be administered.

By being at the confluence of these two sets of law outlooks, England became a legal hotbed as, over the centuries, Monarchs have had to grant more and more power to the Common Law institutions and grant more rights to the people. Natural Law outlooks melded with the Common Law view, and opposed the Divine Right view, forming a very potent set of ideas that would shake the foundations of all governments and continues to do so to this very day.

Natural Law sees that every person, every animal, every plant, every rock, has a set of innate capabilities and innate abilities that are governed by Nature. Once one understands that rock is not immutable, but can be broken up by the Laws of Nature to boulders, cobbles, pebbles, sand and silt, one begins to see that what we expect to be unchanging isn't, but is in the Nature of rocks under Natural Law. Natural Law, itself, puts forward that it is a continual and ongoing process started by the God of Nature and imbued with those fundamental characteristics that man cannot change.

Thus man, born of nature and having the mark of nature upon him, is a being under Natural Law first. If we are made in God's image, that image is a reflection of the Natural Law state of being and God must respect that to have all the things we see about us. To create the creator has integrity to the creation. Under this view man creates Earthly law or man-made law, which must bow to the facts of Natural Law no matter whence they come, otherwise you get King Canute trying his ill-fated will against the tide. Following from that, then, it is not reasonable or even within the realm of logic, that our creation will have greater liberty and freedom than its makers have. If Nature is a step down from the Divine and man a step down from Nature, Earthly law is a step down from man. To put it more succinctly, imagine a bullseye target in which the entire target is the Divine, the outer most ring marking is Nature, the next one in is the creatures of Nature, in from that is man, and finally, at the center, is man's law, taking up the smallest and least part of the bullseye.

From that negative rights are derived: we have limited liberty to address the Natural world and create our own societies, devices and learn to live with them while protecting ourselves. All liberty and freedom are inborn within each of us, and we have all that man can have within Nature. Even if we learn all there is to know, our creations are still beneath the Divine and a part of Natural Law. Our governments and laws are a very small part of all of Nature and absolutely amenable to the will of man within what man can do. And yet we still have legislatures trying to make the relationship between the diameter of a circle to its circumference equal to 3, not pi.

That last is hubris: to say we can dictate what the Natural world is.

It is also hubris and authoritarian to try and give government positive rights as if government, our creation, is something that created us and grants us liberty and freedom. To do that makes man a servant to his creation and a slave to it.

We may not like being slaves to our Natural selves, but then we also know that to have all thought, all liberty, that we DO have, we must be Natural. We create things to help us survive in a better fashion and, from that, create society, laws and government. That is the positive rights view of things: we give a few negative liberties that endanger ourselves and society to government and watch them with an eagle eye to keep government from trying to usurp its role as our faithful protector. When government becomes a provider of our sustenance, clothing, medical care and so on, we become servants to IT.

President Obama somehow misses this greatest of all logical views on man's relationship to Nature and our creation, which is government. To not live under Monarchs, Aristocrats, tyrants and despots, we created a government that recognizes its place in the order of things. That took centuries, indeed, millennia to do and finally recognize that might does not make right and that no one leader or even small group of leaders are imbued with the power to know their entire Nation in full. How could anyone miss this greatest of all revelations about the Nature of relationships and liberty?

The Bill of Rights addresses eight common rights under the Common Law as practiced in England, since these were fundamental to running a government by the rule of law and protecting basic rights that are enumerated. Amendment IX and X then go far further and points out that all rights not given to the States and the people via the Constitution are retained by the States and the people and may not be abridged by the federal government. Thus all the previous enumerations are exacting ones to the federal government: if it is not listed, the government does not get it.

To do otherwise, to seek a 'living Constitution' or to want government to be the guarantor of positive rights, is hubris: it says that government is greater than man, its creator.

So, with that explained I do have a deep, abiding and real concern about President Obama's activities in his elected Office.

It is a minor one, true, but as the Constitution is to be a safeguard against intrusion of government to the people, and from dictating to the people, it is not one that can be overlooked. I've brought it up before, but I will restate it.

In 'bailing out' GM (or, indeed, any company) the federal government steps into a backer and ownership role if said company fails: it gains power over the worldly goods of that lawfully made entity.

Yet the US Constitution clearly puts forward the following with regards to real world property which is the land upon which the companies must sit (even if it is a one person company, they have an office someplace,even if it is a carve-out via law, from their home, to have a legal entity presence in a State) in that this is granted to Congress in Article I, Section 8:

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;

Even if these are 'needful Buildings' the Congress, not the Executive, must seek out permission from the States involved to get ownership of them. In becoming a purchaser of a company, by default if it fails, the federal government transgresses its role in the federal scheme of things.

No matter which view you take, positive or negative rights, the government has an agreed-upon proscription on purchasing and the methodology put forth MUST be followed.

This is a stab in the back by a Constitutional teacher against the Constitution when put into an Office that requires an Oath to faithfully uphold the Constitution in all his duties.

Congress cannot delegate this, and cannot remove the States input per piece of property, as this is a listing of a by item permission power. There is NO greater power given to the government for this elsewhere, which is why it auctions off seized items immaterial to a criminal proceeding after winning a conviction: the government can't own that stuff.

No legal proceeding CAN place GM, Chrysler or any bank into the hands of the US government WITHOUT the consent of each State for the use of the property involved, per item of property, which are to be enumerated. That then becomes US government property IN FULL for the duration of ownership.

This has not been done.

Only a Constitutional teacher can give a facade of legality to such a thing... while going against a prime restriction in the Constitution meant to safeguard EVERYONE'S PROPERTY.

If the federal government can grab that property without say-so from the States, there is nothing preventing it from grabbing yours under any rubric that petty tyrants may desire. To do otherwise is to believe that this is a government of men, not laws. The laws we hold in common and all are to abide by them as given. When it becomes a government of men, we fall back to Monarchs, Aristocrats, Dictators, tyrants and despots.


Patricia said...

"No legal proceeding CAN place GM, Chrysler or any bank into the hands of the US government WITHOUT the consent of each State for the use of the property involved, per item of property, which are to be enumerated."

Doesn't this refer to land or property that is owned by the State and that the Federal government wants to buy (or seize by eminent domain) for some needful purpose?

I can't believe that a State (say, Illinos) has ANY ROLE WHATSOEVER in approving or overseeing the use, sale, or transfer of a business or property that is not in fact owned by the State. It doesn't matter who the buyer is. Of course, the Federal government has NO ROLE WHATSOEVER in using, buying, or taking over any business, or choosing who to hire and fire, what to pay employees, etc.

I agree with your fundamental point that the Federal government is acting illegitimately. But trying to squeeze additional illegitimate acts from the State into the process just makes it worse.

The correct position should be that bailouts are an illegitimate use of taxpayer money, and that legislation, earmarks, and regulations designed to favor special interest groups, including business owners, workers, and investors, are illegitimate. Without bailouts and other "investments" made with taxpayer money, government would not be able to pretend it has a right to manage or seize any business. Government at all levels should just butt out and let the free market work. Most of America for most of our history has understood this pretty well.

The Obama administration is demonstrating breathtaking abuses of power in engineering the nationalization of businesses in key industries: finance, automaking, healthcare. But I don't think you can hope to throw a monkey wrench into the works by invoking involvement of State governments on the terms described here.

A Jacksonian said...

Patricia - The government must be able to have legal standing to have a stake in real property that is not held by it. The States are given a role in this:

"To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;"

The consent of the Legislature in the State must be given before any transfer of property in a State can go to the federal government. It must do that for 'needful buildings' such as arsenals and such and had to do the exact, same, thing when establishing the previous National Bank system.

Bailouts are not only an illegitimate use of funds, but the only power to gain property rests in Congress, not by Executive fiat: if Congress wants those businesses and the property they are on, they must ask the Legislatures of the States involved for them. There is NO other power given to the federal government for seizing or owning State land, beyond the District. Not one other single, solitary word about ownership of land and edifices beyond that.

The Constitution is a negative rights document: it must be clearly stated for the government to have a power and liberty to use it. But even on the positive rights side, if it is clearly defined that is *it*.

Under the Law of Nations our Constitution severely limits the sovereignty power within the Nation by requiring an internal check against land seizure. This was important at the time of the founding, and remains so to this day. Even needful purpose requires consent... there is no two ways around it. That is also the same reason there is an escape hatch for self-protection of States in Art. I, Sec. 10 in cases of 'invasion or Danger' that will not admit delay. The States have a right to self defense and internal sovereignty within the Union. Consent to prevent overt seizure, and self-defense to prevent neglect or to have remedy against unforeseen circumstances.

I will also say that you are quite correct and that Congress did not specify what the funds were to be exactingly used for nor the procedure for such use. That is neglect of duty on the part of Congress... this is one huge, unholy mess.

If we could but get magnets and copper wire around the founders we could have eternal energy as they spin in their graves.

Patricia said...

A Jacksonian - Thank you for your response. I believe we are in complete agreement on the fundamentals of this issue. However, my original point of confusion still remains.

I do not understand where Chrysler, GM, or any other business that is NOT owned by the State fits into the part of the post we are discussing. As you say, "There is NO other power given to the federal government for seizing or owning STATE LAND, beyond the District." The businesses we are talking about are NOT State land, and they are NOT State owned. Other than regulations and taxes, government at any level has no ownership, managerial, or other control over the businesses that the Obama administration has in its crosshairs.

"State-owned land" has nothing to do with private businesses like Chrysler or GM or any bank or financial services firm. True, these companies are subject to government regulation, but they are considered "public" only in the sense that members of the general public are able to buy ownership through the purchase of stock -- a system that is heavily regulated by government. They are not "public" in the sense that government owns them on behalf of the people (like public lands or a National Park, or like the USSR owned oil companies). Until Obama took control (as opposed to "took office"), neither State nor Federal government had an ownership role in the businesses in question.

The section you cite refers to State-owned land, actual physical land, being purchased as a site for a fort or other structure needed for the government to perform its duty to the people. Although Chrysler and GM probably own actual physical land, that is not what the Federal government is after, nor does the Federal government seek to "buy" these companies so they can build a fort or other "needful buildings." So, the State does not own the companies or any land that the companies may own, and the Feds are not buying them for the limited purposes described in this section of the Constitution -- and I don't see how the quoted passage is relevant to the nationalization of Chrysler and the skirting of established bankruptcy law. Well, not unless some Court decides that "needful buildings" is a synonym for "teensy-tiny widowmaker cars."

Therefore, since these businesses are NOT the property of the State, in whole or in part, is doesn't make sense that the State legislature would have to give its approval for a sale or transfer of these businesses to the Federal government. As described in your post, these businesses simply do not fit within the limitations of the Constitutional section covering State-owned land, its sale or transfer to the Federal government, or the defined uses for land purchased under the terms of this section.

I would very much like to find SOME way to halt the Obama administration in its tracks, but I don't think this specific section covering State-owned land purchased by the Feds as a building site contains the solution. Or is there some legal precedent that expands the original meaning of the quoted section to include the far-broader situation we are discussing?

A Jacksonian said...

Patricia - I believe the wording "all places purchased" would pertain to those actual, real estate and building holdings that a company has. They are in a State. To invest in a company and direct it is an ownership concern, and the federal government, to invest in a private firm to then get property to run in a State without going through the State Legislature is a Constitutional question. It would not matter if it were private or public land as ALL land in a State is the concern of a State.

Businesses are corporate entities of State law, also: they fully operate under State guidelines as well as adhering to larger federal ones. That is why Delaware with such low corporate taxes gets headquarters there. That is something only a State can do - I am unaware of any federal companies: they would have to be authorized by Congress as was the old National Banks. It is not a question of the nature of the concern (public/private) but that of controlling authority (State/federal). As corporate entities are a State concern, the purchase and use of land a State concern, and the Constitution addresses all purchases that the federal government wishes to go through State legislatures, then the result is that trying to nationalize or run a company that the federal government has put funds into requires permission of the State.

TARP and other vehicles to put money into private firms runs afoul of this if the government attempts to do something other than liquidate the firms and sell off their property. Otherwise the federal government could simply buy up properties that are fully within a State without permission of a State while all laws of the State are in force. Anything other than liquidating the firm and selling off its property is actually using a property for federal concerns in which the State has not been asked if the federal government can actually do that.

If the counter is given that the government can do this investment to run the company: where does it get this power? It is not an enumerated power in the Constitution. In no place is it given that the federal government can purchase private firms to run at the behest of the government.

This is my problem with things like Fannie and Freddie: how can the government actually sponsor such loans and be the ones putting them forward? That, also, puts the federal government in the position of being the lender for private property... that said the government goes through private intermediaries for that, so is shielded from those problems (although defaults still accrue monetary problems to the government...).

For me, to even get to the the fifth amendment problem, there is the basic Constitutional problem of needing the proper sign-offs. Otherwise the federal government would just set all land prices, purchase them all under the guise of private sales and not allow the States to say anything about it. That is clearly not allowed. It is originating power and the federal government doesn't have the right to demand that any real estate within a State be given to the federal government to control. It can ask and pay for it...and the State legislature can say: no. That is the check against a federal land grab.

1) Land is within a State,
2) Corporate entities are incorporated via State law and receive primary guidance from the State on how to operate,
3) Land ownership within a State is under State laws,
4) The federal government to operate any building, edifice, or other operations on land in a State must ask permission of the State to do so for the purchase of such land. Without that permission, no operations may take place.

I doubt the founders would just let the federal government set all prices and force sales so it could purchase the Nation out from under the States... and if you see where Chrysler, GM, and some of the financial institution power grabs are going, that is exactly what is happening. The federal government cannot own the land of the Nation without seeking approval from the ultimate holders of the power: the people and their republican forms of government in the States.