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.
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