Wes Riddle's Horse Sense Column #408 Dirty Dozen (Part 10)

Two eminent scholars, Thomas Woods, Jr. and Kevin Gutzman argue the Constitution isdead not just dying, and they have identified a dozen ways—the dirty dozen—in which all three branches of the federal government have removed restraining elements from federal officials so they can do whatever they want! Number Ten is the transformation of the Chief Executive into Prince and the concomitant abuse of power in the exercise of foreign policy. The Constitution had first established a federal structure of government, and the Supreme Court was committed to it based upon Original Intent well into the Twentieth century, and even in the area of foreign affairs. Several cases during the 1920s and 1930s, however, upended the constitutional tradition.

At the Constitutional Convention in 1787 the Founders discussed areas in which states might not be as competent to judge or legislate in as, say, Congress. The Virginia Plan proposed by James Madison was actually modified at the Convention over the very question, whether Congress was to be altogether national in its scope and reach or whether it remained part of the federal construct involving dual sovereignty with states.Today there is little doubt that we have an operative national Congress, but the Founders agreed to a federal Congress instead, with specified powers mainly listed in Article I, Section 8. This was a key point in debates leading to ratification of the Constitution by the people of the several states. The new government would not be able to subvert state and local self-government for which the American Revolution had been fought!

Plain statements by Federalist proponents of the Constitution during ratification debates make clear their intent that treaty power dealt only with external matters and not with matters internal to the states. As if to make the point twice and doubly clear, the Tenth Amendment was added after ratification, i.e., after the language conveying treaty power, to make sure the Federal Government got the message: that it may not make treaties with foreign governments impinging on sovereignty, rights and freedoms inherent in each state. Congress may not, for instance, give a state's territory away to another nation.Congress cannot compromise gun rights, speech rights and freedom of religion in states, as these are not supposed to be subject to negotiation with foreign governments.

The case of State of Missouri v. Holland (1920), however, began a radical change to this presumption. Stating a majority opinion for the Supreme Court, Justice Oliver Wendell Holmes practically delimited the federal government's power to make treaties and said the Tenth Amendment did not apply. The case dealt with regulating, a.k.a. protectingmigratory birds through treaty. Holmes conceded that exclusive federal jurisdiction and power was not there to do it, at least not originally, but it needed to be. The policy in question was right, even if it were not constitutional. Therefore the Court set a new legal precedent against clear terms in the Constitution. It is worth noting, this is how law may become unconstitutional and ultimately de-legitimized. It is also how revolutions are justified within the bounds of constitutional republican theory.

The development in State of Missouri v. Holland came also upon the heels of the Seventeenth Amendment (1913), which transferred the power to elect U.S. Senators from state legislatures to election by popular vote in the several states. The Amendment had the immediate effect of removing political opposition in Congress to incursions on states' reserved powers. As it turns out, the Seventeenth Amendment unintentionally removed an important bulwark shoring up the Tenth Amendment. The Supreme Court took advantage of a unique opportunity, changing the legal precedent and making law that was essentially unconstitutional according to the terms of a previous constitutional regime—creating instead, a new ultra-if not supra-national constitutional regime we are still under. Theoretically nothing is beyond the bounds of national treaty making power, subject only to consent of the Senate by two-thirds vote.

The latter stricture too disappeared, and today we make treaties by Executive fiat even without the consent of the Senate. Here is how that happened. The case United States v. Curtiss-Wright Export Corporation (1936) dealt with a congressional attempt to delegate broad discretion to the president over the sale and export of arms and munitions to other countries. The Court in that case determined that the federal government through the president had power to undertake executive agreements as a substitute for treaties—binding international agreements not requiring ratification by the Senate! Not only did the case enable the legislative branch to delegate its discretion to another branch of government (something we saw again leading up to the invasion of Iraq), Court opinion reinforced the unhistorical account that sovereignty was unitary and invested with the federal government in the area of foreign affairs. As such it trumped state concerns, so that internal matters are really no objects. The distinction between internal and external was not simply blurred; rather, state internal matters were relegated to an entirely subordinate position. Federalism for all intents and purposes is undone.

On the current basis of Supreme Court opinion, the Constitution could not have erected an unchanging framework of government, since that framework as well as the rights and freedoms attended to by states, are subject to the federal government in the area of foreign affairs through treaty—and now through executive agreement entered into by a single person, the president—either of which can deal literally with anything whatsoever.This is bad news if one believes, as the Founders did, in the sovereign purview and prerogative of each state or in inviolable rights and freedoms. The final blow perhaps came with the case of United States v. Belmont (1937) involving Soviet nationalization of assets inside the State of New York. The Supreme Court ruled the state had to yield to an executive agreement that allowed for confiscation, irrespective of the constitutional injunction against taking property without just compensation. An international agreement made by the president simply countermands the policy or determination of any state. It is no wonder how the Supreme Court has begun to quote foreign case law and international standards to set legal and "constitutional" precedent.

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Wesley Allen Riddle is a retired military officer with degrees and honors from West Point and Oxford.Widely published in the academic and opinion press, he ran for U.S. Congress (TX-District 31) in the 2004 Republican Primary. Article based on the book by Woods and Gutzman, Who Killed the Constitution?(2008). Email: wes@wesriddle.com.

Wes Riddle's Horse Sense Column #407 Clarion Call to Conservatives

We can argue whether it was real conservatism or faux and mistaken conservatism that lost the last election in November 2008. Regardless, 28 years of a nominally conservative governing philosophy is the proverbial baby that was thrown out with the bath water. Nor is the current crisis only a partisan political thing. The nation's economy is the worst since the Great Depression, such that capitalism and even the whole idea of having free markets are under siege and, with this president and the Pelosi Congress, at risk. Nobody has done anything either to solve our porous border situation or to rein in illegal, much less legal immigration. The military is run ragged and not even completely transformed to its new generation of equipment or training. Tens of thousands of veterans will rightly demand long-term care, and now the government talks about 25% cuts in defense spending!

All this, when foreign policy challenges are quite serious: from Mexican instability and drug violence spilling over the border; to North Korea feeling its oats and shooting off missiles (at the same time it implodes under demographic pressure and famine); from a crazy man in Iran resisting pressure for democratic change, to the tough guy in Russia killing off political rivals (both shades of Evil Empire); and always that Red Chinese dragon lying in lurch—silently building its military, becoming an economic powerhouse too; not to mention those bad guys we call terrorists lodged in failed or failing states, searching for safe havens to launch future attacks against our people; and least perhaps but very sad, our European brethren who inherited directly the great Western tradition, now losing all religion and becoming a mere secular shell, submitting blithely to self-loathing and to the sense of inevitable decline.

Almost the only thing we can agree with President Obama about is, well yes—this is indeed "a critical moment"! Counter intuitively perhaps, this may also be a most auspicious beginning for the next conservative change making political movement in America. Indeed, it is my strong conviction that it is from this great place, figuratively and geographically nearest to the heart of Texas—it is from this place, that Americans will learn what to do and how they ought to respond to the criticality of this moment. It is from Central Texas conservatism they will be reminded of certain principles and of what it means to be American in key, essential ways. This conviction is born of a faith that we can and will meet the challenges I've mentioned, and any other challenge, if we have the heart; if we give it our all; if we live up to the character of our forebears and invoke the name of the same Almighty, who helped them on behalf of the righteous cause of Liberty.

This State whose battle cry is, "Remember the Alamo!" appreciates and understands this better than any other. This place, Bell County, where the Chisholm Trail runs throughknows. Central Texans have known glory in victory, valor in defeat; they have persisted through tough times, drought, fires and floods. They know if you want to get on with it, sometimes you have to get back up and dust yourself off; and if you want to get from one place to another, you've got to 'get a move on.' Not all trails lead to the same destination, and few are what we'd call totally "Happy Trails." Bluebonnets have a short season, as it were. And yet the trail you embark on will convey you, through time and experience—and the same trail that takes you to a new place, dotted with a few other places along the way, can also take you back on your journey home.

The conservative leads his or her country home as it were; or the next best thing, the conservative will pack up the relics, the essential tools, seed corn, keepsakes, brands, favorite recipes, and the family Bible. He or she will stow them safely in the wagon as he heads off to parts yonder or parts unknown. When he gets there, the new home will surely bear a resemblance and continuity with the old, even in the midst of a new environment and more changes to come. In this way, the old remains vital and relevant while still moving forward. And it is not a joyless trek either, because part of the kit involves Texas optimism, as big as the Texas sky.

Texans have a penchant for finding the silver lining, as well as adjusting their own attitudes when necessary—in order to bend nature to the will, and to visualize the prize against any background whatsoever, because they know (to borrow a folk song lyric) that 'everywhere you go, you take the weather with you.' Texans are funny that way because they're cock sure they got the best, no matter what it is or what condition it's in! Their attitude, if you will, is always more than equal to any task. Which is a good thing, because we shall need this quality in spades. Nevertheless, I tell you from a political standpoint,this is ground zero of the next political Revolution, one that rivals the Jeffersonian and Reagan Revolutions—and this is an exceeding great day to be called a Patriot!

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Wesley Allen Riddle is a retired military officer with degrees and honors from West Point and Oxford.Widely published in the academic and opinion press, he ran for U.S. Congress (TX-District 31) in the 2004 Republican Primary. Article from remarks to the Central Texas Conservatives, 25 May 2009 at Temple, TX.Email: wes@wesriddle.com

Wes Riddle's Horse Sense Column #406 Dirty Dozen (Part 9)

Two eminent scholars, Thomas Woods, Jr. and Kevin Gutzman argue the Constitution isdead not just dying, and they have identified a dozen ways—the dirty dozen—in which all three branches of the federal government have removed restraining elements from federal officials so they can do whatever they want! Number Nine involves abuse of the Commerce Clause. Americans may be surprised to learn they have a constitutional duty, according to interpretation by federal courts and the Supreme Court, to suffer. The duty to suffer is for the sake of commerce.

To digress a moment, it always bothered me that the government used tax laws, in particular tax evasion to target and convict criminals and punish them for other crimes the government could not prove. On an existential and practical level, it may serve the greater good and public welfare and indeed be "just," to put away the likes of Al Capone by expedient means. But it is easy from our vantage point to see how a constitutionally unrestrained government may begin to turn any citizen it wants into a criminal. The process has already begun in fact, and the nature of power makes it entirely likely whenever the government should feel politically threatened. Motivationally, it was not the heinous crimes committed by the mafia that mattered to prosecution, so much as the displacement of government authority and its control over the purse.

The same bureaucratic and political motive gives rise to officially sanctioned disinformation, as well as to state-sponsored violence. We may have entered a period beginning in the 1990s where, even absent the admitted Cold War anomalies, power in the central government had grown so great and restraints upon it so ineffectual, that transparency in government operations as well as the trustworthiness of what the government itself was reporting, were compromised and in grave doubt. At such a stage as we are still in, only a severe populist reaction causing political realignment and large-scale replacement of officials, may jolt the system sufficiently to make it amenable to reform and efforts at restoration.

At the Constitutional Convention and in the sixty-three times the word appears in the Federalist Papers, "commerce" meant trade. Foreign trade was distinguished from trade or commerce among the several states. The Constitution's Commerce Clause found in Article I, Section 8, Clause 3 grants Congress the power to "regulate Commerce [trade] with foreign Nations, and among the several States, and with the Indian Tribes."Commerce among the several states referred to commerce between one state and another, not commerce inside one state (intrastate) that may be said to have an extenuating effect elsewhere. The point of the Clause was quite frankly to keep one state from setting up and imposing tariffs on goods coming in from another state. The provision is thus largely responsible for the Constitution having enabled setting up a giant free-trade zone throughout the United States, i.e., by preventing states from obstructing the free flow of commerce (So far, so good).

By the twentieth century, however, precedents were compounded to such an extent as to completely undo a distinction between intra and interstate commerce. Wickard v. Filburn(1942) thus overlay Gibbons v. Ogden (1824), and now a farmer growing wheat on his own land was subject to federal regulation, because while it wasn't interstate commerce per se, it nonetheless affected interstate commerce. Had he not grown his own wheat, he might have purchased it from another state! His abstention from purchasing, his evasion if you will, brought private activity conducted entirely within a sovereign state under federal jurisdiction.

Given the precedent in Wickard, it was an easy hop-skip-and-jump in the case of Gonzales v. Raich (2004) for the Supreme Court to say flatly, the federal government may now ban the use of substances grown and consumed inside a single state—whether or not they are ever bought or sold, and whether or not there is even a market. The reason is such a substance might "leak" into interstate commerce and affect the overall economy. The suppositional reasoning is far beyond anything envisioned by Founders' Original Intent regarding the Constitution or the Commerce Clause. Indeed, any and everything affects the economy—particularly if one judges effect upon a hypothetical abstention or the leakage of something that isn't even done. One wonders if the hypothetical extends to evasion of taxes on supposed commerce that never occurs, or the commission of crimes you just happened to think about.

Specifically dealing with the question of medical marijuana, though legal in California, the Court favored federal raids and seizure of private property based on the rationale that a leakage for recreational use outside the State of California could disrupt the federal drug prohibition policy, thus making the government's larger regulatory scheme less effective.In one fell swoop the Court set a new enlarged precedent, that federal regulatory regimes trump anything taking place inside states. Not only does the federal government control anything that affects commerce, it now controls anything that affects a regulatory regime.Commerce had morphed a long time ago from interstate to intrastate, but now it involves anything the government says it does. Anything within a state affecting or supposedly affecting a larger federal regulatory scheme is brought within federal control. Moreover, if something is legal in a state today, it can be disallowed whenever the feds want—rendered illegal, simply by erecting a new federal regulatory scheme.

Three states that outlaw medical marijuana (Alabama, Louisiana and Mississippi) filed an amicus brief in protest to the decision in Gonzales v. Raich. Alabama's brief on behalf of the three states reads in part that the point is not whether medical marijuana is good or bad or profoundly misguided—rather, "The point is that, as a sovereign member of the federal union, California is entitled to make for itself the tough policy choices that affect its citizens." The federal government may not "displace the States from their traditional role as the enforcers of local criminal law and assume the States' police power to provide for the health, safety, welfare, and morals of their citizens." In point of fact, the federal government says it can. Commerce not only makes us duty bound to suffer as it apparently does for medical marijuana users in California, it makes everyone slave to the central government in Washington, albeit for the greater good of macro-economy as determined by the federal government on your behalf. They've done such a good job too.

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Wesley Allen Riddle is a retired military officer with degrees and honors from West Point and Oxford.Widely published in the academic and opinion press, he ran for U.S. Congress (TX-District 31) in the 2004 Republican Primary. Article based on the book by Woods and Gutzman, Who Killed the Constitution?(2008). Email: wes@wesriddle.com.

Wes Riddle's Horse Sense Column #405 Hardcore Conservative Principles

There was this young man who road a bus to work everyday. On the bus he'd always notice a pretty young woman sitting up front. Well the ride lasted about a half an hour, so his mind would typically drift off. He'd wonder what she was like, and he'd think about how they might meet one day and come to know each other better… Maybe she'd get on the bus and come sit by him, maybe she'd smile and say hi, and then he'd ask her name. If things went really well she'd probably start saving him a seat by her everyday! If she did, they'd no doubt become close. Well, sure as rain one day this pretty young thing did in fact get on the bus later than normal so that the only seat available was right beside him. Just like in his mind, she came on over, smiled and gently said "Hi"—but instead of asking her name, he blurted something out about getting married and how many kids did she want. She left the bus in a hurry.

The moral of this rather awkward story is that you really do have to take your time and proceed by steps, at least if you expect things to turn out well. It's true with life and political coalition building too. While it is important to have a vision and keep your eyes on the prize—you can dream and dream big and say "Yes We Can" till the cows come home, but there's still no substitute for hard work and smart work. What I'm talking about is taking one thing at a time, all things in succession.And one of the first things we have to do as conservatives is to get our act together. It starts by defining what we're about—after which, we may begin to attract a broad coalition and shape policy positions, and also lead the next conservative change making political movement. On 25 May I laid out to the Central Texas Conservatives what I believe to be our hardcore conservative principles. We must advance from these six principles with a resoluteness of purpose and deliberate active work if we are to win back America.

To Restore the Republic meaning we demand a return to representative government. For instance we call our country what it is—a republic and not a democracy, a democratic-republic if you must. The national majority does not rule the States or the Nation in fact. Minority rights are never subject to the whim of 50% plus 1. We choose to follow the Founders' Original Intent—their vision of peace and prosperity, virtue and happiness, that of a 'Shining City on a Hill.' To Reinforce adherence to the Constitution, which is to say that words mean something, that the text of the written document itself has a fixed meaning, that while enumerated powers are subject to some interpretation they are also largely defined; and there are constitutional processes for determining how best to interpret the Constitution's meaning. There are political possibilities based upon the separation of powers amongst branches, and also based upon sovereignty inherent in the states. The Constitution moreover has an amendment procedure, and that's the only way to legitimately change constitutional parameters.Reduction of the Constitution by the Supreme Court to a so-called "living" document amounts to a gross malfeasance on the part of judges-turned-legislators.

To Reinvigorate Federalism meaning that we recognize implicitly the compound nature of our Republic, the fact that it is and by design was made to be a Republic of republics to preclude tyranny and magnify the possibilities of Liberty. Federalism lies at the heart of the original constitutional edifice and is a primary contribution from the Father of the Constitution, James Madison. States ceded specific, enumerated powers to the federal government while retaining everything else. The Ninth and Tenth Amendments are explicit in this regard. To Respect the Flag, which affirms our commitment to the Union as conceived by the Founders and discretely altered by constitutional amendment or tribunal of arms. We respect the Flag as that primary symbol of our country and that Republic for which it stands, and the nation amongst all others on earth to which we owe primary allegiance and to which we hold the love of countrymen for our native or adoptive homeland. We respect the Flag also, as symbol of the highest ideals to which men and women can aspire and to which the nation has mostly been true, as it has progressed through history at great sacrifice and expense in blood and treasure. We are proud Patriots, who celebrate also those various symbols of national and regional heritage.

To Rigorously exercise Freedom is our commitment to living according to our lights without hypocrisy and with utmost personal integrity, to do as we say and believe, to attempt in this life to implement what we have planned and visualized and worked so hard to accomplish. This is our political commitment too, to do as our ancestors did by pledging 'our Lives, our Fortunes and our sacred Honor' to the great project before us into which we have enlisted; to walk as freeborn individuals, possessing Rights from Heaven which no man may put asunder or play God to undo, or unduly restrict.Fundamentally this means that we insist upon self-determination, in accordance with those natural and freely chosen responsibilities we should acknowledge—chiefly those to God and conscience and family; and to our various avocations and social networks; to neighborhood and community; State andNation.

To Remain Steadfast in Faith recognizes the indispensable relation between faith and freedom, whereby they raise and support each other. True faith presupposes a conviction of the heart made freely and without coercion by state or religious authority. Freedom moreover demands that a people exercise self-restraint, the regulation and discipline born of good conscience and drawn to perfect and Higher Law to which man is tenderly and lovingly obliged to choose. We understand that in the order of things, all the Earth is subject to Him and so we trust in the God of our Fathers. Moreover, as Americans we acknowledge the special role the Nation has fulfilled in the advancement of mankind and in the continuous unfolding of Providential Plan.

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Wesley Allen Riddle is a retired military officer with degrees and honors from West Point and Oxford.Widely published in the academic and opinion press, he ran for U.S. Congress (TX-District 31) in the 2004 Republican Primary. Article based on remarks to the Friends of Wes Riddle Picnic, 7 June 2009, at the Overlook Pavilion by Lake Belton, TX. Email: wes@wesriddle.com.

Wes Riddle's Horse Sense Column #404 Yankee Doodle Day

The Fourth of July is the Yankee Doodle Day. For on this day in 1776 the Declaration of Independence passed the Second Continental Congress and our nation became independent from Great Britain. The Declaration is interestingly subtitled, "The Unanimous Declaration of the thirteen united States of America" (that's right, united is not capitalized). Elsewhere in the Declaration, however, it states, "That these United Colonies are, and of Right ought to be, Free and Independent States." In effect the Declaration of Independence is a declaration for the independence of thirteen nations united in the cause of Liberty.

The term Yankee Doodle probably dates back to the Seven Years' War—known in the English Colonies as the French and Indian Wars (1689-1763). A popular song amongst regular military units describing Americans, derided them as being disheveled, disorganized and simpleton. Indeed, "doodle" is a derivation from the Low German dödelmeaning fool. Yankee (sometimes abbreviated Yank) resulted from a corruption of language and the Huron Indian pronunciation of the word English (l'anglais in French), which sounded like Yan-gee. The words were set to a popular nursery rhyme, "Lucy Locket." Accordingly "Yankee Doodle went to town a-riding on a pony," and then "He stuck a feather in his cap and called it macaroni." Macaroni in the middle 18^th century was a dude, or fashionable person. So the joke was that these American Yankees believed that a feather in the hat was sufficient to make one the height of fashion, a real English Gentleman!

The funniest part about all this is that Americans picked up the tune themselves and started to love it. British and American troops during the Revolutionary War took turns changing lyrics and rubbing it in as it were. During the War Between the States, Southerners added their own lyrics and sang just as proudly, "There was Captain Washington upon a slapping stallion, a-giving orders to his men I guess there was a million." The Great Seal of the Confederacy actually has Washington on a slapping stallion. Southerners had no problem with being a Yankee Doodle, but as for being a Yank or plain Yankee (particularly when the term is prefaced), well that's something different!

The song "Yankee Doodle Boy" or "I'm a Yankee Doodle Dandy," is from a Broadway musical written by George M. Cohan dating back to 1904. The musical concerns the hard knocks of one Little Johnny Jones, a fictional American jockey who rides a horse named Yankee Doodle in the English Derby. The song became a patriotic standard and was performed again in the movie—a biographical film about George M. Cohan called "Yankee Doodle Dandy" and starring James Cagney. Production of the film had just begun when the attack on Pearl Harbor occurred, influencing the film's cast and crew to make an unabashedly uplifting and patriotic film, which they did in spectacular fashion. Release was timed for Memorial Day 1942.

Yankee Doodle these days and forever belongs to these United States. He's an archetype of the American character and a fun-loving, unpretentious one at that. Even foreigners recognize it, although they sometimes mistakenly refer to all Americans simply as "Yanks" or "Yankees," dropping the essential Doodle, ill advisedly in Dixie. On this Fourth of July, as if he needs encouragement and even if he doesn't, "Yankee Doodle keep it up, Yankee Doodle dandy, mind the music and the step, and [let] the girls be handy!" That's what he always does anyway, even when problems mount up as high as the national debt or taxes. He's always smiling and ever amazed at the sights he runs into.

The country as it evolved after 1776, in scarcely more than a decade, became a compound republic with dual sovereignties and divided power between the federal government and states, such that, the Constitution drafted in 1787 capitalized the term "United States" as a proper noun for the new nation. Boy that Yankee Doodle Boy is still quite wide-eyed and thoroughly impressed with the fact! One only hopes he finds as many others at tea parties and venues all around, where once he went with Father "down to camp, along with Captain Gooding, and there [they] saw the men and boys, as thick as hasty pudding" all having a Yankee Doodle Day.

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Wesley Allen Riddle is a retired military officer with degrees and honors from West Point and Oxford.Widely published in the academic and opinion press, he ran for U.S. Congress (TX-District 31) in the 2004 Republican Primary. Email: wes@wesriddle.com