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Thursday, April 23

Rethinking America, Part 3: Hashing out The Fourth Republic

Today Procrustes at RBO plays Betsy Ross and sews together patches of dissent and opinion with her own observations to frame the revolution America needs at this time, which is the curtailment of federal power.

Reportedly, many Americans who don't belong to the GOP or the Libertarians joined TEA parties. That suggests to me that if true libertarians, unionists, liberals, greens, and conservatives can suspend their infernal squabbling long enough to agree on a few principles, we'd have ourselves a right proper American revolution. And I'll bet that's the revolution many 'Lou Dobbs Independents' are looking for.

Procrustes quotes from recent writings by Constitutional scholar and Georgetown University law professor Randy Barnett. Barnett dashes the quaint notion that recent legislation proposed in several U.S. states to limit federal power can find support in the Constitution's Ninth and Tenth Amendments. He then proposes a strategy to roll back federal power that has more than a snowball's chance in hell to work.

(So I say with a wry smile that I might have subtitled this post, Lawyers: Can't live with 'em, can't live without 'em.)

Procrustes's essay also brings into sharp focus that Obama’s presidency is the logical outcome of the excesses of America's 'third' republic. As I note in the RBO comment section:

"Perhaps Obama sold himself to the Liberal Old Guard (and to many Republican ‘moderates’) as the one to keep the ancien regime of massive federal power lurching along. In that event neither he nor they factored in the economic crisis, which is exposing the extent of power that the central government had gathered to itself over a period of decades. I think it took a crisis of this gravity and scope to reveal to many millions of Americans that federalism had become a juggernaut."

I am bursting to say much more but right now it's time to turn over the podium to Procrustes, who gave me permission to cross-post her essay:

RBO Rant: Obamanation, TEA parties, the law of unintended consequences and a Constitutional amendments convention

There have been a myriad of signs pointing the way for nearly two years -- aided and abettted, of course, by the hear-no-evil-see-no-evil-speak-no-evil media--that it should come as no surprise to RBO readers that the inaugural prophecy by The Telegraph (UK)'s Gerald Warner -- “this Emperor has no clothes, it will all end in tears” -- has, within the space of less than 100 days, begun to come true.

Warner wrote:
This will end in tears. The Obama hysteria is not merely embarrassing to witness, it is itself contributory to the scale of the disaster that is coming. What we are experiencing, in the deepening days of a global depression, is the desperate suspension of disbelief by people of intelligence - la trahison des clercs - in a pathetic effort to hypnotise themselves into the delusion that it will be all right on the night. It will not be all right.

We have been here before. In the spring of 1997, to be precise, when a charismatic, young prime minister entered Downing Street, cheered by children bussed in for the occasion waving plastic Union Jacks. A very few of us at that time incurred searing reproaches for denouncing the Great Charlatan (as I have always denominated Tony Blair) and dissenting from the public hysteria. Three times a deluded Britain elected that transparent fraud. Yesterday, when national bankruptcy became a formal reality, we reaped the bitter harvest of the Blair/Brown imposture.

The burnt child, contrary to conventional wisdom, does not fear the fire. After the Blair experience there is no excuse for anybody in Britain falling for Obama. Yet today, in this country, even some of those who remained sane during the emotional spasm of the Diana aberration are pumping the air for Princess Barack. At a time of gross economic and geopolitical instability throughout the Western world, this is beyond irresponsibility.
There is no need to enumerate the evidence. Just peruse RBO's Reading List and begin reading.

The most recent proof of the imminent unraveling of the republic comes from John Batchelor's post earlier today on the insanity being unleashed through Barackistan HQ's release of Bush administration "torture memos."

JB wrote:
The Obama administration has willy-nilly moved into battle with the most partisan, best-armed, most ruthless part of the political apparatus that did not vote for Mr. Obama. The non-partisan voters will recoil and despair. It does seem overmuch to say that a civil war has started already.
It will be political Armageddon between the Right and the Left waged in the halls of Congress and spewed forth in real time, soundbyte-by-soundbyte, by the nearly completely biased Obamedia; it is too much to expect many will operate from an objective perspective, advertisement-driven media whores that they are. Not to mention every gritty, grungy and grotesque tantilizing and titulating minutiae will be Twittered, Blackberried, bloggered and YouTubed ad nauseum.

What set off this RBO rant? Well, it was Randy E. Barnett's article The Case for a Federalism Amendment. How the Tea Partiers can make Washington pay attention in today's Wall Street Journal.

As loudly as the Left wants to scream that the TEA party movement was not only concocted but steamrolled by the Republican Party, the gesticulating and hysteria will not change the facts. A fair majority of American citizens -- nearly half of general election voters for starters -- have reached the Rubicon's shores and are refusing to cross.

In fact, TDS (TEA Party Derangement Syndrome) has replaced CDS (Clinton Derangement Syndrome) and PDS (Palin Derangement Syndrome) in many blog comment sections.

All protestors are not taxpayers even should they claim to be. We know for a fact that, as CBS News reported April 15, approximately 43% of Americans pay no federal income taxes.
"You've got a larger and larger share of people paying less and less for the services provided by the federal government," says Roberton Williams, a senior fellow at the Tax Policy Center. "The concern is that the majority can say, 'Let's have more benefits, spend more,' if they're not paying for it. It's 'free.' That's not a good thing to have."
The National Taxpayers Union reports for 2006 that the top 1% paid approximately 40% of all taxes paid; the top 5% paid approximately 60% of all taxes paid; and the top 25% -- those earning $64,702 or more -- paid 86%+ of all taxes paid. Oh, and the bottom 50% of taxpayers -- those earning less than $31,987 -- well, they paid less than 3% of all taxes paid.

Where's this 95% of taxpayers who are going to pay less? Sounds good; but it's just another Barackistan-sized Bamboozle for the gullible Lobotobots to ingest with their Cheeto-flavored Kool-Aid.

Plus, it's highly likely that a similar number to those not paying federal income taxes are not paying state income taxes as well.

But then there is another whole dynamic to consider. Although not all protestors can honestly claim outrage based on taxation, all should be vehemently enraged at how America's future generations are being deliberately encumbered and enslaved by flagrantly irresponsible spending. Almost ironically, those on the Far Left fail to see these almost daily unconscionable financial commitments being made in the name of social justice, economic justice or racial justice will exact a price that will have to be paid by everyone.

It's a simple matter of math; it's as simple as paying one's bills and balancing a checkbook. Money has to come in so that money can go out. The more that must go out -- to China and others who now own us for generations -- the more influx of cash will be needed to meet the demand.

Cheer on, socialists, but you will also be called upon to pay the piper eventually. Oh, and by the way, all your civil liberties will have vanished by then, too.

So what is it that Barnett wrote that is so inflammatory as to merit this rant? Well, put simply, Barackistan HQ's activities have not only rocked American citizens sufficiently to propel the TEA party movement forward but, as he points out, the movement may well have served as the impetus for an amendments convention initiated by the aggrieved and offended states of the union.
In response to an unprecedented expansion of federal power, citizens have held hundreds of "tea party" rallies around the country, and various states are considering "sovereignty resolutions" invoking the Constitution's Ninth and Tenth Amendments. [...]

While well-intentioned, such symbolic resolutions are not likely to have the slightest impact on the federal courts, which long ago adopted a virtually unlimited construction of Congressional power. But state legislatures have a real power under the Constitution by which to resist the growth of federal power: They can petition Congress for a convention to propose amendments to the Constitution. [...]

An amendments convention is feared because its scope cannot be limited in advance. The convention convened by Congress to propose amendments to the Articles of Confederation produced instead the entirely different Constitution under which we now live. Yet it is precisely the fear of a runaway convention that states can exploit to bring Congress to heel.
One example of what might work, Barnett suggests, is the repeal of the 16th Amendment. The 1913 amendment authorized a federal income tax. Barnett writes "This single change would strike at the heart of unlimited federal power and end the costly and intrusive tax code."

Barnett asked if such a move could work. He answers by saying:
Could such a Federalism Amendment actually be adopted? Stranger things have happened -- including the adoption of each of the existing amendments. States have nothing to lose and everything to gain by making this Federalism Amendment the focus of their resistance to the shrinking of their reserved powers and infringements upon the rights retained by the people. And this Federalism Amendment would provide tea-party enthusiasts and other concerned Americans with a concrete and practical proposal by which we can restore our lost Constitution.
Barnett discussed this in an April 16 states' rights segment on Fox News Channel's Glenn Beck Show.

Writing today at The Volokh Conspiracy, Barnett added:
Last week I was on the Glenn Beck Show urging that state legislatures petition for a convention to amend the Constitution rather than passing purely symbolic "sovereignty amendments." [...]

Although typically called a "constitutional convention," this term does not appear in Article V, which states “on the application of the legislatures of two thirds of the several states,” Congress “shall call a convention for proposing amendments.” I think "amendments convention" is a more accurate term that distinguishes it from "constitutional conventions"--such as are convened in states specifically to rewrite state constitutions in their entirety. Of course, before becoming part of the Constitution, any amendment proposed by an amendments convention would still need to be ratified by three-quarters of the states.
Barnett directs our attention to James V. DeLong's instructive April 21 American Enterprise Institute article, The Coming of the Fourth American Republic.

DeLong explains the situation in which we find ourselves today (although you should read the whole article to see how we got here):
The real-world answer imposed by the New Deal and its progeny turned out to be special interest capture on steroids. Control comes to rest with those with the greatest interest or the most money at stake, and the result was the creation of a polity called “the Special Interest State” or, in Cornell University Professor Theodore Lowi’s terms, “Interest Group Liberalism.” Its essence is that various interest groups seize control over particular power centers of government and use them for their own ends.

It is this combination of plenary government power combined with the seizure of its levers by special interests that constitutes the polity of the current Third American Republic. The influence of “faction” and its control had been a concern since the founding of the nation, but it took the New Deal and its acolytes to decide that control of governmental turf by special interests was a feature, not a bug, a supposedly healthy part of democratic pluralism.

And so the Special Interest State expanded, blessed by the intelligentsia. And it feeds on itself; the larger and more complex the government becomes, the higher the costs of monitoring it. This means that no one without a strong interest in a particular area can afford to keep track, which leaves the turf to the beneficiaries. And as existing interests dig in to defend their turf, new interests require continuing expansions of governmental activity to stake a claim on.

The appropriations committees and their pork barrels are the most obvious example of rule by special interest, but not always the most important. Whole departments are dedicated to special interests—Labor, Education, Energy."
DeLong provides a few examples:
  • "Money is important, but regulation is every bit as useful, especially because regulations can shift property rights from third parties without going through the budget process."

  • "Tax provisions, both credits and deductions, are substitutes for government budget outlays. [...] Indeed, wherever one finds a public policy disaster, it is likely that the tax code is involved. The wreckage wrought in part by the favored treatment given to home mortgages now litters American exurbia."

  • "Laws can also raise transaction costs, which is much in the interest of the legal profession, itself one of the most powerful of the special interests. Legal looting also goes on via the endless list of regulatory laws."
  • DeLong believes the Special Interest State's "insoluble problems" include:
  • Its "Sheer size."

  • Scope of "Responsibility."

  • The "Lack of any limiting principles."

  • Plus: "U.S. leaders do not grasp the situation."
  • You see, it is not just taxation that is at the root of the problem -- or the TEA Party movement.

    Wisely, the average American citizen knows that even though he/she may not be able to articulate exactly what it is.

    In RBO's opinion, it is clearly the growing insertion of Barackistan HQ into every nook and cranny of American life that is at work upsetting the apple cart. Such things as nationalizing American banks and industry while attempting to regulate everything else in the land to the point that free will has been sufficiently replaced with a totalitarian regime. That makes folks unhappy and unhappy citizens either acquiesce or fight back.

    DeLong concludes:
    On the other hand, it would be unwise to treat the issues with anything other than utter sobriety. The nation made a fundamental political transition peacefully on one occasion, and only with appalling bloodshed on another, and it is hard to buy ammunition these days because the dealers’ shelves are bare. So all patriots would be well advised to pick up a copy of Crane Brinton’s classic The Anatomy of Revolution, and figure out how we can achieve the necessary segue to the Fourth Republic without becoming a chapter in the next edition.
    UPDATE 11:55 PM ET
    Riehl World View has linked to this post; Dan's comment: "A Fourth Republic ... It'll take a lot of thinking and much more doing."


    I have other comments but I'll put them in a new post, which I'm writing now.
    I suggest reading: http://www.nolanchart.com/authors/articles/article.php?ArticleID=6334 before making up your mind on a federalist amendment as it points out several errors of Mr. Barnett.

    Also, please go to www.foavc.org to read the 750 applications from all 50 states for an Article V Convention, the correct term to use in describing an Article V Convention. Congress must call a convention if 34 states apply for a convention call. Thank you.
    Thanks Bill. Yes, Barnett's proposal has met with an array of criticism from informed sources. I am currently writing a post that deals with the topic; it'll publish at 1:00 PM ET today.
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