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Reclaiming the Constitution (Part 4) Print E-mail
by Wes Riddle    Tue, Feb 22, 2011, 08:59 AM

It was some 60 years later after “New Deal” era cases involving the Commerce Clause that the Supreme Court again struck down a law of Congress as being an impermissible exercise of the commerce power.  In U.S. v. Lopez (1995) the Court took up the Gun-Free School Zones Act, which made it a federal offense to carry a firearm in a school zone.  The majority opinion by Chief Justice William Rehnquist rests on previous Commerce Clause cases to demonstrate that there were indeed some limits to what the federal government could regulate pursuant to the commerce power.  The impact of the opinion was limited, however, by the majority’s desire to stay within existing precedents, which after Wickard left very little room for defining meaningful limits to the commerce power.  Some commentators have noted that the opinion stands for the simple proposition that there must be something Congress cannot regulate under the commerce power, and that the possession of handguns in a school zone must be in that category. 

The concurring opinion by Justice Clarence Thomas has received considerable attention because it urges returning to the original understanding of the Framers, and of the Gibbons Court in 1824.  Justice Thomas relied on contemporary texts such as the Federalist Papers to show that “agriculture, commerce, manufactures,” etc., were considered to be separate endeavors.  He pointed out that “if Congress had been given authority over matters that substantially affect interstate commerce” (as the controlling precedents have ruled) then most of the other enumerated powers in the Constitution were superfluous, because almost everything “substantially affects” interstate commerce, especially in the aggregate.  “An interpretation of [the Commerce Clause] that makes the rest of [the Constitution’s enumerated federal powers] superfluous simply cannot be correct.”  Under Wickard, wrote Justice Thomas, “Congress can regulate whole categories of activities that are not themselves either ‘interstate’ or ‘commerce’ …. The aggregation principle is clever, but it has no stopping point.” 

Some commentators have gone even further.  Michael Greve of the American Enterprise Institute writes “there is no way to squeeze Wickard or any Commerce Clause case after it into the intellectual framework of enumerated powers.  If Congress may aggregate trivial activities into ‘substantial effects,’ it may regulate virtually anything; if it may not do so, it is prohibited from regulating most of the things it now regulates.” 

In U.S. v. Morrison (2000) the Supreme Court again struck down a federal law, this time a provision of the Violence Against Women Act.  Chief Justice Rehnquist, writing for the same majority that had decided Lopez, wrote “[gender]-motivated crimes of violence are not [economic] activity.  While we need not adopt a categorical rule against aggregating the effects of any noneconomic activity in order to decide these cases, thus far in our Nation’s history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature.”  He went on to say that the “concern we expressed in Lopez that Congress might use the Commerce Clause to completely obliterate the Constitution’s distinction between national and local authority seems well-founded.”  He concluded “the Constitution requires a distinction between what is truly national and what is truly local.  In recognizing this fact we preserve one of the few principles that have been consistent since the Clause was adopted.”  

Five years later, however, in Gonzalez v. Raich (2005) the Supreme Court seemed to retreat from its reinvigoration of the Commerce Clause, and it has not revisited the issue since then.  As the crisis of 1937 shows it is difficult for the Supreme Court to uphold constitutional constraints against federal power when the President, Congress, and popular opinion are all against it.  The Supreme Court is not supposed to be a political branch, but the Court’s perceived legitimacy is vital to the rule of law, and that legitimacy depends on political institutions and consensus.  In other words, in our democratic republic, even the Supreme Court ultimately derives its power from the people.  The other side of the coin is that the better Americans understand the vital importance of a federalist framework in the Constitution, the more strongly they yearn for a return to the Constitution’s founding principles, and the easier it will be for the Supreme Court to reassert its role as guardian of enumerated powers constraints. 

            Disentangling nearly 100 years of Commerce Clause precedent is a tall order, but Gibbons v. Ogden might offer a way forward.  Chief Justice Marshall’s opinion in Gibbons has been often quoted for the proposition that the federal government’s power is supreme and complete within its enumerated powers.  This observation was entirely predicated on Marshall ’s basic understanding of federalism, in particular the stringent constraints on federal power, which restricted its scope to just a few areas of regulation, and left the “great mass” of legislation to the States.  A more complete reading of Gibbons could help guide the Supreme Court back to the original understanding of the commerce power.  Defining the Commerce Clause should not be just a matter of defining the scope of “interstate commerce” from the point of view of federal power; equally important is the other side, the great mass of regulation that is not interstate commerce and was meant to be left to the States.  The Supreme Court has had trouble devising a precise definition of what interstate commerce is partly because it stopped focusing on what it isn’t—namely those things that were meant to be left to the States. 

As Michael Greve argues, the Court must reclaim its role as guardian of constitutional constraints on federal power.  It can take its cue from the people, and their desire to return to a more decentralized and responsive system.  This desire underpins the promise of a constitutional renaissance now sweeping the Nation. 

_____________________

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 and is currently Chairman of the Central Texas Tea Party.  Article condensed from an essay by Ted Cruz and Mario Loyola (Texas Public Policy Foundation, Nov 2010).  Email: This e-mail address is being protected from spam bots, you need JavaScript enabled to view it

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The Least of My Brothers Print E-mail
by John Browning    Tue, Feb 22, 2011, 08:36 AM

In 2009, the “Legally Speaking” column “Brother, Can You Spare a Lawyer?” spotlighted the crisis in funding for legal aid to the poor.  Back then, in the depths of the economic crisis, a perfect storm had been created.  Coping with factors like layoffs, rising unemployment, and mounting foreclosures, the number of Texans who couldn’t afford to pay for legal help was higher than ever.  But at the same time, existing sources of funding for such services were rapidly evaporating; many legal aid programs were and are funded through monies collected from the interest on lawyers’ trust accounts (IOLTA), and the plummeting interest rates translated into a steep drop in what was collected.  That amount went from over $20 million in 2007 to slightly more than $5 million in 2009.  The coalition of groups administering legal aid programs statewide requested $39 million in state aid in 2009 to make up for the shortfall.  In response, the legislature came through with a one-time biennium grant of $20 million.  As James Sales, the chair emeritus of the Texas Access to Justice Commission observed, the stopgap measure “didn’t give us all we needed to operate, but it allowed us to sustain the system.”  The Texas Access to Justice Foundation, created in 1984, is Texas’ primary funding source for indigent legal representation in civil matters.  It administers a variety of funding sources that assist nonprofit groups statewide in providing legal aid to over 100,000 Texas families each year.

But now it’s two years later, and while there are signs of improvement, the economic problems continue as the recovery is painfully slow.  The factors behind the perfect storm of 2009 are still present: interest rates remain at historical lows, the nation is still mired in a recession, and despite the decrease in funding, the number of Texans in need of indigent legal assistance has grown by more than 600,000 since 2009.  Statewide, roughly 5.7 million low-income Texans qualify for legal aid (a family of four cannot have more than $27,938 in annual income if it is to qualify, and an individual’s income cannot exceed $13,613).  That translates to only one legal aid lawyer available for roughly every 10,838 Texans who qualify.  Intensifying the crisis is the fact that not only has the number of those in need gone up, but also that the needs themselves are greater.  Foreclosures, evictions, assistance for veterans seeking benefits, help for the elderly—all of these are at higher levels than before.  In addition, societal ills that tend to spike during economic doldrums, such as domestic violence, have led to an increase in the demand for legal services to the poor.

What happens when low-income individuals and families find access to legal help cut off or greatly diminished?  On an idealistic level, it means that we will have betrayed the promises we made as a society from our very beginnings, that everyone regardless of income level will have access to our justice system and that the words “and justice for all” enshrined in our Pledge of Allegiance will truly mean something.  On a pragmatic level, it means that more Texans will join the ranks of the homeless or seek other forms of public assistance as they sink further below the poverty line.  As Texas Supreme Court Justice Nathan Hecht, the Court’s liaison on access to justice issues, stated, “Assisting struggling Texans with civil legal needs not only impacts those Texans directly but the entire state as well.  Helping Texans gain access to justice leads to self-sufficiency and ultimately lessens the need for taxpayer support . . . .The Supreme Court is committed to making sure the civil justice system is available to everyone who needs it.”

For some, it can indeed be a matter of life and death.  A large percentage of cases taken on by legal aid programs involve domestic violence and custody issues.  The Aid to Victims of Domestic Abuse, for example, is a Houston-based legal aid organization dependent upon state funding that represented nearly 1,700 cases in 2010 alone in family courts.

So what can be done about it?  In the midst of a state budget crisis in the billions of dollars, another “white knight” check from the legislature is hardly likely.  In fact, preliminary state budget estimates during this session call for a 51% reduction in legal aid funding—a $23 million decline, according to the Texas Equal Access to Justice Commission.  Sure, we can look to lawyers in private practice to do more pro bono work, but that’s already happening.  On one recent day, an email plea from Legal Aid for Northwest Texas seeking lawyers from the Rockwall County Bar Association to take on four matters in need of placement drew volunteers for all four cases within minutes.  Even with pro bono efforts and the current level of funding for legal aid programs, legal assistance for the poor falls dramatically short of meeting the overall need, and roughly only 20% of those in need around the state actually receive help.

Several legislators are introducing bills designed to address the crisis in legal aid funding in Texas.  One such bill would mandate an increase in district court filing fees, which would raise an estimated $6.6 million over the next two years.  Another piece of legislation calls for funds generated by consumer protection lawsuits filed by the Attorney General’s office to be earmarked for a new Consumer Assistance Fund, which will then distribute the monies to private, consumer-focused charitable organizations.  Representative Elliott Naishtat has filed House Bill 1392, which will institute a fee for creditors on the transfer of property following a foreclosure sale, and then use those fees to fund civil legal services for the indigent.  Senator Jose Rodriguez has filed Senate Bill 726, which establishes the Judicial Access and Improvement Fund.  The El Paso Democrat’s bill would create a judicial access and improvement account to provide funding for indigent defense, judicial technical support like electronic filing, and basic civil legal services by imposing certain court costs and fees (like recording fees).  Representative Pete Gallego, one of the legislators who has been vocal in calling for support for legal aid funding in Texas, emphasizes the need for such efforts, saying “The legislature plays an important role in protecting our state’s most vulnerable citizens, and it is vital that we do everything we can to ensure that all Texans have access to justice.”

If you believe, as I do, that everyone deserves access to the legal system regardless of income level, then speak up in support of legislative measures like these.  Call, write, or email your state representative and state senator.  I urge my colleagues in the legal profession to help, not just with financial donations to organizations like the Texas Bar Foundation and the Texas Equal Access to Justice Foundation, but also by taking on some pro bono work as well.  Programs all around the state, like Legal Aid of Northwest Texas, are clamoring for volunteer attorneys.  Bar association-affiliated efforts are also eager for help; as the Dallas Volunteer Attorney Project aptly describes it, it’s “billable hours for the soul.”

I’d like to say that the reasons why I donate money to organizations like the Texas Bar Foundation and donate some of my time to people who can’t afford to pay me is rooted in a sense of obligation that comes part and parcel with what I consider a noble profession.  But for me at least, it goes far deeper than that.  Among the most enduring lessons of the Catholic faith instilled in me by my parents and reinforced by countless nuns and priests during years of Catholic education are the words found in Matthew 25, verses 31–46.  Christ reminds his followers that when they fed the hungry, clothed the needy, looked after the sick, and visited those in prison, they did all of these acts for Him: “Whatsoever you do for the least of my brothers, that you do unto me.”  When we refuse to help the least of our brothers and sisters, including during their time of legal need, we turn away from God.

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Tom Pauken’s Prepared Remarks at the Texas Workforce Commission Business Conference on February 7 Print E-mail
by Tom Pauken    Tue, Feb 15, 2011, 08:02 PM

On January 16, 2009, the Texas Workforce Commission hosted a forum entitled “Putting America Back to Work.” At that conference, a number of our speakers made the case for lessening our dependence on unstable sources of foreign energy, changing the way we tax business in order to encourage private sector job creation here in the United States, and rebuilding our U.S. manufacturing base.

Two years later, those issues are just as critical as they were back then. Unfortunately, the Obama administration and Washington policymakers have done very little to address those issues in an effective fashion. To the President’s credit, at least he acknowledged in his State of the Union address the negative impact that our corporate tax system has on job creation here in the United States. With its 35 percent tax rate and 6.2 percent employer portion of the payroll tax, it is the most onerous business tax system in the world – and a job killer here at home.

While the President called for lowering the corporate tax rate, he negated that message by saying he was going to pay for it by getting rid of the incentives for domestic energy production. That is exactly the wrong step to take if our nation is to lessen its dependence on foreign energy and create jobs in the private sector. Not only is a strong domestic energy sector an important part of a vibrant private sector and our U.S. manufacturing base, it also is critical for national security reasons – to lessen our dependence on unstable sources of foreign energy from the Middle East and countries like Venezuela where a would-be Fidel Castro, Hugo Chavez, is in power.

Texas has an important story to tell which can help policymakers here and in other states address the problem of unemployment. Texas has weathered the current recession better than any other large state. We have not been immune to its effects, but consider these numbers:

Between December 2000 and December 2010, Texas created 640,600 private sector jobs, according to the Bureau of Labor Statistics. That is an 8 percent increase over the past decade. Meanwhile, every other of the 10 largest labor market states lost private sector jobs during the same period. The nation as a whole lost 3.2 million such jobs.

There are many reasons why Texas has fared better than so many other states during the downturn. We have no state income tax, a low business tax, and a positive regulatory climate for business. With the leadership of Gov. Perry and our Texas legislators, Texas has remained on a sound financial footing. And, we will continue to do so by keeping a tight lid on spending during these difficult times.

For these and other reasons, companies based in high tax, high regulatory states like California, Illinois, and others are voting with their feet and moving their businesses and their employees to Texas.

While this is positive for the economic climate in Texas, it ultimately is a zero sum game for our nation at large. For, just like other states are losing jobs to Texas, the United States is losing jobs to other nations at an even faster pace. Since the Obama stimulus program began in February 2009 through May 2010, we added approximately 400,000 public sector jobs while losing another 2.7 million private sector jobs. This trend didn’t begin overnight. It just has accelerated during the most serious national recession America has faced since the time of the Great Depression.

In fact, from 1999 to 2009, there was zero growth in private sector jobs nationally. The only growth in jobs was in government jobs, and we know that government doesn’t create jobs. Only the private sector does. And we need a vibrant private sector to pay for our government benefits and services.

During that same decade, we lost one-third of our U.S. manufacturing base. That’s 5.5 million good American jobs which were shipped overseas, outsourced, or simply went away. In the words of the late German economist Kurt Richebacher, “Essentially all (U.S.) job losses are high wage manufacturing, and most gains are in low-wage services. In essence the U.S. economy is restructuring downward, while the Chinese economy is restructuring upward.”

In his recent State of the Union address, President Obama said that we were going to fix that problem by “out-innovating” our trading competitors. But, as Andy Grove (a founder of Intel) points out, it’s “hard to innovate if you don’t make.” And the U.S. is not making much anymore these days.

There is a common sense solution available which addresses these massive trade deficits and loss of our manufacturing base. Under a proposal known as the Hartman Plan, that onerous corporate tax system with its 35 percent tax rate and its 6.2 percent employer portion of the payroll tax would be replaced by a revenue-neutral, 8 percent business-consumption tax that would be border adjusted. This new approach to taxing business would raise just as much in revenues as, if not more than, the current system of taxation. All goods and services coming into the U.S. would pay the 8 percent tax while all exports would receive a comparable tax credit or tax abatement as an offset to its company’s business consumption tax. Suddenly, the U.S. would become competitive again with our trading partners. And we would bring jobs home to America.

I am encouraged to see that this concept is beginning to gain broad, bipartisan support. Former Democratic Senator Fritz Hollings supports this approach to business taxation as do Sen. Jim DeMint and Congressman Paul Ryan.

I would suggest to you that the time is right for a bold initiative to bring jobs home to America and rebuild our manufacturing base. The only lasting solution to the high levels of structural unemployment we are facing these days is to get our private sector moving again as we did when Ronald Reagan and John Kennedy were President. One a Republican, the other a Democrat, both men understood the importance of private sector job creation to get us out of an economic slump. With bi-partisan support, President Reagan got Congress to pass the Kemp-Roth Job Creation Act in 1981. It spurred economic growth and put Americans back to work.

The circumstances are different today – our debt levels are so much higher (debt to GDP – corporate, consumer, and government debt – was 91 percent in 1981. At the time of the Great Depression, it was approximately 300 percent. Today it is approaching 370 percent) And the solutions called for are different in light of our high debt levels and the hallowing out of our manufacturing base, but the principle remains the same – getting the private sector growing again, particularly small businesses where most new jobs are created.

I would suggest that the time is right for such a bold move for a number of reasons:

1.      Even President Barack Obama has shifted gears and called for lowering the corporate tax rate.

2.      At a recent Barron’s magazine roundtable, some of the best investment minds in the country had this to say:

a.       Bill Gross, “The solution isn’t to create paper. It is to create goods and services that the rest of the world wants to have.”

b.      Scott Black, “We need to focus on employment and investment in manufacturing goods and services.”

c.       Mario Gabelli, “How does the U.S. compete when our jobs are being exported?”

d.      Oscar Schafer: “In the 1970s, the U.S. had 20 million manufacturing jobs, with a population of 220 million. Now we are down to less than 12 million manufacturing jobs with a population of 320 million.”

e.       Mark Faber: “The government continuously implemented policies to boost consumption, when everyone should know that an economy will grow in a sustainable way through the implementation of policies that foster capital formation.”

3.      More and more business executives are speaking out on the uncompetitiveness of the existing tax system.

4.      Private sector union leaders have seen their workers lose their jobs to other nations and are open to business-labor coalitions to bring jobs home to America.

5.      Fortunately, a positive feature of the recently passed tax bill allows companies to expense its capital investments in 2011.  Under the Hartman Plan, that change would become permanent. 

6.      The present business tax system rewards debt while punitively taxing savings, capital investment, and employment which are the engines of economic growth.  It works great for private equity financial engineers who load companies up with debt, downsize them, and then flip them to someone else in a few years, but it is terrible for creating or keeping jobs in America.

7.      Even The New York Times acknowledged in a recent column by David Leonhardt that the current tax system “distorts incentives.”  It leads to business decisions being made for tax purposes, rather than making investments for commercial potential.”

I would add: That onerous tax system exports prosperity and good American jobs abroad.  We shouldn’t tinker around the margins, but totally eliminate the existing corporate tax structure and replace it with an 8 percent business consumption tax.  That is a real economic stimulus plan which would bring jobs home to America, rebuild our manufacturing, lower our trade deficits and put Main St. producers along with small business owners back in charge of the American economy.

Texas remains the number one place in America to do business. Let’s make America the number one place in the world to do business again.

 

Tom Pauken is Chairman of the Texas Workforce Commission

 

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It Doesn’t Take a Genius to Figure This One Out! Print E-mail
by James Reza    Sun, Feb 13, 2011, 06:07 PM

I cringed when I recently saw Secretary of Homeland Security Janet Napolitano being grilled by Congressman Rep. King (R-NY), Chairman of the Homeland Security Committee.  In the briefing in front of the Homeland Security Committee, Secretary Napolitano used the word “terrorist” over 40 times.  Rep. King then asked her, “Madam Secretary, two years ago you refrained from using the word “terrorist” what changed your mind?”  Ms. Napolitano then acknowledged that terrorist threat to the U.S. is the highest since 2001.  Meaning that after two years the Obama Administration has finally conceded that there are radical Islamic terrorist, some homegrown, who pose a significant threat to our country and its citizens from chemical and biological weapons.  One such homegrown Muslim was Major Nidal Malik Hasan who is accused of shooting 13 people dead during a rampage at Fort Hood, a U.S. army base.  Major Hasan stated that he was a Muslim first and foremost.

In a neighboring school district (Mansfield, Texas) parents became concerned when several schools (Cross Timbers, Davis Elementary and Howard Middle School) were targeted to begin teaching Arabic culture.  The mother (Cindy Henderson) of a student (Kolton), a fifth grader, said she was upset in that the school district didn’t notify the parents.  Ms. Henderson stated, “We don’t want to discriminate against the entire Middle East, but (9-11) is hard to forget.  They said they aren’t going to teach religion, but I don’t see how you can teach that culture without going into their beliefs.  Folks, that bright mom hit the nail right on the head!  One of the school district’s representative, Mr. Escobedo, said this, “The federal government sees Arabic, Chinese and Russian as critical.  Our country has a deficit in Arabic speakers and people who understand the Arabic culture.”  My friends, I have absolutely nothing against anyone learning whatever language or studying the culture of others, but why not let the students make that choice with the approval of their parents?  When my daughter, Cecilia, was in high school she asked me, “Dad, can I take a Spanish language class?”  I told her, “Sure, if that’s what you want.”  But, in many public schools many Hispanic kids are herded into bilingual classes without the knowledge of their parents and kept in them longer than needed.  The end result: Hispanic students lacking English comprehension and causing many to drop out of school.

I find it comical how politicians constantly want us to fork over more of our tax dollars to improve our schools.  And what do we get?  Students who can’t read, spell, or write a sentence.  Many colleges offer remedial reading and writing classes to help students entering college.  Subjects they should have learned in high school.

It is my personal belief that instead of learning other cultures and languages, why not focus on studying our Constitution, which many high school students and even politicians don’t have a clue of what’s in it.  Furthermore why not put into practice the three Rs (as in the letter R) the foundations of a basic sills oriented education program within schools:  Reading (particularly English grammar), wRiting and aRithmetic, school subjects that served so many of us well in the past.  At J. P. Elder, one of my favorite subjects was Civics, taught by Mr. Harris, my 9th grade teacher.  Mr. Harris, took his subject to heart and stressed to his students how vital it was to learn how our government functions.  Prior to being in his class I didn’t have a clue of how the Senate, Congress, or, the Supreme Court played a vital part in our daily lives.  Some weeks ago, as I watched the Jay Leno Show, Jay interviewed people outside the studio if they could name the Vice President of the United States.  I was stunned that many didn’t know the name of the Vice President.  At my high school (Tech High), we could not graduate if we had not studied the U.S. and Texas Constitution in our History Class.

My friends, let’s be honest here, what is it that most of us don’t know about Arabic, Russian, or Chinese governments and their cultures.  Truth is, most of us do know what these countries along with their culture and governments stand for, they’re:  oppressive, tyrannical, treat women worse than animals, their citizens are not free to worship, are basically poor, are not allowed to vote or speak openly against their government or religious Muslim beliefs, have a communist/socialist type government, and all hate the United States.  That I know for a fact and am certain most God fearing Americans are fully aware also.  Really, it doesn’t take a genius that most Americans need that explained to them, more so, those of us who honor our Constitution and treasure our basic freedoms.

In the recent turmoil in Egypt, what did most of you learned from it?  Were not the Egyptians demanding more jobs, more freedoms, less intrusiveness from the oppressive Mubarak Regime?  The answer to that is yes and then some!  Now let me ask, why is it that the Obama Administration, along with their accomplices in the liberal media, praised all the actions and rebelling of the Egyptian demonstrators.  Demanding that the protestors be given the right to assemble, the right to voice their opposition to the Mubarak government, and not to be harmed by the local police and army.  Don’t any of you find it odd that the Obama Administration and the media were not so enthused with the demonstrations and actions of the Tea Party demonstrators?  Were they not also venting their anger towards the high unemployment rates, the intrusiveness by the government into our lives, plus ramming down our throats the Obama socialist, almost communists government programs?  Yet, the Obama Administration along with the media labeled the Tea Party demonstrators as:  radicals, racists, backward, anti minority, and in some gatherings they were bullied by union thugs.  Folks, like in Egypt, we got some serious cleaning up to do in 2012 here in the Good Old USA!

 

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The End of the Republic? Print E-mail
by Paul Perry    Sat, Feb 12, 2011, 11:01 PM
"I call on you in the name of Liberty, of patriotism, of everything dear to the American character." – Lt. Col. William Barret Travis, the Alamo, February 24, 1836

A vote to extend the omnibus Patriot Act is an act of moral cowardice. The American character is about constitutional government, our rights under law, the very underpinning, the cornerstone of who we are. While there are parts of the act I do not disagree with, such as some of the intelligence-sharing provisions, the suspending of the 4th Amendment is a travesty and is something that a free people should not tolerate. That is just for starters.

Travis fought for a constitution that had been de facto suspended, the Mexican constitution of 1824, which was very similar to ours.

Your property is now subject to warrantless search. In fact, no notice need be given if your premises is entered, according to Pat Act One. If you are placed under suspicion as a terrorist, even if you are questioned, under Patriot Act Two, which was passed by Congress as the public was distracted by the capture of Saddam Hussein, you are not able to notify anyone including your attorney, according to this act of Congress. As a matter of fact, you may be assassinated or imprisoned or tortured overseas with this act as a basis. None of these provisions are constitutional, but will any judge in this era have the courage to overturn them?

When John Adams was president, we passed laws called the Alien and Sedition acts that in effect made it illegal to oppose or even say critical things about our government. It took the election of Thomas Jefferson to overturn most of those provisions. Why were they enacted ? Fear of our former allies, the French.

Abraham Lincoln imprisoned both a congressmen and state judges without habeas corpus. Why? Fear of Confederates, even though many of the people whom he threw in prisons without bail were the peaceniks of their time and not Confederate sympathizers.

Fear is the handmaiden of bad legislation and illegal government acts. Some who otherwise call themselves constitutionalists have stated that the Patriot Acts are about our very survival, and that we have to survive in order to have constitutional government. Well, just how far are the panderers of that nonsense willing to take that logic? Perhaps some of our current political leadership might think the modern equivalent of Nazi Germany might be better able to deal with the threat of terror, but I do not think that is the case.

Perhaps some in my party might actually need to look between the covers of the Bible and not just thump the covers in order to discover the reason for courage and wisdom found within. By and large I don’t expect that type of courage from Democrats anymore, but they at least are consistent in their fear-driven worship of the state.

So-called Republicans have no excuse. "Is life so dear or peace so sweet as to be purchased by chains or slavery?" said Patrick Henry. According to many in Congress, the answer is yes, for the suspension or circumvention of our constitution will ultimately lead to slavery, no matter if it is administered with velvet gloves.

A free and responsible people who have not been lulled to sleep by the siren calls of state security are our best protection against those who would do us harm. No doubt there is a place in a constitutional Republic for intelligence services, as there is also a place for border security, which failed us through inaction and political correctness on 911.

That inaction was fed by decades of neglect and sloth on the part of our political leadership and the fear of a new protected class in American politics, illegal aliens, especially illegals with a Muslim background. The very laws that could have prevented 911 were on the books before 911. More laws and an attempted legal coup against our constitution will not substitute for a lack of courage by our leadership to enforce our existing immigration law.

A cowardly Congress rushed to pass provisions in both Patriot Act One and Two in haste without making sure there was time to read the bills. That mistake or maybe strategy is now enshrined in tradition in Washington, where bills are no longer read. Many of us remember Nancy Pelosi’s arrogant looneyness in her statement that we have "to pass the bill in order to know what is in it."

Indeed a Republican-led Congress, with bipartisan fear on its lips and Democrat encouragement, passed thousands of pages of constitution-suspending legislation by way of similar action. Now many wish to extend their error through continuing the Alien and Sedition Acts of our time.

It is reasonable to ask, how long before these laws are used as political weapons against opposing parties or maybe even opinion writers. Is that really the intent of some who support these provisos? That is how John Adam’s Alien and Sedition Acts, Woodrow Wilson’s war acts and Abraham Lincoln’s powers were ultimately used.

The founding fathers would not recognize our craven representatives for the most part or the people who elect them. Do we even deserve the liberties we have left? Nationally syndicated neo-conservative talk show host Hugh Hewitt once asked me if these laws have been used. My response is that in my experience all laws are eventually used; some are used to oppress. Given how these are written, how are we to know? Where is the check and balance?

Some mis-characterize a statement by President Jefferson, who stated that we have a living, breathing constitution, as an excuse for their mischief. Jefferson was speaking of our right to change the constitution by amendment. We have a lawful way to do that, but neither the Congress through a bill nor a propagandist have the right to reinterpret the very words or circumvent our founding document.

Now is the time for people to decide whether they have the moral courage to be free. There are enough laws on the books to deal with illegal aliens (which the 911 attackers were) and terrorism without succumbing to warrantless sneak and peak searches and even more grievous suspensions of many of our constitutional rights. If we are to kill the Republic, we should at least have the courage to do it by the lawful amendment process – an effort to which I will stand in firm opposition, but at least it would be a legal attempt.

Paul D. Perry

This column was originally published in the Waxahachie Daily Light

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