Posted on 12/15/2003 3:44:33 PM PST by Federalist 78
When the McCain-Feingold so-called campaign reform act reached your desk you said you thought it was unconstitutional. But you signed it anyway.
Next time a bill reaches your desk you think is unconstitutional, please veto it. We can no longer depend on the Supreme Court to uphold the Constitution.
Oh, and by the way, if you do get the chance to appoint Members to the Supreme Court, I surely hope you appoint people like Justices Scalia and Thomas. We must have Justices like those men if we have any chance of saving the Constitution, or at least what little is left of it.
Now for additional comments:
When that bill passed the Congress, I was sure that the Supreme Court would at least find the free speech aspects of the bill unconstitutional. In fact, I couldn´t find a constitutional lawyer on either side of the political spectrum that didn´t believe the same thing.
How it is that within 60 days of a general election issue, groups can no longer tell voters that a Member of Congress votes pro-abortion, against guns, against the environment or whatever else is beyond me. Very little of what happens in Washington shocks me, but I am still in a state of shock over that decision.
President Bush may have felt that if he vetoed that bill, it would have been overridden. However, few vetoes are ever overridden. The Omnibus Child Development bill passed Congress in 1971 by a vote of 95-5 in the Senate and with a single dissenting vote (Earl Landgrebe R-IN) in the House. President Nixon vetoed the bill. The veto was upheld in both houses of Congress. Had Bush vetoed that bill, I am confident there would have been one third plus one in this Congress to uphold it.
I wonder how many Members of Congress who voted for McCain-Feingold did so thinking that surely the Supreme Court would find it unconstitutional. Probably enough to have defeated the bill if they had known the outcome.
We need President Bush now to support legislation to repeal that portion of the bill that deals with free speech. He has good reason to do so. If issue groups can´t let voters know his positions on various issues, he could lose the 2004 election. Politicians often lie. Sen. Tom Harkin of Iowa, one of the most reliable pro-abortion votes in the Senate, nevertheless distributes literature in Catholic areas of the state such as Dubuque claiming he is pro-life. The Democratic nominee for president may do the same thing on a variety of issues. Without the ability of issue groups to tell the truth, who knows what the public will believe.
Given the concern about this court decision expressed by various Members of Congress, we just might have the votes to repeal that section of the bill especially if we leave the question of soft money alone. What happened with McCain-Feingold is a perfect example of bad legislation being driven by the media. The public was never really concerned with so-called "campaign finance." It never showed up in a single unaided poll. But legislators wanted to court favor with the media so they voted for a bill that is supposed to take big money out of the political process. It won ´t and Members know it won´t but they voted for it anyway. And President Bush didn´t want to be the bad guy and endure attacks by the media so he signed a bill he thought was unconstitutional. Everyone hoped the court would bail them out. It didn´t happen.
A respected judge told me that when looking for someone to put on the Supreme Court, the President shouldn´t just look for someone who is conservative. He should look for someone who has survived big time media attacks without compromising his principles. That Justice told me that most decisions are not made according to the Constitution but rather on what the media will say about a decision.
The President can make up for his part of this fiasco by pushing for the repeal legislation, and then if he gets a second term he can nominate people who will actually rule according to what the Constitution says rather than by what the New York Times editorial board thinks. Then we can forgive him for what he has done. As to the Congress, it can pass the repeal legislation and confirm the nominees that the President sends up. Then we can forgive the Congress.
I hope you will reconsider, even if you vote for an independent, a split vote puts Mrs. Clinton closer to the White House. Stay with the ship, we can right her if we fight for the Constitution - running never solved anything.
LOL!
THE BILL OF RIGHTS
15 December 2003
Federalist No.
Special Section -- The Bill of Rights
Monday Brief
Today, December 15th, is the 212th anniversary of the adoption of our Bill of Rights, the first Ten Amendments to the Constitution as ratified this day, December 15, 1791. Many of the Founders objected to listing the Bill or Rights as "amendments" because it might be construed that such rights were subject to change. As noted by Alexander Hamilton in Federalist No. 84: "I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?"
Read in context, the Bill of Rights is both an affirmation of innate individual rights (see Jefferson's words under "The Foundation") and an explication of constraints upon the central government. But in the last four decades, an activist judiciary has grossly devitalized the Bill of Rights. For example, the Leftjudiciary has "interpreted" the First Amendment as placing all manner of constraint upon the exercise of religion while asserting that all manner of expression constitutes "speech." And the courts are constantly dissolving the strength of the Second Amendment, which James Madison's appointee, Justice Joseph Story, declared "...the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers...."
"Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof." Thus begins our Bill of Rights. George Mason, known as "The Father of the Bill of Rights," wrote the Virginia Declaration of Rights from which Jefferson drew to write the Declaration of Independence. Mason was one of fifty-five who wrote the U.S. Constitution, but was also one of sixteen who refused to sign it because it did not abolish slavery and did not limit the power of the Federal Government. He worked with Patrick Henry and Samuel Adams to prevent the Constitution from being ratified, as the abuses of King George's concentrated power were still fresh. It was through Mason's insistence that in the first session of Congress ten limitations were put on the Federal Government. George Mason had suggested the wording of the First Amendment be: "All men have an equal, natural and unalienable right to the free exercise of religion, according to the dictates of conscience; and that no particular sect or society of Christians ought to be favored or established by law in preference to others."
However, as Thomas Jefferson warned repeatedly, the greatest risk that those limitation on the central government would be eroded, was an unbridled judiciary: "Over the Judiciary department, the Constitution [has] deprived [the people] of their control. ... The original error [was in] establishing a judiciary independent of the nation, and which, from the citadel of the law, can turn its guns on those they were meant to defend, and control and fashion their proceedings to its own will. ... It is a misnomer to call a government republican in which a branch of the supreme power [the judiciary] is independent of the nation. ... The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch."
Memo to you despots in the Leftjudiciary: Tomorrow is the anniversary of the Boston Tea Party (December 16, 1773). Take note!
By June of 1788, eight of the required nine states had ratified the new United States Constitution. Virginia, then the largest and most populous state, held her ratification in the new capital city of Richmond. With Virginia`s boundaries then extending to the Mississippi, cutting the young nation in half, any attempt to form "a more perfect union" without the Old Dominion was doomed to failure. Among those in attendance were two future Presidents, James Madison and James Monroe, future Chief Justice John Marshall; statesman and orator Richard Henry Lee, and many other notables.
The Philadelphia Convention the preceding summer had been called for the purpose of revising the Articles of Confederation. That convention, which met in secret, had instead proposed a radically different form of government that consolidated power at the national level. Rumblings against this new government were heard immediately and the opposition began to coalesce.
Patrick Henry, whose "Liberty or Death" speech had sparked Virginia`s entry into the Revolution 13 years earlier, had also served as her first governor. He had refused to go to the Philadelphia Convention, stating that he "smelt a rat." Henry would muster all of his oratorical skill in an attempt to defeat the proposed Constitution.
George Mason. author of the Virginia Declaration of Rights (which would serve as the model for the federal Bill of Rights), was allied with Henry. Mason had gone to Philadelphia, but he was one of three people who refused to sign the proposed Constitution. His greatest objection was the failure of the Constitution to protect fundamental rights.
Seeking to rise above the fray in his home state, George Washington stayed at Mount Vernon rather than travel to Richmond. It was generally recognized that Washington, who had chaired the Philadelphia Convention, would be the first President. His opinion in favor of ratification was well known, and he exerted a strong influence even in his absence. Mason, who was Washington`s neighbor, had to seek election in another county because his opposition to the Constitution had crossed with Washington.
The Virginia Convention would pit Henry and Mason on one side, the "Anti-Federalists," against James Madison and Edmund Randolph, the "Federalists," on the other. Madison was the primary author of the proposed Constitution and its chief advocate. Randolph, who would become the nation`s first attorney general, had, like Mason, refused to sign the Constitution, but he had changed his mind in the intervening months.
Madison feared Henry most, having written that his refusal "to join in the task of revising the Confederation is ominous." Henry had dominated the political scene in Virginia through his mastery of the spoken word. His great appeal was to that mass of unread Virginians who wore simple homespun or buckskin shirts. These "shirtmen," as they were known, so admired Henry that he was the only person who could rival Washington`s popularity.
Mason, by his own admission no politician, was most admired for his intellectual ability. In addition to the Declaration of Rights, Mason had also been the primary author of Virginia`s Constitution. Thomas Jefferson had described Mason as a "man of the first order of wisdom . . . of expansive mind, profound judgment, cogent in argument, learned in lore." The combination of Henry and Mason would provide a formidable team for the opposition.
The Virginia Convention attracted large crowds and visitors from throughout the United States. One of the witnesses was David Robertson, a practicing attorney from Petersburg, who took shorthand. Robertson, with a clerk, attended daily and transcribed the entire proceedings. As a result of Robertson`s efforts, some of the most stirring debate in our history has been preserved.
As the Virginia Convention opened, the fate of the United States literally hung in the balance. Henry and Mason made a critical tactical blunder at the outset. Madison was worried that they would challenge the authority of the Philadelphia Convention, which had been called merely to reform the Articles of Confederation. Instead, they agreed to a section by section review of the proposed Constitution, which put Madison in the position of responding to criticism.
In what was the greatest performance of his life, Henry was, as the swashbuckling defender of the people, fighting the entire palace guard. He went right to the heart of the matter: "You are not to inquire how your trade may be increased, nor how you are to become a great and powerful people, but how your liberties can be secured; for liberty ought to be the direct end of your government."
In making his objections to the specific provisions of the Constitution, Henry pleaded, cajoled, ridiculed and appealed to all the passions of a revolutionary era. His was an emotional argument directed to the virtue of liberty and the fear of tyranny. Mason, in tandem with Henry, complimented with arguments directed to the reason and logic of the Convention.
Madison, in the position of defending the Constitution, was able to deflect most of the specific criticisms made by Henry. While Madison did not possess Henry`s speaking skill, his calm and pragmatic responses did much to sway the Convention in his favor. Madison, as proponent of change, held the moral high ground. His message was one of optimism, suggesting that "I choose rather to indulge my hopes than fears." The fact that the new government would be led by George Washington greatly aided Madison`s cause.
The one unavoidable objection to the Constitution propounded by Henry and Mason was the absence of a Bill of Rights. Most of the problems they outlined would be alleviated if the Constitution only had such a guarantee. Madison countered that such a declaration was of no consequence, as the federal government would have limited power. Madison stated that "the powers granted by the proposed Constitution are the gift of the people, and may be resumed by them when perverted to their oppression, and every power not granted thereby remains with the people."
Madison argued further that the states` Bills of Rights provided fundamental guarantees, and the people did not forfeit these rights by entering the Union. As the "powers of the general government relate to external objects, and are but a few," no rights were lost. In any case, a federal guarantee could be dangerous to liberty because any rights not specifically listed might, by implication, be lost.
It was here that Henry focused on the Supremacy Clause of the Constitution, the provision stating that federal law would be the supreme law of the land. He pointed to the absurdity of having bills "to defend you against the state government, which is bereaved of all power" without a similar guarantee against the power of the federal government. By doing so you "arm yourselves against the weak and defenseless, and expose yourselves naked to the armed and powerful."
Mason echoed Henry`s sentiments in stating that "the question then will be, whether a consolidated government can preserve the freedom and secure the rights of the people." Mason asked his fellow Virginians to do what the Philadelphia Convention had refused to do--to create a new government if and only if the rights of the people were guaranteed. Henry added that the "tyranny of Philadelphia may be like the tyranny of George III."
Henry and Mason called upon the Virginia Convention to withhold ratification until such time as a bill of rights could be adopted. They asked, rhetorically, if there was any problem facing the United States that was so great that it could not wait for amendments. Provide those guarantees and they would both support the new government. Mason was direct, "If such amendments be introduced as shall exclude danger, I shall most gladly put my hand on it."
Madison realized he was in trouble. Due to the opposition throughout the United States, any delay in ratification by Virginia would cause support for the Constitution to unravel. Madison also recognized that Henry`s and Mason`s arguments for a Bill of Rights were persuasive. Unless he made concessions, the Constitution would be defeated.
Accordingly, Madison made what proved to be a brilliant tactical move. He agreed that, if the Convention would ratify the Constitution, he would immediately seek amendments guaranteeing fundamental rights. The Convention, based upon Madison`s assurances, narrowly ratified by a vote of 89-79. The Bill of Rights, adopted in 1791, tracks the Declaration of Rights adopted by Virginia in 1776.
Historians are now beginning to fully recognize the significance of the contributions made by Patrick Henry and George Mason. Virginia`s great dissenters, through their dogged opposition, forced the issue of a Bill of Rights. It is only because of their consistent and principled objections to the Constitution, without such a fundamental guarantee, that we celebrated the bicentennial of the Bill of Rights.
Lest we forget the lessons of history, Henry`s admonition in the Convention debate should guide us today: "The voice of tradition, I trust, will inform posterity of our struggles for freedom. If our descendants be worthy the name of Americans, they will preserve, and hand down to their latest posterity, the transactions of the present times."
The author, born in Fredericksburg, Va., graduated from the Virginia Military Institute. Previously a member of the General Assembly of Virginia, and later in corporate law practice, he has served as Clerk of the Circuit Court of Stafford County since 1991. Previous published works include The Story of Aquia Church (co-author, 1987) and contribution to Patrick Henry Essays (1990). Mr. Moncure is a regular columnist to the Free Lance Star.
This article first appeared in The American Guardian, March, 1999.
Thank you once again for your excellent posts. Without Mason and Henry, this great experiment in Republicanism might never have made it.
In the mean time, it's a good time to be figuring out which ones are and aren't. As long as they know they can count on your vote regardless, they don't mind showing their true colors.
This is a point I've been trying to make for years.
If you are unwilling to allow unacceptable candidates to go down to defeat, then you will never, ever, get acceptable ones.
If the Republicans can scare you into going to the polls to vote for them by doing nothing more than claiming "the Democrat is worse", then you cannot possibly win.
I think it is high time we admit the experiment is over.
Memo To President Bush: Please Veto The Next Unconstitutional Bill To Reach Your DeskKeep dreaming, Weyrich!
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