New Prager University Video: Separation of Church and State

The latest from Prager University:

“The Separation of Church and State.” Probably no phrase has had more impact on American history in the last fifty years than this one. Where did it come from? Who coined it? And, what does it mean? Distinguished law professor, John Eastman, has some surprising answers.

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New on Live Action – Rethinking the Intersection of Church, State, and the Right to Life

My latest Live Action post:
When pro-aborts can’t win the argument with biological shell games and character assassination, they usually resort to disqualifying pro-life opinions from consideration by labeling them violations of America’s separation of church and state. So it’s worth spending some time on a broader look at the way abortion politics intertwine with religion.
Contrary to the insistence of abortion defenders, the case against abortion is not exclusively theological. It has two core factors: the empirical observation that individual human life begins at fertilization, and the moral/philosophical proposition that all human beings have an equal claim to live.
Clearly, the former point has nothing to do with religion. Admitting that zygotes, embryos, and fetuses are live human beings is simple biology. If protecting the right to life after birth isn’t “imposing religion,” then neither is concluding that such shared humanity entitles the pre-born to be included in that same protection. Indeed, pro-lifers are just advocating for a broader, more consistent application of the general right-to-life principle the rest of society already accepts, albeit selectively.
Read the rest at Live Action.

So What’s This About Muskets and the Commerce Clause?

In their desperation to make ObamaCare’s individual mandate not seem blatantly illegal, liberals have taken to citing a 1792 law requiring Americans to purchase muskets as proof that they’re not stretching the Commerce Clause beyond the Founders’ intent. Too bad for them that Randy Barnett at Volokh nuked that argument over a month ago:
5. At the hearing, Professor Dellinger mentioned that Congress had once passed a law requiring individual male citizens to provide themselves with muskets, gear and uniforms of a certain specification. I believe Professor Dellinger was referring to the Militia Act of 1792, which required all able-bodied male citizens, 18 years of age or older, to be enrolled in a militia and provide themselves with certain supplies for that service. 
a. Do you believe Congress most likely relied on its Commerce Clause powers in passing that statute?
Congress was relying on its Article I, section 8 power “To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States . . . ” The militia power, and the duty of a citizen to serve, pre-existed the formation of national government.
b. Do you believe the Militia Act of 1792 would have been a permissible exercise of Congress’ authority if it were based solely on Congress’ Commerce Clause powers?
It would not.
c. In your testimony, you alluded to jury duty, selective service registration and several other actions the federal government requires of each individual citizen. You described these as traditionally-recognized requirements that were necessary for the continued function of the government itself. In 1792, the United States did not have a permanent standing army. Do you think service in the militia was among those traditionally-recognized requirements necessary for the continued function of government? 
Without question, it was considered a fundamental duty of citizenship. Congress is now seeking to add an new and unprecedented duty of citizenship to those which have traditionally been recognized: the duty to engage in economic activity when Congress deems it convenient to its regulation of interstate commerce. And the rationales offered to date for such a duty would extend as well to the performance of any action, whether economic or not, when Congress deems it convenient to the exercise of its power over interstate commerce. The recognition of so sweeping a duty would fundamentally alter the relationship of American citizens to the government of the United States.

A Less Perfect Union: How Will Conservatives Restore States’ Rights?

Note: the following article was originally written in early June for another venue, but I’ve reprinted it here because I think its point is still relevant. It is also cross-posted at RedState.

Thanks largely to the Tea Party movement, the United States is thinking harder about individual liberty and states’ rights than she has in years. But despite identifying the problem, conservatives aren’t any closer to enacting a viable long-term solution for taming our federal leviathan.

Several efforts show promise. Many states have challenged the constitutionality of ObamaCare’s individual mandate to purchase health insurance, guaranteeing an eventual ruling from the Supreme Court. Though worth doing, that’s far too risky a basket to put all our eggs in, since it relies on a majority of the justices to rule based on the text of the Constitution rather than their personal ideologies.

In his popular book Men in Black, constitutional scholar and talk radio host Dr. Mark Levin suggests that Congress should restrain such activist judges via its constitutional authority to place limits on the courts’ jurisdiction and to impeach especially odious judges, and advocates constitutional amendments to give judges term limits and give Congress a supermajority veto over Supreme Court decisions. All these proposals are worth exploring in further detail, but even if enacted, there would still be legislative statism to deal with.

In Minnesota’s 2010 gubernatorial race, unsuccessful Republican nominee Tom Emmer backed a state constitutional amendment forbidding federal laws from taking effect without approval by a two-thirds vote in the state legislature. This proposal’s practical failings are obvious—preemptively nullifying all federal laws until the high bar of supermajority support is met would drastically complicate the law’s execution, and there’s no reason to expect state lawmakers’ decisions will be significantly more pro-Constitution that Congress, instead of simply turning on whether a particular majority happens to agree with whoever controls Capitol Hill at any given time.

In his recent book Power Divided is Power Checked, talk radio host Jason Lewis floats a more radical solution—a 28th Amendment, which would expressly affirm each state’s right to secession: “any state whose inhabitants desire through legal means and in accordance with state law to leave this union of the several states shall not be forcibly refrained from doing so.”

Secession is one of the Right’s more heated inter-movement debates, often distinguishing Libertarian from Republican, Northerner from Southerner. This conservative believes secession-at-will is a dangerous doctrine which undermines the rule of law and forgets the nation’s founding principles. Washington, Hamilton, Jefferson, and Jay all considered the national Union an indispensible safeguard of liberty, and “Father of the Constitution” James Madison explicitly denied secession’s legitimacy, explaining that, as a mutually-binding legal compact, the Constitution cannot be broken by any single party.

Moreover, conservatives need to be honest about secession’s full implications—by breaking away from the country, a state wouldn’t merely be rejecting an unjust administration, but also rejecting our very Constitution as no longer worth defending within the system of government it establishes.

So what is the answer? Taking unconstitutional laws to court would certainly be worthwhile. So would Levin’s proposed remedies. But these aren’t magic bullets, and conservatives need to recognize that the problem is more complex than “good states versus evil feds.” Indeed, bad national politicians don’t just fall from the sky; they start out as bad state and local politicians.

Why do so many Americans accept statism? Because the rest of us have failed to be vigilant in our own backyards. For decades, we’ve let progressive presuppositions about government and society gradually infect our politics, education, and culture. To really change course, we must retake our institutions at the local level, particularly with renewed scrutiny of what our schools are—and aren’t—teaching. We can’t expect future generations to recognize betrayals of our founding principles if they don’t even recognize names like Locke or Publius.

We didn’t get here overnight, and we shouldn’t expect a constitutional rebirth overnight either. Every level of American government and society needs to be scrubbed clean. Meaningful, lasting reform is the work of generations, which will demand from each of us more patience, tenacity, and fortitude than ever before.

New on NewsReal – Top 10 Parts of the Constitution Twisted or Ignored by the Left

My latest NewsRealBlog post:

The United States Constitution is one of the most well thought-out works ever created by mere mortals. As the Federalist Papers make clear, America’s Founding Fathers carefully considered nearly every aspect of human nature, the demands of freedom, and the nature of government when drafting it, and created a system of government designed to effectively carry out its duties without imperiling liberty, and calibrated to properly balance society’s competing commitments to self-rule and objective morality, to liberty and security, and more. Under the Constitution, the United States became the freest, most prosperous, and most consequential nation in history.

But to the Left, this magnificent document is at best a relic of a bygone era which has outlived its usefulness; at worst the product of long-dead, bigoted elites. Philosophically, they have inherited President Woodrow Wilson’s view that the Constitution was based on a theory of government mankind has since evolved past:

The makers of our federal Constitution followed the scheme as they found it expounded in Montesquieu, followed it with genuine scientific enthusiasm. The admirable expositions of the Federalist read like thoughtful applications of Montesquieu to the political needs and circumstances of America. They are full of the theory of checks and balances. The President is balanced off against Congress, Congress against the President, and each against the courts. Our statesmen of the earlier generations quoted in no one so often as Montesquieu, and they quoted him always as a scientific standard in the field of politics. Politics is turned into mechanics under his touch. The theory of gravitation is supreme.

The trouble with the theory is that government is not a machine, but a living thing. It falls, not under the theory of the universe, but under the theory of organic life. It is accountable to Darwin, not to Newton. It is modified by its environment, necessitated by its tasks, shaped to its functions by the sheer pressure of life. No living thing can have its organs offset against each other as checks, and live. On the contrary, its life is dependent upon their quick cooperation, their ready response to the commands of instinct or intelligence, their amicable community of purpose. Government is not a body of blind forces; it is body of men, with highly differentiated functions, no doubt, in our modern day of specialization, but with a common task and purpose. Their cooperation is indispensable, their warfare fatal. There can be no successful government without leadership or without the intimate, almost instinctive, coordination of the organs of life and action. This is not theory, but fact, and displays its force as fact, whatever theories may be thrown across its track. Living political constitutions must be Darwinian in structure and in practice.

Fortunately, the definitions and prescriptions of our constitutional law, though conceived in the Newtonian spirit and upon the Newtonian principle, are sufficiently broad and elastic to allow for the play of life and circumstance.

Accordingly, the needs of their agenda dictate a variety of approaches to the Constitution, depending on the issue. When America needs to be reminded of its irredeemably-evil history, the Constitution is an abomination. When a certain passage seems useful out of context, it becomes an example of the Founders’ wisdom (and pay no attention to that history book behind the curtain). And when a passage seems to get in the way, it’s time to break out the historical relativism.

No more. This weekend, we’re highlighting ten of the most distorted or ignored passages in the Constitution, listed in the order in which they appear in the text. Let’s get started.

Read the rest on NewsRealBlog.

Happy Birthday, Mr. President

Today would have been the late, great Ronald Reagan’s 100th birthday. Many rightfully remember him for his unwavering support of free markets, limited government, and those suffering under Soviet oppression, but here it seems fitting to highlight one aspect of Reagan’s philosophy of liberty that the Right may be in danger of forgetting. In 1983, Reagan wrote a stirring essay called “Abortion and the Conscience of the Nation” which demands to be read in full by all who call themselves conservatives. A key excerpt:

Regrettably, we live at a time when some persons do not value all human life. They want to pick and choose which individuals have value. Some have said that only those individuals with “consciousness of self” are human beings. One such writer has followed this deadly logic and concluded that “shocking as it may seem, a newly born infant is not a human being.”

A Nobel Prize winning scientist has suggested that if a handicapped child “were not declared fully human until three days after birth, then all parents could be allowed the choice.” In other words, “quality control” to see if newly born human beings are up to snuff.

Obviously, some influential people want to deny that every human life has intrinsic, sacred worth. They insist that a member of the human race must have certain qualities before they accord him or her status as a “human being.”

Events have borne out the editorial in a California medical journal which explained three years before Roe v. Wade that the social acceptance of abortion is a “defiance of the long-held Western ethic of intrinsic and equal value for every human life regardless of its stage, condition, or status.”

Every legislator, every doctor, and every citizen needs to recognize that the real issue is whether to affirm and protect the sanctity of all human life, or to embrace a social ethic where some human lives are valued and others are not. As a nation, we must choose between the sanctity of life ethic and the “quality of life” ethic.

I have no trouble identifying the answer our nation has always given to this basic question, and the answer that I hope and pray it will give in the future. American was founded by men and women who shared a vision of the value of each and every individual. They stated this vision clearly from the very start in the Declaration of Independence, using words that every schoolboy and schoolgirl can recite:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness.

We fought a terrible war to guarantee that one category of mankind — black people in America — could not be denied the inalienable rights with which their Creator endowed them. The great champion of the sanctity of all human life in that day, Abraham Lincoln, gave us his assessment of the Declaration’s purpose. Speaking of the framers of that noble document, he said:

This was their majestic interpretation of the economy of the Universe. This was their lofty, and wise, and noble understanding of the justice of the Creator to His creatures. Yes, gentlemen, to all his creatures, to the whole great family of man. In their enlightened belief, nothing stamped with the divine image and likeness was sent into the world to be trodden on. . . They grasped not only the whole race of man then living, but they reached forward and seized upon the farthest posterity. They erected a beacon to guide their children and their children’s children, and the countless myriads who should inhabit the earth in other ages.

He warned also of the danger we would face if we closed our eyes to the value of life in any category of human beings:

I should like to know if taking this old Declaration of Independence, which declares that all men are equal upon principle and making exceptions to it where will it stop. If one man says it does not mean a Negro, why not another say it does not mean some other man?

When Congressman John A. Bingham of Ohio drafted the Fourteenth Amendment to guarantee the rights of life, liberty, and property to all human beings, he explained that all are “entitled to the protection of American law, because its divine spirit of equality declares that all men are created equal.” He said the right guaranteed by the amendment would therefore apply to “any human being.”

New on NewsReal – She Who Governs Best Governs Most?

My latest NewsRealBlog post:

Feminist identity-politics arguments for increasing the number of women in public office usually rest on the premise that females have unique insight or sensitivity regarding issues like abortion, pay inequality, and education, without which disproportionately-male government cannot be trusted make sound, tolerant policy. But at the Daily Beast, Tony Dokoupil floats a new, more pragmatic argument, that according to a new American Journal of Political Science study, women simply get more stuff done:

The research is the first to compare the performance of male and female politicians nationally, and it finds that female members of the House rout their male counterparts in both pulling pork and shaping policy. Between 1984 and 2004, women won their home districts an average of $49 million more per year than their male counterparts (a finding that held regardless of party, geography, committee position, tenure in office, or margin of victory). The spending jump was found within districts, too, when women moved into seats previously occupied by men, and the cash was for projects across the spectrum, not just “women’s issues.”

A similar performance gap showed up in policy: Women sponsored more bills (an average of three more per Congress), co-sponsored more bills (an average of 26 more per Congress), and attracted a greater number of co-sponsors than their colleagues who use the other restroom. These new laws driven by women were not only enacted—they were popular. In a pair of additional working papers, led by Ohio State political scientists Craig Volden and Alan Wiseman, researchers tracked every bill introduced between 1981 and 2009, and found that those sponsored by women survived deeper into the legislative process, garnered more press attention, and were more likely to be deemed “important” overall. All of which leads the authors of the AJPS paper, University of Chicago Public Policy Professor Christopher Berry and his student and Stanford doctoral candidate Sarah Anzia, to conclude that it’s the women themselves—specifically, their skills at “logrolling, agenda-setting, coalition building, and other deal-making activities”— that are responsible for the gender-performance divide.

After a century of American political thought all-but dominated by progressive assumptions about the nature and role of government, this is likely to strike many Americans as intuitively compelling. But conservatives should instantly recognize the problem here: success and effectiveness are measured by sheer number of new laws made and amount of money funneled back home, without regard for the merit or constitutionality of any of it. Dokoupil simply assumes as a given that “more” equals “better.”

Read the rest on NewsRealBlog.