Reason: Stop Looking for ‘Leadership’ During the COVID-19 Outbreak

JD Tuccille at Reason has some well pointed words about leadership during the current pandemic – Stop Looking for ‘Leadership’ During the COVID-19 Outbreak

As the COVID-19 pandemic hit the U.S., pundits and opposition politicians pounded President Trump for displaying a “lack of leadership” in response to the deadly virus. And it’s true that, as always, the president was prone to minimizing inconvenient developments, bristling at critics, and contradicting members of his own team. Without a strong, focused figure in the White House (maybe somebody less deplorable?), we can’t possibly pull through this crisis, the opponents suggested. But that’s ridiculous; anybody making their responses to events contingent on political office not being held by narcissistic ass-clowns is putting their fate in the hands of circumstances they can’t control. They’re making a false virtue of dependency.

That’s not to say we shouldn’t listen to people who have expertise. Epidemiologists shared widely reported warnings in January of “the spread of 2019-nCov within and outside mainland China.”

“The more we learn about it, the greater the possibility is that transmission will not be able to be controlled with public health measures,” Toronto-based Allison McGeer, an infectious disease specialist, cautioned at roughly the same time.

Even China’s awful political rulers, who muzzled medical whistleblowers after they warned of the disease (there’s leadership!), admitted by the end of the month that the situation was out of control.

Just weeks later, the World Health Organization, as clumsy and prone to stroking authoritarian regimes as it is, said the virus had “pandemic potential,” while the Centers for Disease Control and Prevention warned of “severe” disruptions to American life from “community spread” of the new virus.

Anybody paying attention had the opportunity to get ready for what was comingif they were allowed to do so by our fearless leaders.

It’s worth noting that, when political officials act, their most positive efforts come from getting out of the waythat is, by undoing the “leadership” they demonstrated on earlier matters.

President Trump announced “compassionate use” easing of restrictions on patients’ use of drugs that don’t yet have FDA approval for treating COVID-19.

Congress extended liability protection for makers of protective N95 face masks so that hospitals can directly purchase equipment that isn’t specifically approved for medical purposes under cumbersome FDA rules.

Eased regulation enforcement, announced by the Centers for Medicaid and Medicare Services (CMS), means the government won’t take action against health insurers who modify their catastrophic plans to cover COVID-19 diagnosis and treatment for their customers.

Licensed physicians can also now practice across state lines, under CMS waivers that ease a host of other rules that bind the practice of medicine in red tape. The feds played catch-up on that one: states including Arizona, California, Florida, Louisiana, Massachusetts, Mississippi, North Carolina, Tennessee, and Washington had already moved to ease restrictive licensing of medical providers before the feds jumped on the issue.

Even the Transportation Security Administration is joining in, modifying its insistence that doom is found in any liquid container of more than 3.4 ounce capacity so that travelers can carry 12-ounce bottles of hand sanitizer on airplanes.

“The coronavirus is forcing authorities to admit many of their regulations are unnecessary,” Reason‘s Nick Gillespie noted…(continues)

Click here to read the entire article at Reason.com

Tenth Amendment Center: Ignoring the Constitution

A couple days ago we posted an article that Jacob Hornberger had written for the Future of Freedom Foundation on the First Amendment. In Ignoring the Constitution at the Tenth Amendment Center, he reminds us of other parts of the Constitution that have been eroded and ignored over time. A constitution exists as a conveyance of authority to a government from the people it governs. It strictly limits the powers exercisable by that government. Some people believe that a constitution should be “a living document” in that the words should be re-interpreted over time to mean whatever the rulers think it should mean in the present day. This is the same as having no constitution at all. It means nothing to write things down on paper if it then becomes okay for people to “re-interpret” the text as the opposite of what was written. This is what we have today in the United States. We have a Constitution, but it has been ignored, re-interpreted, and swept under the rug. There are effectively no limits on the power of the US federal government. If you haven’t already noticed this, you haven’t been paying attention.

Constitutional violations have become so commonplace in American life that when they occur, the reaction among many Americans is ho-hum.

There are two classic examples of this phenomenon: the declaration of war requirement and gold and silver as legal tender.

Article 1, Section 8, enumerates the powers of Congress. It states in part: “Congress shall have Power To declare war.”

Article 2, Section 2, enumerates the powers of the president. It states in part: “The President shall be Commander in Chief of the Army and Navy of the United States.”

Thus, while the president is given the power to wage war, he is not given the power to declare war. The decision on whether to go to war lies with Congress. Unless Congress declares war, the president is constitutionally prohibited from waging war.

Yet, we all know that presidents ignore this constitutional restriction with impunity. They exercise both the power to declare war and wage war. There has never been a constitutional amendment authorizing this revolutionary change in our governmental structure.

Moreover, the change has come with the full knowledge and implicit consent of Congress, which has never impeached a president for illegally abrogating Congress’s power to declare war.

Additionally, despite the oath that U.S. military personnel take to support and defend the Constitution, they all blindly obey the president’s order to wage war without the constitutionally required congressional declaration of war.

Article 1, Section 10, states in part: “No state shall make any Thing but gold and silver Coin a Tender in Payment of Debts.

It goes without saying that every state in the Union blithely ignores that constitutional provision. Rather than making gold and silver coin legal tender, they all have made paper Federal Reserve notes, which promise to pay nothing, legal tender.  Many Americans, including state and federal judges, act like that constitutional provision doesn’t exist.

Article 1, Section 8, states in part: “The Congress shall have Power To coin Money, regulate the Value thereof.” There is no power given to Congress to print paper money.

Yet, here we are, living under a monetary system that is based on irredeemable paper notes issued by the federal government. Many Americans, including state and federal judges, act like all this is perfectly normal, as if these restrictions on power within the Constitution don’t matter or don’t really exist.

If public officials are empowered to ignore constitutional provisions whenever they want, then what’s the point of having a Constitution? When the Framers used the Constitution to bring the federal government into existence, their aim was to establish a limited-government republic, ones whose powers were limited to those enumerated in the document. The reason they did that was to ensure that federal officials could not destroy or abridge the freedom of the American people. The Constitution was intended as a higher law that the American people imposed on their government officials. If public officials wanted to change or expand such powers, they would be required to secure an amendment of the Constitution.

Federal officials expect us to comply with their laws. Why shouldn’t they be expected to comply with our law, the law of the Constitution?

FFF: Do We Need the First Amendment?

Do We Need the First Amendment? is a simple article by former trial attorney and professor Jacob Hornberger over at the Future of Freedom Foundation. The topic of where our rights come from, though, is vital and people constantly need to be reminded. There are both conservatives and liberals who think that our rights are from and/or are limited to the Constitution’s Bill of Rights. Some incorrectly believe that if we amend the Constitution to remove one of the listed rights, then we have done away with that right. Others wail and complain if the Supreme Court decides there is a right in existence not listed in the same Bill of Rights.

One must remember that the US Constitution gave form to the government, but perhaps more importantly it listed every power that the federal government was delegated by the people. When some people complained that the proposed Constitution didn’t originally list any protected rights, the framers said “Look, we didn’t give the government to abridge any rights. See? That power isn’t listed anywhere.” But people demanded a Bill of Rights just to be extra sure that it was clear that the government had no power to legislate in those areas. Again, some people said, “But if we write down a list, then some day people might think that only the listed the rights are protected” and people replied “We didn’t give the government that power! But here’s a ninth amendment that says you keep all of those, too.” Unfortunately, people didn’t pay attention, and the government has slowly, at times, and by leaps and bounds, at other times, has encroached everything.

Many years ago, I was giving a lecture on the Constitution and the Bill of Rights to a class at a public high school here in Virginia. During the course of my talk, I made the following statement: “The First Amendment does not give people the right of free speech.”

I asked the students whether my statement was correct or incorrect. Everyone immediately told me that I was wrong. They said the First Amendment did in fact give people the right of free speech.

I held my ground. I said it didn’t, and I pressed the students to figure out why I was maintaining my position. They were just as steadfast in their position, until a girl raised her hand and said, “Mr. Hornberger is right. The First Amendment does not give people rights. It prohibits the government from infringing on rights that preexist the government.”

She was absolutely right.

The First Amendment reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Notice that the Amendment does not give people rights. Instead, it prohibits Congress from enacting laws that abridge people’s rights.

But what is that all about? Why did our ancestors deem it necessary to enact such a prohibition? Isn’t Congress our friend? Isn’t it composed of people who we elect to represent us? We often hear that we should trust the government. It doesn’t sound to me that the people who enacted the First Amendment had much trust in elected representatives.

After all, the only reason for enacting such a prohibition is the concern that in the absence of such a prohibition, Congress would enact laws that abridge freedom of speech and other fundamental rights. That sounds like Americans believed that the members of Congress needed to be told that they were prohibited from doing so.

The First Amendment and the other amendments in the Bill of Rights reflect how leery people were of Congress and the rest of the federal government. They were convinced that if they approved the Constitution, the federal government they were calling into existence with the Constitution would destroy their rights and their freedom.

That was also why Americans opposed enormous, permanently standing military establishments. Given their conviction that the federal government would destroy their rights, they understood that the way governments historically had done that was through their military forces.

After all, how else to enforce a law, say, that prohibits people from criticizing the president or Congress? Sure, it would be possible to arrest, indict, convict, and incarcerate them but what if dissent became widespread among the citizenry? That’s where a massive military establishment would come into play — to use massive military force to put down dissent with round-ups, assassinations, killings, torture, executions, and other things that militaries historically have done to oppress people. That’s why all totalitarian regimes have large, permanent, powerful military establishments.

Thus, there is no possibility that our American ancestors would have approved the national-security state form of governmental structure under which we live today, a structure consisting of the Pentagon, the CIA, the NSA, and a vast empire of domestic and military bases. If the Constitution had proposed that form of governmental structure, Americans would have summarily rejected the deal and simply continued operating under the Articles of Confederation, another type of governmental system, one in which the federal government’s powers were so weak that the federal government wasn’t even given the power to tax.

The Constitution called into existence a limited-government republic, a type of governmental system that gave the federal government very few powers. There was an army, but it was relatively small — large enough to defeat Native American tribes but not large enough to threaten the American people with massive tyranny.

In fact, that’s why our American ancestors enacted the Second Amendment. It was designed to ensure that people would retain their right to keep and bear arms as a way to fight against any federal army or national police force that the Congress or the president might employ to enforce their destruction of free speech and other rights and liberties.

Thus, whenever you hear someone lamenting the lack of trust that many Americans today have in the federal government, it might be worth reminding them that the federal government was called into existence under a cloud of mistrust among our American ancestors. And they were right to have that mistrust!

Tenth Amendment Center: McCulloch v Maryland Supreme Ct Did NOT Support Expansive Federal Power

Chief Justice John Marshall

This article at the Tenth Amendment Center discusses the McCulloch v Maryland case. Harvard Law Today earlier this year said that the 1819 case paved the way for the modern administrative case. But Constitutional scholar Rob Natelson here says that this was not the intent Chief Justice John Marshall’s opinion at the time, but rather that the case in point was a much narrower ruling.

Why McCulloch v. Maryland – now 200 years old – is not a “big government” manifesto

…There are at least two well-grounded reasons Marshall’s opinion in McCulloch is important. The first is that it clarified some basic facts about the constitutional system.

McCulloch explained that the people, not the states, created the federal government and granted its powers. As a young lawyer, Marshall had been a leading spokesman for the Constitution, particularly in Virginia. In McCulloch, Marshall explained—as James Madison had before him—that the Constitution’s legal force comes from approval by popularly-elected state ratifying conventions meeting from 1787 through 1790.

It follows that the first rule of constitutional interpretation is the understanding of the ratifiers. It is not, as some conservatives say, the “intent of the framers” or “the original public meaning.” Nor should we, some liberals contend, construe the Constitution through “evolving social standards” or novel interpretive theories.

Moreover, McCulloch clarified that under the Constitution state and federal governments operate fairly independently of each other. Neither level of government should try to dictate to the other nor obstruct the other’s core functions. Because Congress designed the national bank to assist Congress in carrying out its core functions, McCulloch voided a state attempt to tax the bank.

The second reason McCulloch is so important is Marshall’s use of established law and legal methods—rather than tailor-made theories—for interpreting the Constitution. This is noteworthy in his discussion of whether the national bank was valid under the Constitution’s Necessary and Proper Clause.

The Constitution lists the powers of Congress. These include such functions as national defense, borrowing money, taxing, postal system, the monetary system, and regulating foreign and interstate commerce. In addition to these explicit items, the Constitution adds that “The Congress shall have Power . . . To make all Laws, which shall be necessary and proper for carrying into Execution” its listed powers.

The Constitution list of explicit powers does not include chartering a national bank. In McCulloch, the court had to determine whether chartering the bank was “necessary and proper” to carrying out Congress’s explicit powers.

Marshall, like other lawyers of his time, was familiar with documents by which one person or group granted authority to another—documents such as powers of attorney, wills, trust instruments, and statutes. The phrase “necessary and proper” was common in such documents.

As used in the Constitution, the “necessary and proper” phrase meant that in addition to the functions explicitly listed, the person or group receiving authority could exercise incidental powers. These were lesser powers intended to accompany the listed ones. Lesser powers usually were incidental if they were customary or necessary to carrying out the listed functions…

…In the 20th century, the Supreme Court cited McCulloch to uphold unprecedented federal spending and regulatory programs. Law school constitutional law courses sometimes treat McCulloch the same way.

But with all respect, this approach is the product of historical ignorance. Those who depict McCulloch as a “big government” decision generally are unaware of how the Founders understood the Necessary and Proper Clause and how the bank debates of 1791 focused on the details of incidental powers law. They usually are unaware of critical changes in the English language—such as the fact that when Marshall’s used the words “convenient”and “appropriate” they embodied narrower and tougher standards than they do today. Without that kind of historical perspective, McCulloch is a difficult case to understand…

Click here to read the entire case at the Tenth Amendment Center.