Rick Santorum throws up

The difference between a free country and a dictatorship is that in a dictatorship the government can do whatever it wants to do, whenever and to whomever it chooses; while in a free country, the government’s powers are limited.

The United States is a free country because the U.S. Constitution limits the power of the government. It’s important to understand and appreciate the brilliant and complex design that is too often disregarded by people who, in their effort to solve a problem, don’t realize that they are undermining the structure that holds up our freedom and keeps us from slowly collapsing into that other system of government.

Just to save you the click over to Wikipedia, here is a one-paragraph introduction to the U.S. system of government.

The United States of America is made up of separate states which each have their own government. There is also a national government, headquartered in the nation’s capital. This system, called federalism, was unique in the history of the world: Two governments over the same physical area, the state government and the federal government, co-existing through a separation of powers. Under the U.S. Constitution, which had to be approved by the states before it could take effect, the national government in Washington has “enumerated” powers that are listed in the Constitution. All other powers remain with the state governments. As an additional safeguard on freedom, the powers of the national government are divided among three branches — the executive (the presidency), the legislative (Congress) and the judicial (the federal courts). These branches have limited powers and they also have checks on each other’s powers.

Now you know why it’s so hard to get anything done in Washington. Most of what Washington is trying to get done, the Constitution prohibits Washington from doing.

That’s what makes the United States a free country. If the government could do whatever it wants to do, whenever and to whomever it chooses, we would be living in a dictatorship.

President George Washington warned in his Farewell Address, when he voluntarily left power after two terms in office, that the people of the United States should be on their guard against the tendency of government officials to usurp power and push the limits of the Constitution. “If in the opinion of the People, the distribution or modification of the Constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates,” Washington said. “But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.”

At different times and for different reasons, especially over the last hundred years, our Constitution has been changed not by amendment, but by usurpation.

Today hardly anyone knows that the Bill of Rights was intended to apply only to the federal government. It did not restrict the powers of the state governments at all. This was confirmed by the U.S. Supreme Court in the 1833 case of Barron v. Baltimore, and it was confirmed over and over again after the Fourteenth Amendment’s ratification in 1868. In the 1900 case of Maxwell v. Dow, the Court said the first ten amendments to the Constitution “were not intended to and did not have any effect upon the powers of the respective states.” As recently as 1922, in the case of Prudential Insurance Co. v. Cheek, the Supreme Court held that the First Amendment “imposes upon the States no obligation to confer…the right of free speech.”

It’s hard to believe, but true. In an 1804 letter to Abigail Adams, Thomas Jefferson wrote, “While we deny that Congress have a right to controul the freedom of the press, we have ever asserted the rights of the states, and their exclusive right, to do so.”

James Madison wanted the Bill of Rights to contain an amendment that read, “No state shall violate the equal rights of conscience, or the freedom of the press, or trial by jury in criminal cases,” but he couldn’t get it through the Senate.

Most of the Bill of Rights applies to the states today because the U.S. Supreme Court invented something called the Incorporation Doctrine, which holds that certain rights are so fundamental to the idea of liberty that they must apply to the state governments, because the Fourteenth Amendment says the states may not deny liberty to any person without due process of law.

You can find constitutional scholars who will examine the legislative history of the Fourteenth Amendment with a microscope and declare that the lawmakers intended to make the Bill of Rights apply to the states, but they can’t explain why no one could get that argument through the Supreme Court until everyone who voted on the Fourteenth Amendment was dead.

Judge for yourself.

The problem with the Incorporation Doctrine is not that the decisions have had a bad result. Much of what the courts have done is admirable, even heroic. The problem is that the American people have been completely cut out of the process of making many of the laws they have to live under.

The Incorporation Doctrine holds that a state may not infringe a fundamental right unless it has a compelling reason. A rational reason isn’t good enough. This is sometimes called “strict scrutiny” or “heightened scrutiny.”

What this really means is that federal judges substitute their judgment for the judgment of the elected state and local governments. Does a state have the power to ban the sale of violent video games to children? What about a ban on noisy protests at military funerals? May a school ban students from wearing Nazi armbands? Anti-war T-shirts? American flag T-shirts? Can police set up roadblocks to search for drugs? Drunk drivers? Weapons? May a state require parental consent for minors seeking abortions? Birth control pills? Tattoos?

It all depends on whether the state can convince federal judges that there is a compelling reason that the law or rule is necessary, and that it’s narrowly tailored to achieve a permissible purpose. Whether a reason is compelling or merely rational depends very much on the personal values of the judges making the decision.

The personal values of judges are now a topic of discussion whenever there is a vacancy on the federal bench, and especially when there’s a retirement on the U.S. Supreme Court. That’s because the Senate confirmation hearings for federal judges are the last opportunity for the American people to have any say at all over many of the laws that deeply concern them.

If we had followed George Washington’s advice, there would have been a constitutional amendment for privacy rights and not a Supreme Court ruling usurping the states’ power to decide when abortion is legal and when it is not. There would have been a constitutional amendment to ban discrimination on the basis of race instead of a patchwork of Supreme Court decisions defining which kinds of racial discrimination are prohibited and which are mandatory. There would have been a constitutional amendment to bar the states from establishing a religion, instead of a contentious series of decisions about prayer in the schools, God in the Pledge, and Ten Commandments displays in the courthouse.

Under our federalist system, the U.S. government was prohibited from establishing a religion, but the states were completely free to do so.

There is a bitter debate going on in U.S. politics over the separation of church and state in America. On Sunday, presidential candidate Rick Santorum told ABC News he became nauseous when he read President John F. Kennedy’s famous 1960 speech to the Greater Houston Ministerial Association.

“The first line, first substantive line in the speech, says, ‘I believe in America where the separation of church and state is absolute,’” Santorum said. “I don’t believe in an America where the separation of church and state is absolute. The idea that the church can have no influence or no involvement in the operation of the state is absolutely antithetical to the objectives and vision of our country.”

ABC News host George Stephanopoulous wondered about the nausea reaction. “You think you wanted to throw up?” he asked.

“Well, yes, absolutely,” Santorum answered. “To say that people of faith have no role in the public square? You bet that makes you throw up. What kind of country do we live in that says only people of non-faith can come into the public square and make their case? That makes me throw up.”

A lot of Americans have that same reaction to politicians who want to force their own religious beliefs on other people through the laws passed by Congress.

The framers of the Constitution dealt with this problem — it’s not new — by prohibiting the national government from establishing a religion without imposing a similar prohibition on the states. It’s unlikely that the people of any state would support the establishment of a state religion today, but under the original understanding of the Constitution they would have the right to make their own laws requiring, allowing or prohibiting prayer in the schools, Nativity scenes in public buildings, and Ten Commandments displays on the courthouse lawn.

Federalism is a sophisticated system of government that allows people of different beliefs to co-exist peacefully.

The world could learn much from it. We should study it ourselves.

© 2012
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Susan Shelley is a Republican candidate for Congress in California’s 30th District, the west and south San Fernando Valley. She’s the author of a modern history of the Bill of Rights titled, “How the First Amendment Came to Protect Topless Dancing,” which is available in the Kindle Store at Amazon.com.

Susan Shelley posted at 2012-2-26 Category: Uncategorized