Newspaper column: All provisions of state Constitution must be adhered to

The lawyers for Nevada’s lawmakers appear to have finally stumbled onto a provision of the state Constitution worthy of being adhered to.

In mid-November the state Department of Conservation and Natural Resources (DCNR) announced that four-term Las Vegas Democratic Assemblywoman Heidi Swank had been selected to head up the Division of Outdoor Recreation, which had been created by the 2019 Legislature and funded with $657,000 during the current two-year budget. The salary of the new director has not been disclosed. The new unit is tasked with promoting outdoor recreation businesses and conservation of public lands.

The agency told The Nevada Independent — a donor-funded, web-based news outlet — that there were dozens of applicants for the job and several people were interviewed.

DCNR’s Director Bradley Crowell was quoted as saying, “Heidi’s extensive professional and legislative experience combined with her vision for the new Division are the perfect match to ensure outdoor recreational opportunities reach every corner of and every community in Nevada.”

Swank chaired the Assembly Natural Resources, Agriculture and Mining Committee in each of the past two sessions. She was quoted as saying, “I look forward to bringing all of these entities together to further Nevada’s outdoor recreation economy and get more Nevadans outdoors.”

Nevada Legislature

Two weeks later, an attorney for the Legislative Counsel Bureau (LCB), the lawmakers lawyers, approached Swank and basically said: Not so fast.

It turns out there is a section of the state Constitution that reads: “No Senator or member of Assembly shall, during the term for which he shall have been elected, nor for one year thereafter be appointed to any civil office of profit under this State which shall have been created, or the emoluments of which shall have been increased during such term, except such office as may be filled by elections by the people.”

There is a similar provision in the U.S. Constitution barring members of Congress from being appointed to any civil office they created while in office.

Such provisions are intended to prevent lawmakers from creating lucrative sinecures for themselves. Swank voted for the bill creating the new executive branch job.

“I can’t blame anyone in this,” Swank resignedly told The Independent. “It was a bit of bad luck.” She did not say whether she now plans to seek re-election.

Now that the LCB has discovered this prohibition in the state Constitution, perhaps there are a couple of other sections they should reconsider.

For example, there is the provision approved by Nevada voters in 1994 and 1996 amending the Constitution to state “an affirmative vote of not fewer than two-thirds of the members elected to each House is necessary to pass a bill or joint resolution which creates, generates, or increases any public revenue in any form …”

But during the spring legislative session the LCB — after stating otherwise in 2011, 2013 and 2015 — opined that a two-thirds vote was unnecessary if a bill delayed a scheduled reduction in tax rates — in this case the modified business tax. The bill continued the then-current tax rate, which was scheduled to be cut on July 1, though it failed to garner a two-thirds vote in the state Senate. Senate Republicans are currently suing to overturn the action as unconstitutional.

Then there is the section of the state Constitution that reads, “The powers of the Government of the State of Nevada shall be divided into three separate departments, — the Legislative, — the Executive and the Judicial; and no persons charged with the exercise of powers properly belonging to one of these departments shall exercise any functions, appertaining to either of the others, except in the cases expressly directed or permitted in this constitution.”

But the LCB has determined that public employees can serve in the Legislature so long as their “public employment does not exercise any sovereign functions appertaining to another department of the state government.”

“Any function” became “sovereign function,” whatever that means. In some years, as many as 20 percent of lawmakers have been public employees able to hold life or death sway over the budgets of their bosses.

James Madison wrote in Federalist Paper No. 47, “The accumulation of all powers, legislative, executive, and judiciary in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

The state Constitution spells out these prohibitions in unambiguous terms and for a good reason. The flippant misinterpretation of the language results in abuse of power.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Stick a sock in it!

Thank goodness we don’t live in a democracy.

A recent survey by the Campaign for Free Speech found that fully 51 percent of voting-aged Americans agree that the First Amendment goes too far in allowing hate speech and should be updated to reflect the current culture of supercilious sensitivity. Only 42 percent disagreed and only 24 percent strongly disagreed. Sadly, of those aged 18-34 fully 59 percent agreed.

Adding insult to injury, 57 percent agreed that the government should be able to take action against newspapers and TV stations that publish content that is biased, inflammatory, or false. Only 35 percent disagreed. Again, 63 percent of those aged 18-34 agreed.

And a vast majority don’t really understand what the First Amendment really means for free speech. That’s because 79 percent agreed with this statement: “The First Amendment allows anyone to say their opinion no matter what, and they are protected by law from any consequences of saying those thoughts or opinions.” No, government can’t do anything about your free speech, but you can be fired, ostracized, kicked out of clubs, churches and schools. There are consequences.

Further, 48 percent think hate speech should be against the law, compared to only 31 percent who disagree and an amazing 21 percent who don’t know. Of those who agree hate speech should be illegal, 54 percent think the punishment should include possible jail time.

Unfortunately, responses were not broken down by political party.

James Madison on democracies:

A pure Democracy, by which I mean a Society consisting of a small number of citizens, who assemble and administer the Government in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of Government itself; and there is nothing to check the inducements to sacrifice the weaker party, or an obnoxious individual. Hence it is, that such Democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security, or the rights of property; and have in general been as short in their lives, as they have been violent in their deaths.

 

 

 

Newspaper column: Bundy lawsuit addresses public land ownership

A civil lawsuit filed on behalf of Bunkerville rancher Cliven Bundy in state district court asks the court to declare that the public land on which Bundy grazes his cattle is owned by Nevada and Clark County, not the federal government.

The chances of success are most likely slim and none, but the suit raises some salient points about the power of the federal bureaucracy to hold sway over more than 85 percent of the land in Nevada.

Bundy and his sons are notorious for the 2014 armed standoff with Bureau of Land Management agents who attempted to confiscate his cattle for his failure to pay $1 million in grazing fees and fines over two decades. Federal criminal charges against the remaining defendants in that case were dismissed when the judge ruled the prosecution failed to turn over potentially exculpatory evidence to the defendants.

Cliven Bundy (R-J pix)

The civil lawsuit — drafted by Larry Klayman, often described as an activist right-wing lawyer and founder of Judicial Watch, and Craig Mueller, who earlier this year lost a primary bid for attorney general — cites court cases, U.S. and Nevada constitutional history, the Treaty of Guadalupe Hidalgo in which Mexico ceded much of the West to the United States and legislative proclamations.

The suit notes the state Legislature has never consented to allow the U.S. government to own more than 85 percent of the land within the state’s borders.

When the Constitution was being drafted James Madison raised concerns about giving Congress too much power to purchase land in the states, saying “that this power might be made use of to enslave any particular state by buying up its territory, and that the strongholds proposed would be a means of awing the state into an undue obedience to the general government.”

Constitutional Convention delegate Rufus King moved to add the phrase “by consent of the legislature of the state” to the section that mentioned the federal government owning forts, docks and “other needful Buildings.” It passed unanimously. With the exception of the Nevada Test Site, few of the federal land holdings in Nevada have been with the consent of the Legislature.

Bundy’s suit further explains the intent of a section of the Nevada Constitution known as the Disclaimer Clause that said the state does “forever disclaim all right and title to the unappropriated public lands lying within said territory, and that the same shall be and remain at the sole and entire disposition of the United States.”

Klayman and Mueller write, “The intent of the Territorial Legislature was not to ceed (sic) the land to the US Government ‘forever’, but to clear title of all unappropriated lands within the Territory so U.S. Congress could dispose of the lands to the State of Nevada.”

Which is probably why the admission document promised 5 percent of the proceeds to Nevada when land would be “sold by the United States subsequent to the admission of said state into the Union …”

In fact, though the suit doesn’t mention it, that so-called Disclaimer Clause was repealed by the voters in 1996, “effective on the date Congress consents to amendment or a legal determination is made that such consent is not necessary …” Might the court make such a legal determination? Doubtful.

The lawsuit also mentions a section of Nevada Revised Statutes 321 that declared, “The State of Nevada has a legal claim to the public land retained by the Federal Government within Nevada’s borders because: … The intent of the framers of the Constitution of the United States was to guarantee to each of the states sovereignty over all matters within its boundaries except for those powers specifically granted to the United States as agent of the states. … The purported right of ownership and control of the public lands within the State of Nevada by the United States is without foundation and violates the clear intent of the Constitution of the United States.”

Not only has the Legislature not consented, it has vehemently protested.

The lawsuit points out on four occasions that the Bundy ranch has been in existence for 141 years, during which it has held water, grazing and property rights, adding that Bundy “has suffered substantial injury, as his cattle are his only source of income … (and) is entitled to declaratory judgment that the lands upon which he and his family have conducted its ranching, The Bundy Ranch, for generations is property belonging to the People of Nevada and its subdivision, Clark County …”

The suit raises some serious questions.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Newspaper column: Bill proposes to turn Nevada into a ‘sanctuary state’

Return with us now to those thrilling days under the Articles of Confederation when every state made up its own rules regarding immigration and naturalization of foreigners, back before the Constitution gave Congress the sole authority to establish such rules.

In arguing for enactment of the Constitution in Federalist Paper No. 42, James Madison wrote, “The new Constitution has accordingly, with great propriety, made provision against them, and all others proceeding from the defect of the Confederation on this head, by authorizing the general government to establish a uniform rule of naturalization throughout the United States.”

Now along comes Democratic state Sen. Yvanna Cancela of Las Vegas, along with a host of fellow scofflaw Democrats, with a bill in Carson City that would turn Nevada into a “sanctuary state” by forbidding law enforcement cooperating with federal immigration authorities in identifying persons in their custody who are in this country illegally.

Senate Bill 223 states: “No state or local law enforcement agency, school police unit or campus police department shall: (a) Use money, facilities, property, equipment or personnel of the agency, unit or department to investigate, interrogate, detain, detect or arrest a person for the purposes of immigration enforcement …”

Cancela was quoted by the Reno newspaper as saying the bill “limits the ability to participate in immigration enforcement as far as what’s under federal purview.”

She went on to say, “The uncertainty that (President) Trump has created because of his executive orders, because of his political – frankly – hate speech around them has created a lot of problems not only for local law enforcement, but individuals. I think it’s our responsibility as legislators to provide as much clarity not only to law enforcement but families who are affected by those policies.”

Currently, under a program called 287(g), cooperating police departments that take a suspected illegal immigrant into custody notify U.S. Immigration Customs and Enforcement agents and they have 48 hours to pick up that person. In the past, ICE has been notoriously lax in showing up within those 48 hours, but, according to numerous press accounts, this is no longer the case under the new Trump presidential administration.

Under SB223 this would come to a screeching halt, despite the fact all lawmakers are required to take an oath of office swearing to “support, protect and defend the Constitution and Government of the United States … that I will bear true faith, allegiance and loyalty to the same, any ordinance, resolution or law of any state notwithstanding …”

In reaction to the bill, Senate Republican Minority Leader Michael Roberson released a statement to the press, saying, “This ‘Sanctuary State’ bill is, without question, the most recklessly irresponsible piece of legislation that I have witnessed during my six plus years in the Nevada Legislature. This Democrat bill will undoubtedly result in violent criminals, who have no business being in our state, to be released back into our communities to wreak more havoc on Nevadans.”

One of the arguments made by sanctuary proponents is that illegal immigrants are loath to report crimes for fear they will risk deportation and this increases criminal activity. But state and local law enforcement currently does not ask those who report crimes about their immigration status, only those who are in custody, those most likely to continue criminal activity if ICE is not given the opportunity to deport them because they pose a danger to the entire community — illegal immigrants included.

To add potential impact on state taxpayers to real danger of criminal activity, it should be noted that President Trump has threatened to withhold federal funds from sanctuary cities, and presumably sanctuary states.

He signed an executive order directing government officials to identify federal money that can be withheld to punish sanctuary cities.

So what could this mean for the “sanctuary state” of Nevada should SB223 pass in a Democrat majority Legislature?

The state’s total budget for the past two years was $26 billion. Fully $9 billion of that came from federal funds, according to the state budget.

Passing SB223 could have serious consequences to the bottom line of the state of Nevada, but that has never stopped the self-righteous Democrats, has it?

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Newspaper column: Why we have a federalism system, not a democracy

Someone buy these folks a civics textbook and maybe a Cliff Notes version of the Federalist Papers.

Yes, Hillary Clinton won the popular vote by about 3 million more votes than Donald Trump, but she lost the Electoral College vote by 304 to 227. That is because the Electoral College is made up of 538 members — one for each senator and representative from each state, plus the District of Columbia. (Look at it another way. Clinton won California by 4 million votes, but Trump won the combined popular vote in the 49 other states.)

This has prompted a number of people to call, again, for the abolishment of the Electoral College, which gives smaller states like Nevada, Wyoming, Montana, the Dakotas and the like a disproportionate say in the presidential election, just as James Madison and the other Founders intended. They were looking for a compromise between the unitary government of England, in which all decisions flowed from the central government, and the Articles of Confederation that dispersed nearly all decisions to the states, weakening interstate commerce and a strong national defense posture.

They settled on a federalist system that granted enumerated powers to the people and the sovereign state governments, as well as the federal government.

Alexander Hamilton put it this way in Federalist Paper No. 68: “It was also peculiarly desirable to afford as little opportunity as possible to tumult and disorder. This evil was not least to be dreaded in the election of a magistrate, who was to have so important an agency in the administration of the government as the President of the United States. But the precautions which have been so happily concerted in the system under consideration, promise an effectual security against this mischief. The choice of SEVERAL, to form an intermediate body of electors, will be much less apt to convulse the community with any extraordinary or violent movements, than the choice of ONE who was himself to be the final object of the public wishes. And as the electors, chosen in each State, are to assemble and vote in the State in which they are chosen, this detached and divided situation will expose them much less to heats and ferments, which might be communicated from them to the people, than if they were all to be convened at one time, in one place. Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption.”

Despite this precaution, the electors were in fact subject to a flood of phone calls, emails and social media diatribes.

Joining this cacophony of voices wailing and moaning about the undemocratic nature of the Electoral College was Nevada’s own senior Sen. Harry Reid, who is retiring in less than a month after three decades representing tiny Nevada in the U.S. Senate and more than a decade as Senate Democratic leader.

Perhaps, someone should remind Sen. Reid that the Senate itself was created to provide all states with an equal number of representatives in the upper chamber — very undemocratic, indeed, just like the Electoral College. Both were created precisely to be undemocratic and protect the rights of the minorities and smaller states.

In Federalist Paper No. 62 either Hamilton or Madison, not sure which, stated, “The equality of representation in the Senate is another point, which, being evidently the result of compromise between the opposite pretensions of the large and the small States, does not call for much discussion. If indeed it be right, that among a people thoroughly incorporated into one nation, every district ought to have a PROPORTIONAL share in the government, and that among independent and sovereign States, bound together by a simple league, the parties, however unequal in size, ought to have an EQUAL share in the common councils …”

Federalism, not democracy.

 A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Harry would consider diluting the votes of Nevadans, but he should instead strengthen the states

Harry Reid to Nevada voters: Let’s consider diluting the value of your vote.

After Hillary Clinton won the popular vote by about 2 million votes but lost in the Electoral College count 290-232, Reid told reporters Wednesday, “I think it would be educational for the country to have some hearings on the Electoral College system. … So I think it’s something we should look at, absolutely.”

Sen. Barbara Boxer, D-Calif., filed a bill Tuesday to abolish the Electoral College. In the unlikely event Congress were to pass the bill, amending the Constitution still would require agreement by three-fourths of the state legislatures.

According to The Hill, Trump, who seldom misses an opportunity to waffle on any issue, called the Electoral College “genius” on Tuesday morning, though in a a Sunday “60 Minutes” interview he said, “I’m not going to change my mind just because I won,” the president-elect said. “But I would rather see it where you went with simple votes. You know, you get 100 million votes and somebody else gets 90 million votes and you win.”

Barbara Boxer with Hillary Clinton (Reuters photo)

For Nevada voters dumping the Electoral College system would mean the state’s collective voting strength would drop from six to four.

The electoral college system was set up to give smaller states like Nevada an outsized voice in the presidential election. In a proportionate system, Nevada would have only four votes, one for each member of the House of Representatives, which is divvied up by population. But Nevada gets two extra votes, one for each senator.

Similarly, instead of having only one vote, Wyoming, Montana, Alaska, the Dakotas and a couple of others get three.

When the Constitution was written the states were intended to be sovereign entities, conducting the affairs within their borders, while the federal government would handle those enumerated duties beyond the scope or power of the individual states, such as defending the country from invasion and regulating interstate commerce.

Over the years the federal government has usurped more and more powers never envisioned by the Founders. Congress — using the carrot and stick of federal funding — dictates to states what the legal drinking age will be, what the highway speed limits will be, what education standards should be attained and whether to expand Medicaid, among many, many other things.

If Harry wants to consider some hearings on a constitutional amendment that would be educational for the country, he should call for hearings on repealing the 17th Amendment, which in 1913 changed the election of U.S. senators from selection by state legislatures to a popular vote.

Since then the Congress has treated the states like fiefdoms over which it holds indomitable power.

James Madison said during debate over the Bill of Rights, “The state legislatures will jealously and closely watch the operations of Government, and be able to resist with more effect every assumption of power, than any other power on earth can do; and the greatest opponents to a Federal government admit the State Legislatures to be sure guardians of people’s liberty.”

George Mason warned when the Constitution was being drafted in Philadelphia, “(W)e have agreed that the national Legislature shall have a negative on the State Legislatures — the Danger is that the national, will swallow up the State Legislatures — what will be a reasonable guard agt. this Danger, and operate in favor of the State authorities — The answer seems to me to be this, let the State Legislatures appoint the Senate …”

The delegates agreed unanimously.

But in a fit of progressive pique this common sense check against unbridled power was overturned by the 17th.

In 1997 Nevada’s own Jay Bybee, a former constitutional law professor at UNLV and now a judge on the 9th U.S. Circuit Court of Appeals on the recommendation of Harry Reid, penned an article railing against the 17th Amendment’s alteration of the country’s power structure:

 

“The Senate’s slide to popular democracy unyoked states and the national government in a way that has left the states nearly powerless to defend their position as other legitimate representatives of the people. As the United States moved into the Twentieth Century, it was inevitable that Congress would aggressively exercise power over matters such as commerce and spending for the general welfare in ways that no constitutional prophet would have foreseen. The lack of foresight of the circumstances under which Congress would exercise its powers did not excuse our failure to maintain those constitutional structures that assure the tempered, essential use of such powers. When we loosed ourselves from the mast to answer the Sirens’ call, we unleashed consequences only Circe could have foreseen.”

If Harry wants to dabble with the Constitution, he should look to the 17th Amendment, not the Electoral College.

 

 

 

 

Newspaper column: Is Nevada being unconstitutionally awed into obedience to the feds?

Over the years the battle to grant states greater control over the vast swath of federal public land have ebbed and flowed. There have been court battles, mostly lost. There have been legislative resolutions and bills, mostly ignored, as well as numerous congressional hearings and testimony.

More recently there have been instances of civil disobedience at the Bundy Ranch in Bunkerville and the Malheur National Wildlife Refuge in Oregon that have resulted in dozens of federal indictments for conspiracy and assault.

All for naught. To this day the federal agencies control 50 percent of the land in the West and 85 percent of Nevada.

But Ruby Valley cattle rancher Clifford Gardner may have unearthed an overlooked aspect of the U.S. Constitution that speaks to the core issue.

Clifford Gardner (Elko Daily Free Press photo)

Gardner is intimately familiar with the legal and moral arguments, having waged his own losing court battle over federal land grazing rights, or the lack thereof.

In 1992, a fire burned two of Gardner’s allotments. The Forest Service told him to not graze in 1993 and 1994, but Gardner turned out cattle in the spring of 1994.

The legal battle ended with a ruling from the U.S. 9th Circuit Court of Appeals in 1997, saying, “Gardners contend that, while the United States may have received the land in question from Mexico in the Treaty of Guadalupe Hidalgo in 1848, the United States was entitled only to hold the land in trust for the creation of future states, and was not authorized to retain the land for its own purposes. After Nevada became a state, Gardners argue, all of the public lands within the state boundaries reverted to the state of Nevada.”

The liberal court dismissed that claim out of hand, saying “all nongranted lands previously held by the Government of Mexico passed into the federal public domain.”

It also dismissed his argument that all states are supposed to be admitted to the Union on an equal footing with the original states. The judges said the Equal Footing Doctrine only applies to political standing and sovereignty, not economic equality.

The court held that the Property Clause gives Congress the power “to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.”

Another section of the Constitution states that Congress has exclusive authority “over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings …”

“What I’ve learned is that when they wrote that clause into the Constitution that during discussion they said very clearly that their greatest fear was that should the federal government ever own vast amounts of land in a state it would awe the state into obedience,” Gardner said in a recent interview. “That argument, original intent, I would call it, has never been presented either back in Sagebrush Rebellion I or Sagebrush Rebellion II. So I feel that is quite important.”

Gardner spells out his arguments in a 46-page white paper that he hands out when speaking to groups on this land issue.

As the nation expanded and acquired more unappropriated lands, Gardner explains, it was the practice that the government would dispose of the land, but as time went on this became less the case.

“Over the years, as I come back and look at this, I come to realize we had a lot more good arguments against the federal government’s continued control of these lands,” Gardner says, noting that one of them is how federal agencies can claim so much of the land in Nevada and not afford people their constitutional rights?

Gardner relates that James Madison wrote in 1787 that Elbridge Gerry raised concerns about giving Congress exclusive power over purchased lands, saying “that this power might be made use of to enslave any particular state by buying up its territory, and that the strongholds proposed would be a means of awing the state into an undue obedience to the general government.”

Delegate Rufus King moved to add the phrase “by consent of the legislatureof the state.” It passed unanimously.

So, if the drafters of the Constitution deemed it necessary to prevent Congress exerting undue influence by purchasing land, is it any less undue influence by retaining 85 percent of the land in a given state?

With the exception of the Nevada Test Site, few of the federal land acquisitions have been with the consent of the Legislature.

A version of this column appeared a year ago in the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

This is the way democracy will end, not with a bang …

“I know no safe depository of the ultimate powers of the society, but the people themselves: and if we think them not enlightened enough to exercise their controul with a wholsome discretion, the remedy is, not to take it from them, but to inform their discretion by education. this is the true corrective of abuses of constitutional power.”

— Thomas Jefferson

We had better get started, because it is a steep hill to climb.

A report out this month called “A Crisis in Education” reveals an appalling lack of knowledge of civics by Americans in general and even college graduates.

A multiple-choice survey found Americans don’t know much about history or civics. Merely should have resulted in at least 25 percent correct answers since only four choices were given, but ignorance beats the odds

For example, only 20.6 percent could identify James Madison as the primary author of the Constitution, while 60.5 percent answered Thomas Jefferson, the author of the Declaration of Independence, who was serving as ambassador to France when the Constitution was written. Only 28.4 percent of college grads correctly named Madison, while 59.2 percent named Jefferson.

 

The survey found that a college education was less of a factor in civic knowledge than age. Older college grads answered more questions correctly than younger ones.

The study authors offer this explanation for the state of ignorance:

Given all the interest expressed in civic education, how has this happened? The simple answer: a proliferation of programs that do not address the problem. Too many colleges and universities confuse community service and student activism with civic education. Service learning and political engagement form a wholesome part of the development of character and, when judiciously chosen, lead to civic virtue. But without coursework in American history and government, such activities achieve little of substance. Too often, proposals for civic renewal have been overly broad and vague. While they have called for more civic education, they have generally failed to define civic knowledge or require objective assessment. Contemporary discussions of civic education also suffer from what might be called the “universalist fallacy,” which dismisses special concentration on the U.S. Constitution and the founding principles of the nation because such an emphasis makes a “normative” judgment about the priority of certain issues over others in the education of young Americans.

 

How can people ignorant of the lessons of history and the how their own government works make informed decisions at the polls?

“Democracy is a pathetic belief in the collective wisdom of individual ignorance.”

     — H.L. Mencken

“There is a cult of ignorance in the United States, and there has always been. The strain of anti-intellectualism has been a constant thread winding its way through our political and cultural life, nurtured by the false notion that democracy means that ‘my ignorance is just as good as your knowledge.’”

    — Isaac Asimov

Newspaper column: Author of book on presidential power grabs should have enough material for a sequel or two

“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny.”

     — James Madison, Federalist Papers

It is doubtful that when Fox News commentator Judge Andrew Napolitano began writing his newly published book, “Suicide Pact: The Radical Expansion of Presidential Powers and the Lethal Threat to American Liberty,” he suspected President Obama would be providing him enough material for several sequels.

Napolitano discussed the purpose and content of his book during a recent conference call with associates of Watchdog Wire, an online citizen journalism site.

He joked that Obama is helping him sell his book, which was written before the president decided to rewrite the laws on immigration. “The president has exempted so many people from the laws of immigration that no one … can claim he is enforcing them. In fact he is changing them and rewriting them. Those are profound violations of the Constitution,” he said.

As a Fox commentator, Napolitano explains that part of his job is to “monitor the government as it interferes with personal liberty, seizes private property and prevents economic opportunity.”

His job and the book start with the basic principles. “Under our constitutional form of government, the Congress writes the laws. The president enforces the laws. The courts interpret the laws,” the judge offered. “Madison, when he crafted the Constitution, intentionally built tension between and among the three branches of government. So that no one branch could seize power from either of the other two.”

The book is written in two parts. The first half of the book is a history of presidential law breaking and presidential law making. The second half looks at the powers claimed by George W. Bush and Barack Obama after and as a result of 9/11.

It goes from John Adams imprisoning his critics under the Alien and Sedition acts of 1798 to Abraham Lincoln — “the greatest violator of civil liberties in the history of the United States of America” — suspending the writ of habeas corpus and locking up 3,000 newspaper reporters, publishers and editors because he disagreed with their editorials to Woodrow Wilson having people arrested for reciting the Declaration of Independence outside of draft offices to Franklin Roosevelt stealing gold and Lyndon Johnson lying about the Gulf of Tonkin.

Then he gets to Bush allowing spying on Americans without a warrant and allowing torturing of terrorism suspects and Obama ordering Americans to be killed without any semblance of any Fifth Amendment guarantee against depriving “life, liberty, or property, without due process of law.”

Napolitano asked rhetorically: “Why should you care?”

He answered his own question by warning, “You should care, because if presidents become a law unto themselves, one of them one day is going say, ‘You know what? That limit that says my term is only four years and I can’t have more than a second term, I don’t think that’s good law any more and I’m not leaving.’”

During questioning, Napolitano said one way to restrain the power of the presidency would be to elect someone who truly believes in shrinking government, someone like Rand Paul, who wrote the foreword for his book, though the judge quickly added that was not an endorsement. But he did opine that all the other current potential candidates would tend to aggrandize power.

“Only when someone who really believes that the Constitution means what it says, who believes as (Thomas) Jefferson argued that the government should be chained down by the Constitution, only when a person like that is in the White House,” Napolitano said, “and there is substantial support in the Congress for that view, will we see constitutional government. Otherwise, things are going to get worse and worse and worse.”

Currently, he argued, both parties agree our rights come from government, not from our humanity, and both parties are in favor of perpetual war and perpetual debt.

“Until there is a president in the White House who breaks that mold,” Napolitano continued in an on-screen-worthy rant, “who recognizes our rights come from our humanity and cannot be taken away by a majority vote, that perpetual war is destructive and perpetual debt is destructive … Unless and until there is a president in the White House who’ll embrace these views, it can only get worse.”

Shortly after the interview, the national debt hit $18 trillion, having risen 70 percent under Obama, and the administration issued 3,415 new regulations – including 189 rules that cost more than $100 million apiece.

Enough material for a sequel, Mr. Napolitano?

A version of this column is available online at the Mesquite Local News, the Elko Daily Free Press and The Ely Times.

Newspaper column: Why we should repeal the 17th Amendment

We managed to repeal the 18th Amendment, which created Prohibition. It is time to repeal the 17th.

What? You have no idea what the 17th Amendment is? Well, it is the one that effectively ended federalism by taking the power to appoint U.S. senators from state legislatures and having the citizens directly elect them, as they had always done with the House of Representatives.

We may not get better senators, but it is likely they would not try dictate to the states what they should do — as they did when they set the national speed limit at 55 mph and the drinking age at 21, under threat of losing highway funding. No Child Left Behind dictates education standards under threat of losing funding. The Motor Voter Law told states how to register voters, as recounted in this week’s newspaper column available online at The Ely Times and the Elko Daily Free Press.

ObamaCare threatened federal funding if states did not expand Medicaid and set up exchanges, until the Supreme Court decided that was too onerous.

James Madison said during debate over the Bill of Rights, “The state legislatures will jealously and closely watch the operations of Government, and be able to resist with more effect every assumption of power, than any other power on earth can do; and the greatest opponents to a Federal government admit the State Legislatures to be sure guardians of people’s liberty.”

There was a grand design to balance power, but that was broken in 1913 with the passage of the 17th Amendment.

George Mason warned when the Constitution was being drafted in Philadelphia that the Senate had to represent the states lest the federal government “swallow up the state legislatures.”

Mason argued to the delegation, “(W)e have agreed that the national Legislature shall have a negative on the State Legislatures — the Danger is that the national, will swallow up the State Legislatures — what will be a reasonable guard agt. this Danger, and operate in favor of the State authorities — The answer seems to me to be this, let the State Legislatures appoint the Senate …”

The delegates backed him unanimously.

Justice Antonin Scalia in 2010 at Texas Tech University Law School was asked what he would change about the Constitution.

“There’s very little that I would change,” he said. “I would change it back to what they wrote, in some respects. The 17th Amendment has changed things enormously.”

Scalia added, “We changed that in a burst of progressivism in 1913, and you can trace the decline of so-called states’ rights throughout the rest of the 20th century. So, don’t mess with the Constitution.”

That’s how we got FDR’s New Deal.

Then there is the argument put forward by Nevada’s own Jay Bybee, former William Boyd Law School constitutional law professor at UNLV and now judge on the 9th U.S. Circuit Court of Appeals on the recommendation of Nevada’s senior senator, Harry Reid.

In 1997 Bybee penned an article for the Northwestern University Law Review titled “Ulysses at the Mast: Democracy, Federalism, and the Siren’s Song.” In Greek mythology, beautiful sirens lured sailors with their music and voices to shipwreck on the rocky coast of their island.

Bybee wrote of the passage of the 17th Amendment with a rhetorical flourish:

“Mason wished to provide some mechanism for states to defend themselves against ‘encroachment’ by a national government that everyone recognized would have significantly more power than any American sovereign since July 3, 1776. A senate appointed by state legislatures would be a near-complete defense to national encroachment because the senate controlled one-half of Congress. …

Sirens

“The Senate’s slide to popular democracy unyoked states and the national government in a way that has left the states nearly powerless to defend their position as other legitimate representatives of the people. As the United States moved into the Twentieth Century, it was inevitable that Congress would aggressively exercise power over matters such as commerce and spending for the general welfare in ways that no constitutional prophet would have foreseen. The lack of foresight of the circumstances under which Congress would exercise its powers did not excuse our failure to maintain those constitutional structures that assure the tempered, essential use of such powers. When we loosed ourselves from the mast to answer the Sirens’ call, we unleashed consequences only Circe could have foreseen.”

If the state Legislature of Nevada appointed the state’s two senators, do you think Reid would be calling them cowards for not voting to outlaw brothels in rural counties as he demanded in a speech at the Legislature in 2011?

The audacity of such power.