Monthly Archives: April 2008

Crawford v. Marion County Election Board

Wed, April 30, 2008 Comments Off by michaeltams

Editor’s Note: The following is a guest contribution from Jay Fisher, a friend and fellow Federalist at heart. If you’re interested in writing on the topic of Balanced Government, reach me via the “Contact” page.

Crawford v. Marion County Election Board
Jay Fisher

In a victory for balanced government the United States Supreme Court on Monday held that Indiana’s law requiring voters to show a photo identification was constitutional.

The case, Crawford v. Marion County Election Board, was decided by a vote of 6-3 with the Majority Opinion by Justices Stevens, joined by Justice Kennedy and Chief Justice Roberts. Justice Scalia wrote a Concurring Opinion which was joined by Justices Thomas and Alito. The Opinions can be found here.

The Indiana law requires all voters to show photo ID when they vote in person. It does not apply to absentee voters. The law was challenged by the Indiana Democratic Party that asserted it substantially burdens the right to vote in violation of the Fourteenth Amendment.

Justice Stevens held that Indiana had legitimate interests in passing the law, including reducing election fraud. The burden to a few voters from the ID requirement may be large, but that is not enough to overturn the law.

As usual, Justice Scalia argued incisively and strongly for the Founders view of limited and balanced government. He argued that the Majority Opinion’s holding took an “individual-focused approach.” This will lead to constant litigation as plaintiffs try and see if they can get the Courts to rule that the burden in their case goes too far.

Justice Scalia states:

That sort of detailed judicial supervision of the election process would flout the Constitution’s express commitment of the task to the States. See Art. 1, Sec. 4. It is for state legislatures to weigh the costs and benefits of possible changes to their election codes, and their judgment must prevail unless it imposes a severe and unjustifed overall burden upon the right to vote, or is intended to disadvantage a particular class.

Under the Constitution, election law should be the purview of the States, unless it can be shown that a particular law is discriminatory under the Fourteenth Amendment.

It’s interesting to read Senate Majority Leader Harry Reid’s argument against the law. He stated that “[T]he fact that every Republican in the Indiana General Assembly supported this law and every Democrat opposed it, speaks volumes about the improper partisan motives behind the photo ID movement.” The Chicago Tribune quotes a law professor opposed to the law because it “defers too much to the power of the states” and could be used by Democrats to enact same day voter registration to hurt Republicans.

What Sen. Reid doesn’t understand is that “improper partisan motives” are not unconstitutional. Because Republicans or Democrats think something is good policy and will help them does not make it a federal case. The Federal Courts don’t exist to overturn all partisan policymaking.

And to the esteemed law professor (and many others I have known) I would suggest that one remember that the Tenth Amendment was supposed to reserve most powers to the States. If Wisconsin wants to have same day registration despite the increased possibilities of fraud while Indiana wants to require photo ID despite the burden on some people that is fine. If the citizens of Wisconsin or Indiana don’t like those laws they can elect legislators to change them. That is the remedy, not to file suit. States should be laboratories of democracy.

When Bad Government Gets Worse

Tue, April 22, 2008 Comments Off by michaeltams

One of the key ideas I try and communicate in both writing and speaking is that there are all types of government, and the most important government – self-government – is the least practiced.  Distant, external government has no business getting involved in areas that are best administered closest to the people. This is what “Balanced Government” is all about.

Yet, we proceed down a dangerous path, immune, it seems, to the warning signs around us. This story today notes that there is a proposal for expanding the FHA: a Depression-era holdover that defies reason by growing in importance as we move further away from the Depression.

The most noteworthy part of the article (emphasis mine):

The plan would be a massive expansion of the Federal Housing Administration, the Depression-era mortgage insurer. FHA would take on $300 billion in new loans for as many as 1 million distressed homeowners, most of whom otherwise wouldn’t qualify for a government-backed loan.

Taxpayer dollars would be at risk should borrowers default on their new mortgages.

So, most of the homeowners in question wouldn’t qualify for a government-backed loan; yet, they’d be getting one. On top of this, defaults – when they occur – will be borne largely by the American taxpayer. Translated loosely, if you’re not getting one of these loans, you’re acting as the bank with your tax dollars (and no, you don’t get a vote in the credit committee). If we hit a recession and people default? That’s no longer the problem of Bank of America, or Wells Fargo, or Indymac Bank. Now it becomes the problem of the American taxpayer.

The complicated scheme gets worse, but the details aren’t the important point. The important point is that the federal government has no business bailing people out of private contracts they entered into in good faith. Even if one could imagine a scenario whereby having “the government” void a perfectly legal contractual agreement seems like a good idea (and I cannot), there’s absolutely no basis for having that sphere of government be the one that’s furthest away from the people. Hard hit real estate markets – such as Miami or Detroit – will be supported by people from all over the country. Their lack of caution, greed-driven speculation or simple indifference to obligations and lack of respect for contracts shall be subsidized by productive persons who manage their affairs properly and respect the law.

The bill is H.R. 5830: if by some chance you’re calling your representative, you might voice your displeasure specifically with this legislation.

And lest you think imbalance is confined to the realm of bad economics masquerading as “compassion”, there’s this story today about No Child Left Behind. It appears that the federal government is rolling out more laws to regulate the way States – and by extension, parents – educate their children.

To be perfectly clear, Mr. Madison wrote in Federalist #45:

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.

The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government.

To Madison’s list I would add only: administration of the courts.

Amazing, then, that we’ve sunk to the condition we’re in. Will liberty be lost, crowded out by the ever-greater expansion of external government, simply because people aren’t educated on the proper role of the federal government? Or will we once again hold accountable ourselves, our neighbors, and our government?

The Tenth Amendment reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The guidlines are there; the justification has been made; all we’re required to do is learn it and insist on compliance by those we send to represent us.

Founding Wisdom: Jefferson

Sat, April 19, 2008 Comments Off by michaeltams

Thomas Jefferson

Thomas Jefferson

In a letter to Justice William Johnson dated June 12, 1823, Thomas Jefferson wrote (source: Jefferson, Writings; Library of America, p. 1476):

“I believe the States can best govern our home concerns, and the General Government our foreign ones. I wish, therefore, to see maintained that wholesome distribution of powers established by the constitution for the limitation of both; and never to see all offices transferred to Washington, where, further withdrawn from the eyes of the people, they may more secretly be bought and sold as at the market.”

It is difficult to both dispute the vision of Jefferson and argue that what we have today with respect to the administration of the people’s business is either proper or effective. Indeed, as Jefferson foresaw, the poorest administration of government is the one whereby the domestic matters which belong to the people are spirited away to a distant sphere of responsibility. This breeds distrust, apathy and contempt among the people for their own government.

As the Founders themselves told us time and again, it is this concept of the division of powers among the spheres – balanced government – which accounts for much of the genius of our system. Certainly, the separation of power among the branches of government is important, yet this mechanism wasn’t entirely new among governments in the 18th century. And of course the specific mechanisms created (especially balancing the representation scheme between the House and the Senate) also display the mark of genius, or at least thoughtful study and consideration.

Despite the often bitter partisanship between Jefferson and Hamilton and the then-Republicans and the Federalists in general, we can see from this example that there were concepts that were universally accepted and weren’t subject to partisan disagreement. The concept of Balanced Government is just such an idea.

“Limited” Government

Mon, April 7, 2008 Comments Off by michaeltams

I was reminded this weekend as I went through the week’s mail that part of our failure as a republic – if we should fail, and there are times that it appears we might – is an inability to think clearly about words and their meaning.

The March 2008 issue of Imprimis showed up this week and featured a lecture given by professor Charles R. Kesler entitled “Limited Government: Are the Good Times Really Over?” Kesler notes in his lecture that “limited” can also be energetic and doesn’t mean “small” or “weak” for that matter. Most importantly he states that limited government must be constitutional. Here I think we find agreement as I have long thought that “balanced government” is interchangeable with “constitutionally-consistent government.”

The reality is that we’ve got imbalanced government – what some people might call “big” government. The term “big government” is only somewhat correct as the converse implies that the ideal would be small government. As envisioned by our Founders – and as codified in our Constitution – government should be balanced: there are a few limited functions of distant external government. The rest belongs to the people and the states. Should the people decide to delegate these powers to the states, in other words, some people might have “big” government, but it would be consolidated at the state level.

While getting close to the mark I’d like him to hit, Kesler doesn’t spell it out exactly as he could. Nevertheless, it’s a brilliant piece in its thorough undressing of statism and the illuminating point about its origins: the threat of the rule of the few (wealthy elites) might become tyrannical. Perhaps this point might be an area of focus for free-market advocates in order to begin to diffuse some of the arguments of the American Left.