Of Viruses and Governors

Photo by Jeffrey Hamilton on Unsplash

I have a close correspondent in Europe, with whom I have exchanged ideas for years.  Most recently he shared with me his worries and frustration with how Germany has been responding to the virus that has occupied so much attention.  Here are thoughts from the response I shared with him.  I shall call him Walter.

  

 Dear Walter,

Thank you for your note.  The virus lockdown and response situation in Germany sounds worse than I thought.  We don’t hear much about it in our media.  Most of what I pick up from Europe is from British commentators boasting about how glad they are that they got out of the EU just in time.  They claim to be way ahead in vaccine administration, particularly compared with Macron’s record in France.

Here in the U.S. we have been witnessing a general overreaction but we also experience the benefits of a federal system.  The variety of states are following a variety of policies, and people can see what works better (if the news can get through the big media channels).  The general pattern seems to be that the more the lockdown the higher the incidence, which these governors then use to justify even tighter lockdowns.  But even the worst states, like New York and California, are starting to realize that they have gone overboard.  Virginia is starting to ease up, perhaps because they have elections this year for governor and legislature (where Democrats have very thin majorities).  Schools are starting to reopen—despite the teachers unions who want to stay closed—but who also want their teachers first in line for the vaccines.  Children have been hardest hit, not by the virus but by the policies.

Politicians do talk to one another.  The virus gave a good excuse for heads of the executive branches to enjoy making decisions without working with the other branches of government.  The Chinese Government showed how, by engaging in a sharp, heavy lockdown of Wuhan, including control of information.  I don’t claim that they told governors here and leaders around the world what to do, but they did show them what to do and how to use the virus as the excuse. 

In the U.S., most governors with the early heavy-handed policies were Democrats, and the media were by and large in deep sympathy, quickly pitching stories to support what the governors wanted to do, helping to hype the hysteria on which the governors’ decrees were based.  Once the governors issued their first round of decrees they got to like it, but they needed to keep going to keep their legislatures off balance.  A few judges here and there, eventually, ruled that some of the governors had gone too far, rolling back some of the policies.  Many judges found ways to stay out of it, considering these to be policy matters, not judicial issues.

The thorn in the side of these governors has been other governors, who followed more reasonable approaches, such as the governors in Florida, Tennessee, Texas, even South Dakota, among others.  That is the beauty of a federal system.  It has worked imperfectly, but it has been a salvation, particularly as people have seen better results—from the point of view of the virus and of the economy—in these other states.  It has worked to keep the debate somewhat alive, even with media working hard to silence alternative voices.

This all shows the importance of a constitution, with personal freedoms and diffused government.  But it also demonstrates the importance for people to insist on observance of their rights.  Bless those who have had willingness and means to go to court and judges who have been willing to take the cases and support the Constitution.  The biggest tool that people have is perhaps economic, and there have been economic responses that have been penalizing states that have it wrong. 

Another important tool will be elections.  A few states, such as Virginia, have elections this year, and there has been a rising tide of resentment to the policies.  Throwing out of government the officials who have violated rights and pursued destructive policies would send a powerful message to other parts of the nation.  What we hope for now are good candidates, the ability to get their message out through the media opposition, and integrity in the elections (plenty to worry about there).

Anyway, a long answer.  But I understand your frustration.  I am, however, hopeful.

Wayne

Of Humanism and Religious Freedom

Can a creed that claims to be non-religious be itself a religion?  Is the professed irreligion of the leading social elites not only a religion but America’s state religion, reinforced by Federal, state, and local governments?

Consider a typical school commencement ceremony, whether college or high school.  A speaker declares that we must leave all talk of God behind, toss into the dustbin the dogmas of religion that divide us, and embrace a view of life that brings people together in a common cause of humanity, a village of fellow passengers on this tiny planet as it wends its course through the universe.  At another similar commencement ceremony a different speaker declares that we should rise above the hates and lusts of mankind and embrace the love of God, join together in our common heritage as children of the family of God, learning to live with each other here that we may all the better live with our Heavenly Father in the eternities.  Which of these, today, is likely to receive the greater applause and public commendation?  Which of these speakers, on the other hand, is more likely to be censored and not even permitted to present his views, perhaps under threat of a lawsuit?  Or, to make the question easier to answer, which is more likely to receive favorable coverage in the media?

Expressions of skepticism about God and His existence are embraced, praised, and rewarded in contemporary American society.  Declarations of faith in God meet anything from patronizing smiles, to hostility, to punitive sanctions under the prevailing culture.  The predominant American society, while professing to be neutral about religion, has some very strong opinions about religion and its expression.

In a land of constitutional free speech, that allows no state religion, this should seem an odd discussion, a throwback to history.  Cursory familiarity with the historical chronicle would bring to mind other places and times when an incautious word on religion could earn a speaker severe punishment, not excluding cruel execution.  Deviation from the local religion was certainly risky business anciently.  We also may recall tales of the Spanish Inquisition and the bloody controversies of the Protestant Reformation, as well as the perennial anti-Semitism that has followed the House of Israel throughout its Diaspora.  Social revolutions have dealt harshly with religion, from the French revolution to every communist regime, while clumsily endeavoring to create new secular religions (that failed miserably to engage adherents).

The malodorous plant of state religion followed the colonists to America, but it had trouble taking root, particularly among the English colonies.  The freedom of wide open spaces, and the need for an armed populace, made oppressive government difficult to maintain.  Thomas Jefferson considered the establishment of legal guaranties of religious freedom in Virginia to be among his life’s most important achievements (the other being the founding of the University of Virginia).  The principle of that law was later made a part of the United States Constitution with the adoption of the First Amendment.

The public outcry from media and politicians (with little echo from the general populace) over recent efforts of states to reinforce freedom of religion against encroachments by regulatory dicta and court edicts strongly suggests that there is one—and only one—protected national religion in the United States today.  It needs no protection offered by these state laws, because its tenets are the motivating heart of the government actions threatening all of the other religions.  It goes by many names—as do many broad religions—and includes a variety of sects, also not uncommon among religions.  For facility of discussion, I will refer to just one of its appellations, Humanism.

The religion of Humanism has a core belief—shared by all of its sects and denominations—that man is the measure of everything.  Man decides what is truth, what is good, what is real.  Yes, that is more than a bit narcissistic, which is probably the key to its attraction, particularly among the intelligentsia and the elites.  The chief corollary to this main tenet is that God does not matter, whether you believe in Him or not (some Humanist sects tolerate a belief in God or some sort of Supreme Being for reasons of nostalgia and to broaden popular acceptance).

Humanism has an elaborate set of dogmas, commandments, taboos, and rituals.  It has its own liturgical language, which is required to be used, for example, in all doctoral dissertations—especially those in the social sciences, though its linguistic hegemony is now reaching to hard sciences as well—and in more colloquial versions observed by all media outlets, especially broadcast journalism.  Humanism has its sacred texts along with its college of revered and beatified Humanists of yore.

I was going to write that Humanism has its own seminaries, but, frankly, that includes nearly all colleges and universities in the nation.  The clergy of Humanism is largely self-appointed, though it has intricate, Byzantine hierarchies, with no one at the top for long, though all presume to speak for everyone.  The clergy are supported by varieties of orders of acolytes and sycophants, the gathering of disciples a key method of rising in Humanism’s hierarchy, and the loss of disciples a sure path to disfavor and obscurity.

While most religions preach exceptionalism, exclusivity, or preeminence, whether in faith or favor with God, Humanism may be the most intolerant of all.  Being the state religion, it uses the full power of legislatures, regulators, law enforcement agencies, and the courts to advance its cause and bring in to line people who disagree with its tenets and prescriptions, who violate any of its taboos—particularly who utter any of its taboo words—or who remark on the foibles of its revered demigods.  Significantly, any practice by any other religion that interferes with Humanism must yield to Humanist demands, not excluding the profligate use of federal, state, and local moneys to fund its projects, prescriptions, and priests.

Therein lies the explanation for both the desire of various state legislatures to reaffirm religious freedom and the inveterate and fierce hostility to these efforts from the media and a bevy of national celebrities.  Freedom of religious belief and practice is a threat only to an established national religion, erecting obstacles to forced conformity with the state church. Failure of efforts to reaffirm the protections of the First Amendment will result in an increasingly intimidating society, constraining intellectual freedom and unauthorized religious observance to a degree unseen in the United States since 1787.

In a letter to Dr. Benjamin Rush, September 23, 1800, Thomas Jefferson wrote, “I have sworn upon the altar of God eternal hostility against every form of tyranny over the mind of man.”  Those words are the most prominent inscription in the Jefferson Memorial.  Jefferson might get into trouble saying such a thing at a modern commencement ceremony at the University of Virginia. 

Of Presidents and Derelicts

Barack Obama is no fan of the Constitution.  He has been known to criticize it for its focus on limiting government, for telling governments what they can and cannot do.  He prefers a Constitution that focuses more on telling governments what they should do, at least telling governments to do what he would like, including seeing to the “redistribution of wealth,” or what he calls elsewhere “redistributive change.”

Of course, that is a mischaracterization.  Not a mischaracterization of Obama’s views but of what the Constitution says.  It does limit government, but it also gives government specific responsibilities and the power to exercise those responsibilities.  Article I, Section 8 provides a very clear list of the federal government’s duties.  It is noteworthy that those enumerated responsibilities and powers are in the Article that establishes the Congress.  The list includes such things as providing for the common defense, borrowing and paying government debts, regulating foreign and interstate commerce, establishing standards for weights and measures, and so forth.

There are plenty of other provisions that limit the powers of the government and how it operates.  The Constitution is a balance of governmental duties within a structure intended carefully to limit the government.  As a limited government our Republic has prospered.  It has struggled either when its duties were neglected (as in the days of President Buchanan, who did nothing while he watched state after state rebel from the Union) or when the limitations have been eroded (as we have witnessed through much of the twentieth century and in the first 14 years of the twenty-first).

The President has specific powers and duties, too, nearly all of which are carefully linked with the role of the Congress.  For example, while the President does not make the laws—Article I, Section 1 gives “All legislative Powers” exclusively to the Congress—the President is authorized to make proposals to Congress and has the authority to veto legislation (but not change it) that Congress has approved.  Once an act of Congress becomes law, the President then has the explicit obligation to, “take Care that the Laws be fully executed” (Article II, Section 3).  

Note the words, “fully executed”.  The President takes an oath to fulfill those duties, and nowhere in oath or Constitution is the President authorized to execute the laws only as much as he likes or agrees with them.  Once something has become a law, the President may not set aside this or that part of the law or decide that he will only enforce the law so far.  His obligation is to take Care that the laws are fully executed.

Average Americans may not like this or that provision of law, but we are not at liberty to ignore any law that applies to us just because we do not like it.  The President is not exempt from that common responsibility of all citizens, either. As the chief government executive, who sought to hold his high office of public responsibility, he is even more obligated not only to obey the laws but to execute them, fully.  The President may not make the laws, he may not amend the laws, he may not change the laws, and he may not disregard the laws.  His duty is to execute the laws, and when he does not he is derelict in his duties. 

This is all in accordance with the important division of labor, the separation of powers that the Founders put into the very structure of the Constitution to combat the tendency of all humans to abuse power once it comes into their hands.  By dividing the power of government among three separate but coequal branches, dividing legislative power even further between House and Senate, and yet again separating government power between federal and state governments, the Founders went to clear and elaborate lengths to create checks and balances. 

Under the American system of government no branch, no person, no group of people in government, are to be able to do very much on their own without getting the other elements of government to go along.  Where they are not able to agree, where there is no consensus, for the safety of our freedoms government is prevented by constitutional law from moving forward unless substantial consensus among the different branches can be reached.  Those checks and balances again and again, throughout the more than two centuries of our Constitution, have forced the very human people in government to revisit their differences and come to terms with one another, however much they may disagree and be disagreeable.  There is safety for you and me in that.  And it helps keep our Union together, repeatedly forcing our leaders (and the parts of the nation that they represent and whose authority they exercise) to work with one another, like it or not.

Recently, President Obama has expressed impatience with the Constitution’s checks and balances.  After all, he personally, in and of himself, embodies an entire branch of government.  The other branches, Congress and the courts, have many different people with a messy variety of ideas.  President Obama complains that Congress cannot decide what it wants to do as quickly as he can.  In his view, why wait? 

By design, Congress of course has something of a multiple personality.  It is a gathering of elected representatives, reflecting the diversity of views among the people of the nation.  Appropriately, it takes time to build a consensus that accommodates those views, as it should.  But President Obama cannot wait.  He sees the need to accommodate no ideas other than his own.  He has decided that on this issue or that—today it is immigration laws—there is a limit, defined by himself, as to how much time Congress can take to consider things.  When time is up, he, the executive branch, will take the matter into his own hands, and pretend to the authority to do it.

His tool of choice today is to abjure his duty to execute the laws fully and instead to execute them partially, just to the extent and manner that suit his own desires, as he engages in another round of redistributive change.  That he is endeavoring to violate rather than execute our national, founding law, and his constitutional oath of office, apparently does not trouble him.  It is the Constitution itself that troubles him. 

But from where does he think he gets his authority to do anything.  When he breaks the Constitution, does he not break his very authority to act in the office that the Constitution created?

Of Government and Getting What We Deserve

There is a theory that I believe but I am not sure how to prove (this side of the final judgment) that over time people tend to get the government that they deserve.  This idea comes to mind when I hear complaints in the public media about the Congress.  You have certainly heard them.  They come in various flavors, but they are the same soda:

• Why can the Congress get nothing done?

• Congress is unable to rise above partisan politics.

• The people in Congress seem so out of touch with the rest of America.

• Congress avoids making tough decisions.

You could surely add to this list.  The underlying theme is that the Congress is not doing its job.

These comments are a frustrating alloy of truth and silliness.  There is a lot that is right and wrong with the current Congress.  Who put these men and women on Capitol Hill?  With the exception of a handful of Senators appointed by their governors to fill temporary vacancies, and the few dozen congressmen who by order of the Supreme Court must be elected in districts where there really is no democracy (I refer to those from districts mandated by the courts to provide only minority representation), all of these congressmen and Senators were elected—by the people whom they represent.

I mention that to refer to both sides of the coin.  We, the people, put those people there.  The other side is, we the people can send them home.  That is a weighty responsibility, one that we cannot discharge faithfully by just complaining.  We cannot do our legislators’ jobs for them and be involved in all of the minor details of all that they do, but we can and must hold them accountable for the sum of what they do and for the general tone and direction of their actions.  To be successful we need to have a clear idea of what we want our representatives to do and be well educated about what they are doing—not just what they are saying.

One of the sillier comments I hear is the suggestion that we should “throw them all out.”  Is that true?  Is every single congressman and Senator doing a bad job?  Even a basic review of congressional action should tell us that is not the case.  On nearly all of the most important issues there is in fact quite a divergence of views and actions.  Again, our inescapable job is to figure out what is the right policy and look carefully at how our elected representatives are conducting themselves with regard to it.  We should weed the garden, not plow it under.

There are many policies and many issues from which to choose.  Let me suggest two.  The first would be the Constitution.  What have been the actions of our own particular representatives with regard to supporting and defending the Constitution and the rule of law?  Our current President has been active in undermining the Constitution and disregarding the rule of law, so this is not a theoretical issue.  What have our representatives been doing to combat voter fraud, to make sure that the executive branch does not spend money that has not been appropriated by Congress, or to prevent bureaucrats from telling law abiding people how to spend their money, run their businesses, freely express their opinions, or observe their religion?  There have been many other assaults on the Constitution by people in Washington.  As voters, we should be mighty touchy about any of those efforts and reluctant to vote for people who do not share our sensitivity about the importance of the Constitution and our rights as citizens.

The second issue I would suggest is economic growth.  We will never really get out of this recession (that feels depressingly like the 1930s) unless we place a top priority on getting the economy growing.  We cannot solve our budget deficit and federal debt problems without economic growth.  People forget that the few years that we had a balanced budget in the 1990s did not come by government action.  Congress and President were in fact surprised by the surpluses.  They came about because the economy grew more strongly than expected.  We should support those legislators who act like they understand that economic growth creates jobs and that economic growth is created by private initiative.  We should support those legislators who consistently vote to remove barriers to business creation and innovation and defeat those who do not.  Those barriers include higher taxes and increasing government involvement in business decisions and operations.

All of this will take work on our part.  We cannot expect to have legislators who work for what is right and wise unless we do our work to find and support those who do.  There are many of them in the House of Representatives and in the Senate today.  We need more of them.

I believe that people eventually get the government that they deserve, and I yet believe that we deserve better than we have and that the time has come to get better.

Of Lawlessness and the Constitution of the United States

Trivia question for the day:  What is the smallest national legislature in the world?  If you answered, the Supreme Court of the United States of America, give yourself 25 points and a chance at the bonus question:  What is the highest law of the land?  If you answered, the Constitution of the United States of America, subtract 50 points from your score and shake hands with the moderator as you leave the contest in polite and condescending disgrace.

If you are a student of the history of the United States, particularly of its founding, and if you are in addition a constitutional scholar, including some experience reading the writings of the writers of the Constitution, you can take some solace in knowing that your second answer used to be right.  It was right for most of the first 100 years of the history of the United States, and remained right for another 50 years or so after that, although things were already changing in the late 1800s.

In the latter part of the 1800s the Progressive movement, and its fellow travelers the Positivist legal scholars, asserted its voice in America with the notion that law was not at all really connected to natural law as the Founders believed and intended.  In the Progressive/Positivist view, law was whatever lawmakers wanted it to be, and that extended to how the Constitution was to be interpreted.  The Constitution was a collection of written words, words whose meanings were to be interpreted by the new supreme legislature, the Supreme Court, to accommodate the Progressive/Positivist agenda.

The whole idea of a constitution is that there are some fundamental, basic laws that do not change, or that change only by the specific decision and action of super majorities of the population (super majorities to ensure that the rights of minorities are safeguarded).  To preserve their integrity those fundamental laws are written down and taught and embraced from generation to generation.  In the United States, it was on the basis of written constitutions that our nation came together, first the Articles of Confederation, and later the Constitution.

The Constitution of the United States begins with the words, “We the People”.  All of these were new, exceptional ideas.  The approach at the time in the rest of the world was, “You the People”, with a despot, monarch, or some small group of people governing the rest of the population.  In America things were different, and the Founders sought to enshrine and perpetuate that difference within strong bands of a written constitution and the division of governmental power prescribed  and preserved by the Constitution.

It does not seem so different or exceptional anymore.  It seems that today the law, constitutional or otherwise, can be changed or written by five out of nine unelected people in black robes issuing their decrees from a Greek temple in Washington, D.C.  The rest of the 313 million who make up We the People have no more say about it.  That is tolerable, and even desirable if these nine, or the five of the nine, limit themselves to enforcing the laws and Constitution that the people themselves have established through constitutional process.  It becomes intolerable when they just make it up, as they have been increasingly doing since the 1930s.  That is not law.  It is tyrannical lawlessness.

This is very real to the 313 million who are expected to follow the dictates of this tiny legislature.  Under the influence of the lawless behavior of the members of the Supreme Court and their failure to uphold the Constitution, lawlessness and lack of respect for the Constitution are spreading throughout the American system of government.  In very recent years we have witnessed a narrow majority in the Congress, violating its own procedures, pass legislation that obviously violated the Constitution. The executive branch, suspected by the nation’s Founders as ever prone to plans to oppress the people, has exerted an increasingly cavalier attitude toward the Constitution.

These lawless acts themselves are not trivial.  They were explicitly designed to restrict the freedoms of the people, whether with regard to their healthcare choices, how they conduct their financial affairs, or how they find, develop, and use energy—all pretty fundamental to the way that the people live their daily lives.  Under the rule of law we would look to the courts (among other places) to uphold the law and turn back unconstitutional and thus lawless efforts to take away the rights of the people.  Too often lately we look to the courts in vain.  It is far from a sure thing these days that the Court will come to the rescue of the Constitution and the freedoms it was written to protect, witness the suspense that precedes each new decision.

The recent Obamacare decision is the latest and most painful insult to “We the People” yet to come from the Supreme Legislature.  For now, the Five have said that the Commerce Clause of the Constitution cannot be used to force Americans to buy health insurance.  No need.  The Five decided that the taxing authority can be used to force people to do whatever our leaders in Washington want us to do—although they failed to indicate which taxing authority was used. 

The Founders were chary with the taxing authority that they extended to Washington, putting strong walls and tight rules around its exercise.  Remember, it took an amendment to the Constitution to allow an income tax.  Obamacare is not an income tax, or any of the other constitutionally allowed taxes.  Yet a tax it is, now decreed by the five of the nine Justices, that can be applied to anyone—and the anyone is mostly younger adults—who choose in the future not to buy health insurance.  The Five did not say what we might next be forced by taxes to do:  that is just a blank that they have left for people in Washington to fill.

In the days when the Constitution was the highest law of the land one of its great defenders, Daniel Webster, declared in a pleading before the Supreme Court that, “The power to tax is the power to destroy.”  The Chief Justice of that Court, John Marshall, quoted and enshrined that thought in his ruling, McCulloch v. Maryland.  Today that power is now available, at the will of the Five, to destroy the freedoms of the people, freedoms that the Constitution and the earliest Courts served to protect.

Of Individual Freedom and the United States Senate

The first lawsuit has been filed.  There will likely be others.  When President Obama, in an action more redolent of hubris than homage to the Constitution, gave recess appointments to four individuals to lead government agencies, even though the Senate was not in recess, he initiated a constitutional crisis that is only beginning to unfold.

Three of these illegal appointments were to the National Labor Relations Board (NLRB).  The NLRB has been pushing a new requirement that all businesses put up posters, designed by the NLRB, encouraging workers to form a union. Businessmen have objected.  Only about 20% of American workers have chosen to form or join unions, which frustrates the Obama Administration, because it relies heavily upon unions for political support and funding.  Without those three appointees the NLRB does not have a quorum to finish its work on this new requirement.  Pretending that it now has a legal quorum, the NLRB resumed action on the rule, and businessmen filed suit, complaining that President Obama did not just break the law; he is trying to break the Constitution.  That is to say, this is not about the Senate; it is about the rights of American citizens, in this case the right to be free from imposed unionization.

Administration advocates would like to trivialize this crisis as a mere political dispute between the President and Republican Senators, yet another partisan spat.  That would be a superficial view, and it would be wrong.  Besides that fact that so far only one Democrat in the Senate has concurred with the President’s assertion that he rather than the Senate decides when the Senate is in recess, the core of the matter affects you and me far more than it affects the Senate. 

We must remember and never forget that the Senate (and the other branches of the United States government) was created by the Constitution to be an instrument for defending the rights of the individuals who make up “We the People.”  The Founders divided the power of the government into three coequal branches specifically so that they could block each other from taking unilateral action.  When the Senate asserted its authority against action of the President, it did so to preserve our freedom, in this case our freedom from being governed by people who are not accountable to the citizens.  During the 1787 debate on ratification of the Constitution Pennsylvanian Samuel Ryan described it this way:

Mr. [John] Adams’s sine qua non of a good government is three balancing powers, whose repelling qualities are to produce an equilibrium of interests, and thereby promote the happiness of the whole community.  (Samuel Bryan, “A Most Daring Attempt to Establish a Despotic Aristocracy”, in The Debate on the Constitution: Part One, p.55)

After all, we do not live in a monarchy where the king appoints his ministers to impose their will on the king’s subjects.  Our ancestors fought a war to get away from monarchy or they fled from lands where lords, ladies, kings, dictators, and other tyrants governed.  The Constitution, first and foremost, was designed to preserve our hard-won freedom and protect us from arbitrary rule.

The Declaration of Independence cited numerous objections against exercises of despotic power by the British king.  Consider these two, relevant to this whole question of whether President Obama, or any American President, should be allowed to appoint whomever he wants as judges or other government leaders without Senate consent:

He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance. 

Under the Constitution, people with the power of government were either to be elected or appointed with the consent of people who were elected.  The President can nominate, but he must wait for the Senate to approve the nomination.  That can be inconvenient to those appointed—I had to wait several months before the Senate confirmed my nomination as an executive officer—but it is very convenient for the preservation of freedom.

After President Obama’s unconstitutional appointments his Justice Department—which reports directly to him—rendered its opinion that the boss was right.  The core argument supporting its unsurprising (albeit late) conclusion is that the Senate should not be allowed to block what the President wants to do.  Of course, in our system of government, that is the Senate’s job, insisting that no one be given power to make laws and issue edicts without its consent.  That is not a part of the Constitution that our freedom can allow the President to skip.  

Of Presidential Czars and Constitutional Crises

In this age of crisis, one after another, it would not be surprising if you did not notice that the United States has entered into a constitutional crisis, brought on by recent political moves of President Obama.  The resolution of the crisis will affect the balance of power and authorities in our government, which balance was created by our Founders to protect the freedom of the people.

That balance has worked very well for some 200 years, although elsewhere I have noted that American children no longer seem to use a phrase that was common when I was a child.  In those days not so very long ago a child would commonly defy the intimidation or bullying of another by retorting, “This is a free country.”  Our freedom has been eroding.  It is in serious danger yet again.

Let us pause a moment to reflect upon our written Constitution.  It is a miraculous document, created by people who had only a few years before risked their lives, their fortunes, and their sacred honor to throw off monarchy and tyranny and create a nation where the rights of the individual were not only respected but guarded.  One of the first acts under the Constitution was to add to it a Bill of Rights, as if the Founders wanted to underline that the Constitution was all about personal liberty and preserving it.  Each and every item in the Bill of Rights, our first ten amendments to the Constitution, is a further limitation on the power of government over the rights of the individual.

Americans of various religious faiths, including those who disavow the existence of God, have over the last two centuries recognized the inspired nature and deep wisdom of the Constitution.  Many see and acknowledge even the hand of God directly manifested in its inspiration and promotion (see Doctrine and Covenants 101:80).

The Constitution is based upon the dread, born of painful experience, of entrusting men and women with the power of government over the rest of us.  It takes little historical research to find endless examples of how that power has been abused in nearly all times and places of the world.  Yet anarchy is no less a curse, one with which our Founders were also acquainted.

To balance and counter the two dangers, of tyranny and anarchy, the Founders relied upon a system of government that divided power.  No one would have a monopoly or even a predominance of power.   To begin with, the power of government overall would be strictly limited (and the Bill of Rights limited it even more), all but essential government powers remaining with the citizenry.  Then government power was divided between State and Federal authorities.  The power of the Federal government was further divided between three separate and equal branches of government.

The Founders did not believe in efficient government.  Rather, they believed that an inefficient government was needed as an efficient means of preserving the rights of the citizens.  While dividing authority among three branches, it was intended that neither branch could operate without the eventual cooperation of the others.  As had been seen in the English battles between king and parliament, tyranny and oppression resulted when either branch was able to rule without the consent of the other.

The United States has similarly suffered when weakness of president or congress allowed the other branch of government to operate without adequate check or balance.  The weakness of President Andrew Johnson allowed the tyranny of carpetbaggers with Congressional approval to oppress the people of the broken South following the Civil War, promoting poverty and racial hatred that lasted there for a hundred years.  The tyranny of the Franklin Roosevelt administration turned a deep recession into a Depression that lasted for a decade, disappointing people all around the world in the value of democracy and encouraging the dictators in Italy, Japan, Germany, and the Soviet Union who brought us World War II.

The first two years of the Obama Administration witnessed another period of weakened Congressional power, with a Congress all too ready to do the bidding of the President.  A willing Congress passed on to the executive branch control over the healthcare system, the financial system, and added trillions of dollars to government debt, only narrowly refusing to give bureaucrats authority to control the carbon dioxide that all humans exhale.

In the elections of 2010 the electorate voted to restore the balance by electing a congress that would object to the excesses of the executive branch.  That is precisely what the new members of Congress, with uneven success, have been trying to do over the past year.

President Obama is getting frustrated with the situation.  With the new year he has announced that he is going to try to govern without the Congress.  At a speech in the wealthy Cleveland suburb of Shaker Heights, President Obama said the following, “when Congress refuses to act, and as a result, hurts our economy and puts our people at risk, then I have an obligation as President to do what I can without them.”  Then to emphasize that he means what he says, he announced the appointment of Richard Cordray, the former Attorney General of Ohio, who was defeated in the last election, to be a new federal financial consumer czar, without Senate confirmation.  The Senate has refused to confirm Cordray, but President Obama plans to install him in office anyway.

The appointment confirmation process was one of the protections of the Constitution to limit the power of the President.  The Constitution carefully and explicitly divided the power to give government authority to unelected officials, placing with the President the ability to nominate but requiring that Senate approval be gained before the nominee could take office.  As I can testify from personal experience, it is a frustrating process.  The Founders must have assumed that the Senate would from time to time refuse to consent to some nominees, in which case the President could not proceed, the authority of the government would not be extended to that man or woman.

The Founders were also practical people.  They knew that there would be times when government posts needed to be filled when the Senate was not in session.  So the Constitution allows the President to make temporary appointments without Senate confirmation, but only when the Senate is in recess.  This practical element of the Constitution was not intended to get around the normal procedure requiring in effect President and Senate to agree before giving powers of government to unelected officials unaccountable to the people whom they would govern.

The problem for President Obama is that the Senate has refused to approve the nomination, but they also refuse to go into a recess.  What to do?  President Obama’s solution is to declare on his own that the Senate is in recess and appoint Cordray anyway. 

Hence, our constitutional crisis.  Can the President give governmental power over the people to anyone that he wants without Senate consent?  The Constitution says no, and the President says yes.  Normally, we would all take comfort in the reassurance that the courts will enforce the Constitution, but court decisions of recent decades have shaken confidence.  This presidential act of hubris is surely headed for the courts.  If the justices fail to do their duty, then the powers of unelected federal bureaucrats (unaccountable to people or Congress) will grow, and individual liberty will be significantly eroded.  For now, I am pinning my hopes on the judicial branch rising to the emergency.