When Taft saved the Constitution from Teddy Roosevelt

In the course of a column on Tea Party candidate Ted Cruz’s victory in Texas for the Republican senate nomination, George Will recounts a time one hundred years ago this Sunday when Republicans purposefully lost an election to preserve the Constitution.  I did not know these things about Teddy Roosevelt:

After leaving the presidency in 1909, TR went haywire. He had always chafed under constitutional restraints, but he had remained a Hamiltonian, construing the Constitution expansively but respectfully. By 1912, however, he had become what the Democratic nominee, Woodrow Wilson, was — an anti-Madisonian. Both thought the Constitution, the enumeration and separation of powers, intolerably crippled government.

Espousing unconstrained majoritarianism, TR disdained James Madison’s belief that the ultimate danger is wherever ultimate power resides, which in a democracy is with the majority. He endorsed the recall of state judicial decisions and by September 1912 favored the power to recall all public officials, including the president.

TR’s anti-constitutional excesses moved two political heroes to subordinate personal affection to the public interest. New York Sen. Elihu Root had served TR as secretary of war and secretary of state, and he was Roosevelt’s first choice to succeed him in 1908. Massachusetts Sen. Henry Cabot Lodge had long been one of TR’s closest friends. Both sided with Taft.

As the Hudson Institute’s William Schambra says (in “The Saviors of the Constitution,” National Affairs, Winter 2012, and elsewhere), by their “lonely, principled” stand, Root and Lodge, along with Taft, “denied TR the powerful electoral machinery of the Republican Party, which would almost surely have elected him, and then been turned to securing sweeping alterations” of the Constitution.

Wilson won with 41.8 percent of the vote (to TR’s 27.4 percent). Taft won 23.2 percent, carrying only Vermont and Utah, but achieved something far grander than a second term: the preservation of the GOP as an intellectual counterbalance to the Democrats’ thorough embrace of progressivism and the “living” — actually, disappearing — Constitution.

via George Will: Texas’s Ted Cruz gives tea party a Madisonian flair – The Washington Post.

Government persecution of Chick-fil-A

Michael Barone summarizes a number of pundits criticizing the mayors of Boston and now Chicago for seeking to deny business licenses to Chick-fil-A because its owners don’t believe in gay marriage.

Their point is simple, and based on Supreme Court rulings: it’s wrong and unconstitutional under the First Amendment for government to deny business licenses because of an applicant’s speech and beliefs. As the Globe rightly notes, “If the mayor of a conservative town tried to keep out gay-friendly Starbucks or Apple, it would be an outrage.”

As a conservative on most issues and a supporter of same-sex marriage, I find it fascinating that liberal politicians are so ready to clamp down on others’ speech. It’s certainly permissible to refuse to patronize a restaurant because you dislike the owner’s beliefs and to encourage, by means short of violence or intimidation, others to do so. It’s also kind of foolish and in my view would be a waste of time to have to research owners’ or managers’ political views before going somewhere to eat. But for public officials to penalize people because of their expressed beliefs—well, I wouldn’t go as far as blogger Elizabeth Scalia does when she titles a blogpost “this is how fascism works,” but it’s pretty nasty stuff.

via Liberal officials penalizing free speech | WashingtonExaminer.com.

UPDATE:  The Boston mayor has backed down from his effort.

Commentary on Harrison’s “Open Letter”

Julia Polese of the Institute for Religion and Democracy on LCMS President Matthew Harrison’s open letter on the Obamacare insurance mandate. (I draw your attention to what pro-infanticide ethicist Peter Singer has to say on the topic.)

The Lutheran Church – Missouri Synod (LCMS) recently released a statement on religious freedom expressing solidarity with the Roman Catholic Church in their fight against the HHS mandate requiring religious institutions to provide contraception to employees. In a video statement on the Synod’s website, President Rev. Dr. Matthew C. Harrison emphasizes the first amendment guarantee that religious people not only have freedom of assembly, but mentions that “Congress cannot make laws that prevent the free exercise of religion in this country,” which not only means freedom to assemble but freedom to “practice our religion in the public sphere in institutions that we have and run as Christians or other religious people.” The statement was signed by an ecumenical group of clergy and lay people, from Archbishop Timothy Cardinal Dolan to Leith Anderson, president of the National Association of Evangelicals and Imam Faizul R. Khan, the founder and leader of the Islamic Society of Washington Area.

The statement comes at the beginning of the U.S. Conference of Catholic Bishops’ “Fortnight for Freedom” events. Centered around local dioceses, the events intend to rally Catholic laypeople to the cause of religious liberty with special prayers and marches. The left has shown typical paranoia about these events, questioning their funding (because, as we all know, you scratch a Catholic and find a Koch brother) and motives (Sammie Moshenberg: “It’s a marketing ploy.”). The LCMS’s statement, however, shows that the HHS mandate is not only a Catholic problem, but one for all religious people in the United States.

Rev. Dr. Harrison identifies the crucial difference in the invocation of the First Amendment in this debate. For many supporters of the HHS mandate, freedom to assemble is reinterpreted to mean freedom from public engagement from a religious worldview. Professor Peter Singer, the notorious utilitarian who has argued for infanticide in the past, articulates this angle in his latest piece. He asserts “the Obama administration’s requirement to provide health insurance that covers contraception does not prevent Catholics from practicing their religion. Catholicism does not oblige its adherents to run hospitals and universities.”

This limitation is not true freedom of expression, but instead an implicit command for bifurcation of the religious person’s life. Freedom of conscience is great until it butts heads with the conscience shaped by thinkers like Rousseau and Bacon. At its root, it is moving any religious mindset to a private sphere. Leave your beliefs in church where they belong. In a blog on the Washington Post website this morning, Bishop Lori articulated what is wrong with this conception of religious liberty. He wrote: “As we often say, we serve people because we are Catholic, not because they are. It is why so many Catholic schools enroll so many non-Catholics; Catholic hospitals don’t ask for baptismal certificates upon admission; and Catholic soup kitchens don’t quiz the hungry on the Catechism.” As a Reformed Southern Baptist whose alma mater stands both on the Potomac and the opposite side of the Tiber, I am thankful for this impulse to service and I must say that my education was best when unapologetically Catholic. A shared worldview can form partnerships in the public square between the sons of Martin Luther and those loyal to the Pope.

The HHS mandate is only a symptom of a grander impulse to demand religious people to abandon their views that do not overlap with modern liberalism in the public square. It is not just about contraception, but a clash of worldviews. For this reason, the ecumenical statement from the LCMS in support of the Catholic Church is encouraging in its explicit recognition of this problem and the Mainline Left’s response (or lack thereof) reveals where its true intellectual heritage lies.

via Lutherans and Catholics Together « Juicy Ecumenism.

President Harrison makes a very useful distinction:  Religious liberty is not just  “freedom of assembly,” as in “the right to worship” behind four walls, which is how some officials are construing it.  The Constitution specifically protects the “free exercise” of religion, which takes it out of just the place of worship into the public arena.

Presidential lawlessness

Charles Krauthhammer on how President Obama is acting lawlessly, doing something that he himself earlier said would be unconstitutional:

In late 2010, he asked Congress to pass the Dream Act, which offered a path to citizenship for hundreds of thousands of young illegal immigrants. Congress refused.

When subsequently pressed by Hispanic groups to simply implement the law by executive action, Obama explained that it would be illegal. “Now, I know some people want me to bypass Congress and change the laws on my own. . . . But that’s not how our system works. That’s not how our democracy functions. That’s not how our Constitution is written.”

That was then. Now he’s gone and done it anyway. It’s obvious why. The election approaches and his margin is slipping. He needs a big Hispanic vote and this is the perfect pander. After all, who will call him on it? A supine press? Congressional Democrats? Nothing like an upcoming election to temper their Bush 43-era zeal for defending Congress’s exclusive Article I power to legislate.

With a single Homeland Security Department memo, the immigration laws no longer apply to 800,000 people. . . .

Imagine: A Republican president submits to Congress a bill abolishing the capital gains tax. Congress rejects it. The president then orders the IRS to stop collecting capital gains taxes and declares that anyone refusing to pay them will suffer no fine, no penalty, no sanction whatsoever. (Analogy first suggested by law professor John Yoo.)

It would be a scandal, a constitutional crisis, a cause for impeachment. Why? Because unlike, for example, war powers, this is not an area of perpetual executive-legislative territorial contention. Nor is cap gains, like the judicial status of unlawful enemy combatants, an area where the law is silent or ambiguous. Capital gains is straightforward tax law. Just as Obama’s bombshell amnesty-by-fiat is a subversion of straightforward immigration law.

It is shameful that congressional Democrats are applauding such a brazen end run. Of course it’s smart politics. It divides Republicans, rallies the Hispanic vote and preempts Marco Rubio’s attempt to hammer out an acceptable legislative compromise. Very clever. But, by Obama’s own admission, it is naked lawlessness.

via Charles Krauthammer: Obama’s amnesty-by-fiat — naked lawlessness – The Washington Post.

Obama as the new Nixon?

The president as above the law.  From Victor Davis Hanson discussing the de facto amnesty for illegal immigrants:

Legally, President Obama has reiterated the principle that he can pick and choose which U.S. laws he wishes to enforce (see his decision to reverse the order of the Chrysler creditors, his decision not to enforce the Defense of Marriage Act, and his administration’s contempt for national-security confidentiality and Senate and House subpoenas to the attorney general). If one individual can decide to exempt nearly a million residents from the law — when he most certainly could not get the law amended or repealed through proper legislative or judicial action — then what can he not do? Obama is turning out to be the most subversive chief executive in terms of eroding U.S. law since Richard Nixon.

via Are We in Revolutionary Times? – By Victor Davis Hanson – The Corner – National Review Online.

For another comparison of our current president to Nixon, see this.

Congress letting bureaucrats make the laws

Another practice in which Congress evades its constitutional responsibilities:  Passing laws that consist largely of vague frameworks and enabling bureaucrats from the executive branch to fill in the blanks with the substance of the law.  George Will on a bill that would put regulations back under Congressional scrutiny:

John Marini of the University of Nevada, Reno, writes in the Claremont Review of Books that the 2,500-page Obamacare legislation exemplifies current lawmaking, which serves principally to expand the administrative state’s unfettered discretion. Congress merely established the legal requirements necessary to create a vast executive-branch administrative apparatus to formulate rules governing health care’s 18 percent of the economy.

The Hudson Institute’s Chris DeMuth, in an essay for National Affairs quarterly, notes that Congress often contents itself with enacting “velleities” such as the wish in the 900-page Dodd-Frank financial reform act that “all consumers have access to markets for consumer financial products and services . . . [that are] fair, transparent, and competitive.” How many legislators voting for the bill even read this language? And how many who did understood that they were authorizing federal rulemakers to micromanage overdraft fees? In Dodd-Frank, Obamacare and much else, the essential lawmaking is done off Capitol Hill by unaccountable bureaucratic rulemaking.

via A check on the regulatory state – The Washington Post.


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