April 3, 2015
THE TABULA RASA-FAILED STATE
In 1787 the Founders assembled in Philadelphia not to write a new Constitution, but to amend the Articles of Confederation. They soon realized, however, that they had to start with a clean slate. They discarded the Articles and created the Constitution.
The perceived weakness of the Articles of Confederation originated from the belief that it called for a confederacy—which placed sovereign power in the hands of the separate states. This is most explicitly stated in Article II, which reads: “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.”
Arguably, the case can be made that the failure of our early construct was due to economic disorganization, lack of central leadership, no independent judiciary and legislative inefficiencies; not to mention only the states, not Congress, had the authority to impose taxes and raise revenue. Unfortunately, this money was oftentimes not raised by the states or given to the national government long after it was due. (I’ll have to reserve that for later book (or a set of volumes on the subject). Many including me feel this more closely resembles the definition of true Freedom.
Our Founders told us in the preamble that the Constitution was designed to establish justice and promote the general welfare, as well as preserving liberty and providing national security. They gave Congress the power to enact “all laws necessary and proper” to carry out their broad enumerated powers that included the general welfare. In the 10th Amendment, they deliberately omitted the word “expressly” from the reservation of residual powers to people and the states, because “expressly” had been in the Articles and had weakened the central government.
Today we are embroiled in an observance which raises public discourse concerning the President of the United States; his growing monarchal powers rooted in his belief that he has ‘prosecutorial discretion’ while executing his constitutional requirement to “faithfully execute the laws”.
Obama says he is not ‘re-writing’ the law, merely “setting enforcement priorities.” While the President’s action is not by law the equivalent of amnesty it does equal his exercising of discretion to defer enforcement. (In my own opinion this rivals un-equal treatment under the law and rises to his failure to abide by and uphold his oath to ‘faithfully execute the laws).
But, U. S. Immigration law, as currently written, grants this discretion to executive officials to take such “deferred action”. This doesn’t pass my smell test for ‘equal treatment’ as we citizens of the United States are seldom granted “status” in our judiciary quests of fair and equal treatment and I have publically stated my interpretation (and that of the Originators of our Law) of the principle that the Bill of Rights extend only to actual and legal citizens of the United States.
An Executive Order (EO) does not override any bill passed into law by both Houses of Congress and signed by a president. An EO can be reversed by a new president as they do not carryover without reauthorization. EO’s have no jurisdiction over private citizens and are merely directives to departments of the federal government, its employees and appointees.
Kennedy, Reagan, GHWB and GWB all used their executive authority to ‘defer enforcement’ against a class of non-citizens. Obama is the only one acting without support of Congress and in defiance of Congressional leaders. In 1952, Truman attempted similar action by trying to take over steel mills during the Korean War by claiming he had the power to seize and run private mills; but the court said he overstepped his constitutional and statutory authority. Justice Robert Jackson opined: “When the president takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter”. That indicates Obama, in this case has the authority but Congress also has their competitive power as well to affect compliance.
Article 1, Section 8 of the Constitution assigns to Congress the exclusive power to “establish an uniform Rule of Naturalization” also, it is legally binding upon the President that he is commanded to “take care that the laws be faithfully executed’.
The entire subject does however hinge on the term “discretion”. I would argue that discretion is a construct which must be applied on a ‘case-by-case’ basis and not by a single all-encompassing action thereby providing a constitutional safeguard against abuse by any president. Our Founders understood the meaning of the laws they wrote but our modern-day public servants do not! Still many are not as brave or fearless or are they prepared to make the same sacrifices as our previous statesmen by ‘mutually pledging their Lives, Fortunes and sacred Honor’ to defend and protect our Liberty and Freedoms.
And so now, we again stand at that threshold caused by the abuse of one who abdicates his constitutional responsibility as we discuss such subjects as impeachment of the president or withholding funding to the executive branch forcing a government shutdown. This is proof that we have already experienced a president’s refusal to respect his oath to the American people to uphold his duties of office triggering this fundamental failure of our Constitutional Republic.
I apologize for having to present the entire preceding commentary to lay the framework for this plain and simple question…..I have to ask – How is this absolute failure any different from an evaporation of our rights and freedoms and a shutdown of government?
That is to say: “Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to affect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shown, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security”.
(Source: Wikipedia. “Tabula rasa” (/ˈtæbjələ ˈrɑːsə, -zə, ˈreɪ-/) means “blank slate” in Latin and originates from the Roman tabula or wax tablet used for notes, which was blanked by heating the wax and then smoothing it, to give a tabula rasa. This equates to the English term “blank slate” (or, more literally, “scraped tablet”) that refers to writing on a slate sheet in chalk. Both may be refreshed repeatedly, by melting the wax or by erasing the chalk).