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Six Lessons We Must Learn from The Federalist Papers

Some liberals are telling us to look back on the Founding Fathers as white, rich entitled snobs who founded this country to support oppression of women and slaves. There could be nothing further from the truth. They were men who understood in a way that few men ever have the proper role and form of government. In The Federalist Papers the three authors (Alexander Hamilton, James Madison, and John Jay) set forth the problems America was facing and the role the Constitution would play in resolving them. In our day there are many lessons that still ring true. The Constitution is still our guiding document, and we would do well to understand the intentions of its writers. There are six lessons from The Federalist Papers that I believe have significance (among many) for us today.

 

Lesson 1 – Beware of those that claim to be serving “the little people, the common man.”

In Federalist #1, Hamilton tells us “[A] dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidden appearance of zeal for the firmness and efficiency of government. History will teach us that the former has been found a much more certain road to the introduction of despotism than the latter, and that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues and ending tyrants.” This has been seen time and again in the characterization of Communist leaders as agrarian reformers. But more importantly it allows us to see to the core of so many civil rights movements. How? By asking one question: what is the end goal? If the end goal is socialism or overt communism — “for the rights of the people” — take note! No movement should be trusted without asking ourselves: is there “a dangerous ambition” here?

 

Lesson 2 – Beware of “perpetual war for perpetual peace.”

In Federalist #8, Hamilton tells us “Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free.” This lesson has been thoroughly covered in the book Masters of Deception but to sum up the main points beware of any problem for which it is claimed that only government action (either our own or by international entanglements) can solve. The War on Terror, the War on Industry (the eco movement), the War on the Unborn, the War on the Rich, the War on . . . fill in the blank with your favorite movement. The main lesson is beware of the action the government “must” take to solve a specific problem. Beware of the solution being offered to protect against outside threats.

 

Lesson 3 – Beware of those who want to be judge, jury, and executioner.

In Federalist #10, Hamilton makes the point that “No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. With equal, nay with greater reason, a body of men are unfit to be both judges and parties at the same time.” The same men who are raising the cry of various conflicts that must be resolved by government action are the same men who gain power by that action. They want to be both judge and jury — Hamilton warned us that this cannot be done in fairness.

 

Lesson 4 – Beware of the Constitutional Convention.

What was the character of the members and what were the circumstances of the Convention? In The Federalist #2, John Jay informs us. “This convention [was] composed of men who possessed the confidence of the people, and many of whom had become highly distinguished by their patriotism, virtue and wisdom, in times which tried the minds and hearts of men, undertook the arduous task. In the mild season of peace, with minds unoccupied by other subjects, they passed many months in cool, uninterrupted, and daily consultation; and finally, without having been awed by power, or influenced by any passions except love for their country, they presented and recommended to the people the plan produced by their joint and very unanimous councils.” Those who think those descriptors fit the individuals pushing for a Constitutional Convention (especially those in power behind the throne) — please raise your hands. If not – why do you think they can amend a document created by men such as we have described? A document — by the way — which was created to protect the people from the injustices of despots. To have a Convention in our current circumstances would be like having the prisoners dictate their guards’ schedules and locations. Those seeking a Convention wish to escape from the Constitution — we do not want to let them rewrite it. They have deceived individuals into thinking that the Con-Con could be limited in scope — but in reality, we would be granting the authority to rewrite the Constitution in any way they please — we should trust those that will be writing a lot less than our Founding Fathers.

 

Lesson 5 – Beware of the idea that government simply wishes to help.

Some may see socialism as the great solution – if we yield our money and power to the government won’t they do what is best for society? We have too many problems in our society for us to solve, can’t we let the government solve them? This is dangerous in and of itself, but the reality is even more scary. We would not be placing our power in the government of the United States, we would be giving that power to those who sit in the shadows and are the true power behind the throne. Can we trust them? In a word, NO! In Federalist #47, Hamilton informs us that “No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty, than that . . .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.” Did the leaders of Russia, China, North Korea, Germany (under Hitler), etc. serve the best interests of their people? The government is not the answer — instead of looking for how the government can solve the problems ask yourself — how can you solve your problems? George Washington has often been quoted as saying “Government is not reason, it is not eloquence — it is force! Like fire it is a dangerous servant and a fearful master; never for a moment should it be left to irresponsible action.” Don’t let the fire loose in a city and then wonder why everything burned down.

 

Lesson 6 – Defund the police??

As we consider the push recently to defund the police (starting with Minneapolis in June 2020 – See Time, February 23, 2021 “How Are Activists Managing Dissension Within the ‘Defund the Police’ Movement?”), we can see the importance of something said by Alexander Hamilton. In Federalist #23, he said, “This is one of those truths which, to a correct and unprejudiced mind, carries its own evidence along with it; and may be obscured, but cannot be made plainer by argument or reasoning. It rests upon axioms as simple as they are universal; the MEANS ought to be proportioned to the END; the persons, from whose agency the attainment of any END is expected, ought to possess the MEANS by which it is to be attained.” Individuals are absurdly unrealistic if they expect “the persons,” our police force, to prevent crime and ensure our safety but they must do it with these characteristics — no guns, little money, no protection from anyone who decides to sue them, and they need to be black women — all of them. If we want our local police forces to be able to solve our problems let’s give them the “MEANS” to do so — anything else is a waste.

 

In Conclusion

As we conclude, we see some things clearly. A series of articles written over 200 years ago has important lessons for us today. Power does not change, the same Constitution that protected the rights of the Americans in the late 1700s can protect our rights today. To those who wish to understand the thinking behind the Constitution and how it can apply to our lives today — I urge you to read The Federalist Papers.

The Ominous Omnibus

“…[T]he Biden administration announced that $350 billion in state and local funding provided by the American Rescue Plan – the President’s major Covid-19 relief bill, signed into law in March 2021 – was permitted to be used for hiring law enforcement, paying officers overtime and enforcement efforts to reduce gun violence exacerbated by the pandemic, as well as technology and equipment investments for law enforcement.” In New York, Biden turns his focus to gun violence as Democrats try to shed ‘defund the police’ label – CNNPolitics

Freedom First Society members received a legislative alert on March 8, 2022 about an upcoming omnibus appropriation, which in regular order would be considered as 12 individual bills. Omnibus bills are a huge problem because — like the American Rescue Plan, which weighs in at over 600 pages — senators typically feel rushed to pass the whole omnibus, often without having time to even read the bills in their entirety (the current FY2022 omnibus, H.R. 2471, was 2,741 pages long!). This opens the door for unconstitutional insertions such as the gun control measures mentioned in the above quote. Congressional leaders routinely sneak in spending and other measures that constituents and representatives themselves may not even notice!

Omnibus bills are a destructive and totally foolish way of running the country. But as long as we stay silent about it, nothing will change.

Says the group Gun Owners of America, “Because your elected officials are afraid of being on the record, … [they stuff] things they don’t think will pass on its own merits into what is known as the annual omnibus bill, or omni for short.”

Indeed, omnibus bills have been used to pass legislation that ranges from the silly to the sinister. For example, in Dec 2020, then-president Donald Trump signed a nearly 6,000-page omni that contained measures concerning the mailing of cigarettes, the doping and medication of racehorses, and of course funding for a vast number of federal programs that have put our country into trillions of dollars more of debt.

The most recent omnibus reinstates VAWA, the Violence Against Women Act. While this piece of legislation ostensibly protects women, it contains red flag laws that prohibit citizens from gun ownership if they are even suspected of a propensity for violence. This new legislation masquerades under the seemingly benign title of “Homicide Reduction Initiatives.”

It may seem logical to pass legislation to keep guns out of the hands of criminals, but please remember that criminals don’t really care about breaking the law. Red flag laws serve to harm only those who would own guns legally — responsible citizens who could be targeted in the future for a number of reasons such as religious beliefs, political party, how they school their children, etc. It’s not unthinkable that this could happen, as it has already occurred in countries across the globe: think Rwanda, Nazi Germany, and current Venezuela.

For those who responded to our call to action and contacted your representatives asking them to stop the omnibus bill, we thank you! Although the omnibus is now public law, you can still send an email to your congressmen complimenting them for voting against the omnibus or registering your displeasure if they voted for it.  (See link to rep votes here, links to senate votes here, and links to contact info here.  Don’t be misled by the distracting Haiti aid vehicle for H.R. 2471.)

And if you are not yet a member of Freedom First Society, we encourage you to join our organization and be notified when your help is needed to stop harmful legislation from being passed.

It’s NOT a Democrat Problem!

A July 24, 2020 release from Rep. Doug Lamborn (R-Colo. 05) explains why he voted against a Democrat-inspired appropriations minibus.  In fact, no Republicans voted for it.

With his release, Rep. Lamborn perpetuates a common but insidious Republican deception that our nation’s problems are due to those awful Democrats.   That line ignores GOP culpability and says the significant problem Americans should be concerned about is simply the partisan struggle between Republicans and Democrats.

But this focus on the sins of Democrats is a horrible illusion that is deceiving many conservative Americans into relying on equally culpable Republicans to put our nation on track.  In reality, Republicans, as we shall argue, are very much a part of our problem, too.

Rep. Lamborn’s release is short.  We repeat it all here, interspersed by much needed rebuttal:

Congressman Lamborn Opposes Minibus.

Washington, D.C.- Today, the United States House of Representatives passed their first Appropriations Act funding the Department of State, Foreign Operations and other related programs. This minibus rolls back pro-life policies, limits domestic energy production, and provides billions in emergency spending.

Congressman Lamborn issued the following statement:

“This is simply no way to govern.  The bills in today’s minibus spend billions of dollars beyond what the current budget agreement allows.” 

Freedom First Society:   However, recent budget agreements are not the standard to which legislation should adhere.  The standard should be what the Constitution allows.  Realistically, the vast majority of budgeted spending is for unconstitutional programs and departments, which desperately need to be rolled back and eliminated.   Americans should not allow the two parties to simply agree on how much more unconstitutional spending to add to the mix.

“Today’s legislation prohibits funds from being used for a border wall, overturns the Mexico City Policy which will allow foreign organizations to receive federal funds even if they perform abortions, restricts oil and gas production, and provides $500 million for international climate funds. This legislation has no serious chance of becoming law and is being used only to message to their socialist base.” 

Freedom First Society:  Much that Congress votes on has no chance of becoming law but is designed merely to impress constituents (messaging).  Republicans are not exempt.

“Even more concerning is the fiscal insanity prevalent in the Democratic party in Washington. We have spent more than $6 trillion dollars in coronavirus aid, yet Democrats think we can continue to recklessly spend money.

“We cannot continue to saddle future generations with debt.” 

Freedom First Society:   Congress has been spending recklessly for decades, so why expect it to stop now?  That’s how our national debt has grown to top an incomprehensible $26 trillion.  Here’s Rep. Lamborn’s solution:

“We must find bipartisan consensus and work to cut wasteful spending.”

Freedom First Society:   Absolutely NOT!  If the Democrats are generally as fiscally irresponsible as Rep. Lamborn indicates, and they are, then the last thing America needs is a compromise with big spenders.  America needs a new breed of congressmen, irrespective of party, who steadfastly refuse to compromise on their oath to defend the Constitution.

Lamborn also pushes here a particularly damaging illusion.   Our massive debt, as well as bloated government, is NOT due to “wasteful spending.”  No, massive unconstitutional spending, not waste, is destroying America’s opportunity and, if continued, will rob us of our freedom.   And that foundation of unconstitutional spending is supported by an overwhelming majority of Republicans, who conveniently focus on a few examples of waste and posture as opposing excessive increases.

Indeed, wasteful spending is inevitable when government has grown beyond the point where Congress can manage it.  What is needed is backbone in Congress, supplied by informed and activated constituents, to start phasing out unconstitutional departments and programs, returning the federal government to just its constitutionally assigned mission.  It can and must be done!

Restore Regular Order.
There is another serious deficiency in Lamborn’s release.   He fails to attack the minibus for its violation of regular order (i.e., separate votes on the 12 independent appropriations bills).

The continuing damaging procedure of voting on several independent bills amassed into one bill, on a take it or leave it basis, supports big spending.   Grouping several bills together into a minibus or omnibus allows congressmen to argue that they had to support the bad in order not to reject the good.  In fact, many bad features and poison pills slipped in by congressional leadership get approved in this way.

Neither principled congressmen nor the public need accept this violation of regular order.  In leading up to the above minibus, the House staged votes on more than 100 amendments.  There was certainly time to have voted separately on each of the four appropriations bills in the minibus.   A tough, constitutionalist Senate or President would refuse to accept a minibus or omnibus.

Judge Them by Their Record
Americans cannot judge the performance of their Congressmen by just relying on their tough talk.  As the saying goes, “talk is cheap.”

What Americans need in order to evaluate the actual performance of their congressmen is a reliable scorecard on how they vote.  Fortunately, there is one at hand:  The Freedom First Society “Congressional Scorecard” is designed to help Americans force Congress to return the federal government to its constitutional limits.

In selecting votes to score, we avoid the many posturing measures and slam-dunk party-line votes that come before Congress and instead look for the tough votes that separate the congressmen who vote according to the Constitution from those who don’t.  Measured against the clear language of the Constitution, the great majority of what the federal government does today is unconstitutional.

Lamborn Not Alone
Rep. Lamborn is not alone in blaming Democrats for our problems and fueling the partisan deception.  Of course, during campaign season it’s expected that a candidate will run against opponents — but not against an entire party.

Indeed, conservatives need to understand the lie in the implied claim that merely electing Republicans will in any way solve our nation’s problems.  Both parties are giving us socialism.  Often, the Democrats lead the assault in one area and the Republicans in another (e.g., Republicans gave us the breakthrough in federal aid to education and delivered the crucial votes for U.S. membership in the Internationalists’ World Trade Organization and NAFTA.)

Here are excerpts from several recent GOP campaign messages, with links to the congressman’s FFS scorecard:

Rep. Devin Nunes (R-Calif. 22) (7-25-20):  “Since day one, I have proudly fought on the front lines to expose the Democrats’ corruption.”

Rep. Devin Nunes (R-Calif. 22) (7-21-20): “The Democrats are destroying our cities and promoting lawlessness and anarchy nationwide. On top of that, they want to defund our police.”

House Minority Leader Kevin McCarthy (R-Calif. 23) (7-25-20): “Over the past few weeks, we’ve seen countless mobs destroy our cities, harm our police officers, and disrupt law and order. The kicker is that they’re supported by the Democrats in Congress.”

House Minority Leader Kevin McCarthy (R-Calif. 23) (7-25-20):  “Leading the House GOP, I’ve seen firsthand exactly how radical Nancy Pelosi and the Squad’s agenda really is.”

Senator Martha McSally (R-Ariz.) (7-24-20): “The far left wants to eliminate the Senate filibuster. That means if they gain just 4 seats in the Senate, there will be no way for Republicans to stop their radical agenda. They’re going to steamroll Americans to appease their leftist base.”

Rep. Jim Jordan (R-Ohio 04) (7-23-20): “Adam Schiff and Nancy Pelosi and the rest of the radical, unhinged Democrats got what they have wanted since November 2016.  They undermined our democracy in January by voting to impeach President Trump – our duly elected president who 63 MILLION Americans voted for!”

Senator Joni Ernst (R-Iowa) (7-21-20): “The Democrats aren’t fighting to put America first. They’re more focused on electing their hand-picked candidates — so much so that they’re willing to tear down Republican women for their appearance, block Conservative efforts to create sensible police reform, and even play games with economic relief for small businesses and middle-class families during a pandemic.  The America that the radical Left is fighting for is NOT the America I believe in and it’s up to us to fight back.”

In fact, in response to the recent city riots, President Trump echoed the same theme on July 20 that America’s principal problem is Democrats: “Look at what’s going on. Run by Democrats. All run by very liberal Democrats. All run really by radical left.”

Bipartisan Subversion
The massive unconstitutional federal monster has been created and nourished over decades by Republicans and Democrats alike.  Democrats are often portrayed as wolves, while most Republicans have become wolves in sheep’s clothing.  But remember that both are wolves.

Moreover, the wolf in sheep’s clothing is actually the more dangerous, as that wolf can sneak up on you and devour you.

No, America is NOT suffering from a Democrat problem.  It is being victimized by a Conspiracy, a Conspiracy that has corrupted both parties and targets our freedom.  That’s the understanding that must be communicated to more Americans, and it is the mission of Freedom First Society to do so.  But we need more help.  So, we respectfully invite you to join our organization.

Three COVID-19 Counterexamples: Taiwan, Singapore, and Sweden

“Can any governor or county executive simply flick his pen and shut every business even if it doesn’t create crowds? Can they unilaterally restrict every aspect of the Bill of Rights indefinitely without any oversight, due process, benchmarks, or transparency?

“In Jacobson v. Massachusetts (1905), the Supreme Court … made it clear that there is a point where states can enact [public-safety] policies in ‘such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public’ that they would be outside constitutional bounds.[1] …​

“We’ve simply never done this before in our history. These are not mere quarantine laws that supporters cite to justify what is going on today. Quarantine laws traditionally separate an individual or an entire group of people from the general population. What we are doing now, however, is locking down the entire general population.”  — Daniel E. Horowitz, “Is this quarantine or tyranny?,” March 31, 2020

Judging from the transparency — or rather, the lack thereof — they’ve shown on both COVID-19 and “climate change,” the governmental “powers that be” expect us simply to take for granted that they know best about scientific questions — and (of course) that they have our best interests at heart. By contrast, we “little people” should consider ourselves too simple to comprehend scientific matters — much less, to take part in serious discussions of them. We should just trust that the government — and tax-exempt foundations set up by the wealthy — know best!

Specifically, and in the current case, we’re supposed to take it on faith that the near destruction of the whole world-economy, through “social distancing,” is scientifically necessary in order to avoid COVID-19 catastrophe. (Nor have they asked us whether  the COVID-19 catastrophe isn’t the preferable option!)

However, if the “powers that be” do know best and have our best interests at heart, then why haven’t we heard much about the sensible, non-draconian approaches of countries that have avoided both the economic and the (warned-of) COVID-19 catastrophe — for example, Taiwan, Singapore, and Sweden? And, why haven’t other Western governments been adopting such approaches — rather than the China-pioneered, general “lockdowns” and “shutdowns”?

Only one plausible answer to that question seems available: Whether “the powers that be” “know best” or not, we may rest assured that our best interests are about the furthest thing from their hearts. Let us, then, look more closely at Taiwan’s, Singapore’s, and Sweden’s successful — yet non-draconian — approaches.

Taiwan’s and Singapore’s Responses to the Coronavirus

The Establishment media have not been able to maintain a total “blackout” on Taiwan’s success in combatting COVID-19. That success is too remarkable and too clear.

However, though the media are now reporting on what Taiwan has overtly done to control the COVID-19 outbreak, for the most part the media have (strenuously, it seems) avoided mentioning what Taiwan has not been doing.[2] That is likely because Taiwan eschewed the almost universal, dire “social distancing,” “lockdown,” and economic shutdown the rest of us are supposed to endure.

“Quick action” and “aggressive measures” are what helped Taiwan — so they keep telling us. They highlight Taiwan’s advanced databases of its citizens’ travel histories, along with its ability to attach those data to the same citizens’ entries in the country’s National Health Insurance (NHI) database.  By limiting the discussion to Taiwan’s actions, mainstream media manage to color Taiwan’s successful virus-containment as a shining example of technocracy — rather than, one of government transparency as well — and much less, one of maintaining constitutional, limited government while quarantining individual dangerous cases.

It is true that Taiwan did take “quick action” — notably with regard to checking people arriving from Wuhan (ultimately banning flights from most of China), and in implementing short-term quarantine for people who had recently traveled from “level 3 alert areas.” In fact, Taiwan’s preparation for a new virus outbreak started in 2004, the year after the SARS epidemic killed 73 people there. Since that experience, “Taiwan has been on constant alert and ready to act on epidemics arising from China,” reports a Mar. 3 JAMA article.

Taiwan has been very careful about making sure (and strictly enforcing with penalties) that the risk cases, who are quarantined, stay there as long as assigned — generally, two weeks. It is also true that Taiwan appended to the end of the Lunar New Year holiday, a further two-week closure of elementary schools and high schools (classes resumed Feb. 25). Moreover, it implemented rules calling for additional two-week closures of any schools where cases of the coronavirus were detected.[3]

Currently schools’ policy is to take students, teachers, and workers’ temperatures. If fevers are detected, classes in that school are suspended, but massive class suspensions do not occur. At the same time, online teaching is being encouraged, but is not being forced by the government. In many Taiwanese universities, online teaching is being promoted in order to let those who are not able to attend class in person to take courses. Although it is true that online education as a way to avoid infections has already been adopted in other countries, the peculiarity of Taiwan lies in the fact that it has not been imposed by government order….​ The government’s transparency of information has also given the Taiwanese enterprises the time they need to voluntarily prepare and adopt teleworking progressively. — Javier Caramés Sanchez and William Hongsong Wang, “Why Taiwan Hasn’t Shut Down Its Economy,” Mises Wire, March 26, 2020

But the pro-active stance and quick action explain more about Taiwan’s extraordinarily low case-numbers, than it does about how they achieved them with only very limited impact on their economic activity (the only industry hit by government restrictions was the airline industry). After all, it’s not as if there was no introduction of the virus into the country: In an article unusually balanced for the Establishment-controlled media, the New York Times stated that “As of Friday [Mar. 13], about 58 percent of all confirmed cases in Taiwan were believed to have resulted from local transmission.”

Broadly speaking, Singapore’s approach has been parallel to Taiwan’s. In regard to schools, in fact, Singapore has shown even more accommodation of private citizens’ needs:

Large gatherings have been suspended. But to minimize social and economic costs, schools and workplaces have remained open. The Singaporean Ministry of Education — on an extensive FAQs web page — calls the closing of schools “a major, major decision” that would “disrupt many lives.” Instead, students and staff are subjected to daily health checks, including temperature screenings. — Benjamin J. Cowling and Wey Wen Lim, “They’ve Contained the Coronavirus. Here’s How,” New York Times, March 13, 2020

A National Post article summarizes correctly that these two countries “seem to have found the sweet spot between a laissez-faire ‘it’s just like the flu’ reaction, and imposition of economically devastating lockdowns. Both nations have concentrated [not on imposing lockdowns and shutdowns, but] on strictly isolating people who have or might have COVID-19, tightly controlling international travel and zealously pursuing those who had contact with the infected.”

Sweden’s Thoughtful, Commonsensical Approach

In its particulars, Sweden’s approach has differed somewhat from Taiwan’s and Singapore’s. But like Singapore and Taiwan, Sweden took the traditional approach to what “quarantine” is — namely, isolating sick people, to keep their disease from being caught by well people. And although, like Britain, they do not claim “herd immunity” is their goal, they do recognize that the latter is the likeliest way for the outbreak to come to a graceful end.

Fredrik Erixon, a Swede who directs the European Centre for International Political Economy in Brussels, was eloquent on the real difference in Sweden’s approach:

Managing the virus is a long game, and while herd immunity is not the Swedish strategy, it may well be where we all end up. The theory of lockdown, after all, is pretty niche, deeply illiberal — and, until now, untested. It’s not Sweden that’s conducting a mass experiment. It’s everyone else.

The main advice from [Anders] Tegnell [who is Sweden’s “state epidemiologist”] et al is repeated like a mantra ten times a day: be sensible. Stay at home if you feel sick. Oh, and wash your hands. But individuals, companies, schools and others are trusted to figure out on their own what precautions to take.

This Swedish exceptionalism is about principle, not epidemiology. It’s true that we’re perhaps less at risk due to our high rate of single-person households and low number of smokers. Closing the schools would, as well, have a bigger impact in a country where almost all mums are working mums. But frankly, all these explanations miss the point: yes, they make us different to Italy and Spain, but not to Denmark, Finland and Norway. Sweden simply made the call to take measures that don’t destroy the free society. — Fredrik Exton, “No lockdown, please, we’re Swedish,” The Spectator (U.K.), April 4, 2020

Tellingly, even the website of the World Economic Forum — one of the foremost pandemic-fear stokers of recent decades — had a helpful post, basically admitting there is nothing faulty with the science behind Sweden’s approach.

The Take-away from These COVID-19 Experiences — Oh, and Hong Kong’s!

By no means have these three countries been left unscathed by COVID-19 (and/or similar viruses). But the important thing to glean from their experiences is what they tell us about what’s not necessary to fight this “novel coronavirus.” Specifically, it says that quarantining healthy individuals who have no known reason for being susceptible, is unnecessary — and thus, a gross infringement of basic liberty.

Though it seems surprising to be able to cite the New York Times in summing up, the final paragraph of its March 13 article said it well (though having discussed Hong Kong instead of Sweden):

[T]he central point is this: Each in its own way, Singapore, Taiwan and Hong Kong — three places with markedly different socioeconomic and political features — have been able to interrupt the chain of the disease’s transmission. And they have done so without embracing the highly disruptive, drastic measures adopted by China. Their success suggests that other governments can make headway, too. — Benjamin J. Cowling and Wey Wen Lim, “They’ve Contained the Coronavirus. Here’s How,” New York Times, March 13, 2020

1. Corroborating the general legal principle that Horowitz cites is, for example, a 1962 Colorado state court case opinion, which points out that “If a statute purporting to have been enacted to protect the public health, morals, safety, or common welfare has no real or substantial relation to these objects, and for that reason is a clear invasion of the constitutional freedom of the people to use, enjoy or dispose of their property without unreasonable governmental interference, the courts will declare it void.” Colo. Anti-Discrimination Comm’n v. Case, 151 Colo. 235, 380 P.2d 34 (1962).
2. Typical is an April 7, 2020 Atlantic Council post “Lessons from Taiwan’s experience with COVID-19”: They discuss 4 lessons, but overlook the vital lesson — that general lockdowns and shutdowns are quite unnecessary. The title of an April 3 Democracy Now! post summarized this theme well: “How Taiwan Contained COVID-19: Early Action, Technology & Millions of Face Masks.”
A couple of rare exceptions to this mainstream tendency were a March 13 New York Times article, “They’ve Contained the Coronavirus. Here’s How.”, and a March 31 National Post article, “How Taiwan and Singapore managed to contain COVID-19, while letting normal life go on”. Outside the mainstream, and more in character, was a balanced, March 26 Mises Institute post.
3. According to a data-supplement to the Mar. 3, JAMA article:
– If 1+ in a class (student or teacher) at the K-9 level diagnosed with COVID-19, class is suspended for 14 days
– If 2+ cases in a school, school is closed for 14 days
– If one-third of schools in a township, city, or district are shut down, all others are closed
– If a student or teacher is diagnosed in a high school, college, or university, all classes they attend or teach is suspended for 14 days
– If 2+ cases of COVID-19 in an institution at any level, it will close for 14 days

Where’s the Data, Dr. Fauci?

“President Donald Trump may want to reopen the U.S. economy by Easter — but the novel coronavirus wreaking havoc across the globe may have other plans.

“Dr. Anthony Fauci, the country’s top infectious disease expert, pointed out Wednesday that the virus is determining ‘the timeline’ for the pandemic.

“‘You’ve gotta be realistic,’ Fauci told CNN’s Chris Cuomo…. ‘You’ve got to understand that you don’t make the timeline, the virus makes the timeline….

“‘You can’t make an arbitrary decision until you see what you’re dealing with. You need the data.’” [Emphasis added.] — HuffPost, 3-26-20

Note:  On March 29, President Trump announced that he was extending the federal social distancing guidelines until April 30th.

Okay, Dr. Fauci, where’s the data?  I mean the data you used in the beginning to justify the unprecedented government decision to shutdown the economy?  Surely, you wouldn’t have accepted the notoriously unreliable Communist Chinese data?  Even the often quoted data from the UN’s World Health Organization can’t be trusted, because WHO has an agenda to reinforce the UN’s global power grab.

Indeed, where’s the data that the coronavirus is more deadly or more communicable than other infectious diseases that the world copes with every year without shutting down?  The American people deserve to know, particularly since the Internationalist Insiders dominating our government regularly use crises as pretexts for government to seize more unconstitutional power (see “Internationalist Treachery,” below).

Dr. Ron Paul

According to Dr. Ron Paul, a former U.S. Representative, Fauci “testified to Congress that the death rate for the coronavirus is ten times that of the seasonal flu, a claim without any scientific basis.”

We hear statistics about number of cases and deaths, but how to those compare with say, the flu, or tuberculosis?  Most Americans can’t readily make the comparison, and many cases of such diseases go unreported.   (The CDC estimated that during the 2018-2019 flu season, the flu killed 34,200 of about 35.5 million people infected.)

Scaring Us
In a March 16th open letter, Dr. Paul further charged: “The chief fearmonger of the Trump Administration is without a doubt Anthony Fauci, head of the National Institute of Allergy and Infectious Diseases at the National Institutes of Health. Fauci is all over the media, serving up outright falsehoods to stir up even more panic.”

And the impact of that panic is everywhere.  Congress just passed a $2.2 trillion rescue package, which The Hill (3-25-20) claimed was “the single largest stimulus package in the nation’s history.”  And that may be only a beginning.

The ostensible justification for the enormous addition to the national debt was to stimulate an economy that is in recession, not because of the coronavirus directly, but because of governments’ (federal, state, & local) response, using the hyped scare as justification for the unprecedented assumption of power.  Only a lesser portion of the rescue package was devoted to defense against the virus itself.

On March 29th, Dr. Fauci ramped up his warning dramatically. According to The Hill:

Speaking on CNN’s “State of the Union,” Fauci said that, based on what he’s seeing, the U.S. could experience between 100,000 and 200,000 deaths from Covid-19.

“We’re going to have millions of cases,” Fauci, the head of the National Institute of Allergy and Infectious Diseases, said, noting that projections are subject to change, given that the disease’s outbreak is “such a moving target.”

Unfortunately, his projections seemed to have been based on computer models, which even Dr. Fauci admitted were no better than the assumptions fed into them.

Internationalist Treachery
In evaluating the crisis claims, we have a right to demand proof, because for decades Internationalists have been employing evolving threats and scares to gain power — leading to global power, accountable only to them.

With the start of the Cold War, the threat was nuclear annihilation.  But that shifted with the break-up of the former Soviet Union.   As replacements, the Internationalists embraced new threats — drugs, terrorism, and environmental catastrophe — as pretexts for increasing the authority of International bodies.

In its November 24, 1997 issue, The New American magazine warned that Internationalists had adopted another alarmist threat — pestilence — to accomplish their aims. The report was entitled “Scaring Us Toward Global Government.”  Remember that the following assessments were written two decades before the world heard of a “coronavirus pandemic:”

In recent years, yet another alarmist refrain has been heard: “World government or pestilence!” This latest crisis requiring global management is the threat presented by supposedly new infectious diseases. Where once we were menaced by megatons, the danger now supposedly comes from microbes — and familiar voices are insisting anew that only world government can save humanity from destruction.

As a tool for manipulating public opinion, the threat of pestilence actually has an advantage over the earlier scare scenarios: Nuclear annihilation of humanity, while a horrifying prospect, is simply too abstract to have a visceral impact. The same is true of environmental collapse. But everybody has been sick and can individualize the horror of succumbing to an incurable disease. Thus, the pestilence scenario may have far more potential as a tool for selling the public on globalist “solutions.”

In November 1993, President Clinton set up, by Executive Order, the National Science and Technology Council, which included a Committee on International Science, Engineering, and Technology Policy (CISETP).

The New American article cited a CISETP report as an example of “the willingness of public policy elites to play off media-generated fears of infectious disease.” According to the report:  “[Th]e past few years have been marked by a recognition of renewed vulnerability to infectious diseases. Bestselling books and Hollywood thrillers have triggered public fascination with ‘new,’ deadly, and unpredictable microorganisms.”  The New American continued:

The report noted that protecting the health of the “global village” demands “a worldwide response,” and “recently, public discussion has been further focused on the global issue of emerging diseases by … popular movies such as ‘Outbreak,’ starring Dustin Hoffman.”…

In the miniseries Pandora’s Clock, an airliner bound for JFK Airport in New York has the misfortune to be carrying a passenger infected with a doomsday virus. The plane is not allowed to land, lest the virus be loosed, and the government plans to shoot the plane down instead — another effective pitch for the idea that crises must be dealt with through extreme measures.

CISETP’s eagerness to cite Outbreak and similar entertainment products typifies a distressing willingness on the part of some public health officials to focus on lurid scenarios at some expense to sound science. The average American is largely at the mercy of domestic and international public health bureaucracies for information about infectious disease. This trust has been abused by public health authorities in recent decades.

For a more recent example of this strategy at work, check out our  11-24-19 post “Crisis-Hyping — What’s At Stake!”

But perhaps, this time, the Internationalists do have a real crisis to drive their power grabs.  Perhaps. However, we also know that with sufficient focus, the Establishment media can make any problem, such as “gun violence,” appear to be a new pandemic.  And there are several reports circulating claiming that the coronavirus statistics are exaggerated.

Data Alone Fallacy
Dr. Fauci’s claim that the virus data alone should drive government policy is a dangerous position.   In particular, his claim supports the Internationalist Establishment’s agenda for totalitarian power.  As several have pointed out, when the threat passes, government doesn’t give us our freedoms back.   It insists that an ongoing threat warrants that government retain the new authority. As an example, consider the “temporary” surveillance authorities granted to government following 9/11 by the Patriot Act, now the U.S.A. Freedom Act.

The coronavirus, even if it deserves major attention, is by no means the only problem the public faces.  Human mortality has not been conquered.  In the meantime, the public deserves the opportunity to try and accomplish life’s goals, protected by government, not burdened by government-imposed “emergency” restrictions.

But most significantly, the arguments in favor of the government measures ignore the much more dangerous threat of a high-level Internationalist Conspiracy that lusts to expand government authority in perpetuity and is greedy for useful pretexts.

So if these Conspiracy Insiders have their way, this scare is not a onetime event.  Indeed, Dr. Fauci has warned:  “We really need to be prepared for another cycle” to hit later this year.  And what about next year?

Multiple Gains
Establishment Internationalists are reaping multiple gains from their “crisis.”   Alexander Hamilton pointed to a principal one:

Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates…. [T]he continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free. — The Federalist No. 8

Hamilton’s warning is even more valid today, when there is a major organized Conspiracy for total power at work determined to undo the American revolution.  But in addition to preparing the public to give up its rights and accept government domination, the Conspiracy gains in other ways.

A primary Conspiracy gain is the enormous addition to our national debt from massive government spending — more than 2 trillion dollars the government does not have.  The consequences (inflation) and potential consequences (destruction of the dollar and its replacement with an International currency) are huge topics in themselves.  Bloomberg just reported (4-1-20):

The Federal Reserve is trying to call time on a fire sale of Treasuries by foreign governments and central banks.

Foreign official holders of Treasuries dumped more than $100 billion in the three weeks to March 25, on course for the biggest monthly drop on record, according to weekly Fed custody data that captures much of the pandemic-fueled turmoil.

Another gain by power seekers is the destruction of small businesses, a pillar of a free market economy and of the middle class — a bulwark of freedom.   Many other small businesses are to be put in hoc to the federal government.  In an interview with Yahoo! Finance (published 3-31-20) Ivanka Trump, President Trump’s daughter and senior advisor, made the following observation:

“Small businesses employ close to 50% of the American workforce, and obviously are the most vulnerable from a cash flow situation,” she said.

The $2 trillion fiscal stimulus sets aside over $350 billion in loans for small businesses. “We want to just bridge people until the world reopens,” she said.

And last, and very alarming, the Leftwing Politico reports that the Trump administration has asked Congress to draft legislation that would allow it to suspend parts of the Constitution:

The Justice Department has quietly asked Congress for the ability to ask chief judges to detain people indefinitely without trial during emergencies — part of a push for new powers that comes as the novel coronavirus spreads throughout the United States.

Documents reviewed by POLITICO detail the department’s requests to lawmakers on a host of topics, including the statute of limitations, asylum and the way court hearings are conducted  — “DOJ seeks new emergency powers amid coronavirus pandemic,” 3-21-20

Let’s Learn the Lessons of History!

“Tonight, we renew our resolve that America will never be a socialist country.” — President Donald Trump, Second State of the Union Address, 2-5-19

Unfortunately, uninformed resolve won’t stop the socialist revolution.  The Newsweek cover story, “We Are All Socialists Now,” for its February 16, 2009 issue, published during the Obama administration, is once again timely and illuminating.  During the subsequent 10 years the socialist revolution has continued to advance through a pattern of subversive deception.

“We Are All Socialists Now” is supported by a second article, “Big Government Is Back — Big Time.”  We will comment on both.

In their cover story, the two Newsweek authors properly excoriate posturing “conservatives” for attaching the unpopular “Socialist” tag to Obama administration policies while ignoring the fact that Republican administrations had also supported socialism.

But these GOP “conservatives” are not hypocrites, as Newsweek seems to imply, but “wolves in sheep’s clothing.” For the Establishment weekly also took pains to portray the subversive socialist trend in big-government as a natural modern development (thus covering up the hidden orchestration) and something that should be embraced.

Not surprisingly, both authors of the cover story showed up on the 2008 and 2009 membership lists for the Establishment’s Council on Foreign Relations (CFR).

We list here a few of the article’s claims, followed by our (FFS) analysis:

         Newsweek:  “Whether we want to admit it or not — and many, especially Congressman Pence and Hannity, do not — the America of 2009 is moving toward a modern European state.”

         FFS analysis: Newsweek deceptively ignores the fact that America is being pushed into socialism.  Neither natural forces nor an informed public will are driving that revolution.

         Newsweek continues:  “We remain a center-right nation in many ways — particularly culturally, and our instinct, once the [2008 financial] crisis passes, will be to try to revert to a more free-market style of capitalism — but it was, again, under a conservative GOP administration that we enacted the largest expansion of the welfare state in 30 years:  prescription drugs for the elderly.”

         FFS analysis: Here Newsweek again covers up the orchestration behind our nation’s demise, by suggesting that our culture and “our instinct” are what drives Washington rather than merely serving as an obstacle for the Establishment to overcome.  But even Newsweek admits that “our instinct” didn’t prevent “a conservative GOP administration” from enacting “the largest expansion of the welfare state in 30 years.” Nor does the Newsweek story give any attention to the orchestrated attack on our culture through government-controlled education or the push for massive unassimilated immigration, against the public will, from cultures that are far from center-right.

         Newsweek: “If we fail to acknowledge the reality of the growing role of government in the economy, insisting instead on fighting 21st-century wars with 20th-century terms and tactics, then we are doomed to a fractious and unedifying debate.  The sooner we understand where we truly stand, the sooner we can think more clearly about how to use government in today’s world.”

         FFS analysis:  Here Newsweek tries once more to reinforce the pure illusion that some kind of “open debate” is actually deciding the direction of government.  While the partisan winners and losers may not be “fixed,” the socialist direction of government is.  In support of that fix, the Establishment-controlled media obscures political betrayal by entertaining the public with the equivalent of a professional wrestling match.  And, of course, Newsweek never even suggests that there are any constitutional restraints on what government can or should do.

         Newsweek:  “Whether we like it or not … the [government spending] numbers clearly suggest that we are headed in a more European direction…. But the simple fact of the matter is that the political conversation, which shifts from time to time, has shifted anew, and for the foreseeable future Americans will be more engaged with questions about how to manage a mixed economy than about whether we should have one.” [Emphasis added.]

         FFS analysis:  Here again, Newsweek seeks to reinforce the illusion that political conversation and a public engaged with questions are what is driving our nation’s subversion.

         Newsweek: “During the roughly three decades since Reagan made big government the enemy and “liberal” an epithet, government did not shrink.  It grew.”

         FFS analysis: President Reagan gave very conservative speeches, but, contrary to Establishment myth, his administration was anything but conservative.  Indeed, President Reagan chose several stalwarts from the Establishment’s Council on Foreign Relations, such as Secretary of State George Pratt Shultz and Vice President George H.W. Bush (a former CFR director) to run his administrations.

         Newsweek: “Now comes the reckoning. The answer may indeed be more government.  In the short run, since neither consumers nor business is likely to do it, the government will have to stimulate the economy.  And in the long run, an aging population and global warming and higher energy costs will demand more government taxing and spending.” [Emphasis added.]

         FFS analysis:  Here Newsweek perpetuates the power-grabbing Establishment mantra that government must run a modern economy.  But just perhaps, when consumers decide not to spend, they may have a good reason.

         Newsweek: “Obama talks of the need for smart government. To get the balance between America and France right, the new president will need all the smarts he can muster.”

         FFS analysis:  Here Newsweek further supports the same power-grabbing deception that has also been used to justify the Federal Reserve:  namely, that only the “best and the brightest” intellectuals can be trusted to prevent a market economy from imploding.

Newsweek’s supporting article
Newsweek’s supporting article, authored this time by Michael Freedman, is titled: “Big Government Is Back — Big Time, U.S. policymakers reconsider the relationship between government and the private sector.”

Right off the bat, we would ask:  “When was big government away?”  But let’s look at some of what the article is promoting.

This article regularly compares what was happening in the U.S. (in 2008-2009) with what was happening in France under President Nicholas Sarkozy:

         Newsweek:  “When Obama called Wall Street ‘shameful’ and greedy, he was articulating what the French have always thought, and endorsing Sarkozy’s recent dismissal of the ‘crazy’ idea that markets are always right.”

         FFS analysis:  While markets may not always be right, they have the right to be wrong.  This applies to what consumers spend their money on as well.  The clever sophistry that government force should supervise such decisions is merely a pretext for a government power grab.

         Newsweek:  “At its most basic level, the nearly $1 trillion U.S. stimulus package now being dissected on Capitol Hill is a fight over how great a role the federal government will play in what had been, for decades, private economic life.  And while it’s impossible to know just what the day after the crisis will look like, the broad contours of the new economic world are becoming visible.”

         FFS analysis:  The “new economic world” sounds ominously like “a new economic order.”  “Building a new economic order” is a phrase used by Internationalists (e.g., Trilateralists and CFR types) to refer to the process of consolidating global control.   And Newsweek is just helping to lay an intellectual smokescreen for a new step in government control of “private economic life.”

         Newsweek:  “One of the more lasting effects will be a steady drift toward what could be called a European model of governance, regulation and paternalism…. More specifically, in the absence of a robust private sector (or at least public confidence in business) the U.S. government will be forced to fill the gap, firmly directing businesses in all sorts of ways — regulating some industries (particularly banking and the automotive sector) with big-brother vigilance, favoring others like clean energy with grants and loans, and turning still others — health care, pensions — into virtual wards of the state.”

         FFS analysis:  Who forces government to fill an ostensible gap?  Not the public.  Instead, opportunistic socialists seek to fill any gap they can claim exists.  And constitutional protections against government overreach be damned.

         Newsweek:  “So aside from expanding the social safety net, the government will have to take a greater role in guiding business toward ends the state deems healthy for the overall economy.” [Emphasis added.]

         FFS analysis: This outrageous endorsement of more government power is a blatant rejection of the limited government authorized by our Constitution.  America’s founders understood from the historical record that unrestrained government led to tyranny and that “the state” needed supervision, not the other way around.  Newsweek doesn’t identify whom it sees as “the state.” But it’s obvious that its state consists of Establishment Insiders who seek to build an unaccountable police state.

         Newsweek:  “But sentiment is moving toward some form of universal health care and will only grow if unemployment remains high.”

         FFS analysis:  Whose sentiment?

         Newsweek:  “Another way government can take a larger role, particularly in easing the burden created by low stock-market returns, is by introducing programs that forgive some or all college-tuition debt in exchange for public service, something Obama promised to do on the campaign trail.

         FFS analysis:  Newsweek’s endorsement of “public service” seems reminiscent of President Clinton’s inauguration of “national service” via the National and Community Service Trust Act.  That Act created the taxpayer-financed Corporation for National and Community Service (CNCS), which would include the AmeriCorps and VISTA. The bureaucracy that must be set up to administer these programs is not only highly expensive, but the “service” is generally of marginal value to the taxpayer.  And most ominously, the idea of an expanded volunteer army serving the State harkens comparisons to Mussolini’s programs for service to the Fascist State. One should also consider why college education has become so expensive now that the federal government is placing increasing demands on colleges to create bureaucracy to enforce political correctness.

         Newsweek:  “This crisis-driven debate on the proper role of government is not confined to America. At the recent World Economic Forum….”

         FFS analysis:  The notion that there is a high-level debate on the proper role of government is absurd.  The only debate is over how government can best gain more power through deception and manufactured crises.

         Newsweek:  “Bailouts, protectionism, talk of bank nationalization and a nearly $1 trillion stimulus package are not a socialist conspiracy, as some right-wing U.S. pundits and talk-show hosts insist.”

         FFS analysis:  We think Newsweek doth protest too much, while seeking to demonize even phony opposition as “right-wing”!

         Newsweek:  “Nonetheless, it is clear that a ‘centrist rebalancing’ is taking place even in America, says Sunder Katwala, head of Britain’s center-left Fabian Society, and that a prolonged period of slow growth will force the United States to become something more like Europe.”

         FFS analysis:  Center-left? Britain’s Fabian Society is out-and-out socialist.  Indeed, one of its leaders, published The Story of Fabian Socialism.  From its inception, the Fabian Society embraced a strategy of deception, patient gradualism, and permeation of other organizations. The Fabians would permeate and control the British Labour Party and the Socialist International.  They would also establish roots in this country.

U.S. Constitution Under Attack!

It is generally a strategic mistake to get caught up in disputing the pretexts for revolutionary demands.  Rather our primary concern always needs to be to expose their disguised objective of unrestrained government power.  However, with that caution in mind, sometimes debunking the claims can strengthen our understanding of fundamental principles.

And so it is with the cover story for Harper’s October 2019 issue.  The Harper’s story, actually titled  “Constitution in Crisis — Has America’s founding document become the nation’s undoing?,” is based on the comments of  “five lawmakers and scholars.” We would characterize the group as largely a bunch of anti-Trump, pro-Democrat Leftists seeking to undermine intellectual support for the Constitution. Harper’s invited these five to a forum at New York University’s law school “to consider the constitutional crisis of the twenty-first century.”

Throughout the Harper’s story, we encounter a Leftist plea for shallow political correctness and a disparaging of America’s Founders and the Constitution they created.  To kick off its article, Harper’s explains the ostensible purpose of the forum:

America’s Constitution was once celebrated as a radical and successful model for fledgling republics across the world.  But decades of political gridlock, electoral corruption, and dysfunction in our system of government have forced scholars, activists, and citizens to question the document’s ability to address the thorniest issues of modern political life.” [Emphasis added.]

Freedom First Society (FFS):  Of course, the Harper’s article ignores the impact of a Conspiracy on “modern” political life.   Moreover, America’s Founders never suggested that the Constitution by itself would guarantee good government.   In his 1796 Farewell Address, President George Washington wisely counseled Americans on what other supports they needed to cultivate if they wanted to continue to enjoy the fruits of freedom:

Promote, then, as an object of primary importance, institutions for the general diffusion of knowledge. In proportion as the structure of a government gives force to public opinion, it is essential that public opinion should be enlightened….

Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism who should labor to subvert these great pillars of human happiness — these firmest props of the duties of men and citizens. The mere politician, equally with the pious man, ought to respect and to cherish them…. And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.

The Left ignores its role in undermining those supports, such as religion as the necessary basis for morality.

Rosa Brooks (moderator): “After [each of my students in my constitutional law classes] has a chance to talk about how great it is that the United States has this very, very old written Constitution, I ask them how they would feel if their neurosurgeon used the world’s oldest neurosurgery guide, or NASA used the world’s oldest astronomical chart to plan space-shuttle flights, and they all get quiet.”

FFS: Here Georgetown Law Professor Brooks introduces clever sophistry.   America’s Constitution was based on extensive study of historical experience.  It reflected a deep understanding of human nature, which does not change.  It’s checks and balances were designed to put roadblocks in the way of dangerous human ambition for accumulating power, evident throughout history.  Much of that wisdom was recorded in the Federalist Papers.  Also, we received wise counsel in President Washington’s Farewell Address:

The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism. A just estimate of that love of power and proneness to abuse it which predominates in the human heart is sufficient to satisfy us of the truth of this position. The necessity of reciprocal checks in the exercise of political power, by dividing and distributing it into different depositories, and constituting each the guardian of the public weal against invasions by the others, has been evinced by experiments ancient and modern, some of them in our country and under our own eyes. To preserve them must be as necessary as to institute them. If in the opinion of the people the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed.

Throughout history and in much of the world today, freedom is the exception, not the rule.  Freedom cannot be taken for granted.  The moderator and participants ignore that record and principle.  The participants also gloss over the fact that the Constitution is often ignored in fedgov’s drive to accumulate more unconstitutional, socialist power.

Louis Michael Seidman: “At the time the Constitution was written there was another binding document, the Articles of Confederation…. When [the Constitution’s authors] met behind closed doors … one of the first things they decided was to disregard their instructions and just ditch the Articles…. It’s a neat trick to get from that to a time when people feel bound to respect the document.”

FFS:  We wish it were so that people today (particularly our elected representatives) feel bound to respect the document.  Georgetown University Law Center Professor Seidman ignores the higher principle of sovereign assembly.  The people’s chosen delegates to a constitutional convention had a well recognized right to change their form of government.  Nearly all of the state constitutions and declaration of rights endorsed that principle.  (See, for example, “The Sovereign Dynamic.”)

In his Farewell Address, George Washington admonished:

The basis of our political systems is the right of the people to make and to alter their constitutions of government. But the constitution which at any time exists till changed by an explicit and authentic act of the whole people is sacredly obligatory upon all. The very idea of the power and the right of the people to establish government presupposes the duty of every individual to obey the established government.

David Law: “Thomas Jefferson would be rolling over in his grave.  He thought that every generation should rewrite the Constitution.  It should be revised every nineteen years.”

FFS:  Nonsense!  Although the Founders included provision for making amendments and even calling a Constitutional Convention, they feared a second Con-con. Deputy Charles Pinkney of South Carolina insisted: “Conventions are serious things and ought not to be repeated.”  In a 1788 letter, “Father of the Constitution” James Madison wrote: “Having witnessed the difficulties and dangers experienced by the first Convention which assembled under every propitious circumstance, I should tremble for the result of a second….”

Mary Anne Franks: “We have not, as a country, fully confronted the fraudulent nature of the Constitution and the founding itself. The revolutionary spirit was always, from the beginning, a limited one.  It was a revolution for some people, and this idea that we threw off the yoke of tyranny was immediately constrained by the idea that you didn’t want to throw it off too much.  The founders didn’t want to throw it off for slaves, and they didn’t want to throw it off for women…. [E]very word of the Constitution — starting from this premise of ‘we the people’ — is a lie.”

FFS:  Fraudulent?  A lie? Outrageous!  On the other hand, Professor Franks is correct that the American revolutionary spirit was a limited one.  The revolution was waged reluctantly, after repeated suffering, for a limited objective — independence from Great Britain.  By contrast, revolutions promoted under utopian banners as a complete upheaval of society killed millions in the twentieth-century alone.

Such revolutions were conceived by men of letters who lived in ivory towers divorced from the reality of governing.  America’s Founders were men of affairs with real experience. Although, the Founders convened in Philadelphia to address problems in the Articles of Confederation and ended up by proposing a new federal government, they also recognized that slavery was immoral.  There was no “tension,” as Franks suggests, “between this idealized view of the Founding Fathers as almost divine figures and at the same time ones who couldn’t possibly have understood that slavery was wrong, or taken a real stance against it, or declared that women were equal human beings to men.”

Yes, George Washington was a slaveholder.  But he also stated: “there is not a man living who wishes more sincerely than I do to see a plan adopted for the abolition of slavery.”  And his last will and testament stated:

Upon the decease of my wife it is my will and desire that all the slaves which I hold in my own right, shall receive their freedom. — And whereas among those who will receive freedom, there may be some, who from old age or bodily infirmities, and others who on account of their infancy, will be unable to support themselves; it is my will and desire that — they shall be comfortably clothed and fed by my heirs while they live.

Moreover, the Constitution did not deny women rights.  The issue of women voting was left to the states, and some states did extend early suffrage to women.

Lawrence Lessig:  “So I think one of the really important questions is:  Do you expect people to rally around a document that has no connection to the democracy of today, or yesterday, or even forty years ago?

FFS:  Lessig, a professor at Harvard Law School, should learn that America is a republic (a rule of law) and not a democracy.   James Madison, “Father of the Constitution,” wrote in Essay 10 of The Federalist Papers that pure “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.”

And as long as Establishment forces control the media that informs Americans and our universities, which radicalize our youth, we would expect increasing disillusionment with the Constitution.

Franks:  “The position I’ve taken as a preliminary step is to think, ‘Well, is there anything in the Constitution that is meaningful here, in a larger sense?’  And I think the Fourteenth Amendment’s equal protection clause is where a lot of our efforts might be focused and energies spent.”

FFS: We’re not surprised.  The Fourteenth Amendment, adopted in 1868, reversed important principles in the Constitution, enforcing federal provisions on the states.  And it was further abused by misinterpretation. It became a vehicle for judicial activism on behalf of various constituencies.

One of the continuing benefits of the Constitution is that the elitist Left sees it as still somewhat of a speed bump in their road to socialist revolution.

Seidman: “Maybe the right way to think about the Constitution is not as a legal document at all, not as a lease or will or something like that. Instead, think of it as poetry. As a poem, or symphony.  And if you think of it that way it can be treated as a symbol that unites the country….  Now, nobody would say that you have an obligation to obey a poem or a symphony.”

FFS: Now, it’s getting really ridiculous.  Or perhaps, revolutionary ambition is being revealed.  Utopian revolutionaries do not want any constraints on their power.

Lessig:  But the problem is that we have a president who treats it like a poem, or a dirty limerick — he treats it like something he doesn’t have to respect or follow, and I don’t think that’s a good idea.

Seidman: “The very last way we want to confront Trump is with the Constitution as a legal text.  That is a way of turning this argument over to lawyers….  In the end, the problem with Trump is not that he’s violating some technical legal provision in the Constitution; it’s that he’s writing bad poetry.”

FFS: Revolutionaries want unrestrained authority for themselves, but they won’t want anyone else to exercise it.

Law:  “I see Americans trapped within a box, unable to transcend the constitutional way of thinking.  Countries actually don’t need written constitutions.  The United Kingdom doesn’t really have a constitution. New Zealand doesn’t have a constitution. In a functioning democracy, you don’t need one.

FFS:  There again, we encounter the scam that purports the U.S. is a democracy — rule by the majority, where everything is up for grabs, rather than a republic, a rule of law, which protects minority rights.  Of course, if government has total authority, as in a monarchy, a written constitution may not be necessary.  But these radicals ought to ask themselves, how the rare impeachment would be conducted if there were no Constitution.

Lessig:  “I think what we have to focus on in a very precise way is: What are the steps that could get us to a place that could make the democracy a responsive democracy?  How do you break this deeply unrepresentative system that we have now?”

FFS:  The Establishment-supported revolutionaries already have that in motion.  Controlling the information and perspective people receive makes them somewhat responsive to the radical agenda.  But not entirely.  For example, the people want their government to control its southern border.  But the government resists, because of Establishment influence.  That same Establishment supports revolutionary activism and major universities.

Although the intellectuals participating in this forum did not come up with an agreed plan of action, at the very least they are helping to develop intellectual support for dumping the Constitution when a real crisis occurs.  One such crisis would be the further merger of the U.S. into a stronger regional government, following in the footsteps of the EU.

Tenth Circuit Rescues the Electoral College

The NPV (National Popular Vote) Compact has just hit a large bump in its road to “bypass the Electoral College.” On August 20, the Tenth Circuit Court of Appeals rescued that College from two centuries of distortion and misuse.  And by doing so, the court handed us a very big club with which to bludgeon the NPV campaign.

The NPV Compact is, in fact, a fine example of the abuse which this ruling calls on the carpet: By signing onto the NPV compact, a state agrees to coerce its presidential electors to vote a certain way — namely, for the party-ticket that won the national popular vote. Such coercion overthrows the whole purpose of the presidential-election system the Constitution outlines — commonly called the “Electoral College.” (See our earlier post, “Democracy, Tyranny, and the NPV Compact.”) The Constitution created the position of presidential elector in order that presidents (and vice-presidents) would be chosen by the considered, uncoerced discretion of people considered capable of choosing the candidates wisely.

Alexander Hamilton, whose Federalist Paper 68 touts the Electoral College

The problem with the way the Electoral College has been working for two centuries is that most states’ laws have already, by various means, been putting heavy pressure on the state’s presidential “electors” to vote the way the state legislature wants them to — which is usually, to support the party-ticket which won the state’s popular vote. And the Tenth Circuit Court has now called “unconstitutional” the coercion of electors — or, to be specific, states’ punishing or removing the elector, or interfering with the (Constitutional) processing of the votes, when an elector casts any such (so-called) anomalous vote.

Remarkably, this “long train of abuses” has never been treated by the Supreme Court. Apparently that is because no state has ever actually carried out the prosecution of a so-called faithless elector, nor actually removed and replaced him or her, for any of the several historical “anomalous” votes — not until the State of Colorado did it in 2016.  It is ironic that the Colorado legislature signed onto the NPV compact, and yet — by trying to remove a “faithless” elector and to interfere with his vote — Colorado’s Secretary of State had already handed the federal courts a case by which they could address the whole issue.

Plaintiffs v. Colorado Secretary of State
The Tenth Circuit Court did address the issue; and we can give thanks that they handled it masterfully! The court concluded: “Article II and the Twelfth Amendment provide presidential electors the right to cast a vote for President and Vice President with discretion. And the state does not possess countervailing authority to remove an elector and to cancel his vote in response to the exercise of that Constitutional right.” (pp. 112–13)

But if the court’s conclusion is correct (and indeed, it is), then the whole NPV program, which is dependent on states’ passing laws that coerce the electors to vote a certain way, is — now officially— unconstitutional!  As reported by the Colorado Sun, current Colorado Secretary of State Jena Griswold, who seems shocked by the ruling, “said that since the 10th Circuit’s ruling says that Colorado law cannot compel an elector to vote one way or the other, the national popular vote compact’s mandates could be ignored under the decision. She reiterated, however, that she’s optimistic a remedy can be found before that situation would ever arise and her office is still reviewing the long, complex ruling to understand its impact.”

Given the Tenth Circuit’s watertight ruling, the “remedy” Secretary Griswold hopes for seems unlikely to appear, even if the case goes to the Supreme Court. Those battling the NPV have a major weapon now. Even states that have signed onto the NPV should repudiate their acceptance of it, given the Tenth Court’s demolition of their authority to enforce any such law.

Border Enforcement Duplicity

We’ve heard it from every quarter: our immigration system is “broken.” And the current border crisis seems to confirm this. But wherein does its “brokenness” lie?

No one disputes that incentives drive the “flood” of immigrants northward toward the U.S.: Specifically, such incentives comprise “push” factors (motivating the migrants to leave their former country of domicile) and “pull” factors (attractive features of the life they anticipate in the U.S.). And now almost everyone says the basic pull factor — or “magnet” — is the attraction of our government’s continuing practice of “catch and release” — though this term turns out to be imprecise, with no exact legal meaning:

There’s no hard and fast definition, but “catch and release” usually refers to U.S. immigration authorities’ practice of releasing unauthorized immigrants while they await immigration hearings, rather than keeping them in custody.

With some exceptions, only children and asylum-seekers are eligible for this kind of release. They often stay in the United States for months or years while their cases wind through the courts. Many of them do not show up for court dates and end up settling in the country without authorization. — Salvador Rizzo, President Trump’s claim that Democrats created ‘catch and release’ policies, April 4, 2018

There is no reason to deny such analysis regarding incentives. And clearly it implies that “catch and release” is a major cause of our system’s “brokenness.” But it is all the more remarkable, then, that this consensus as to one of our border problem’s major causes has led neither to any solution, nor to cessation of our government’s practice of “catch and release.”  Could it be that some high-level group designed this border problem never to see a solution?

The Government’s Excuse

For its part, the government holds a ready explanation of the reason for its continuing practice of “catch and release.” Media-gurus, political pundits, and officials in the Executive branch have been telling us — for years — that “our immigration laws need fixing!” For that law is — they say — full of “loopholes”!

Former DHS Secretary Kirstjen Nielsen’s standard blame-deflection went like this:

Until these loopholes are closed by Congress, it is not possible, as a matter of law, to detain and remove whole family units who arrive illegally in the United States.

So, according to Nielsen, the immigration law itself is tying the hands of the government.

President Trump has similarly blamed our immigration laws. On April 3, 2018 he complained, “We have immigration laws that are laughed at by everybody…​. We have to change our immigration laws.”

Former Atty. General Jeff Sessions intoned likewise that “as President Trump has warned, the need to fix these loopholes and weaknesses in our immigration system is critical and overdue.”

A recent version of this accusation says, more specifically, that a main “brokenness” in our immigration law is the part which deals with asylum. Media pundits, Executive Branch officials, and White House communications have all been decrying the “asylum loopholes” allegedly crippling our immigration system.

A White House “Fact Sheet” of April 29, 2019 entitled “President Donald J. Trump Is Working to Stop the Abuse of Our Asylum System and Address the Root Causes of the Border Crisis,” explained (red and italics ours):

THE ASYLUM LOOPHOLE: Migrants are flooding to our border to use asylum to gain entry into our country and remain here indefinitely.

  • Our immigration system has reached a breaking point as we continue to see an overwhelming surge of migrants, with more than 100,000 arriving at our border in March alone.
  • As a result of loopholes in United States immigration law, migrants claiming fear are often released into communities across the United States, where they often remain indefinitely.
  • In order to remain in the country, they often fail to show up to court hearings, fail to file an asylum application, or fail to comply with removal orders once their claims have been denied.

Trump echoed the lament on May 30, 2019:

Trump said on Thursday [May 30] that he would not be closing the border as he has threatened numerous times. “The asylum procedures are ridiculous,” he added. “No place in the world has what we have in terms of ridiculous immigration laws.”

Informed Rebuttals of the “Blame Congress and the Immigration Law” Explanation

The standard, “law-loopholes are preventing good border-enforcement” account of our border crisis has its skeptics, however. And most of these skeptics are not amateurs: Rather, they are professionals (including researchers, writers, and Border Patrol agents) who have made it their job to understand our immigration system — and its malfunctions.

For example, Daniel E. Horowitz — who has been explicating the legal and administrative aspects of immigration for years — wrote in a recent post:

How much longer are we going to allow lawless acts of past administrations and lower courts to flip immigration law on its head and act as if the laws themselves are the problems? Our immigration laws aren’t broken, it’s just that carefully selected lower courts violate those laws as well as Supreme Court precedent, plus the executive branch has refused to enforce many laws that haven’t even been tampered with yet by the judges. The American people never voted for the system in place to today. In fact, the people’s representatives voted for the opposite.…​

There is this dangerous perception that somehow our laws declared open borders or at least granted endless rights to avoid deportation until and unless we muster the votes to change the laws. The reality is the opposite.

In a post earlier that month, Horowitz mentioned that this is the view also of Brandon Judd, head of the Border Patrol union (NBPC):

Brandon Judd, head of Border Patrol Union

‘Political pundits, talking heads, scholars and politicians have convinced the American public that only legislation can solve the problem. They say there are too many immigration and asylum loopholes preventing the government from deporting illegal border crossers in a timely manner. They are all wrong.’

Those were not the words of yours truly, but of Brandon Judd, the head of the Border Patrol union, in a Washington Times op-ed. He suggests we [should] actually just enforce the asylum laws [that are currently] in statute and have border agents at the front lines, not bureaucrats in other DHS agencies, take the lead on enforcement.

The talking point about the broken laws, in the media and even from the administration, have [sic] been so incessant and emphatic that most people probably think the laws require open borders unless Congress votes to change them. In fact, our laws are very clear that people who come to our border without proper documentation are all illegal aliens and must be deported. In 1996, Congress further updated those laws to preclude endless lawsuits.

Likewise, researchers and writers from the Center for Immigration Studies have rebutted much of this standard account of our border crisis.

Why It’s Untrue, that “Asylum Loopholes” in the Law Tie the Hands of the Executive Branch

The skeptics are correct — the ostensible loopholes are excuses without merit. In this section we will discuss the “asylum loophole,” which the above-cited White House Fact Sheet alleges. In a companion post, we discuss the other category of immigration-law loophole — those relating to minors and families — which the DHS (Department of Homeland Security) claims hinder the enforcement of our border.

There are at least four reasons why the narrative that “asylum loopholes have forced ‘catch and release’” does not hold water. Either of the first two demolishes the narrative all by itself. Let’s review all four, though — and make our point inescapable.

The President’s Unlimited Authority over Immigration

One thing that the media — who are helping push this false narrative — never tell the American people, is that the president has “plenary” (absolute, unrestricted) authority to exclude any and every alien he wishes — at any time. This is an authority that is subject to neither of the other branches of the federal government.

This plenary authority over immigration turns out to be both “inherent” and “delegated.”  The president’s inherent authority is built into the very structure of our federal government. The president’s delegated authority over immigration is that which the immigration statutes attribute to the president explicitly.

The president’s inherent authority over immigration is a foundational, long-standing principle of U.S. constitutional jurisprudence, recognized and openly acknowledged by the courts for over 200 years. The authority stems primarily from the president’s constitutional authority over foreign relations. (Aliens are, after all, foreigners, not U.S. citizens.[1])

One of the clearest judicial statements of this principle is in the Supreme Court’s opinion in Knauff v. Shaughnessy (1950):

The exclusion of aliens is a fundamental act of sovereignty. The right to do so stems not alone from legislative power, but is inherent in the executive power to control the foreign affairs of the nation.

However, to make sure everyone understands the president’s plenary authority to exclude aliens, our immigration law makes it explicit:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. — INA, §212(f); which is at Title 8 U.S.C. §1182(f)

Therefore, all the other immigration statutes, taken together, couldn’t “tie the president’s hands” if they tried! For this one provision implies that not only those whom the law excludes are to be excluded; but also, any and all whom the president excludes.

The Low Percentage of Arriving Aliens Claiming a “Credible Fear of Persecution”

The impression one tends to get from the media is that the immigration surges of 2018–​19 are, to a large extent, people seeking asylum. According to our same White House Fact Sheet, President Trump has said that “The biggest loophole drawing illegal aliens to our borders is the use of fraudulent or meritless asylum claims to gain entry into our great country.”

But based on reliable reports — including some from the DHS — no more than about 10% at any time have actually been claiming a “credible fear of persecution” — far less a percentage than that of “families” and “UACs” (Un-accompanied children) coming across the southern border. (Issues surrounding “families” and “unaccompanied children,” we discuss in our companion post.)

A DHS release of April 4, 2018 noted: “Before 2013, approximately 1% of arriving aliens claimed credible fear (asylum). Now 1 out of 10 claim credible fear.” And Carl Landrum, Deputy Chief Border Patrol Agent in the Yuma Sector (our third-hardest-hit sector, behind the Rio Grande Valley and El Paso sectors), stated in a Fox News interview on April 22, 2019 that in his area, “Only six percent of the people crossing the border are expressing a credible fear and requesting asylum.”

Daniel Horowitz finds that news disturbing: “This revelation means that our government has essentially vitiated the entire Immigration and Nationality Act (INA) and has declared a de facto open border.…​ We are shredding every word of the INA and processing and releasing almost all of these people, even those who don’t express a credible fear, rather than immediately placing [and keeping] them in expedited deportation.”[2]

The Extremely Low Percentage of Arriving Aliens Possibly Qualifying for Asylum

Another pivotal misconception which our media and Executive Branch have fostered is the notion that people fleeing violence or poverty in Central America are legitimate refugees. In fact, virtually none of them are. Rather, what they are is “economic refugees.” But the criterion which our law applies for refugee status (and thus asylum), is whether the alien has a “credible fear of persecution” — as that phrase is defined, very precisely, in our immigration law.

The crucial part of that definition to understand is the term “persecution”: Once you know the technical sense of that, you may understand why practically no one fleeing violence, poverty, disease, or what have you in Central America (or in Mexico) satisfies our law’s criterion for such a “credible fear.”

Here is our law’s criterion for a “refugee” — including what qualifies as “persecution,” in this context (emphasis in highlighted bold ours):

any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

That definition is in Title 8, §1101(a)(42)(A) — which section, and which definition of “refugee,” are then referred to in §1158, “Asylum.”

So, if that’s what a refugee is, what exact level of proof makes it “credible” (in this sense) that a person has a “well-founded fear” of such persecution? Title 8, §1225(b)(1)(B)(v) gives this definition (emphasis in highlighted bold ours):

[T]he term “credible fear of persecution” means that there is a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien’s claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum under section 1158 of this title.

What constitutes a “significant possibility” is undefined in the immigration law, and the standard has not yet been discussed in immigration case law. However, a USCIS (U.S. Citizenship and Immigration Services) Basic Training Course for asylum officers has a helpful discussion of what constitutes that “standard of proof.”[3] After reminding readers that the alien is “the party who bears the burden of proof,” and discussing a range of “different standards of proof [which] are relevant in the immigration context,” this training course says that the “significant possibility” standard requires the person bearing the burden of proof to “demonstrate a substantial and realistic possibility of succeeding” in establishing eligibility for asylum under section 1158.  [Emphasis in original.]

Now, Central America countries — and Mexico, for that matter — are each made up of such a homogeneous mass of people, with regard to race, culture, and so forth, that these countries’ likelihood of having “persecution” for any of the above reasons is miniscule or non-existent. It is therefore (to use the USCIS training course’s terms) “a claim that has ‘no possibility of success,’ or only a ‘minimal or mere possibility of success,’ [and thus] would not meet the ‘significant possibility’ standard.”

Daniel Horowitz concurs:

This law was clearly written for a situation where a group is facing religious persecution, such as the Yazidis in Iraq. Nobody can say with a straight face that any of these people coming from the Central American triangle meet any of these five conditions [viz., persecution on account of race, religion, nationality, membership in a particular social group, or political opinion]. These are some of the most homogeneous countries in the world. There is no religious or ethnic persecution. And it is quite laughable to assume they are being persecuted for political opinions. Those teeming across our border are not a bunch of Madisonians railing against the lack of free markets in Honduras. — Daniel Horowitz, How Trump can protect the border without Congress

Jeff Sessions, former U.S. Atty. General

Thus, it’s clear that the legal standard of proof is being misapplied in credible-fear determinations — with disastrous results. Even Atty. General Jeff Sessions, speaking in October 2017, admitted that the credible-fear adjudication process was being “gamed”:

[T]he adjudication process is broken as well. DHS found a credible fear in 88 percent of claims adjudicated. That means an alien entering the United States illegally has an 88 percent chance to avoid expedited removal simply by claiming a fear of return.

But even more telling, half of those that pass that screening—​the very people who say they came here seeking asylum—​never even file an asylum application once they are in the United States. This suggests they knew their asylum claims lacked merit and that their claim of fear was simply a ruse to enter the country illegally.…​

The system is being gamed. The credible fear process was intended to be a lifeline for persons facing serious persecution. But it has become an easy ticket to illegal entry into the United States.…​

Our asylum laws are meant to protect those who because of characteristics like their race, religion, nationality, or political opinions cannot find protection in their home countries. They were never intended to provide asylum to all those who fear generalized violence, crime, personal vendettas, or a lack of job prospects. Yet, vague, insubstantial, and subjective claims have swamped our system.…​

… As one immigration judge recently told me about the credible fear process, “any adjudicatory system with a grant rate of nearly 90 percent is inherently flawed.” …​ We can elevate the threshold standard of proof in credible fear interviews.[4]

OK; but if they can elevate it — why haven’t they done so? According to Jessica Vaughan of the Center for Immigration Studies, there have been “reports from whistleblowers at USCIS who say that [USCIS] asylum officers [currently the ones handling all fear-claim interviews] have been instructed by resistant career supervisors to ignore efforts by the Trump administration to return to deciding these cases according to the letter and intent of the law.”[5]

The Necessity that Arriving Aliens Pass a “Credible Fear” Interview or Review

Yet another misconception which media and Executive Branch officials promote is the idea that any arriving alien can just claim a “credible fear,” and they will be released to await their asylum hearing. That is, the media never make clear that arriving aliens who cannot show valid documentation of legal immigration status are each put, immediately, into “Expedited Removal Proceedings” — and kept there until removal, unless that arriving alien instigates and passes a “credible fear interview,” (or an administrative review of that interview).

In short, as long as the alien is in Expedited Removal, they are held in mandatory detention. Thus, there is no question at all of some alien, having just arrived, being “caught and released” legally.

There is a lawful process which is, sometimes, informally classified as “catch and release” — but more properly called, “parole” — but one must argue that, administratively, in many cases it’s given too eagerly after a determination of “credible fear.”.[6] But neither that legal procedure, nor any “asylum hearing,” is available legally to “arriving aliens” by their simply showing up and claiming a “credible fear” of persecution.

Rather, an “asylum officer” (who is from USCIS, as things are working currently,) conducts an “interview” regarding the alien’s credible-fear claim; and based on this interview, makes a determination regarding this claim. If that determination goes against the alien, and he or she wants to contest it, they can ask for an “administrative review” — which will be before an EOIR “immigration judge.” But all of that happens as part of what’s called “Expedited Removal Proceedings,” into which all “arriving aliens” (and some others) who have no documentation of legal immigrant status are placed automatically.[7] (An important qualification: “Expedited Removal” is not the process which the law stipulates for “unaccompanied alien children,” or “UACs”; we discuss those in a separate, companion post.) And detention is mandatory all through those proceedings, according to the law.[8]

In contrast, an “asylum hearing” does not happen for any such (adult) “arriving alien” unless the alien has been determined (during expedited removal) to have a “credible fear of persecution,” and been therefore removed from “expedited removal” proceedings and placed into “formal removal proceedings,” and allowed to make formal application for asylum. And only once they’ve made such application are they eligible for “parole.” And that is what so-called catch-and-release is, for “arriving aliens” — a “parole,” under Title 8 §1182(d)(5).

Legally, then, they cannot be paroled until they’ve been “determined” to have a “credible fear of persecution.” All of which implies that if they fail in that determination — and virtually all Central Americans would fail, were the determination conducted according to statute — then there’d be no question of our immigration authorities ever paroling them, legally, into our country. Ending the fraudulent determinations that these aliens have a “credible fear” would, therefore, end their “catch and release.”

Locating Our Immigration-System’s Real “Breakage”

Besides those related to asylum, there are other alleged “catch and release loopholes” which need addressing as well, such as those pertaining to “unaccompanied minors” — all of which we discuss in a companion post. Taking also those into account, we could summarize the “immigration loopholes” situation this way:

  • The DHS and DOJ are applying an inexcusably and illegally low standard of legal proof, in their credible-fear determinations. And this is the only reason that the vast majority of adult arriving aliens from Mexico or Central America are allowed out of Expedited Removal — with its mandatory detention — and (then) considered for parole (one kind of “catch and release”).
  • As we discuss in our companion post, the government is granting a thoroughly undeserved deference to the dubious features of Judge Gee’s 2015 ruling(s) on the FSA (Flores Settlement Agreement) — including a pivotal one that the Appeals Court overturned! And this is the only reason the government is saying that it must release minors within 20 days — and that it must release whole alien families that happen to include a minor.

Contrary to representations by the president, DHS administrators, and media, though, none of this is a matter of immigration law, or of the FSA (which has the force of law). Furthermore, even if the law did have an actual “loophole,” the president would not thereby be prevented from using his full, plenary authority to restrict — or even to shut down — immigration!

Thus, the loophole-skeptics are correct: there is no law-problem; there’s only an implementation-of-law problem, a lack-of-enforcement problem.[9] In short, contrary to repeated claims by the Executive Branch and the media, the president has by no means required Congress to close alleged “loopholes,” in order to secure our border.

Of course, there are logistical challenges to stemming the current flood. But historically, the hope of catch-and-release has created most of the “magnet” attracting immigrants. And removing the main “pull” factor — that magnet — would have no less impact on the flow than had the mere anticipation of catch-and-release ending, which anticipation slowed immigration dramatically in the wake of Trump’s 2016 election. The logistical challenges could then be handled, as we have handled them in similar (if smaller) border crises time and time again.

Accounting for This Inversion of the Truth

The story of the immigration law’s culpability for our border crisis is so patently, undeniably false, that there is really only one way to account for its dominance in the media and Executive Branch statements: which is, orchestrated duplicity. More specifically: it is an agreed duplicity on the part of much — we’d estimate, most — of the media, and of many top administration officials, lower court federal judges — and even of many Congress-people, insofar as they remain silent in the face of this dangerous disinformation. But what could be motivating this orchestration of duplicity?

Well, if we recall that the Establishment — which controls most of the institutions spouting this story — wants open borders (as the FFS has often documented), then several plausible motives come to mind:

  1. Laying the blame on Congress and immigration law diverts the public’s attention from, and tends to keep them ignorant of, those places in which the system is indeed broken (namely, poor enforcement of the law) — which diversion is crucial for continuing or growing the crisis.
  2. Also, such misdirection has the potential — very appealing to the Establishment — of convincing the public (finally) that our immigration law needs a major overhaul — which overhaul, given Congress’s increasingly wishy-washy stance for strong borders, might well eviscerate our (heretofore basically sound) immigration law.
    • Even if failing to find consensus for a major overhaul (a.k.a. “comprehensive immigration reform”), those seeking open borders may find enough consensus for one or more “amnesties” — which helps keep the crisis boiling.
  3. Also, this crisis offers the ever-increasing possibility (again, appealing to the Establishment) of getting the public to accept an international “resolution” of the problem — which would make permanent of course, rather than repair, our loss of control of our border — through further bilateral agreements with Mexico and/or Central American countries, for example, or even reviving the development of a North American Union, and/or through inviting U.N. “Peacekeeping” troops in — “to help.” Any of those approaches to a “solution” would seriously sabotage our national sovereignty and independence.

There is, therefore, no reason to doubt that the current border crisis is intentional — created, not by Congress, but by conspiratorial elements controlling our media and Executive Branch (with supporting roles played by a few lower-court judges). And this lie about “immigration loopholes” is the main tactic keeping the public from realizing the true cause of the problem — which is intentionally inadequate enforcement by our government’s law-enforcement branch (the Executive).

What to Do

Clearly, the only way that this non-enforcement will be remedied, is for an informed, activated electorate to apply concerted pressure on the government to remedy it. But an electorate not informed, will certainly neither be activated. So, the widespread exposure of this fraudulent “loopholes” tactic is key. That is the most obvious mission we must undertake, therefore.

Less obvious is that we must also use such educational effort to grow — as rapidly as possible — the reach and level of understanding of the Internationalist, conspiratorial intrigue that is seeking to strangle our national sovereignty, independence, and freedom. Indeed, if we neglect this latter mission, then the public’s demand for border enforcement will continue to be betrayed, as it has been for decades.

Both of these are crucially important tasks. In pursuit of the first, if this article has been found enlightening and helpful, then it is certainly worthwhile to share it with friends and acquaintances.

Notes

1. And as such, they have no standing in courts mentioned in or created under the Constitution (in Article III). That is the basic reason the president is not subject to these courts’ rulings on immigration matters. However, note that the president does have a constitutional obligation to restrict immigration at least as much as the immigration law does — since he is responsible to enforce the laws. On the plenary authority of both “political” branches (i.e., the Legislative and Executive branches) over immigration, see the CRS (Congressional Research Service) Report 44969, “Overview of the Federal Government’s Power to Exclude Aliens”; and, for a much fuller and absorbing treatment, see chapters 4–​8 of Daniel Horowitz’s insightful 2016 book Stolen Sovereignty: How to Stop Unelected Judges from Transforming America, Washington, D.C.: WND Books.
2. It seems disingenuous, therefore, to imply that asylum-claims are “tying the hands of” the Border Patrol. What are actually tying their hands are: the taking care of immigrants who arrive sick or hurt themselves clambering over a barricade (an agent must also stay with the immigrant while he/she receives medical care); and also — believe it or not — the running a courier service, to bring in immigrants who are waiting on the other side of the wall! This astonishing DHS policy forced Mr. Horowitz to ask: “[I]f we actively bring in even the illegal immigrants standing outside the fence and believe it is our duty to do so, then what would change if we had more walls?”
3. The training course is cited, on this matter, by the CRS (Congressional Research Service) “Legal Sidebar” 10150, “An Overview of U.S. Immigration Laws Regulating the Admission and Exclusion of Aliens at the Border.”
4. Andrew Arthur of CIS reported that “Credible fear is found in 75 to 90 percent of all cases reviewed by asylum officers.”
5. The quotation is via Daniel Horowitz. Ms. Vaughan suggests strongly, as a remedy for this perfidy, that Border Patrol agents, who are valid “immigration officers,” be trained therefore also as Asylum Officers — the kind of immigration officer which the law requires to conduct all credible-fear interviews — and then be allowed to handle such interviews, rather than being forced to hand over all credible-fear claimants to USCIS Asylum Officers. Brandon Judd, head of the Border Patrol union (NBPC) is strongly in favor of that as well — as is Daniel Horowitz.
6. The reasons for which the regulations and/or administration allow such a parole have traveled a long way from what the law stipulates: The law’s criterion for parole is that it must be for “urgent humanitarian reasons” or “significant public benefit.” But the federal regulations (at 8 C.F.R. §212.5(b)(5)) make the nonsensical determination that this criterion for parole is satisfied for an alien “whose continued detention is not in the public interest.” (Why would it ever not be “in the public interest,” to detain until their removal aliens who have — according to our immigration law — no legal status or permission to be here?) Then, ICE Directive 11002.1 establishes that criterion as automagically satisfied for aliens found to have a “credible fear.” However, one weighty proviso in the regulations — carried over into the Directive — is also being cynically overlooked: the parole is to be awarded only “provided the aliens present neither a security risk nor a risk of absconding.”
7. A helpful, brief summary of the various proceedings, rules, and laws pertinent to admission or exclusion of aliens is available in the CRS (Congressional Research Service) “Legal Sidebar” 10150 — although it exaggerates the power and significance of the FSA, and especially of Judge Gee’s 2015 ruling (on which, see our companion post). This author found even more useful a pictorial representation of the different legal statuses “arriving aliens” go through, related to “expedited removal proceedings”; and so, has diagrammed the various state-changes — and events causing them — in the form of a UML “state-machine” diagram, which one may download from our server. (For any shortcomings of this state-diagram, the author is of course responsible.)
8. Nor can any lengthy delay precede any “administrative review” of their credible-fear interview’s determination: On the contrary, according to the law, this review “shall be concluded as expeditiously as possible, to the maximum extent practicable within 24 hours, but in no case later than 7 days after the date of the determination.”
9. However, something was put into law, so to speak, which was a sort of “loophole”; but it was not in immigration law, but in a short-term funding bill — and not until this year. That was the horrible stipulation, as to expenditure of the funds, in sec. 224(a) of the budget bill Trump signed on February 15. Thankfully, this toxic provision expires when the funding expires — at the end of September.

Democracy, Tyranny, and the NPV Compact

“The Constitution is nicely balanced, with the federative and popular principles; the Senate are the guardians of the former, and the House of Representatives of the latter; and any attempts to destroy this balance, under whatever specious names or pretenses they may be presented, should be watched with a jealous eye.” — Senator Uriah Tracy, in the U.S. Senate debates over the proposed 12th Amendment (adopted 1804)

“The mode of appointment of the chief magistrate of the United States is almost the only part of the system, of any consequence, which has escaped without severe censure, or which has received the slightest mark of approbation from its opponents. The most plausible of these, who has appeared in print, has even deigned to admit that the election of the president is pretty well guarded. I venture somewhat further, and hesitate not to affirm, that if the manner of it be not perfect, it is at least excellent. It unites in an eminent degree all the advantages, the union of which was to be wished for.” — Alexander Hamilton, Federalist No. 68

“No matter what happens in America these days — whether by fate or by plan — there is almost always another agenda or some underlying hitch ancillary to the main theme. The Bush-Gore election crisis of 2000 was nothing but a comic opera compared to the events subsequently stemming from it. Among the far more serious evils attributable to the contested election result in Florida is a loud and clear trumpet call for America to DUMP THE ELECTORAL COLLEGE and replace it with direct national elections.” — Don Fotheringham, January, 2001

Overview: The National Popular Vote (NPV) interstate compact seeks to overturn an important part of the plan America’s founders gave us for selecting a president. The drive for the compact is well on its way to becoming reality.  Working below the public radar, the drive has already convinced many state legislatures to join the compact.  This scheme has flourished because it promises to further enthrone the false idol “democracy,” which our founders recognized as a tool of tyrants (we are a Republic, a rule of law, not a democracy).  In this article, we will examine the beguiling NPV pretenses, the original plan of those who wrote our Constitution, how their plan has already been perverted, and why the NPV Compact is a dangerous step in the wrong direction.  And most importantly we will provide readers with the information and perspective they will need to influence legislators in their state to resist the drive.

Anyone researching the drive for an NPV (National Popular Vote) compact between states confronts a bewildering paradox:

  • As the NPV website says openly: “The shortcomings of the current system of electing the President stem [not from the Electoral College, but rather] from ‘winner-take-all’ laws that have been enacted by state legislatures in 48 states.”
  • Yet, what the NPV compact does, in essence, is not to repeal or neutralize these state laws, but instead to translate this “winner-take-all” electoral system from the state-vote level to the national-vote level!

Clearly, there’s more going on here than meets the eye: A national drive which would nullify the Electoral College — without actually abolishing it — justifies its agenda by a critique that points rather to a very different, almost diametrically opposite solution. If we’re to understand the NPV-compact drive, this paradox needs an explanation.

What are the drive’s complaints, then? Why is the Electoral College immune to the critique? Why, and when, did the states’ “winner-take-all” laws arise? And, why does the NPV seek to rectify them with such a strange, unseemly antidote? In answering these questions, we shall draw heavily on the NPV’s own website — mainly to deflect suspicion that we are misrepresenting their position.

The NPV Website’s Complaints
To its credit, the NPV website’s helpful “explanation” page attributes only to state “winner-take-all” laws — rather than to the Electoral College — the situations which it decries. It is quite correct in blaming these situations on these state laws — which have strongly interfered with the functioning and fundamental intent of the (so-called) Electoral College which the Constitution outlines — and, in saying that these state laws have no basis in the Constitution.

The complaints which one finds on this webpage are curious, though, in that clearly they are based on policy-values having little to do with the foundational American system and philosophy of government. Consequently, for those of us not starting from alien, non-American values, the three “issues” the group raises are without force — even if their connections of cause and effect are valid.

The two complaints which the webpage lists first will unlikely tug on the heartstrings of many: One is that “Because of these state winner-take-all statutes, presidential candidates have no reason to pay attention to the issues of concern to voters in states where the statewide outcome is a foregone conclusion.”

This complaint assumes — quite contrary to America’s founding fathers — that campaigning and getting voter-input are both vital parts of a presidential election. Moreover, it makes the outlandish assumption that an electoral candidate who does campaign should be careful to do so just as much in districts where support is overwhelmingly for or against that candidate. (What political campaign-advisor ever urged such a thing?)

The second complaint is scarcely more captivating: “State winner-take-all statutes adversely affect governance. ‘Battleground’ states receive 7% more federal grants than ‘spectator’ states, twice as many presidential disaster declarations, more Superfund enforcement exemptions, and more No Child Left Behind law exemptions.” But given that all these examples of skewed “governance” are unconstitutional, gratuitous, and illegitimate to begin with, blaming them on the electoral laws seems off-target.

The complaint which people will most likely have heard, the website expresses thus:

“[B]ecause of state winner-take-all statutes, five of our 45 Presidents have come into office without having won the most popular votes nationwide. The 2000 and 2016 elections are the most recent examples of elections in which a second-place candidate won the White House. Near-misses are also common under the current state-by-state winner-take-all method of awarding electoral votes. A shift of 59,393 votes in Ohio in 2004 would have elected John Kerry despite President Bush’s nationwide lead of over 3,000,000 votes.”

Interestingly, this complaint is non-partisan: The data the webpage cites show clearly that Republican candidates may be affected by this phenomenon as well as may Democrats.

However, the complaint is also non-American, in the sense that it is based wholly on a non-American political-philosophical assumption — the bare, unargued assumption that presidents should not “come into office without having won the most popular votes nationwide.” The website neglects to elucidate why such an occurrence would be reprehensible.

More fundamentally, it fails to explain why there should be, in any U.S. presidential election, such a number as the “popular votes nationwide.” Nowhere does the Constitution suggest this — not even in the 12th Amendment (which modified the workings of the Electoral College). However, understanding this requires at least a basic overview of the Electoral College, as the Constitution establishes it — a detour which we shall now briefly take.

The “Electoral College”
Regrettably, that NPV webpage seems to buy into the primary misconception Americans hold about the Electoral College: for it states [emphasis ours]:

“The U.S. Constitution (Article II, Section 1) gives the states exclusive control over awarding their electoral votes: ‘Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….’ The winner-take-all method of awarding electoral votes is state law. It is not in the U.S. Constitution.”

On the contrary — not only is the “winner-take-all method of awarding electoral votes … not in the U.S. Constitution,” neither is this whole, bizarre notion of state legislatures’ “awarding their electoral votes.”

The “electors” which the Constitution directs each state to appoint were not “messenger-boys” obligated to cast votes as directed; rather, they were the persons appointed in each state (in whatever way the state legislature chose), to cast their free, uncoerced votes to nominate other persons they deemed suitable for the offices of president and vice-president.[1] Except when a majority of the electors voted for the same person, the election of the president — from among the candidates with the most electoral votes — was then to be made by the House of Representatives — with each state’s delegation casting one vote.[2]

It is crucial to understand that neither in the original Constitution, nor under the 12th Amendment, were electors to be obligated, or even influenced, by either their state legislatures, or other Electors (from their own or other states):

“It is significant to note that there was to be no connection with the Electors of other states, no campaigning, no trading of votes for future influence, or “supporting your program if you support mine.” They were to give it their best shot first — because that was the only shot they had.

“In fact, the Electors met in their separate states on the same day to avoid the chance of collaborating with the Electors from other states during this process. The Electors in each state were able to freely discuss among themselves which individuals were most qualified to be president. They were not, however, forced to conform to the nominations of other Electors from their state. Each Elector’s independent decision of which two individuals to nominate was preserved and respected.” — Gary and Carolyn Alder, The Evolution and Destruction of the Original Electoral College, pp. 23, 24

In order to help ensure this independence, no elector could be a “Senator or Representative, or person holding an office of trust or profit under the United States.”

Each state was allotted as many electoral votes as it has legislators in Congress — i.e., one vote for each of its representatives in the House, plus two votes for the state’s senators. Perhaps the most natural selection method(s), then, would construe two of the state’s electors as being delegates of the state (or the legislature) as a whole, and each remaining elector as a delegate from one of the state’s electoral districts for U.S. House of Representatives.

The latter is still the basic idea in those states which are currently eschewing “winner-take-all” laws: Maine and Nebraska. But each state legislature could adopt any method it wished for selection of its electors; and different states adopted widely varying methods. The NPV “explanation” webpage reports:

“In 1789, electors were chosen from congressional districts in Massachusetts, from special presidential-elector districts in Virginia, and by counties in Delaware. The Governor and his Council appointed the state’s presidential electors in New Jersey. State legislatures appointed presidential electors in the other states.”

The States’ “Winner-Take-All” Laws
We’ve noted that the NPV website’s arguments against states’ “winner-take-all” laws are, rather curiously, without force for those of us not buying into their policy-value assumptions — so alien to the American system. However, this does not mean that we have no complaint(s) of our own, against such laws.

In light of what we’ve just seen about the Constitution’s presidential-electoral system (commonly called the “Electoral College”), the most important thing to understand about “winner-take-all” laws is that any law (state or federal) which compels a presidential elector to vote any particular way is blatantly unconstitutional! That includes, of course, the NPV Compact.

Secondly, it’s helpful to note that such laws, at the state level, are the basis of the unconstitutional party-based-presidential-nomination systems in the 48 states with current “winner-take-all” laws. In these states, the electoral procedure these days is basically this: Each of the major parties selects a whole roster of provisional “electors” who are ready and sworn to serve as electors — and to vote for that party’s candidate — should that candidate happen to win the state’s popular vote. In the latter eventuality, the state legislature then anoints (so to speak) that party’s roster, as the state’s official electors for the election.

The nomination-function was originally the role of the electors. It was usurped first at the national level — by what were called “congressional caucuses.” By 1828, though, the usurpation had moved to the state level: The first election year in which the political parties and their “caucus” meetings at the state level assumed control of the nominating process, was 1832.[3]

Surprisingly, it took less time than that for most states to try out a “winner-take-all” type of statute. The first heavily competitive election, that of 1796, raised strongly the question of whether states’ electors should be chosen “by a general ticket [winner-take-all], or by districts”:  This was how Democratic-Republican candidate Thomas Jefferson framed the issue in a subsequent letter (Jan. 12, 1800) to James Monroe, then governor of Virginia — and likewise a Democratic-Republican.

Jefferson was still smarting from having lost the presidency by only three electoral votes “because presidential electors were chosen by district in the heavily Jeffersonian states of Virginia and North Carolina, and Jefferson lost one district in each state.”[4] In addition, both major parties (Democratic-Republican and Federalist) were disgruntled by the fact that the Electoral College system had engendered a bipartisan team of President (Federalist John Adams) and Vice-President (Democratic-Republican Thomas Jefferson).[5]

In his letter, Jefferson mentioned to Governor Monroe:

“On the subject of an election by a general ticket [winner-take-all], or by districts, … all agree that an election by districts would be best, if it could be general [to all states]; but while 10 states choose either by their legislatures or by a general ticket [winner-take-all], it is folly and worse than folly for the other 6 not to do it.”

Gov. Monroe took the hint, and the Virginia legislature swung into action:

“As a result, Virginia quickly passed a winner-take-all law in time for the 1800 election —​ thereby assuring Jefferson of all the state’s electoral votes.

“Meanwhile, the Federalist majority in the legislature of John Adam’s home state of Massachusetts —​ alarmed by rising support for Jefferson in the state —​ repealed the state’s district system —​ thereby assuring John Adams of all the state’s electoral votes in 1800.

“This triggered a domino effect in which each state’s dominant political party adopted winner-take-all so that it could deliver the maximum number of electoral votes to its party’s nominee. Ten states enacted winner-take-all by 1824….

“By 1836, all but one state had enacted laws specifying that their state’s voters would vote for presidential electors on a winner-take-all basis. By 1880, all states were using this system.”[6] — NPV “explanation” webpage

And, as they say, “the rest is history.”

The Strange “NPV” Antidote
Summing up: We’ve found that we who are Constitutionalists are in strong agreement with the NPV group, that the state “winner-take-all” laws are egregious — but we are in fundamental disagreement with them, as to why those laws are (in our respective views) egregious. What is less simple to elucidate, though, is why the NPV group’s action-proposal — the interstate-compact which they are pushing — displays no intent to do away with those state laws, even though it lodged all its complaints directly against them — and why it is even, in an important sense, a higher-level establishment of the same corrupt, “winner-take-all” system which those laws undergird.

What do we mean, by its “displaying no intent” to do away with the laws it is critiquing? Let’s look at exactly what the NPV group is proposing.

They are seeking for states to enter into a compact to force their electors to vote for whomever is the winner of the “National Popular Vote.” The compact would not be binding on any state signing it, until the total number of electoral votes of the states signing it is a majority of all the electoral votes.

Since Congress has 535 members, but the District of Columbia has also been given three electors, the total number of electors is 538; so, the required majority of electors is 270. When the compact enrolls states controlling at least that number of electors and those states’ electors are therefore required to vote for the national popular-vote winner, that candidate is (ostensibly) guaranteed election.

As we’ve mentioned already, this proposal is establishing something that’s clearly unconstitutional — the violation of electors’ constitutional right and duty to nominate the qualified persons whom their conscience tells them are the best nominees. That this is so clearly and incontrovertibly the case, while the NPV site argues nevertheless to the contrary, raises serious questions about the veracity and reliability of the NPV-site’s authors (and editors).

Even the NPV website admits (see its alleged “rebuttals” 9.16.2 and 9.16.7):

“[T]he Compacts Clause does not expand state powers. All compacts must be consistent with the U.S. Constitution. In particular, a compact’s subject matter must be among the powers that the states are permitted to exercise….”

As we’ve seen as well, though, they make a grave, even bizarre error, in conflating states’ (constitutional) power to “appoint electors” in any manner they wish, with their (unconstitutional, illegal) power to “award electoral votes” in (allegedly) any way they wish (e.g., “winner-take-all”). And this bizarre confusion appears, not just once, but repeatedly on the website’s pages — particularly on the pages where it is ostensibly “answering myths.”

On the basis of that (false) conflation of two very different notions, it argues that this compact does not violate the Constitution, nor change the electoral procedure stipulated in the Constitution. Much of the verbiage on its “Myths about Interstate Compacts and Congressional Consent” page boils down to this simple, but obviously unsound argument:

  1. “[T]he National Popular Vote compact does not change anything in the U.S. Constitution, and therefore no federal constitutional amendment is necessary …. Instead, the National Popular Vote compact changes state winner-take-all statutes that came into widespread use more than four decades after the Constitution was ratified. None of these state winner-take-all statutes was originally adopted by means of a federal constitutional amendment.” (Under “Myth 9.16.7”)
    1.  The state laws say (in effect): “Following the election, the state will appoint electors who are to cast all their votes for the STATE popular vote winner.”
    2.  The compact changes these state laws, to say (in effect): “Following the election, electors will be appointed in each Member State who are to cast all their votes for the NATIONAL popular vote winner.
  2. (And this is the faulty premise:) Nothing about state “winner-take-all” laws violates the actual procedural requirements laid down in the Constitution; for each state has the Constitutional authority to “award electoral votes” in any way it wishes (e.g., “winner-take-all”).
  3. So, no Constitutional amendment is necessary to effect this change: for not only does this compact leave unchanged the wording of the Constitution; also,it leaves unchanged — i.e., unviolated — the actual procedure required by the Constitution.

Thus, not only are the NPV group’s arguments for the desirability of its changes  based on highly disputable premises; but also, its argument for the legality of its changes, is based on an indisputably false one. So, the question is: Why would a group of presumably intelligent people be presenting — so zealously — such unsound arguments?

There are not very many plausible answers to this. Indeed, we have seen that both the current system’s and the NPV-engineered system’s proponents are quite comfortable with running roughshod over the Constitutional prerogatives of the electors, for the sake of a direct, popular-vote-based presidential election. The difference between the two is thus a surface difference, of implementation and tactics, only.

Let’s take an analogy: It is much like the difference between banks independently allowed to issue their own fiat paper money as “legal tender,” and a centralized banking system, in which only the head office is allowed that piratic privilege. Whether centralized and thus more-coordinated or not, the system is based on a breach of rights. And in either of the more-centralized systems we have in view, though the bumpiness of the road might be rather smoothed out, the danger that the road is heading to disaster — and the potential size of that disaster — are,if anything, actually greater.

The only plausible motive for the compact, it seems, is the same one that belonged, reportedly, to the men who set up the perverted system we have now — the lure of power:

“Ten states enacted winner-take-all by 1824 when Missouri Senator Thomas Hart Benton said: ‘The general ticket system [winner-take-all], now existing in 10 States was … not [the offspring] of any disposition to give fair play to the will of the people. It was adopted by the leading men of those states, to enable them to consolidate the vote of the State.’”— NPV “explanation” webpage

This lure exists because granting the populace the conceit that it is in their own values and desires, and the vicissitudes of party temper, that the compass of sound government lies, promises demagogues a road to the heights of tyrannical power. Even before our Constitution was submitted for ratification, one founding father spoke of this conceit as the “excess of democracy”, and described its typical abuse by power-seekers:

“The evils we experience flow from the excess of democracy. The people do not want [lack] virtue, but are the dupes of pretended patriots. In Mass[achusetts] it had been fully confirmed by experience that they are daily misled into the most baneful measures and opinions by the false reports circulated by designing men, and which no one on the spot can refute.” — Elbridge Gerry, delegate from Massachusetts, speaking at the Constitutional Convention, 1787

And James Madison warned us of this same conceit, in a classic statement of the dangers of this “excess”:

“[Pure] 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.”— James Madison, Federalist Paper No. 10

The Way Forward
What should be done, instead, about our current electoral system? Given a desideratum of nullifying state’s “winner-take-all” laws — and any laws that coerce or obligate presidential electors — and given that it was fear of other states’ such laws that drove the domino effect of passing them — the idea of a state compact seems apt: Why not an NEV (National Electoral Vote) compact? When enough states have joined (having 270 electoral votes?), they would each be obliged to rescind immediately their laws that coerce or obligate their presidential electors in any way.

That’s something to be thought about, and worked through. In the meantime, though, we should certainly reject the NPV-group’s agenda. That whole program is an attempt to “remedy” — for the wrong reasons, and with the wrong motive — one grotesque perversion of the Constitution, simply by translating its basic state-vote infringement, to a national-vote scope. This is not the way to get our republic back.

Rather, we need to educate our fellow citizens, and especially our state legislators, about both the fraudulence and the ill-intention of the NPV. (To see whether or not your state has adopted the compact, please check the NPV website’s home-page.) If you have found this article a useful tool for education about those things, please share it with all who need to learn of them.

Notes

1. Their votes were, of course, restricted by the Constitution’s rules about who is eligible to be President or Vice-President; and, in both Article II and Amendment 12, at least one of each elector’s two votes had to be for someone not “an inhabitant of the same State with themselves.”
2. The main change the 12th Amendment introduced is that the two nominations each elector made were now specific to a particular office: one nomination was for the office of president, and the other for the office of vice-president. Also, the Amendment made some minor adjustments to the process of final selection by the House, for each of these offices.
3. Alder & Alder, Ibid., pp. 54, 55. This is a useful book for studying the history of the Electoral College.
4. NPV “explanation” webpage, under “History of State Winner-Take-All Laws.”
5. Alder & Alder, Ibid., pp. 60, 61.
6. Maine adopted district elections for its electors in 1969, and Nebraska did so in 1992.