“Patriotenemies”

March 25, 2016March 26, 2016 Frank Kuchar

Those of us in the conservative movement find ourselves in a heated and an unfortunate (many times) acrimonious political campaign. Many may think that such is a decline in our political process, but such could not be further from the truth.

I imagine many individuals look upon our founding fathers, though flawed individuals as we all are, as paragons of political wisdom (which they were) and united in the quest for liberty and the establishment of our republic. If that is your perception, allow me to share just a few quotes to forever dispel that thought from your mind. There were numerous rivalries and harsh feelings among many of our foremost founders.

It is no secret of the animosity that existed between Alexander Hamilton and Thomas Jefferson, yet here are the thoughts of James Madison on some of the other founders that may shock you:

“Hancock is weak ambitious a courtier of popularity given to low intrigue and lately reunited by a factious friendship with S. Adams–J. Adams has made himself obnoxious to many particularly in the Southern states by the political principles avowed in this book. Others recollecting his cabal during the war against General Washington knowing his extravagant self importance and considering his preference of an unprofitable dignity to some place of emolument better adapted to private fortune as prof of his having an eye to the presidency conclude that he would not be a very cordial second to the general and that an impatient ambition might even intrigue for a premature advancement. The danger would be the greater if particular factious characters as may be the case, should get into the public councils.” (James Madison, letter to Thomas Jefferson, October 17, 1788)

As for the enmity between Jefferson and Hamilton, consider these words Jefferson penned in a letter to President Washington on September 9, 1792:

“To this justification of opinions, expressed in the way of conversation, against the views of Colo Hamilton, I beg leave to add some notice of his late charges against me in Fenno’s gazette; for neither the stile, matter, nor venom of the pieces alluded to can leave a doubt of their author. Spelling my name & character at full length to the public, while he conceals his own under the signature of “an American” he charges me 1. With…”

They also had the same complaints with the press that many decry today. For example, in a letter to George Washington on October 18, 1787, Madison wrote:

“The Newspapers here begin to teem with vehement & virulent calumniations of the proposed Govt.”

There was also the falling out between the two authors of The Federalist Papers, Madison and Hamilton, that became quite heated as they exchanged essays published from 1793-1794 regarding the role of the presidency and legislature in foreign policy matters.

John Adams and Thomas Jefferson became so estranged from one another that they refused to communicate with one another for over twenty years, before being reconciled shortly before their deaths. Their reconciliation was such that when Adams died on July 4, 1826, his last words were “Thomas Jefferson still survives”, not knowing Jefferson had died five hours earlier.

So you see, our current animosity, though unfortunate, is certainly not new. My hope and prayer is that once this primary season is finished, we can be of the same mind as Adams and Jefferson on that semi-centennial day of the signing of our Declaration of Independence.

-March 25, 2016

Tax Reform – “Fair” versus “Just”

March 18, 2016 Frank Kuchar

A few nights ago I listened to pundits debating the tax proposals of some of the presidential candidates as to which was better. The word “fair” was repeatedly used in the discussion. In another interview, Ben and Jerry of ice cream fame (who support Senator Sanders) were asked if they thought his proposal of a 92% marginal tax rate was “fair”, to which they replied “yes”. The interviewer pressed them on this and inquired if they would accept such a high tax on themselves given the level of their incomes, and they replied “yes” again, as it would be fair to those who earned less for the rich to “pay their fair share” (I guess it never occurred to them that they could voluntarily pay that tax now without an oppressive governmental confiscatory policy).

But is a tax system supposed to be “fair”? What is “fair”? That is an elusive definition as it depends upon what part of the income spectrum you fall. Sure, some rich individuals like these two may mouth support for such rates, but their refusal to voluntarily pay those kind of taxes highlights their hypocrisy.

I would argue that a tax system should be “just” and not “fair.” You may consider the terms synonymous, and indeed we use them in our regular course of conversation as such. However, they are not the same. The concept of “fair” is really a perception based upon the subjectivity of those impacted by a given situation, such as two siblings arguing over whether or not at Christmas time they were both treated “fairly” in the gifts they received.

“Just”, on the other hand, is a determination based upon an objective source such as law. We go to court when we feel we have not been treated “fairly” in order to seek “justice.” Our founders did not seek to establish a government that would be “fair”, but rather one that would be “just.” James Madison wrote in The Federalist Number 51:

“Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit.”

Thus, according to Madison a tax system must be one that would comport itself to the concept of “justice.” So what would make for a “just” tax system? I submit that any tax on income of any kind is not a “just” system. In his Second Treatise of Government John Locke wrote

“every man has a property in his own person; this nobody has any right to but himself..labour being he unquestionable property of the labourer, no man but he can have a right to…”

To this Thomas Jefferson added in his first inaugural address:

“a wise and frugal Government, which shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned. This is the sum of good government,…”

It can be safely stated that any kind of an income tax system violates the statements made by these three great champions of personal liberty. Instead of arguing over this nebulous concept of a “fair” tax system, candidates should be setting forth their plans for a “just” tax system – which by the way has languished in Congress without a vote for two decades. This proposal involves the elimination of all income and payroll taxes and replaces it with a national consumption tax. Unfortunately it is commonly referred to as “The Fair Tax”, but it is a more “Just Tax” system. I want to be treated “justly”, for then I can say without equivocation that I have been also treated “fairly.”

-March 18, 2016

A Contrast of Pledges

March 11, 2016 Frank Kuchar

In the first paragraph of our Declaration of Independence it begins by unrolling a reference to human history as the canvass upon which the rest of the document will be painted. In the second paragraph it pivots to the principles that transcend human history as the bold brush with which what follows is to be painted and ends with a noble attestation.

Those who know anything of it usually can only recite some of the first sentence of that second paragraph and that closing phrase, but are totally unacquainted with the bulk of what comes in-between. Jefferson used a broad brush stroke to paint the background for the complaints of the colonies by painting the scene of government’s purpose and its relation to its citizens before returning to history to, with pinpoint strokes, sketch out the specifics of where the British government had failed in matching up to its obligatory “colors.”

Time and again he lays out the charge of the King’s (and Parliament’s) refusal to give heed to the concerns and welfare of the colonists. He enunciates this failure with one specific example after another and ties them back to their being a violation of the principles set forth in that second paragraph. If you take a few minutes to read them you can sense that many of these abuses could well be lodged against those who govern us in Washington, as well as in our state capitals and city halls.

However, a glaring contrast between now and then comes at the very end. After starting out with a reference to history, setting the foundation of unassailable principles, spelling out the particulars springing forth from them, Jefferson returns to the higher level of appealing to Him from whom the principles he enunciated spring from and closing with the noblest of pledges:

“we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.”

Today, however, we hear quibbling over whether or not a candidate pledges to support his opponent who defeats him in a primary. Candidates are expected to pledge allegiance to their party’s “platform”, while their big money donors expect them to also pledge to do their bidding once the candidate is elected. Lost in all of this is the idea of pledging lives, fortunes and sacred honor. An elected official is to serve, i.e., to devote a limited portion of their lives in serving the lives of his/her fellow citizens; yet all too often they end up serving their own welfare. Instead of expending their fortunes, they enrich their fortunes by manipulating their positions of power to extract riches from others they hold at ransom under threat of legislating oppressive government legislation and/or regulation. And finally, we seldom see among them any semblance of honor.

In my first run for Congress, I came home after midnight one evening and couldn’t go to sleep. I’d re-read the Declaration the day before and suddenly a modern version of it started coming to me, so I got up and hurriedly wrote the following Declaration that you can access here below. I hope you find it encouraging.

Declaration of Reclamation

-March 11, 2016

Why the Electoral College – Part IV

March 4, 2016 Frank Kuchar

Having covered the historical background of what we commonly refer to as the “electoral college,” the question now is “What advantages does it have over the approach of electing the president and vice-president by direct popular vote?”

As I explained in Parts I and II, the elector approach serves to protect the foundation principles of our system of government, namely republicanism and federalism.

Second, pure democracy will ultimately result in the oppression of minority interests by the majority. The electoral college is designed to protect the interests of those in the minority and in fact, to enhance their interests.

Third, it helps contribute to the political stability of the nation by encouraging the existence of multiple political parties – or at least to preserve a two-party system at a minimum.

Fourth, it helps maintain the unity of the nation because it requires a distribution of the popular support across the country. This means that a candidate for the office of president must compete for the votes of all of the citizenry across the nation.

Without these last two mechanisms in place the election of the president and vice-president would come to be dominated by the larger population centers or regions, thus ignoring huge swaths of the country. A direct corollary to this would be the eventual disappearance of political parties and a real choice of candidates from which the citizens could choose. In the scenario where the president would be elected by direct popular vote, one party would gain the pre-eminence in those heavily populated areas and thus become the victor in every election.

An analysis conducted by the Washington Post following the 2008 election demonstrated that were we to change to electing the president by direct popular vote, the Democrat party would be that dominate party since the densely populated cities and their surrounding areas are in the Democrat camp. Furthermore, most of the country and citizens in-between the two coasts, with the exception of a few major cities, would be ignored because they would not be a factor in the outcome of the election.

In the final analysis, to abolish the current system and replace it with a direct popular election would forever change our entire system of government. We would very quickly coalesce into a true “national” government, further reducing the existence of the states to a level of irrelevance. In a word, we would cease to be a federal republic (I know, in many respects we’ve already ceased to be one). This was a major fear of many of our founders when the Constitution was proposed and why they gave us this ingenious system we call “the electoral college.” I hope then that these four essays will help you understand why we must keep it intact and give you the information to better educate those you meet who think our system needs to be cast aside.

-March 4, 2016

Why the Electoral College – Part III

February 26, 2016 Frank Kuchar

As I outlined in Part II of this series, the electoral college was an ingenious compromise designed to preserve both the concepts of federalism and republicanism in the selection process for our president and vice-president. The intent was also to avoid the polarization by political parties by having non-committed electors select the best qualified individuals for these two offices. Unfortunately, this ideal only lasted for the first few election cycles.

It didn’t take long before political parties arose, and with them the bitter factionalism they tend to produce. This became evident in the election of 1800 in which the incumbent, John Adams (representing the Federalist Party) was opposed and defeated by Thomas Jefferson (representing the Democratic-Republican Party). The Federalists favored a strong central government whereas the Democratic-Republican Party favored a smaller, limited central government with the states holding most of the governmental power (sound familiar?).

By 1836 the two party system was well-established and several trends towards the system we see today had begun to emerge. One was the popular selection of the electors by all states (with the exception of South Carolina). With the move to state-wide popular vote for the electors came the “winner-take-all” approach to awarding all of the state’s electors to the candidate who won the popular vote. In 1831 the first truly “third party”, the Anti-Masonic Party, held the first presidential nominating convention in Baltimore where they selected not only their candidate for president, but also his “running mate” for the office of vice-president. The other major parties eventually followed suit, and from there it evolved to where the electors became tied to the candidates of their parties. This became more ingrained over the years until we finally ended up with our current method in the electoral selection process.

The uproar we’ve heard over the past couple of elections regarding one candidate winning the popular vote and losing the presidency in the electoral college is nothing new. There have been three instances in our history in which this has happened. In 1876 Democrat Samuel Tilden won the popular vote but lost the electoral vote to Republican Rutherford Hayes. In 1888, again the Democrat candidate, Grover Cleveland, won the popular vote yet lost to Republican Benjamin Harrison in the electoral college. Then in 2000 Democrat Al Gore lost the presidency to Republican George W. Bush in the electoral vote despite having a narrow margin in the popular vote. There have been other instances in which the winner in both categories had a narrow majority in the popular vote but a significant margin in the electoral college.

So, controversy over our process is nothing new. Next week we’ll examine the advantages of the electoral college system over that of direct popular vote.

-February 26, 2016

Why the Electoral College – Part II

February 19, 2016 Frank Kuchar

In Part I of this series I pointed out that although some of the founders felt the people could be trusted in the direct election of the executive officers, most did not. During the Constitutional Convention of 1787, many ideas were floated as to how to effect their election.

One suggestion was to have the Congress select the president and vice-president. This was dismissed on the grounds that it would make the president beholden to the legislature for his appointment and thereby failed the principle of “separation of powers.”

Another suggestion was to have the executives of the states select the president. It was argued that they would be more acquainted with the traits a “chief executive” would need as they themselves functioned to a lesser degree in that same capacity. This was rejected as it failed the test of “republicanism” – i.e., the people would be too far removed from the process.

The final compromise that we find in Article II Section 1 of the Constitution was to have the state legislatures select “electors” from among their citizens who would in turn vote for the president and vice-president. It was left up to the states to determine the method by which their electors would be chosen, including allowing the people to select them by popular vote (which five states – New Hampshire, Virginia, Delaware, Maryland and Pennsylvania – did in the very first election in which George Washington was chosen President).

This compromise preserved both the concepts of “federalism” (the states choosing the electors) and “republicanism” (the people either voting for the electors directly or having their elected state representatives appoint the electors). By moving the people one step from the selection process it helped alleviate the fear of Elbridge Gerry, a delegate from Massachusetts, which he had expressed during the Constitutional Convention in 1787 that “The people…would be misled by a few designing men.”

These electors were not like those appointed to this task today. They were individuals chosen based upon their maturity and wisdom in the affairs of the nation who would be of a character whose interest was what was best for the country. They were to be individuals who would have the ability to vet those whom they felt were noble candidates for these offices and select the one they felt was best qualified.

Consequently these electors were not part of a political party’s “slate of electors”, nor were they “pledged” to a particular candidate as they are today. They were to be completely independent and thus able to make a choice based upon the qualifications of those considered for the executive offices.

In Part III I’ll examine how we went from this ideal to what we have today.

Why the Electoral College – Part I

February 12, 2016February 12, 2016 Frank Kuchar

(I have been asked about the movement in some states for a direct election of the office of president and vice-president instead of through the electoral college. This is part I of a four part series I published in 2012 explaining why we do not elect those offices by direct election, how the system is supposed to work and how it has changed.)

Every presidential election we hear the question raised as to why we have such a strange way of selecting our president and vice-president. Many ask why we can’t just elect them via direct popular vote as we do our other elected officials, since that would be more “democratic.” Such a move to change our process to a national popular vote demonstrates a lack of understanding of both the kind of government we are supposed to be and the history behind the establishment of our Constitution. Because of this dearth of understanding among so many of our fellow citizens, it will take more than just one article for me to offer a defense of our electoral system.

The most glaring misunderstanding of our election system is demonstrated when people allege that it is not “democratic.” We are not a democracy, and those who talk about democracy fail to have an adequate understanding of it. Our founders did not establish a democracy – they gave us, in the words of Benjamin Franklin, a republic. The uniting of the concept of republicanism and federalism formed the unique basis for the new government established by the Constitution. It is this basis that lies at the heart of our unique method of electing the top officials in the executive branch.

There were a number of alternatives proposed during the debates in the Constitutional Convention of 1787 as to the best method to select a president and vice-president. There were some who did favor direct election by the people as they placed a great amount of faith in the people being astute enough to vet those for whom they would cast their vote. There were others, however, who held just the opposite view. In his notes on the debates, James Madison recorded that Elbridge Gerry, a delegate from Massachusetts, made this observation regarding the ability of the people to make such a judgment: “He was against a popular election. The people are uninformed, and would be misled by a few designing men.” Of those who held these two opposing views, I think we can safely say that Mr. Gerry got it right.

Consider the ignorance of so many voters as evidenced in many of the “man on the street” interviews on the internet and television and we can see how our current process is abysmal. As Theodore Roosevelt once said, “A vote is like a rifle: its usefulness depends upon the character of the user.” Next week I’ll turn to the reason why our system is grounded in the concepts of republicanism and federalism.

-February 12, 2016

Why the 9th Amendment?

February 5, 2016February 5, 2016 Frank Kuchar

When you read the ninth and tenth amendments, at first blush the ninth seems to be irrelevant because the same point appears to be repeated in the ending of the tenth. However, upon closer examination, the ninth is as important, if not more so, than the tenth.

These two amendments read, in order:

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.’

To understand why the ninth was inserted we need to return to the debate over whether or not a bill of rights was necessary. Alexander Hamilton argued against the wisdom of having a bill of rights in Federalist 84:

“It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was MAGNA CHARTA, obtained by the barons, sword in hand, from King John. Such were the subsequent confirmations of that charter by succeeding princes. Such was the Petition of Right assented to by Charles I., in the beginning of his reign. Such, also, was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of parliament called the Bill of Rights. It is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations.”

As you can see, Hamilton’s argument is one of exclusion or silence. To state that the government cannot do something implies that without that prohibition it would be authorized or empowered to do so. But, if there is no prohibition stated, it is understood that no authority or power in that area exists to begin with. However, the Anti-Federalists opposed the ratification of the Constitution unless there was a guarantee that a bill of rights would be added to the newly minted constitution upon the convening of the first congress, and so in that first congress James Madison pressed the Federalists who controlled it to follow through on that guarantee and send to the states for ratification what we now know as our Bill of Rights.

This brings us to the language of the amendment in question. The ninth amendment addresses “rights”, whereas the tenth deals with the delegation of “powers” – two very different concepts. The purpose of the ninth amendment is to shore up what Hamilton warned of in his Federalist essay, namely that just because not every right was specifically enumerated within the Constitution, it did not mean that the people had forfeited them to the control of the central government. It is a “catch-all” amendment prohibiting the general government from assuming control over rights which the people had never intended to delegate to it.

Since the ninth amendment addresses “rights” over which no man or entity has the leeway to usurp, it is even more critical than the tenth. We hear much trumpeting of the tenth amendment today, and rightfully so, but it is imperative that we also understand the even greater significance of the ninth and that we, the people, reassert our claim to it in the face of a government which violates it at every turn.

-February 5, 2016

The Federal Government’s Obligations to the States

January 29, 2016January 30, 2016 Frank Kuchar

When we look at the intrusiveness of the federal government into our lives, we should step back and ask “Where is my state government?” It was the states, acting as independent nation-states which agreed to join together as a union under a federal constitution instead of its then current confederacy. In so doing, they did not give up their independence or authority completely, but only in certain limited, defined areas. It was the intent of our founders that the state legislatures should be our protectors against assaults against our liberties and the authority of the states by the federal government, as noted by Alexander Hamilton in The Federalist No. 85:

“We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority.”

In examining the areas in which the federal government is to act in behalf of the states, they are limited (in broad manner) to the following:

From Article I, Section 8 of the Constitution:

To negotiate on behalf of the states with foreign nations in matters of commerce or other treaties;
To establish laws regulating naturalization as it relates to citizenship;
To coin money as a uniform standard of exchange among the states (an action prohibited to the states in Section 9);
To establish post offices and post roads between the states;
To provide for a military in defense of the states.

From Article III, Section 2:

To act as an arbitrator in disputes between two or more states.

From Article IV:

Section 2 – To guarantee the rights of citizens in each state are honored by the other states.
Section 4 –
- To guarantee that each state shall have a republican form of government;
- To protect the states from invasion and aiding in curbing domestic violence when requested by the legislature of the state in need of assistance.

In light of these I ask – “How’s the national government doing in regards to fulfilling its obligations?” I can’t see where it is earning a passing grade in any of these areas. Our biggest problem in the destruction of our liberties by the national government stems, I believe, from its utter rejection of its first obligation in Article IV, Section 4 above.

Consider the recent ruling of the SCOTUS on marriage in which it has forced states that have previously rejected recognition of gay marriage that they must do so. When citizens of a state through their representatives have said they do not wish to recognize such marriages are told by the national government they must, then the republican form of government in that state has been destroyed. Or again, if the citizens of a state through their legislators decide they wish to have restrictive gun laws, for the national government to step in and countermand the laws of that state, then once more, the republican form of government in that state has been destroyed.

There are many more such examples I could list similar to these two, but I hope you see the point. The federal government is restricted to a few and defined (in the words of James Madison) areas, and those left to the states are broad and undefined. I would submit that given the current condition of world affairs, the federal government should butt out of the business of the states and start concentrating on its obligations to the states, and that it is time for the states to start demanding that the federal government honor its obligations, starting with the one in Article IV, Section 4, Clause 1.

-January 29, 2016

This Land’s NOT Your Land, This Land’s NOT My Land…

January 29, 2016 Frank Kuchar

I remember singing “This land is your land, this land is my land” in elementary music classes, but my how the sentiment has changed from “is” to “not”! We have witnessed some startling developments as related to our Constitutional rights this past week in the confrontation between rancher Cliven Bundy and the Federal Department of the Bureau of Land Management. You can read the news stories and blog essays about what happened there but I want to take a few paragraphs to delve below the surface of these events.

(As an aside, in the standoff between armed citizens and those armed members of this government agency, we have witnessed the precise reason why we have the second amendment right to bear arms – to resist the tyrannical overreach of the central government as well as the further trampling upon our Constitutional right of free speech when these government agents limited such speech to only certain restricted areas.)

There are some basic Constitutionally-related issues that need to be addressed. First, who controls the land that is in dispute, and the corollary to it, who should control that land, Nevada or Washington DC? Second, should any government entity control the land to begin with? Third, if the land is “owned” by the state of Nevada, under what Constitutional authority does the federal government have in interfering with how the land is used?

Let us begin by turning to our Constitution and reading what properties it authorizes the general government to “own”. Article I Section 8 lists the “enumerated powers” of the general government, and within those powers are given the kinds of properties it may possess: (1) Post offices and post roads, (2) the District of the seat of the government, (3) Forts, (4) Magazines, (5) Arsenals, (6) Dockyards, and (7) other “needful” buildings. All of these properties were to be purchased by the general government upon the consent of legislature of the state from which the property was to be acquired. The Union of the States did acquire property by other means, namely purchasing land from foreign countries (e.g., the “Louisiana Purchase”, Alaska) or as a result of war (Arizona, New Mexico, California, etc). However, once these territories were divided into states, those states became as much a sovereign entity as the original thirteen. Further, Article IV, Section 3 states that Congress shall have the power to either dispose of its territory or property as well as “make all needful Rules and Regulations” regarding said territory.

The general government owns approximately 85% of the state of Nevada, which pretty much destroys any notion of state sovereignty as far as the citizens of Nevada are concerned. There is a dispute in this case as to whether or not the grazing range used by Mr. Bundy is federal or, as he alleges, land properly belonging to Nevada. It appears that the property is technically federal land. So the question is, does the property in Nevada at the heart of the dispute fall into any of those seven categories of property listed in Article I Section 8 of the Constitution, and if not, then even though Nevada may have at some point ceded the land to the general government, such would be an unconstitutional exchange. The federal government has no business being in possession of that land. It should belong to the citizens of Nevada to either sell to private individuals/companies or lease to ranchers such as Mr. Bundy.

Therefore, since the “federal” government has no constitutional right to own that land, the land should revert back to the state of Nevada, and as Nevada is a sovereign entity, the “federal” government has no right to interfere in how the land is used. This is why I advocate for the return of all lands and property currently owned by the general government that do not fall within those above listed categories of the Constitution back to the states wherein such property is located.

-April 23, 2014