A Pound of Cure Is Not the Cure

The General Assembly should rescind its previous calls for a national convention to restrain the size of government because of the great uncertainties that surround such a convention. A national convention is a “pound of cure” when the “ounce of prevention” of voting more wisely in elections could be all we need.

They say an ounce of prevention is worth a pound of cure. And a runaway federal government and the disregard of federalism are certainly in need of a cure. But this week the Tennessee General Assembly will have an opportunity to begin squeezing a pound of cure back into the proverbial tube. Let’s hope they’ll do it, and that we’ll then apply the necessary ounce of prevention.

The issue at hand is the calling of a federal constitutional convention. In the 1970’s and 1980’s Tennessee, along with a number of other states, adopted Resolutions calling for a federal constitutional convention. No doubt, the Resolutions were adopted in response to and out of frustration with the increasing size of the federal government and its unfunded mandates. With the passage of the national health care bill, that frustration has only intensified. But this time the intensity is being expressed not just by frustrated state lawmakers but also by the average citizen, as evidenced in part by the growing TEA Party movement.

No Limit to What a Convention Might Do to Our Constitution

In response to this well-intentioned enthusiasm to fight back and curb the federal government, some states are now looking at making a call for a federal constitutional convention. And right now, with Tennessee still being officially on record from years ago as having called for a constitutional convention, and with the passage of few more Resolutions by other states, the magic number of states required to call a national convention will be reached. Presto, the undefined and unrestrained machinery for a national federal constitutional convention will be put in motion. But as frustrated as conservatives can be, calling a constitutional convention is like applying a pound of cure when there is a means of prevention available to us, if we will use it.

The reason that a convention is a bad idea is that there is no limit to what a convention can do with our Constitution. We may think we’re calling it for one purpose, only to find out that the delegates have done something entirely different. In case you don’t think that can happen, then you’ve forgotten that our current Constitution was the product of a convention called by the states to only make suggested changes to the then-existing Articles of Confederation. The delegates were never authorized to scrap the Articles of Confederation, but they did and that is the national precedent for future action.

Not only is there no limit on what the convention could come up with, including a whole new proposed constitution, but we have no idea how the delegates will be determined. The U.S. Constitution does not specify how delegates are to be determined. But if the same kind of process is used to determine who will go to the convention for us as is used to give us activist judges, then Katie bar the door. We cannot assume that the same liberal groups that currently ignore our Constitution and control Congress won’t find some way to make sure they control the convention, too. We’d be naïve to think otherwise.

States’ Rights Made Even Worse?

It is of little comfort that some would respond by saying that a new constitution, if bad, would never be ratified by the requisite number of states. The reason that argument is of little consolation is that there is nothing to restrict the convention from setting up different ratification provisions. The Constitution we now have was ratified by a process contrary to that required by Articles of Confederation which the original 13 states were under. With some pushing for abolition of the Electoral College for a straight majority vote for President, who is to say that such people, if in control of the convention, would not move toward a populist approval process that ignores the sovereignty of the several states? In other words, the very states’ rights problems for which a convention would be called could actually be made worse.

For that reason, state Rep. Mike Bell (R-Riceville) has filed House Joint Resolution 30 to rescind all Resolutions adopted by previous General Assemblies that would call for a national federal constitutional convention. For once, with the passage of this resolution, the proverbial genie can be put back in the bottle.

The Real Solution: Vote Wisely and Vote Often

Of course, the question then is, “If we put back our ‘pound of cure,’ what is our remedy?” Actually, not unlike Dorothy in The Wizard of Oz, we’ve had the remedy all along, but we have failed to apply it faithfully. It’s the “ounce of prevention” called elections. As we go to the polls in August to pick our party nominees for the November election and then as we go to the polls in November, each state can apply its own “ounce of prevention” by sending to Congress representatives whose first question is always, “Is the proposed law in question clearly constitutional?” and if so, whose second question is, “Does it respect the sovereignty of the several states, and is it a matter best left to those more closely situated to the people?” On many issues the one-size-fits-all federal government solution does not, in fact, fit all.

If we, along with the number of states required to call a national constitutional convention, will do just that—vote wisely—the specter of applying an untested pound of cure may not be needed.

Positives from the Health Care Bill

By mandating that citizens buy a consumer product—health insurance—or face a penalty, the stage is set for the U.S. Supreme Court to tell us whether the U.S. Government is one of limited, enumerated powers or a national government free to do anything it pleases. For a constitutionally sick country, it’s a diagnosis we need to know.

Last night Congress sent to the President for his approval the health care bill which the U.S. Senate passed last Christmas Eve. But the bill may accomplish one very important positive thing.

While there is much not to like in the federal health care bill, mandating that citizens purchase a consumer product—health insurance—will undoubtedly bring about a number of lawsuits over the constitutionality of the law by a combination of one or more of the following: advocacy groups, private businesses, individuals and even states. In fact, attorneys general from some states have already said they will sue to enjoin the application of the insurance purchase mandate to their citizens.

For example, the Tennessee State Senate has already passed a bill (Senate Bill 3498) that asserts that Tennesseans have the right to make their own health care decisions, including the purchase of insurance, and instructs the state Attorney General to sue to protect that right. The bill is scheduled to be heard this Wednesday in the Industrial Impact Subcommittee of the state House of Representatives.

The positive, good thing that may come from all of this is that we will find out just how broad the powers of the federal government are under the commerce clause of the U.S. Constitution. In a country that is increasingly constitutionally sick (ignorant of Constitutional and historical principles or, worse yet, unconcerned about constitutional principles), a “diagnosis” by the U.S. Supreme Court of the extent to which our Constitution is on life support is needed.

States Rights vs. Federal Muscle

Just as a person with an unusual physical ailment may not want to know what is wrong for fear it is really bad yet simultaneously may want to know in order to resolve the issue one way or the other, we are in need of a diagnosis of just how much power the Congress has.

The law the state House is considering this week, if ultimately passed, will set up a classic case of state vs. federal government, with the state saying its citizens have certain freedoms and the federal government saying, “No, you don’t.” It will be a “civil war” of sorts waged in the courtroom.

The issue we must confront if the health care bill is upheld as a constitutionally permissible exercise of the commerce clause power is what else may Washington tell us we have to buy. For example, different states have different laws about how motorists are protected financially in the event of an automobile accident. Some states have mandatory automobile insurance; others do not. But if the health care bill is constitutionally permissible, then what is to keep Congress from mandating that every citizen must purchase automobile insurance and setting up an insurance czar to make sure you do it.

In other words, if we accept that Congress can mandate the purchase of one consumer product, what other products can they mandate we buy or suffer fines and penalties?

Regardless of the conclusion the U.S. Supreme Court reaches, we will have a diagnosis of the health of our Constitution and the health of the notion of federalism and states’ rights. But like the sick patient, we need a diagnosis. The quickest route to restore constitutional health and take states’ rights off life support is to know how bad the sickness is for then we, as citizens, will know what we need to do.

Two Americas on Memorial Day

This Memorial Day, President Obama’s absence in Arlington Cemetery has evoked an insightful observation that is too good not to share.

Sometimes other people say things so well and put things in such perspective that it is best just to share it. So, with no further ado, let me encourage you to read these thoughts on how the President’s celebration of Memorial Day reflects two Americas.

This year President Obama will take in a Memorial Day service at a national cemetery where he and his family will be vacationing, rather than participate in the ceremonial laying of a wreath at the tomb of The Unknown Soldier in Arlington Cemetery. His absence in Arlington has evoked lots of comments, but the insightful observation of William R. Forstchen, Professor of History at Montreat College, is too good not to share. We all would do well to pay heed and spend some time in reflection on Monday about the significance of the day.

No Lack of Resources

Though Tennessee public colleges complain about the lack of state funding, the University of Tennessee at Knoxville apparently has enough that it can fund a Lesbian, Bisexual, Gay, and Transgendered Resource Center even though it already had an LGBT Advisory Commission on campus.

Higher education in Tennessee has faced significant cuts in state funding in recent years, which you would think would make Tennessee’s public colleges particularly sensitive to not use their supposedly limited resources in duplicitous ways. But recently political correctness sure won the day at the University of Tennessee in Knoxville.

Several years ago the Chancellor at the University of Tennessee at Knoxville created an LGBT (Lesbian, Gay, Bisexual, and Transgendered) Advisory Commission. According to the University’s website, the Commission “plans, evaluates, and carries out university programs, policies and services designed to improve the status of LGBT people on campus. The commission also serves as an advocacy group committed to the protection and advancement of LGBT students, faculty and staff.”

But that was not enough. At the end of last month the University of Tennessee at Knoxville opened an LGBT Resource Center, providing the Center an office and about $1,000 in funding. It was said that having a physical presence was important because of the “invisibility of LGBT issues.” It’s hard to see that LGBT issues are invisible in this state or anywhere in this country. Every year now there is an Advancing Equality Day on the Hill just to advocate for LGBT issues. And with an advocacy group that formally had the ear of UTK’s Chancellor, it is hard to see how LGBT issues were somehow invisible.

There’s sure no “Conservative Resource Center” to provide encouragement to students who are at the mercy of liberal college faculty. But it’s especially hard to believe that in tough economic times with limited dollars and resources that anything more was needed than the Commission that previously existed.

A Lesson Learned the Hard Way

Citizens concerned about attacks on religious liberty cannot depend on school boards to protect the religious liberties of their children, especially when the school board allows more public inquiry and discussion about rugby than it does a far-reaching settlement agreement drafted by the ACLU.

A few months ago we reported the ACLU had sued the Cheatham County Board of Education over various allegedly egregious religious indoctrination activities. Well, the matter came to a conclusion this week, and the results taught us a lesson the hard way.

When the lawsuit was first filed, the Alliance Defense Fund, an alliance of Christian attorneys committed to defending First Amendment religious liberty rights without charge, tried to find someone who would be willing to be represented by them. Unfortunately, for whatever reason, no one was ever found.

The reason the Alliance Defense Fund tries to find a student, student group (like FCA or Young Life) or faculty member to represent is that it allows that person or group to become a party to the lawsuit. You might wonder, why would anyone want to volunteer to be a party to a lawsuit?

The reason is that unless some group like the Alliance Defense Fund, that really knows First Amendment law, has a place at the “litigation table,” the school board is more likely to “lay down” than to stand up for the First Amendment rights of their students and faculty. And, sure enough, the “settlement” the Cheatham County school board reached with the ACLU shows why you can’t depend on your school board to put up much of a fight. There are a couple of reasons why this is so.

Why School Boards Won’t Defend Your Rights Much

First, the school board attorney typically has limited knowledge about First Amendment law, not surprising since First Amendment claims aren’t everyday legal fare for them. In other words, your local school board most likely has a non-expert, non-seasoned lawyer when it comes to First Amendment litigation going up against sharp, veteran ACLU lawyers. It’s sort of David v. Goliath with the school board attorney the one with the slingshot (such a biblical reference, if not already illegal in a public school, probably will be illegal if we don’t pay attention).

Second, school boards are generally averse to having people fuss at them for wasting taxpayer dollars fighting over religion. And in a politically correct, don’t-be-perceived-as-intolerant-at-any-cost environment, courage is even harder to come by in elected officials.

Of course, it’s a sad commentary that school boards, by their actions, are “teaching” their students that it is not worth their effort to fight for constitutional rights or to put up with a little venom from a vocal minority. And it’s sad that enough of us don’t help them stand up by standing beside them. We may save money in the short run by avoiding legal fees but find we’ve lost our religious liberties in the process.

Is Rugby More Important Than Religious Liberty?

Anyway, the Chairman of the Cheatham County Ministerial Alliance asked the school board to delay the vote for two weeks for the citizens to have time to read the proposed settlement and have input with their elected official. No such luck! The school board approved the settlement anyway without opportunity for the citizens to know what was really going on. Reports have it that the board had more open meetings for the public to discuss some issues about rugby than this vote on religious liberty.

So, here are some lessons that need to be learned.

When the ACLU sues any government entity, citizens in that community should never, ever rely on the government’s attorney to protect their religious liberty—call us, call ADF, but get help. And when experts like ADF tell you what needs to be done, do it. Don’t assume someone else is going to get involved. And for sure don’t assume you’ll get a chance to express your opinion on an ACLU-approved settlement proposal before it gets accepted.

The other lesson is that we need to pay attention to who is running for our school boards. These are important positions. Much of the so-called “culture war” is being waged in our schools for the minds of our children. And if your school board member thinks rugby is more important than religious liberty, then the next lesson is this: Learn how to qualify as a candidate for the next school board election and learn how to run a winning campaign.