Call for Contributors

Work and life in general have sapped my ability to post regularly, so I am inviting guest authors to The Heathen Republican. If you have an interest and think you have something that my readers would be interested in, please contact me by email.

This is only an invitation and not a promise. I will not inflict poor writing or bad ideas on my readers (not counting my own poor writing and bad ideas, naturally). If you want to attract new readers or have something to say but don’t have your own site, this is your opportunity.

This Week's Unrelated Thoughts: Ryan & Portman

Republicans Convey the Wrong Message with Ryan Budget

If I heard the reporting around Paul Ryan's budget correctly, the key difference is that Republicans would grow annual spending by 3.4% per year instead of the 5% that Obama's budget would grow. In other words, there is a 1.6% difference, which translates to about $500 billion per year ($5 trillion over ten), and a balanced budget.

Assuming all of the above is true, Republicans are insane if they think the American public is going to get onboard that the country faces a fiscal crisis. We're really to believe that the difference between a balanced budget and Armageddon is just 1.6%? Give me a break.

Republicans have been preaching doom and gloom for many years, but only since Obama started his own relentless pace of spending has it seemed possible. $16 trillion in debt and annual trillion dollar deficits are ridiculously excessive, and it's really not hard to convince Americans that this level of spending is unsustainable.

But I'm sorry, I can't believe that a 1.6% percentage point reduction in annual growth is all we need to balance our budget and fix our spending problems. Republicans have never been good at messaging, but do they really think we'll believe avoiding a catastrophe is really going to be painless?

Rob Portman's Unprincipled Conservatism

I applaud Rob Portman's recent change of heart regarding gay marriage, but that's what it was: a change of heart. This wasn't a decision that was based on thought; it's purely based on feeling. For those of you who haven't heard, Rob Portman's son recently told him that he's gay. Portman's natural response was to reverse course on his gay marriage stance.

This kind of unprincipled behavior is sad. Are we to believe that Portman opposed gay marriage only because no one in his family (as far as he knew) was gay? Was there no principled reason for him to hold his view? Quite obviously, if there were, simply learning his son is gay doesn't overturn those principles.

It reminds me of the people who are opposed to the death penalty until someone in their family is murdered. All of a sudden, they are willing to reverse a lifetime of belief because now it affects them personally. Ideological views that are based on principle will never be tossed out simply because someone close to you is affected by or disagrees with your view. Portman is now on the right side of the issue, but he should be ashamed for his past, unprincipled views. 

My Family Doesn't Have a Spending Problem

My wife and I run a small business. We earn a decent living and have for several years now. Even though we make a very good living, we're also terribly in debt. My wife tells me we have a spending problem, but I think we simply have a revenue problem. Sure, we spend more than we earn, but that wouldn't be a problem if we simply earned more money.

In the past few years, I've become a technological early adopter, that is, someone who likes to buy all the latest gadgets. I haven't always been this way, but since our income has gone up, I've bought more of the things I want when I want them.

In terms of numbers, we net about $500,000 from our small business each year. That's a very good living and, one might argue, more than enough to cover daily living expenses, a nice home, and a few extravagances. Nonetheless, our lifestyle exceeds our income and we're in debt another million or so.

My wife argues that we're spending money on things that we shouldn't, and if we could reduce our annual spending and pay down our debt, we would be much more stable financially. She's worried about our children and our grandchildren, and she's afraid that when we're gone they'll still be paying off our debts.

My answer is that we need to earn more money from our small business or she needs to take a second job. If we had more income, we could afford to pay off our debt and continue in our current lifestyle. That would give the whole family more financial security.

She insists that we have more than enough income already and we just need to reduce non-essential expenses and live within our means. We don't know how to settle this argument. I'm positive our problem is on the revenue side, but she's just so sure that our family has a spending problem. I feel like I'm missing something that's staring me right in the face. 

State of the Union: An Annual Report Card

This time of year, I often wonder how Americans would respond to a true state of the union in the form of a simple report card that tracks specific measures that our government officials should care about most. The following is my attempt to define an annual report card for the federal government.

A Non-Partisan Annual Report Card

The first step is to develop a simple report card that captures the essence of what government should do, with objective measures that the average American would understand. Such a report card would be non-partisan and applied no matter which party currently holds the White House. To build such a report card, I begin with the U.S. Constitution.

Financial Health

The Constitution authorizes the federal government to collect taxes and borrow money, as well as draft an annual budget. To measure the country's financial health each year, my report card would include revenue to the treasury, the state of the budget deficit, and cumulative debt.

Economic Health

The federal government is also given the power to ensure free commerce between the states and regulate commerce with foreign nation, so measures of economic performance belong in a state of the union report card. I would report on national GDP and employment. I would also report on inflation and the actions of the treasury since the government is authorized to coin money and regulate its value.

National Security

Naturally, the federal government is charged with providing the common defense along with raising armies and declaring war. This is not quite as easy to report on, but I would expect an annual report card to summarize our current military engagements around the world, the quality of our equipment and weapons, and whether or not recruitment is meeting the current needs of the country. With the responsibility to establish immigration rules, I would incorporate metrics on naturalization, illegal border crossings, and overall border security measures.

Other

The federal government is also charged with administering justice, issuing patents and copyrights, and establishing post offices. In terms of justice, I would like to hear status from various departments including the FBI and ICE. I'd like some measure of efficiency and competence for the patent office and post office, as well as a summary of their financial stability.

Specific Report Card Measures

The following are specific metrics that can be graded with the usual letter grades:

Revenues to the Treasury: Measured in dollars, percent of GDP, and increase/decrease over prior year.

• Deficit: Measured in dollars, percent of GDP, and increase/decrease over prior year.
• Total Debt: Measured in dollars, percent of GDP, and increase/decrease over prior year.
• GDP: Measured in dollars and increase/decrease over prior year.
• Employment: Measured as percent and includes labor force participation.
• Inflation: Measured as a percentage and effects on consumer prices.
• Military Operations: Subjective assessment of current military engagements and progress toward military objectives.
• Equipment and Weapon Quality: Assessment of the overall age and quality of current equipment and weapons that support military forces.
• Military Recruitment: Measured in new recruits, recruiting goals, and assessment of force size relative to expected future needs.
• Illegal Border Crossings: Measured in number of crossings, increase/decrease over prior year, and improvements in border security measures.

In a follow-up post, I'll try to build the 2012 state of the union report card and see what the true current state of the union is beyond political rhetoric.

Deconstructing Judicial Review

"The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority… In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."

-Article III, U.S. Constitution

Judicial review has a controversial place in American government. The concept is simple enough: the Supreme Court is the final arbiter of the constitutionality of the laws passed by congress and the president. Judicial review is not unique to the United States, but is considered an American invention originating with Marbury v. Madison when the court (arguably) first declared a law unconstitutional. According to the congressional research service, the Court has declared a total of 163 laws unconstitutional as of 2008.

Some opponents of judicial review claim that it is unconstitutional based on the Tenth Amendment. This argument hinges on the recognition that judicial review is not an explicit power granted in the Constitution, but is inferred from other provisions of the Constitution. Since the Tenth Amendment reserves all powers that are not explicitly delegated to the federal government to the states, judicial review should be unconstitutional since it is not explicitly delegated. That is the basic argument of opponents.

Original Arguments

The writers of the Constitution also had their disagreements over judicial review. Alexander Hamilton, for example, argued in favor of judicial review believing that allowing legislators to be "constitutional judges of their own powers" would allow them to substitute their own will over the will of the people. Hamilton saw the court as the intermediary between the people and the government "to keep the latter within the limits assigned to their authority."

Opponents of judicial review generally express the concern that judges will be swayed by their own beliefs and not driven by any firm rules. Thomas Jefferson believed that making judges "the ultimate arbiters of all constitutional questions" would lead to "the despotism of an oligarchy." He pointed out that judges are just as fallible as other men and more dangerous than other government officials because they are not elected and serve for life. Abraham Lincoln shared similar opinions believing that allowing the Court to pronounce "irrevocable" decisions, "the people will have ceased to be their own rulers."

Judicial Review or Judicial Activism

Application of judicial review often leads to charges of judicial activism. This is a political term that often changes meaning depending on who is making the charge, but is generally used to claim the judicial branch is behaving as legislators and writing new law. Judicial activism can be used when upholding or striking down laws, and simply overturning prior precedent is not by itself judicial activism. It's possible to support judicial review as well as oppose judicial activism.

In the past I've provided my own definition of judicial activism as going against the plain language of the Constitution in a) supporting a law or b) overturning a law, or creating new law purely through interpretation of the Constitution. I would argue that judicial review can certainly cross into the realm of activism, but it doesn't have to. Provided the Court avoids creating new laws and can justify its ruling in supporting or overturning a law based on the plain language of the Constitution, it is not engaging in judicial activism.

My Understanding of Judicial Review

Given all of the above, I think that judicial review is supportable through the Constitution and is clearly implied in Article III. That said, let me address some of the specific arguments mentioned earlier.

Irrevocable Decisions    Lincoln opposed judicial review (after losing a case) believing that the people were losing power to rulers who issue irrevocable decisions. This is simply false. The Court's rulings are never irrevocable and the very process of judicial review permits the overturning of bad decisions at any point in the future.

Interpreting Constitutionality    Jefferson described the Court as the ultimate arbiters of constitutionality, but we should expect the president and congress to make their own determinations on constitutionality. As such, all three branches are arbiters, and each is subject to review (and rebuke) by the other two.

Overruling the Court    In addition, the legislative and executive branches have the ability to amen the Constitution and overrule the Court. This is a very high hurdle, but it requires agreement by both branches as well as voters and the states. But saying that it is difficult is not to say that it is impossible to overrule the Court if they get it wrong.

Ruling Based on Belief    Lastly, the justices on the Supreme Court are not without rules, although critics from left and right often claim that they base their decisions on personal beliefs rather than law. In fact, one of the most important rules the justices follow is that laws are "presumptively valid," which is particularly important in the role of judicial reviewer.

In short, I support the idea of judicial review even though, as a conservative, the Court sometimes gets things wrong from my point of view. In a free country, I would expect it to be wrong sometimes, but I think the risk of losing is more acceptable than allowing congress or the president to determine for themselves what is or is not constitutional. Each branch of government has that responsibility, and each has the ability to check the others.