www.youtube.com/watch?v=YYVR-6AFE1s

In the current crisis, conservative efforts to restore the separation of powers may even be more important than a campaign to shore up federalism. TARP, for example, was an unprecedented delegation of legislative power to the Treasury secretary, of all people. It was a desperate, essentially lawless grant resembling the ancient Roman dictatorship, except that the Romans wisely confined their dictators to six-month terms. Obamacare is a 2,000-page monstrosity that will need thousands, perhaps tens of thousands, of pages of additional regulations before it can operate. These will be issued by more than a hundred new bureaucracies, each a source of unaccountable power wielded over individual Americans. These multiplying centers of petty tyranny will accelerate our transformation from a republic of laws to a corrupt regime of muddled and ever more arbitrary power.

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It is the U.S. Constitution, and not some competitive agglomeration of communities or constituencies, that makes a citizen the sovereign of his own home and privacy. There is absolutely no legal requirement to be polite in the defense of this right.

Superficially, this is quite correct. The Constitution does protect an individual’s right to free speech and the sanctity of his home.

But the Constitution is not, as Hitchens suggests, the origin of these rights. Even were they not mentioned in the Constitution, these rights would still exist: an individual would remain “the sovereign of his own home and privacy.” These “unalienable Rights” derive not from a simple document written by fallible men, but, as Thomas Jefferson put it, from “the Laws of Nature and of Nature’s God.” And it is “we the people” that grant the Constitution its powers, not the other way around.

Hitchens is right to revere the Constitution and the rights it protects, but he must remember that the Founders crafted the document to protect the existing natural rights of individuals. To argue that the Constitution is what “makes a citizen…sovereign” is in fact to diminish these rights and make man not sovereign at all but just another subject.

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She added that the failure to engage foreign decisions had resulted in diminished influence for the United States Supreme Court.

The Canadian Supreme Court, she said, is “probably cited more widely abroad than the U.S. Supreme Court.” There is one reason for that, she said: “You will not be listened to if you don’t listen to others.”

The Supreme Court does not exist, however, so that its rulings might be influential in foreign courts or cited favorably abroad. Instead, the Constitution empowers the federal courts to judge cases, not to curry favor; Publius elaborates on these “proper objects” of the “federal judicature” in The Federalist. Furthermore, each Supreme Court justice takes an oath “that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [title] under the Constitution and laws of the United States.”

In “faithfully and impartially discharg[ing] and perform[ing]” these duties, the court can serve as a model to the world. But this is a happy consequence of sound judicial decision-making, and ought not to be the justices’ aim, as Ginsburg suggests. The justices’ duty is first and foremost to uphold “the Constitution and laws of the United States,” even if this means their peers overseas disapprove of their reasoning or the results.

Justices who seek citation by foreign courts might consider a career in academia instead of on the bench. There they can focus their energies on analyzing court cases from anywhere in the world without any fear of abrogating their responsibilities to America’s Constitution and laws.

While scoring political points against disgraced Illinois Gov. Rod Blagojevich and his appointment of Sen. Roland Burris may be tempting, conservatives should be wary of signing on to this amendment. Instead, they should make the case for preserving and strengthening Madison’s federal structure—perhaps with the ultimate goal of repealing the 17th Amendment altogether.

The 17th Amendment, enacted in 1913, dealt the first blow against the Founders’ structure by maintaining that all Senators be chosen in direct popular elections instead of by the state legislators. But it also holds that in case of vacancy, “the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.” The New York Times carries water for Sen. Feingold’s unhelpful proposal by suggesting that allowing state governments to appoint replacement Senators without voter approval amounts to a “loophole” in the amendment.

Feingold further argues that the appointment of any Senator denies citizens their fundamental rights. “I think of it as a right-to-vote issue,” he tells the New York Times. Of course, the right to vote is nowhere abridged in any appointment scheme, since voters choose the state lawmakers who make the appointment. Now it’s true that voters are only indirectly choosing an appointed Senator, but there’s no reason to believe direct elections necessarily make for superior government.

George Will explains the strengths of the Founders’ design and how the direct election of Senators harms it:

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The Senate, indirectly elected and with six-year terms, was to be more deliberative than responsive.

Furthermore, grounding the Senate in state legislatures served the structure of federalism. Giving the states an important role in determining the composition of the federal government gave the states power to resist what has happened since 1913 — the progressive (in two senses) reduction of the states to administrative extensions of the federal government…

The Framers gave the three political components of the federal government (the House, Senate and presidency) different electors (the people, the state legislatures and the electoral college as originally intended) to reinforce the principle of separation of powers, by which government is checked and balanced.

In The Federalist, Publius makes a similar argument. He maintains that the appointment of Senators by the states promotes federalism by strengthening the power of states against the federal government:  “giving to the State governments such an agency in the formation of the federal government … must secure the authority of the former, and may form a convenient link between the two systems.”

Those who favor limited government ought to think twice about Feingold’s proposed amendment, which would further enervate the federal structure and strengthen the national government, thereby hurting the cause of limited government.