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As Long as We Remember...

March 5, 2013

The Continuing Erosion of Freedoms and Liberties

Farrell Keough

We, as a nation have bought into the proposition that when real or faux problem arises, new legislation must be written in an effort to find a solution. The problem: many times additional laws/regulations only harm law-abiding citizens, and often the new legislative actions are reactions to fix poor legislation.


In 2005, Maryland adopted a complex renewable energy law, which “requires utilities to buy certain minimum percentages of their electricity from renewable sources, starting at two percent and rising to 20 percent by 2020.”


This month, the Maryland General Assembly will look at what many perceive as a problem with the law.


Thanks to a wrinkle in the definition of renewable, the lion’s share of the money used to meet those standards is flowing to paper companies that burn “black liquor,” a byproduct of the wood-pulping process. Paper mills have been using black liquor to generate most of their power needs since the 1930s.


Environmentalists are up in arms over what they see as a perversion of the intent of the law. Instead of encouraging new clean technology, they say, it is rewarding an old practice that emits as much carbon dioxide as burning coal.


Herein lays the rub – the “intent of the law.”


“The bottom line as far as I’m concerned: The RPS [Renewable Portfolio Standard] was all about driving the market toward renewable sources of energy, and we need to be going toward clean sources of renewable energy,” said D.C. Council Chairman Phil Mendelson (D), who co-sponsored the renewable energy bill in 2004. “That’s the bottom line, that’s what we need to be driving towards.”


Our government is now in the business of “driving the market toward… clean sources of renewable energy.” Not only is this a falsehood, (e.g., solar energy produces toxic wastes) but it is antithetical to the entire concept of capitalism, the invisible hand, and how markets actually work.


Either these comments show an ignorance of environmentally responsible legislation or intentional neglect. Instead of accessing needed energy resources these people would rather dump this liquid into our landfills, thereby polluting our land and water. How is this possibly viewed as a superior fix to this legislation?


So, what is “renewable?” Paper comes from trees, (and a small percentage from recycling). Trees are farmed. What can possibly be considered more renewable than a product which we harvest and grow to renew?


But, when a group manages the dialogue (including media buy-in), they control much more than simple definitions in legislation. This scenario is taking place at the Supreme Court of the United States and the repercussions could further eviscerate States’ Rights.


During March, the Supreme Court will listen to arguments on two same-sex marriage laws: Section 3 of the Defense of Marriage Act (DOMA) and California’s Proposition 8 ballot question, which basically banned same-sex marriage in the state.*


The arguments imploring the Supreme Court to overturn these decisions will range from application of the Equal Protection Clause to the Supremacy Clause and may even include the Commerce Clause as government oversight of marriage includes contract law – thus when a couple moves to a different state, they should be granted recourse for such things as divorce within the state in which they reside.


Of course, there will also be myriad arguments made that the Supreme Court justices do not want their legacy to include a stance against the changing societal norms or accepted morés. As one writer noted:


Imagine if, when Brown v. Board of Education was being considered, the Eisenhower Administration had instructed it’s [sic] Assistant Attorney General and OLC chief, J. Lee Rankin, to amicus brief that only Kansas and a handful of other similarly situated states, but not the rest of the country where the bigotry of segregation was at its most prevalent worst, should be granted desegregation. How would history have held Mr. Eisenhower and Mr. Rankin? That is, of course, not what happened in Brown; the Eisenhower Administration filed an amicus brief demanding equality and desegregation for all citizens, in all states.


Messrs. Obama, Holder and Verrilli, however, fell short of such a demand for equality for all in the civil rights moment, the Brown v. Board, of their time. Let the record reflect they did have the courage to join the game, which is in and of itself a commendable thing, just that they did not muster the full courage to play to win for all Americans, regardless of their particular state of domicile – and especially not for those in the states with the most sexual orientation bigotry and discrimination.


None of these arguments are at the central issue of the Supreme Court accepting these cases – what is actually taking place is a further usurpation of authority by the federal government and the Supreme Court over the states. The Equal Protection Clause “is not intended to provide ‘equality’ among individuals or classes but only ‘equal application’ of the laws.” Marriage is not an enumerated right and many state laws exist which prevent marriages, (e.g., people considered too young or too closely related by blood).


The Commerce Clause does not make all contract law equal among the many states – those are left to the states. For instance, a divorce in Maryland has very different laws than one taking place in North Carolina.


But, most importantly, the 10th Amendment and the Supremacy Clause are at play in this decision. “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.” Hence, the federal government does not have the authority to regulate state law with respect to marriage.*


But the most important aspect is the lack of understanding and acceptance that the Supremacy Clause does supplant States’ Rights. “Thomas Jefferson had the best line on this issue. When asked to read between the lines to ‘find’ implied powers, Jefferson responded that he had done that, and he ‘found only blank space.’” In short, the Supremacy Clause only applies to those areas outlined under the 10th Amendment – and a federal declaration on the terms of marriage is not within that negative definition.


We see by these two simple actions – one at the state level and the other at the federal – that not only is the government continually seizing authority, but the result will be a continual loss of freedoms and liberties. Once the government seizes power, it does not give it up.



* It should be noted that DOMA, (passed by Congress and signed into law by President Bill Clinton) should not be considered Constitutional under the 10th Amendment or the Supremacy Clause.


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