First Principles

In search of the Unified Theory of Conservatism

First Principles header image 2

Smacking of Ridiculousness

August 11th, 2008 · 2 Comments

I got a campaign call yesterday from a supporter of local pawn shop manager and proud pit bull owner James Smack, a self-proclaimed “Constitutionalist” running against Dean Heller for his Congressional seat in the Republican primary.  He’s a Ron Paul type, and I’m not, so I politely told his supporter I was voting for the other guy.

But I had previously gone to his website in response to his admittedly clever yard signs (“Give Congress a Good Smack!”), and I had to shake my head with some mixture of amusement and frustration. 

Constitutionalists are an odd bunch who define their conservatism as whatever is in the Constitution, at least according to them.  Often their legal theories are pretty dubious – for example, there are a group of them here who refuse to put license plates on their vehicles, insisting the federal Constitution doesn’t allow it (foretting apparently, that the concept of federalism and state sovereignty most certainly does).  They typically misunderstand concepts of federalism pretty badly, forgetting that states can – and in fact were always expected to – legislate and regulate in nearly all the areas not specifically granted to the feds.  Their support of the Constitution generally stops at about the Twelfth Amendment.

James Smack probably has license plates on his car, but his website contains all kinds of Constitutional legal errors.  They’re worth pointing out for a couple reasons.  First, it’s just darn funny to poke at the sanctimony of a “Constitutionalist” who doesn’t really understand the Constitution.  Second, it’s a good reminder that the general public is shamefully undereducated on what’s actually in the Constitution, and the principles behind it.  And finally, I’m just tired of their wailing and teeth-gnashing about how they’re the only “real” conservatives left.  The more they’re exposed for what they really are, the less weight they’ll carry, and the less likely they can throw the general elections in November by getting other people to follow their lines of garbage.

The first one I noticed was in a blog post about same sex marriage, where he declared that he, “would furthermore only confirm judicial nominees that have demonstrated that they would rule on a strict Constitutional basis, and would not vote to confirm any judicial appointment that has proven otherwise.”

The funny thing is, though, is that Representatives don’t vote on judicial nominees.  Senators do.

If you’re going to brag about how everyone but you doesn’t respect the Constitution any more, at least you could get the separation of powers parts right.

In his next post, Mr. Smack informs us that the passage of HR 4279, an update to federal intellectual property laws that attempts to address the problem of digital piracy both here and abroad, is “Unconstitutional.”  He also shares his insight into the possible nefarious motives of such a bill…

I can only think of two possible explanations for this type of legislation. The first is there is a whole bunch of money behind this effort from the record labels, movie production companies and those who produce intellectual property…instead of improving the overall product and embracing the technology movement, they simply want the government to do it for them.

The second, more sinister thought, is the overall attempt to give more power to the Federal Government and even less power to state and local government. There are laws already on the books to enforce copyright law, and to target those that are profiting from breaking said law, why an overreaching, impossible to enforce, new law?

I can think of a third possibility – that the federal government is acting under its mandates under:

  • Art. I, Sec. 8, cl. 8, which provides for the federal protection of intellectual property in the first place;
  • Art. I, Sec. 8, cl. 3, which covers the regulation of interstate and international commerce;
  • Amend. V, which deals with the protection of property.

The ownership and dominion of property is a natural, fundamental right that government is chartered to protect, whether the property is James Smack’s pit bulls or Metallica’s music royalty rights.  The Founding Fathers correctly recognized that in a federation of states without trade barriers or the ability to regulate their own commerce, intellectual property protection must be addressed centrally.  There may be problems with the enforceability of the bill he critiques, but his failure to understand the just principles behind it is head-shaking.

I wonder how he’d react to a politician telling him, upon complaining that someone looted his pawn shop, that he just needed to embrace the new “property redistribution” movement?

In the next post, he declares that the Yucca Mountain federal nuclear waste facility should be opposed because “it is a State’s Rights issue.”  His explanation is that, and I’m not kidding:

I don’t like any situation where the Federal Government tells a state what they can and cannot do with their land, even if the land in question is owned by the Federal Government. That waste is still going to have to travel through parts of the state that is privately owned from all directions.

If the federal government owns the land, then it isn’t the state’s land.  And here again, the Constitutionalist didn’t read the Constitution, specifically, Art. IV, Sec. 3, cl. 2.  The Congress has full power to regulate federal land, no matter where it is.  And the traveling waste is not moving through private land, but rather over the federally funded highways of interstate commerce, which incidentally, also probably move some mail around.

In that same post, he tackles abortion.  He says that he believes “life begins at conception,” but that abortion regulation is “a States Rights Issue governed by the Tenth Amendment. States should be able to determine on their own the scope and reach of abortion law in their specific jurisdiction; it says as much in the Constitution.”

Abortion, as conservatives have been pointing out since 1973, is not addressed in the Constitution.  Life, however, is.  The Fourteenth Amendment specifically prohibits states from depriving a person of life without due process.  If you truly believe that a fetus is a human life, then it necessarily follows that you believe the Constitution hasn’t left that issue up to the states since at least 1868.

Actually, if you follow from that, I wonder how he feels about any of the Bill of Rights applying to the states.  They unquestionably weren’t intended to, and weren’t until 20th century judges determined that the Fourteenth Amendment made those first ten amendments so applicable.  A true, strict Constitutionalist would note that the First Amendment’s opener of “Congress shall pass no law” keeps it a specifically federal prohibition, and that all First Amendment cases dealing with state laws must be immediately overturned.

This is the problem when your political philosophy is tied to a single document instead of the principles that underlie it.

He spends a great deal of time railing against the Patriot Act and the new FISA bill as “Unconstitutional, flying directly in the face of the Fourth Amendment to the Constitution, protecting us from unreasonable search and seizure.”

But smart people can come to different conclusions about this type of legislation, and whether it actually violates the Constitution.  When the key word on searches is “reasonable,” a lot of context is required before making such a bold statement.  And while it may be that certain provisions of the post 9/11 surveilance laws cross into the unreasonable zone, it’s hard to argue seriously that they “fly in the face” so directly of those protections in today’s context.

Mr. Smack rails against government intrusion on the free market with regard to energy or alternate fuels, but then in the Reno Gazette Journal voter’s guide insists that he will “Sponsor a measure to provide a substantial tax credit for individuals who purchase a Hybrid or Electric Vehicle.”


Finally, he gets into my favorite Constitutionalist bromide in that voter’s guide, saying:

The use of military force should only be in order, according to the Constitution, when there has been a Declaration of War.

Well, say what you want about the wisdom of being in Iraq or anywhere else, but the Constitution most certainly does not prohibit it.

Congress does indeed have the power to declare war, but there is no magic phrase that must be uttered before it’s a “real” declaration.  Congress’ overwhelming votes in support of OIF and OEF, as well as their continual funding for those efforts, clearly is within their role as a limit on the ability of the president to stride across the globe waging unchecked war.

Fortunately, James Smack has just a slightly better chance of getting elected to Congress this year as my dog does.  Perhaps he can take the time before his next run as a “Constitutional Republican” to actually study up on that document a little better.

Tags: Abortion · Constitutional Law · Constitutionalists · Federalism · First Documents · Nevada Politics · Principles · Ron Paul · War on Terror · Yucca Mountain