The ban on the ban is unconstitutional.

This was the gist of broadcaster Mark Levin’s angry tirade against the humdrum, and certainly predicable, decision of a federal judge to strike down “Oklahoma’s voter-approved ban” on gay marriage.

At the center of conservative contretemps are similar decisions in California, New Mexico and Utah, following on which U.S. District Judge Terence Kern had “determined that Oklahoma’s constitutional amendment” violated the 14th Amendment’s Equal Protection Clause.

It stipulates that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Broadly speaking, WND’s Alan Keyes concurred with Levin, alluding to the Constitution’s 10th and Ninth Amendments by which “the judges and justices of the federal judiciary are forbidden to … deny the antecedent rights retained by the people.”

Indeed, “the prevailing view in 1791,” observed The Honorable Robert T. Donnelly, former chief justice of the Supreme Court of the state of Missouri, “was that the national government had only delegated powers and that reserved to the people was an undefined sphere of non-government within which people may not be interfered with by government.”

But that was then.

In voiding “voter-approved law,” Justice Kern has resorted to perfectly proper 14th Amendment judicial activism. Deploying the Equal Protection Clause of the 14th Amendment, Kern nullified the 10th. It specifies that, “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.”

As expressed in the once-impregnable 10th Amendment, the Constitution’s federal scheme has long since been obliterated by the 14th Amendment and the attendant Incorporation Doctrine.

What does this mean?

If the Bill of Rights was intended to place strict limits on federal power and protect individual and locality from the national government—the 14th Amendment effectively defeated that purpose by placing the power to enforce the Bill of Rights in federal hands, where it was never intended to be.

In their love of Lincoln and the 14th, conservative constitutional originalists will disagree. They’ll say the 14th was meant to limit the power of the states and enlarge the power of Congress, not the Courts. “Congress, not the Court,” was to “implement the provisions of the 14th Amendment,” subject to judicial review.

And that’s somehow a good thing?

They “say tomato, I say tomahto.” As I see it, the 14th Amendment was a gargantuan grant of power to the federal government. That the judiciary has done what was left undone by Congress does nothing to alter the dismal outcome for liberty. The 14th spelt the demise of our Constitution’s decentralized dispensation. Either way, the freedoms afforded by federalism are no longer because American federalism is no longer.

“The natural progress of things [being] for liberty to yield, and government to gain ground,” this inevitable momentum, in the form of the invented legal doctrine of “selective incorporation,” soon progressed—regressed is the right word—to complete incorporation.

A précis of Incorporation-Doctrine jurisprudence in the legal dictionary admits that “most provisions of the Bill of Rights were eventually incorporated to apply to the states.” Put differently, matters previously subject to state jurisdiction have been pulled into the orbit of the judiciary.

Among other legal decisions to have been implicated by Justice Donnelly in expunging federalism from the Constitution is Cooper v. Aaron. In 1958, “the United States Supreme Court asserted for the first time in its history and in the history of the nation that its interpretations of the written Constitution in a particular case in one State constitute the ‘supreme law of the land’ under Article VI of the Constitution and are of binding effect in all of the States.” “It is emphatically the province and duty of the judicial department to say what the law is,” declared the Court. (See Cooper v. Aaron, 358 U.S. 1, 1958.)

So much for Alexander Hamilton’s promise, in Federalist No. 78 (May 28, 1788), that the Judiciary would be the weakest of the three branches of his proposed government. “Instead of protecting the legitimate interests of the states,” surmised Justice Donnelly (in “The Demise of Federalism: With Consent of the Governed?”), “the Supreme Court competes with Congress to dictate to the states their ‘legitimate’ interests.”

Commensurate with the power they’ve amassed, nine unaccountable, unelected, Supreme-Court judges now sit as “a Council of Revision over the states.”

Just as the interpretation of the 14 Amendment in Brown v. Board of Education became the supreme law of the land, so, too, will the states likely lose their (petty) marriage-licensing jurisdiction, once that coven of casuists, the Supreme Court, embroils itself in setting social policy for all the states.

Conservatives as astute as Mr. Levin, Esq., ought to quit misleading their readers and listeners about the restoration of a constitutional structure that has suffered death by a thousand cuts, long before the dreadful cur Obama appeared on the scene.

The countless individuals who are at the receiving end of irrational malice from their inferiors will agree that an experiment conducted at the Universities of Warwick and Oxford was more of a confirmation than an investigation of human nature.

Ingeniously operationalized by Professor Andrew Oswald and Dr. Daniel Zizzo, the experiment demonstrated the lengths to which people will go to destroy the wealth of others, even if, in the process, they knowingly wipe out their own funds.

The economists approximated reality by distributing cash unequally among the subjects, who were then told they could anonymously “burn away other people’s money,” with one caveat: in the process, they would be destroying some of their own. Naively, the researchers expected little “burning” to occur, and certainly for it to stop once the destruction of the opponent’s money became too painful to the player’s pocket. They were flummoxed when 62 percent of the subjects continued to “burn” the wealth of others even at crippling costs to themselves.

Laboratory-to-life extrapolations can be problematic, but this experiment transports effortlessly.

Fact: Whether or not they are aware of the indirect harm to themselves, a sizeable majority of people in society does indeed want to see the wealth of others burned. Social determinists always blame this on the corrupting effects of extraneous forces—on the state, if they are libertarians; on the free market, if they are socialists. But implicit in a worldview that recognizes free will is an understanding that the venal are responsible for their venality.

Perhaps this is too radical an espousal of personal responsibility, but I suggest that this president—any of the Absolute Autocrats of a social democracy—derives a great deal of his power from human nature. Indeed, a moral deterioration in the people is what facilitated the gradual movement toward the acceptance of income taxation, culminating in the Faustian ratification of the 16th amendment.

Taxation, the progressive graduated income tax in particular, is where the implications of our experiment are most striking.

Granted, people no longer view income tax as having pulverized the natural and absolute right of private property, or as being, to paraphrase Alan Keyes, a form of slavery utterly incompatible with liberty. But they surely must realize that taxation reduces their own wealth and hampers their present and future plans and goals. As pleased as they are to see the “rich” zapped, is it not both more rational and righteous to hope that no one is robbed blind, and that rich and poor alike can dispose of or save their income as they please?

Evidently not, because, overall, the debate about income tax is dominated by the quest to burn the “rich” rather than enrich all burn victims.

Compounding the destruction of property rights inherent in taxation, the progression principle in the income tax—the more you have the more you hand over—destroys the right of equal treatment under the law. It isn’t remotely just to punish people for their wealth or their ability to accrue it. How is it different from making them pay for goods and services in proportion to their income, although one can well imagine the socialistic shills for a law that would force Bill Gates to pay a million dollars for a loaf of bread.

Aside penalizing productivity, tax progression—the kind the Democrats’ assorted tax rebates and handouts further entrench—has stratified American society into castes.

The top 50 percent of income earners pay 96 percent of the taxes; the bottom 50 percent pay only four percent. With the nation neatly bifurcated into taxpayers and tax consumers, John C. Calhoun’s predictions in “A Disquisition on Government” about the consequences of taxation in a democracy have come full circle. A sizeable majority of the people “receives in disbursements more than it pays in taxes.” The minority funding the orgy “pays in taxes more than it receives back in disbursements.”

To the blatant discrimination of the progressive tax, the socialist’s contra is to weasel with words. “The top-earning 25 percent of U.S. taxpayers may pay 84 percent of federal individual income taxes, but they also earned two-thirds of the nation’s income” (my emphasis). Of course, there’s no such thing as the “nation’s income.” This disingenuous characterization implies that there is a delimited income pie from which a disproportionate amount of wealth is handed over to or seized by the rich. What dross! Wealth doesn’t exist in nature, until individuals apply their smarts and labor to raw materials and transform them into things that can satisfy human needs and hence, be marketed. Wealth is thus individually created and owned. For an electorally powerful majority that gets stuff for nothing, and doesn’t bear the costs of government, voting for more taxes makes perfect sense.

Washington’s intention to accelerate reductions in income tax rates is welcome. To the extent the cuts are tilted toward the most burdened and enslaved taxpayers, this too is good. Keep in mind though that all we have here is a parasite careful to sap but not kill the host. That is, the president’s new tax cuts haven’t meaningfully changed the steeply graduated and high levels of taxation, but they will probably keep the golden goose—the tax base—going.

Recommending the best income tax is like selecting a preferred malignancy. Nevertheless, the least toxic tax is probably a poll or head tax, where all are taxed equally. Let the poor set the rate. This will sever the blood supply to the metastasizing state like nothing else.

Less for the “federal Frankenstein” is also less with which it can facilitate human wickedness.

©By ILANA MERCER
  WorldNetDaily.com
  January 8, 2003

* Screen picture credit