Heads Up

A Weekly View from the Foothills of Appalachia

March 15, 1998
Issue #76

by: Doug Fiedor
E-mail to: fiedor19@eos.net

Previous Editions at: http://mmc.cns.net/headsup.html


The White House learned a few lessons last week. The presidents, and their minions, thought they were so much better and smarter than everyone else. Now they know that few in Washington (or the country) see them as they see themselves. As it turns out, very few Americans would want their children to emulate either Bill or Hillary Clinton -- or anyone else in this White House, for that matter.

Hillary learned why it is not a very good idea for the target of a criminal investigation to attempt to publicly disgrace the prosecutor working on the case. The disinformation and propaganda campaign she has been running out of the back room of the White House was told, in no uncertain words, to shut up. Four previous United States Attorneys General publicly agreed, in unison, that Hillary's cabal had (probably) committed obstruction of justice. The four previous attorneys general politely called it, "influencing and impeding an ongoing criminal investigation and intimidating possible witnesses and even investigators."

We agree, and suggest that the whole crew be arrested. In a piece last February 15 we added the word "conspiracy" to what the previous AG's said, and called Hillary's action an ongoing criminal enterprise. Anyway, evidently the previous AG's put Janet Reno between a rock and a hard place by publicly asking her to tell Hillary to stifle that nonsense.

Bill Clinton got a little surprise, too. It seems that House Republicans have had about enough of the Clintons' shenanigans. It also seems the House leadership has been following the activities of Independent Council Kenneth Starr's investigation lately. But, it wasn't till the House actually budgeted $1.45-million to hire 18 new staff investigators for the impeachment hearings that the White House really took notice. Rep. Henry Hyde (R-Ill.) explained the additional staff by saying they will be hired primarily to conduct the most thorough scrutiny of Justice Department programs in nearly 20 years. Other House members say they are for the impeachment inquiry.

On top of all that, the Senate Government Affairs Committee report on illegal campaign finance was recently released. That can be found at: www.senate.gov/~gov_affairs/

Unfortunately, the Thompson Committee missed a few prime perpetrators in the Democrat's campaign contribution crime wave. Most notably, the name of the co-chairman of the Democratic party during the last presidential campaign cycle is missing. Senator Christopher Dodd is ultimately responsible for everything that went on under his watch. A number of other senators, including Kennedy, Feinstein and Boxer, were also involved in one way or another. But it is Dodd who, as the elected official in charge at the DNC, must bear the brunt of the responsibility.

On the other hand, the vice-president who knows "no controlling legal authority" for some campaign finance laws was taken to school too. Al Gore says the Senate report's political slant is "very obvious," because it concludes that he knew that an illegal 1996 Democratic Party fund-raiser held at a California Buddhist temple was a Democratic Party fund-raiser.

And, as Gore told Scripps Howard News Service reporter James W. Brosnan, he does not believe the organizer of that event, Maria Hsia, is an agent for China as the Thompson Committee report charged. Gore also said that he was never given a briefing or warning by U.S. intelligence agencies or the FBI about Mrs. Hsia. Apparently, we are to believe that Gore spends his time wandering the halls of the White House never talking to anyone. Because, by that time, there were nearly 200 people around him who knew all about the communist Chinese government connections. As a matter of fact, Bill Clinton even invited some of the agents from Red China over to the White House for coffee on a few occasions.

"I think the disappointment mostly felt about the report is that it didn't do what it was supposed to do, namely build a base of support for meaningful campaign- finance reform," Gore repeated from his well rehearsed list of White House talking points. "The report wasn't even produced until the debate on campaign-finance reform was over with." Yeah. And it's always interesting to hear how crooks think laws they intentionally violated should be changed.

The Thompson Committee outlined some of how the communist Chinese government worked to subvert our election process and buy influence from two branches of government. Unfortunately, the Senate Committee also locked up all the juicy details under the guise of national security. Also missing is the fact that Bill Clinton inappropriately sent his campaign people to a foreign country to interfere in their election: Tony Blair.

One of two things will happen, probably before mid-summer: Starr will dump the whole mess on Henry Hyde and his House Committee, and walk away from it all. Or, Starr is going to indict Hillary and a dozen others, with Bill as an unindicted coconspirator, and then stick around to aide the House with impeachment proceedings.

Right now, the latter seems most appropriate. Retribution.


Under the Supremacy Clause of the United States Constitution, it is the obligation of State Courts to defend each and every clause of the U.S. Constitution. So says the United States Supreme Court. Repeatedly.

Below is an excerpt from a very large book named: "Analysis and Interpretation of the Constitution of the United States, Annotations of Cases Decided by the Supreme Court of the United States." The Constitutional case law was prepared by the Congressional Research Service of the Library of Congress and is available in Federal Bookstores for about $100. The text quoted immediately below can be found on the Internet at: www.access.gpo.gov/congress/senate/constitution/art6.html We removed the Court citations to save space, but they are all available at the address above.

This is very important stuff, and we will explain exactly why shortly. First, the duty of State judges -- and, by extension, the duty all State elected and appointed officials taking the oath of office.

The Constitution, laws, and treaties of the United States are as much a part of the law of every State as its own local laws and constitution. Their obligation "is imperative upon the state judges, in their official and not merely in their private capacities. From the very nature of their judicial duties, they would be called upon to pronounce the law applicable to the case in judgment. They were not to decide merely according to the laws or Constitution of the State, but according to the laws and treaties of the United States -- 'the supreme law of the land'."

State courts are bound then to give effect to federal law when it is applicable and to disregard state law when there is a conflict; federal law includes, of course, not only the Constitution and congressional enactments and treaties but as well the interpretations of their meanings by the United States Supreme Court.

While States need not specially create courts competent to hear federal claims or necessarily to give courts authority specially, it violates the supremacy clause for a state court to refuse to hear a category of federal claims when the court entertains state law actions of a similar nature.

The existence of inferior federal courts sitting in the States and exercising often concurrent jurisdiction of subjects has created problems with regard to the degree to which state courts are bound by their rulings. Though the Supreme Court has directed and encouraged the lower federal courts to create a corpus of federal common law, it has not spoken to the effect of such lower court rulings on state courts.

So, in the second paragraph above, we learn that "State courts are bound then to give effect to . . . the [United States] Constitution . . . as well as the interpretations of their meanings by the United States Supreme Court."

That could be a convenient quirk in the law, if we care to use it properly. For instance, in a 1992 opinion, New York vs. U.S. (91-543, 1992), the United States Supreme Court ordered:

"Where Congress exceeds its authority relative to the States, therefore, the departure from the constitutional plan cannot be ratified by the 'consent' of state officials. An analogy to the separation of powers among the Branches of the Federal Government clarifies this point. The Constitution's division of power among the three Branches is violated where one Branch invades the territory of another, whether or not the encroached- upon Branch approves the encroachment. . . . The constitutional authority of Congress cannot be expanded by the 'consent' of the governmental unit whose domain is thereby narrowed, whether that unit is the Executive Branch or the States." . . .

"States are not mere political subdivisions of the United States. State governments are neither regional offices nor administrative agencies of the Federal Government. The positions occupied by state officials appear nowhere on the Federal Government's most detailed organizational chart. The Constitution instead 'leaves to the several States a residuary and inviolable sovereignty,' (The Federalist No. 39), reserved explicitly to the States by the Tenth Amendment." . . .

"Whatever the outer limits of that sovereignty may be, one thing is clear: The Federal Government may not compel the States to enact or administer a federal regulatory program."

In last year's Printz opinion (95-1478, 1997), the United States Supreme Court expanded on that order: "The Constitution's structure reveals a

principle that controls these cases: the system of 'dual sovereignty.' Although the States surrendered many of their powers to the new Federal Government, they retained a residuary and inviolable sovereignty that is reflected throughout the Constitution's text." . . .

"Finally, and most conclusively in these cases, the Court's jurisprudence makes clear that the Federal Government may not compel the States to enact or administer a federal regulatory program."

In Printz, the Supreme Court went beyond the case at hand a little and even mentioned federal regulatory programs imposed on States that are tied to grants and federal funds. And, while the Court did not exactly forbid these schemes by program name, it did clearly state that they do not conform to Constitutional tradition:

"Even assuming they represent assertion of the very same congressional power challenged here, they are of such recent vintage that they are no more probative [proof -- ed.] than the statute before us of a constitutional tradition that lends meaning to the text. Their persuasive force is far outweighed by almost two centuries of apparent congressional avoidance of the practice." . . .

So, as the Court summarizes, States are sovereign jurisdictions and not under the control of the federal government:

"Much of the Constitution is concerned with setting forth the form of our government, and the courts have traditionally invalidated measures deviating from that form. The result may appear 'formalistic' in a given case to partisans of the measure at issue, because such measures are typically the product of the era's perceived necessity. But the Constitution protects us from our own best intentions: It divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day." . . .

"We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the State's officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the State's officers or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case-by-case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty."

Putting this all together, we learn that we can go to a local State court for relief from any regulation the federal government forced, ordered or otherwise coerced the State government to enact or enforce.

For instance, if the U.S. EPA is forcing your State EPA to enact regulations that require tail pipe emissions testing of automobiles, that would be forbidden under the U.S. Supreme Court opinions in New York and Printz. The federal bureaucracy may not (and must not) order State officials to do anything. Period. Compliance by a State official would then be a direct violation of the U.S. Constitution, as interpreted by the U.S. Supreme Court. Any State judge must then toss the regulation out.

Unfortunately, the federal government may then (sometimes) come back and do the regulating themselves. State officials, however, may not.


Twice, in as many weeks, I have received reports from readers saying they were very distressed by certain comments made to local groups by a Member of Congress. I have also heard similar statements personally, on occasion, so didn't immediately consider the significance in the grand scheme of things.

The distressing off-the-cuff statement from the elected Lords and Ladies of the Hill usually is related in the form: 'I don't pay much attention to the Constitutional aspects of these bills. I'm more interested in the bottom line.'

And that, dear reader, is exactly true! First, there is no way they have time to read all of those bills and continue the expected production of that law factory. So, they only read (if anything) the executive summaries. Second, there is $1.2-billion in lobbyist money spread around Washington every year. Some lobbyists give Members of Congress money, and other considerations, to effect their vote and other lobbyists give money, and whatever, as a reward for a favorable vote.

The money given to Members of Congress is commonly called "campaign funds." However, the considerations can also include "fact finding" trips, fund-raising parties and cushy jobs for friends and family. For instance, how many Members of Congress paid for their overseas trips last year? Zero. Or, how many Members of Congress are visiting constituents on those paid trips to American cities beginning with the word Palm (as in Palm Beach and Palm Springs)? Two.

Washington lobbyists spend $100-million a month just to influence legislation. We constituents cannot keep up with that type of cash outlay in "campaign contributions," of course. And, even if we could, we cannot be there to quiz our Congress member on the bill of interest. There's just no way they would give one or two of us the amount of time they give a lobbyist with deep pockets who has other lobbyist friends with deep pockets.

Anyway, to mention Constitutional issues in a Congressional office is probably one of the quickest ways to end a meeting. It's always best to stick to a single issue with them, and never mention things like honoring one's oath of office or that hackneyed old concept once called "rule of law."

Unfortunately, this is becoming true with the courts nowadays, too. Most judges hate Constitutional issues because they might actually have to make an important decision. And, chances are great that decision would be unpopular with one or another group of Americans -- especially the lawmakers and bureaucrats the judges associate with. So, judges tend to do anything in their power to insure such issues are not presented in their courts.

Clearly, there is nothing we citizens can do about this treachery by judges, either. They know that. Only the Senate can remove a judge, and chances are great that the Senate approved of the law causing the Constitutional issue under question.

So, it was very distressing to learn that some of this attitude has even migrated over to the United States Supreme Court. Justice Antonin Scalia, whom we often agree with, recently let the cat out of the bag at an address to a leadership meeting of the American Medical Association.

"It is not supposed to be our judgment as to what is the socially desirable answer to all of these questions. That's supposed to be the judgment of Congress, and we do our job correctly when we apply what Congress has written as basically and honestly as possible," Scalia reported.

"In my Constitution, if you want the death penalty, pass a statute. If you don't want the death penalty, pass a statute the other way. You want a right to abortion, create it the way most rights are created in a democracy: pass a law. If you don't want it, pass a law the other way. And if you want a right to (physician- assisted) suicide, the same," Scalia told the AMA leaders.

We, of course, disagree in part. One of the most basic functions of the United States Supreme Court is to insure to the people that the actions of the other two branches of government are within the boundaries set down within the Constitution. Before FDR intimidated the Court into approving socialism, the Supreme Court took that responsibility seriously. In some recent decisions, the Supreme Court indicated that it may again be steering a course back to the "original intent" of the Constitution. In many opinions, however, the Court has ruled totally and completely against the "original intent" of the Constitution's authors and in favor of womb to tomb control of the American people by the federal government.

So, when Mr. Justice Scalia says; "Having the Constitution mean whatever five out of nine justices think it ought to mean these days is not flexibility but rigidity;" we respectfully disagree. We want and expect "rigidity" in government. There must again be bright lines drawn over which the federal government may not cross. For instance, the words "shall not" have very strong meaning to most Americans. That should signal rigidity. We see no reason these words should have any other meaning to the Court.


Somehow, I was lucky enough to get on a newsletter list for a publication called "Edupage." Therefore, once or twice a week a short, very well written, newsletter is delivered full of information on computing that I never seem to see anywhere else. It is never a very long publication, but it is always interesting.

So . . . I ripped off one section for Heads Up readers. Subscription information is included.

THIRD WORLD PROTESTS TAX-FREE INTERNET A coalition of developing nations, led by Egypt, India and Pakistan, are protesting a World Trade Organization proposal for an Internet "free trade zone," saying that such a development would reinforce the dominance of North America and European countries in the online world. The coalition is proposing that no decisions regarding the creation of a tax-free Internet trading zone be made until the problem of Western dominance of the Internet is resolved. Trade officials predict that negotiations on creating the free-trade zone will begin next year at the earliest.

Edupage ... is what you've just finished reading. To subscribe to Edupage: send mail to: listproc@educom.unc.edu with the message: subscribe edupage Ralph Ellison (if your name is Ralph Ellison; otherwise, substitute your own name).

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