“The fault, dear Brutus, is not in our stars, but in ourselves.”

Holcomb

Ever since FDR’s “switch in time that saved nine,” our legal system and law schools have spewed out innumerable “constitutional law experts” who often claim that whatever any government official, agency, bureaucrat or cop can do to people is OK.  They do this by ignoring our short and simple constitutions to unleash an interminable fusillade of judicial pronouncements and federal/state code sections that, by their number of words alone, do seem to overwhelm the few political powers constitutions authorize.

…Except, of course, to someone who’s actually read the laws.

Nobody claims that Governor Holcomb’s COVID-19 mandates were actually authorized by any constitutions, state or federal.  The constitutions absolutely forbid executives from making laws.  Executive Orders are constitutionally actionable only if they’re only the details of executing laws written by legislators.

Other than invoking armed force against insurrection or invasion (which would be as ineffective against a virus as was Caligula’s attack on Poseidon), the Governor’s only constitutionally authorized emergency power is to call an emergency session of the General Assembly.

To be clear, the constitutions say that what the Governor did, and is still doing, is unconstitutional in both word and intent.

The Governor cited not the Indiana Constitution, but Indiana Code as his authority, specifically the statute, IC 10-14-3, the “Emergency Management and Disaster Law.”

That particular ream of legal effluvium does indeed appear to authorize every possible decree, action or mayhem, if read by itself; and if ignoring all the key principles of separation and limitations of powers in a republic.Kirk

Ironically, it’s even less-limited than the federal 40 U.S. Code § 1315 that Trump’s folks invoked against Portland protesters.

But consider what the Indiana Code says about its own authority in the hierarchy of law. What follows is IC 1-1-2 § 1-1-2-1:

“Section 1: The law governing this state is declared to be:

First. The Constitution of the United States and of this state.

Second. All statutes of the general assembly of the state in force, and not inconsistent with such constitutions.

Third. All statutes of the United States in force, and relating to subjects over which congress has power to legislate for the states, and not inconsistent with the Constitution of the United States.

Fourth. The common law of England, and statutes of the British Parliament made in aid thereof prior to the fourth year of the reign of James the First (except the second section of the sixth chapter of forty-third Elizabeth, the eighth chapter of thirteenth Elizabeth, and the ninth chapter of thirty-seventh Henry the Eighth,) and which are of a general nature, not local to that kingdom, and not inconsistent with the first, second and third specifications of this section.”

Please note the order.  Last, or fourth, is case law.  This is what most USA citizens now think comes first.   Supreme Court does, in fact, sound supreme.  But it’s actually dead last in the legal hierarchy that determines what politicians can decree what we can do, can’t do, and must do for them.

Third is the federal code. Second, is the Indiana Code, as long as the code doesn’t contradict the constitutions, state or federal.

First on the list, of course, are the constitutions that say only legislators can legislate.

The Indiana Constitution’s Article I, Section 26 says very clearly says that only the General Assembly (our legislature) has any authority to suspend the laws protecting our rights from politicians under any circumstances.  Article I, Section 25 very clearly says that laws cannot create any authority not already granted.

And nowhere is the legislature granted authority to delegate away it’s power and more local accountability by the stroke of a pen.

The law is clear.  Why the Governor still refuses to call our legislators to work, is not. You’d think he wouldn’t want all the protests, disagreements from Sheriffs and Indiana’s Attorney General landing on him alone.
Unless, of course, he intentionally crossed this Rubicon and wants to be Caesar.lucy-charlie-brown-football

That’s history we really shouldn’t want to repeat.

Hang onto your hats, folks…

We The People never actually did the constitutions as intended.  We never extended the freedoms we cherished to those we disliked (Injuns, Darkies, Micks, Wops, Chinks, Bohunks, Catholics, Jews, etc., etc., et cetera…), and so the whole point of constitutional rule of law was compromised from the start.

In empowering a government to degrade or oppress anybody, we created a baby monster.  That monster would grow up, of course.

Well, maybe not so much a baby monster.  I think for present purposes I’ll ignore our government’s first centuries of slavery, native genocide/oppression, what happened with Civil War and Jim Crow, and move on to what we think of as our more pleasant selves.

coming-money-trustFrom 1910-1912, we feared occasional interruptions to history’s greatest economic expansion, so we surrendered our successful monetary/financial system to central banking and fiat currency through a political system of monetized debt.  This was also, not so coincidentally, how we could “pay” off previous wars and prepare for “modern warfare” in the future… by robbing the future.

Not long after that, our fear of drunkenness led to the prohibition of “…the manufacture, sale, or transportation of intoxicating liquors.”  While this first prohibition of any sort of trade didn’t involve prohibiting consumption or purchase of anything, those additional prohibitions came as if by magic, along with rampant “civil asset forfeiture,” police and judicial corruption, and the presumption that government can prohibit other trade even after the 18th amendment was repealed by the 21st.

From WWI to WWII, our fear of Germans, Arabs, Italians and Japanese temporarily distracted us from our hatred/fear of Native Americans, Negroes and Jews, so our government took away our gold, rationed and prohibited a bunch of stuff, raised taxes dramatically, started “socializing” the heck out of stuff, and imposed lots of laws against speech and movement and so on.  But we were pretty proud after kicking some @$$…though we did, of course, fear commies (our allies just moments earlier) after that.

So some more liberties had to be curtailed, naturally.  That’s war, you know. Sometimes past mistakes rationalize making more in the future.

But by the 60’s we no longer feared alcohol, because we now fear drugs.
So we got SWAT teams, Nixon’s “War on Drugs,” and a thriving black market in …drugs.  And all without amending the constitution this time!
Police forces grew exponentially in size, armament, and since the 1980’s…immunity.

By the 80’s we feared black markets and drug dealers so much that we got more sting operations, spying, unlimited “civil asset forfeiture” and no-knock raids.

From the 70’s, when we tied our money to Saudi oil trade, through the 90’s, when some uppity Muslims challenged our petrodollar system, we decided that the people we’d been relocating for a hundred years, then overthrowing and manipulating with the Saudis, were “terrorists,” and THEY became our biggest fear…for which we’ve had to sacrifice innumerable freedoms of travel, privacy and finance.
Then after 9/11…ho boy!

Now the NSA has replaced Santa Claus as the keeper of lists, and you really don’t have any constitutional freedoms at all anymore.  You’ve got only conditional privileges with ever-more conditions on ever-fewer privileges.

Strangely, instead of thanking our nation’s founders, constitution’s authors and civil rights heroes for the freedoms we’ve been throwing away, we thank soldiers fighting foreigners in foreigners’ own homes.  …Fighting wars that rationalize the loss of more freedoms.
(how can we make this make sense?)

HwDrYuSo now we’ve got this really bad case of cooties, and we’re snitching on each other like CoroNazis, and trying our best to shovel even more power onto the authoritarians when that’s now becoming a very hard thing to do.

CoronaVirusNot to minimize how deadly a pandemic can be, of course.  With my first political campaigns, I tried to make an issue of our lack of preparedness for just such things (my first real job in healthcare was an internship at the Indiana State Board of Health, after all).

If you really want to live scared, communicable disease actually is a worthy terror.

ChynaApparently that’s not enough fear, however, because we’ve lately replaced our fear of Russia with the fear of China.  In some ways, that makes sense.  China’s much more dangerous now that we’ve given them at least close equivalence in economic, industrial, entertainment, information/ education, engineering and of course military/espionage might.  They could danged-near build a human bridge across the Pacific and kick our @$$.

But what you really should fear is that, as China has to an effective degree emulated our industries and market economics, We The People have emulated Chinese brutality, deceit and authoritarianism.
We’ve thus thrown away our economy, and our freedom.

…Oh, and our security.

Sure, we’ve angered the whole world by putting our forces in half the world with the guns pointed at the other half.  Our wars never end…even after our President/General Eisenhower warned us about the danger of a military industry.

But worse, all the preceding has rationalized more enforcement, more force, an increasingly adversarial relationship between us and the police and our “National Guard” forces.

Bad laws drive away good cops and encourage bad cops.  Too many laws mean selective enforcement, which is a major foothold for corruption and racism/tribalism.  And corrupt, continuously re-elected and therefore arrogant and unaccountable politicians want thugs and the fear they spread…it’s what gives politicians power over us.

Our collective fear, ignorance, tribalism and hate is leading us to a very, very, historically, epically bad place.  Only politicians thrive on our division, hostility, fear and hatred.  They feed and grow more powerful on our discord the way a tick drinks blood.

Our nation’s founders would be ashamed at not only the destruction of their gifts to us, but also that we’ve not come up with any better vision by now.  They’d be horrified that we’re fighting each other instead of the forces that divide us against each other.

We could easily fix things at least to fundamental principles.  I’m not the only one who for decades has proposed simple ways to govern our government, regulate our regulators, police our police, and make our justice system just.

HeroBut it seems us Cassandra types have naught to do now but prepare for what’s now inevitable, and maybe prepare to help pick up the pieces… …If people become any more amenable to reason after catastrophe than they are now.TheEnemy

Sigh… We can’t be the Land of The Free if we’re not also the Home of The Brave.  I’m afraid we’ve become the Land of the Serfs and the Home of the Fraidy Pants.

As demonstrated every Election Day, including the next one, by all the evidence I see, We The People don’t seem to want any regulation of our government at all.  We want authoritarian rule and we want it good and hard.

SaveUs

Over 90% of us incessantly blow electoral kisses to the Powers That Be…and then whine about the consequences.

And those consequences have only just barely started to show…

Hang onto your hats.
They may be all that’s left after we’re done doing to ourselves what we have always feared from others.

No, this isn’t about Nazis. It’s about humans.

For good, obvious reasons, I don’t like to leap to Nazi analogies, references or allusions.

RememberBut so many people have been claiming that the Governor is fully authorized to suspend rights because of what they think are constitutional “emergency powers,” that I’m afraid I must point out six fundamental truths (before I exhume the Nazis):

1. Indiana Code (IC 10-14-3, “Emergency Management and Disaster Law”), and not the constitution, is where the emergency powers were passed as “law.”  You will not find any emergency Executive powers in either state or federal constitution.  Please look yourself.
My contention is that this IC chapter that seems to conjure this power is unconstitutional, not law, and should be entirely eliminated, for the reasons that follow.

2. Indiana’s constitution is the necessary, fundamental authority for all Indiana laws. Just as you and I can’t just make laws from our easy chairs, the Indiana General Assembly can’t just do whatever it wants.  It has to be properly authorized to do whatever it does. The Indiana Constitution is that authority.  And the Governor cannot make any laws at all (Article 4).

FIRST, authority, and THEN, law:
Article I Section 25:No law shall be passed, the taking effect of which shall be made to depend upon any authority, except as provided in this Constitution.

The constitution used to clearly state that any law that transcends what’s clearly written is null and void (they “amended” that away)…but they never removed Article I Section 25.

And even the Indiana Code agrees about the constitutional hierarchy of law. This is IC 1-1-2: Sec. 1:

The law governing this state is declared to be:

  • First. The Constitution of the United States and of this state.
  • Second. All statutes of the general assembly of the state in force, and not inconsistent with such constitutions.
  • Third. All statutes of the United States in force, and relating to subjects over which congress has power to legislate for the states, and not inconsistent with the Constitution of the United States.
  • Fourth. The common law of England, and statutes of the British Parliament made in aid thereof prior to the fourth year of the reign of James the First (except the second section of the sixth chapter of forty-third Elizabeth, the eighth chapter of thirteenth Elizabeth, and the ninth chapter of thirty-seventh Henry the Eighth,) and which are of a general nature, not local to that kingdom, and not inconsistent with the first, second and third specifications of this section.

The Governor and GA cannot give away what does not belong to them…and that includes our rights.   The actions taken by our Governor specifically violated Article I Section 25; Article I, Section 26; Article 3; and Article 4, Section 9.

3. Our rights, however, can be compromised in emergencies. There is constitutional authority for that…but only by the General Assembly!
Article I, Section 26: “The operation of the laws shall never be suspended, except by the authority of the General Assembly.”
If you read what was said about this in period, there are very good reasons for local accountability.  Different regions have different needs.  A tornado doesn’t destroy the whole state.  Rural areas are different from cities.  And, mostly, no one person should have so much power…or accountability!
We need to have more access to the people who make decisions that affect us so severely, and we want to be able to fire them or reward them with another term as needed.
I understand why legislators don’t want to make tough decisions that could get them fired on a Tuesday in November…but this is the point!
We want these people accountable to us, locally.  So there IS an emergency power structure…and it’s in only the GA.  …Not in the Executive office.

4. This is clarified by Article 3 – Distribution of Powers: “The powers of the Government are divided into three separate departments; the Legislative, the Executive including the Administrative, and the Judicial: and no person, charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided.
There are good, unequivocal reasons and principles here that should not be violated.  Ever.  …I mean it, not ever.

5. Ditto the federal constitution and its only-somewhat-related US Code.
Here’s the Amendment X: “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.” This is the same principle as the Indiana Constitution’s Article I Section 25.
Politicians cannot take, abuse or give away what doesn’t belong to them.

6. “Ah, but…” the fancy pants pseudointellectuals claim in their whiny voices, “…the constitution doesn’t specifically prohibit emergency Executive powers, so the real question is how to properly limit them in scope and duration.”
Shut up and read the preceding again.
Yes, the constitution does specifically prohibit such powers, and no court case, bench ruling or pundit rumination can change that.

Whatever isn’t specifically authorized is completely prohibited.

In fact, there are long-standing, very serious punishments (including death) made by law for those operating under the “color of law” that violate our constitutional rights.

We didn’t throw away our rights and erect Caesars over polio or the 1918 flu.  There were emergencies, and there were emergency sessions in legislative assemblies all across the country to deal with them…at state and local levels.  Even in this pandemic hysteria, there have been many Mayors, businesses and other local institutions that took local action while Presidents and Governors hesitated.  That’s the right way for things to happen.
There has always been a right way to respond to emergencies, and it’s all written down…in constitutions, state and federal.

A few more details before I get to the Nazis.

First, the obligatory Confucius quote: “An oppressive government is more to be feared than a tiger.

Next, this country made it over 200 years before passing the National Emergencies Act.
Think about how many emergencies (pandemics, droughts, floods, wars and economic catastrophes) had already come and gone by 1976.Enabling_Act_in_colour

OK.  So.  I’ll not say much about Nazis other than to say you really ought to look up the “Enabling Act of 1933,” or “Gesetz zur Behebung der Not von Volk und Reich” (“Law to remedy the plight of the people and the empire”).
I assume I need not mention how that turned out.
But I do need to mention that this was signed into law by Reich President von Hindenburg, when Hitler was only Reich Chancellor.

So first, the enabling act of expanding power and reducing rights; and thenEOHolcomb2

Governor Holcomb is no madman Hitler.  Not even close.  I like the guy, actually.

But you should never, ever, law or no law, give ANYBODY this much power, because the next Executive, Caesar, Poohbah or King will only add to that power.

Power takes power.  It accumulates and festers and expands until societal calamity.

On August 3, 1857, in an era of much greater harshness than we face from a virus, Frederick Douglass spoke the words that, more than any other single thing I can think of, pushed me toward philosophical libertarianism:Comments on Narrative of the Life of Frederick Douglass ...
“Power concedes nothing without a demand. It never did and it never will. Find out just what any people will quietly submit to and you have found out the exact measure of injustice and wrong which will be imposed upon them, and these will continue till they are resisted with either words or blows, or with both. The limits of tyrants are prescribed by the endurance of those whom they oppress.”

You know this, right?  It’s all over human history that people’s own government becomes their biggest enemy, right?

Well, the Germans didn’t think it could happen to them, either.