Perhaps we have been reading our history books incorrectly over the past 233 years. A recent pair of proposals out of Washington in the last two weeks is enough to make one wonder if Cornwallis really surrendered at Yorktown in 1781 or if General Washington was the one waving the white flag of capitulation.
First we have the passage of H.R. 1586 in the House of Representatives by a margin of 328 to 93. This notorious legislation places a 90 percent tax upon bonus money awarded to employees making $250,000 or more with AIG and other "bailed-out" firms. This legislation is an obvious violation of the Article 1, Section 9, Paragraph 3 of the U.S. Constitution, which prevents the Congress from passing legislation to specifically punish individual citizens.
The late Justice William Rehnquist once stated that such "bills of attainder" are reflective of the traditional English system which the Founders saw as threatening to individual liberty. Such an act, said Rehnquist, "singled out one or more persons and imposed punishment on them, without benefit of a trial." This Constitutional clause "was intended not as a narrow, technical prohibition, but rather as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function or more simply-trial by jury," according to U.S. v. Brown (1965).
According to David Plant—keeper of a website dedicated to British history—such bills of attainder were used to confront opponents of the crown, stripping these citizens of their property and fortunes and in some cases, sentencing them to death. Now the U.S. Congress is mimicking the actions of the same Englishmen whose laws led to the hanging of Cromwell and various Irish rebels in the late eighteenth century.
While the efficacy of the bailout packages passed in recent months deserves greater scrutiny, the issue is not whether or not one supports the bailouts or the foolish awarding of bonuses. The question at hand is why 328 legislators would pass a bill in such clear violation of the U.S. Constitution? What we have, in essence, is a legislative bogie, where the House realized they botched the bailout plan by inserting virtually no oversight preventing the awarding of such bonuses. Since they cannot undo the bailout, they are taking the political hickory switch to the hides of the most obvious, least sympathetic characters in this tragedy.
A second matter of grave concern is the introduction of the Newspaper Revitalization Act, sponsored by U.S. Senator Ben Cardin (D-Moscow). Cardin’s legislation addresses the serious problem of the diminishing newspaper industry in America. Cardin’s solution is to "bailout" newspaper companies by allowing them to operate, according to Reuters, "as non-profits for educational purposes under the U.S. tax code, giving them a similar status to public broadcasting companies."
The rub is that under such an act, newspapers would be allowed—for now—to report on politics, but could not endorse candidates for public office, producing what amounts to a gag order on the scrutiny of politicians and public policy. The Cardin plan would buy the silence of newspaper editors with public funds and is certain to make John Peter Zenger roll over in his grave. Zenger, as you may recall, was the New York Weekly Journal publisher jailed for eight months for sedition against the British monarch in 1733 before being defended successfully by a young attorney named Alexander Hamilton.
As a former newspaper editor, your humble columnist would sooner see the entire newspaper industry fail and shutter throughout the nation than allow a government body (any government body) from exercising even the slightest amount of control over the opinions, content, and editorial decisions of American newspapers. This is not freedom or liberty. This is a recipe for tyranny which reasonable, sensible people ought to roundly reject.
In his often overlooked speech entitled "The Press Under a Free Government," delivered on January 17, 1925, President Calvin Coolidge boldly declared that "wherever despotism abounds, the sources of public information are the first to be brought under its control. Wherever the cause of liberty is making its way, one of its highest accomplishments is the guarantee of the freedom of the press."
Coolidge concluded his address by noting that "my ultimate faith I would place in the high idealism of the editorial room of the American newspaper." The Cardin bill flies in the face of this declaration of liberty and instead guarantees the converse; that the sources of public information shall be threatened by the specter of control by political elites.
These proposals bring us to two larger operational questions that ought to be considered by President Obama, his administration, the Congress, and the public. First, the rights of the people of the United States are described within the Bill of Rights. These rights are non-negotiable and stand as the safeguard of our unassailable protections from government’s heavy hand. Policy proposals such as the newspaper coercion legislation and the 90 percent bonus tax attempt to override these inalienable, non-negotiable rights and ought to be exposed for their dubious nature. It is intolerable that any of our elected officials would consider lending their support to legislation such as this.
The second point is that the American people can no longer simply blame politicians after such shameful bills become law. If we are a people truly worthy of self-governance, we must accept our role as the custodians of liberty against such efforts by our own government to usurp our rights. At some stage we must face the music and recognize that our own lassitude and sloth have allowed this erosion of rights to ensue. Until that day occurs, there is very little that can be done to turn the tide.
In 1820 Jefferson said that "the boisterous sea of liberty is never without a wave." If so, America presently faces a tsunami that her sovereign citizens will only withstand once their participatory role in preserving liberty is realized. If we permit the government to censor the free press through financial coercion, pass bills of attainder that run roughshod over Article I, and remain silent as Washington taxes and spends us beyond what George III could have ever imagined, we ought to rethink whether or not we are worthy of the republic that Jefferson, Washington, Franklin, Madison, and company handed down to us.
Nathan R. Shrader can be reached at [email protected]