LOTFI: Libertarians wrong on federal lawsuit for ballot access


NASHVILLE, March 10, 2014– Many Libertarians repudiate the idea of being linked to the GOP. Their dissent does not change the fact that the Libertarian wing of the GOP does exist and is currently battling the establishment for control of the Republican Party. Meanwhile, those who are not battling for control of the GOP are battling for control over GOP voters.

Nowhere in the country was this battle more evident than in Ohio last week. The Ohio Libertarian Party is currently locked inside a battle of historic proportions with the Ohio Republican Party.

Libertarians often refer to themselves as strict constitutionalists and champion the restoration of the American republic. They often hold themselves in a state of moral superiority over their Republican counterparts, which is a perch they have earned, more often than not.

Journalist Ben Swann interviewed Ohio Libertarian Party gubernatorial candidate Charlie Earl (pictured above) over the weekend. “They see us as a threat and a challenge [to Governor John Kasich], we are coming from a Constitutional perspective.  We are on his right” says Earl, who served for a number of years as a Republican State Rep in Ohio.

Earl drives the point that he and Attorney General candidate Steven Linnabary were both kicked off the ballot for holding the Constitution in higher regard than the Ohio GOP establishment.

However, the move to file a federal lawsuit on behalf of the two Libertarian Party candidates is an acute deviation from the Constitution and foundation of the American republic. In fact, this move contradicts the very idea that the two candidates are holding the Constitution in high regards.

Where in the Constitution is the federal government delegated the power to change state election laws? Nowhere. Why? Because election laws are a power of police, which means the power is reserved to state governments.

“The power of the State to impose restraints and burdens on the persons and property in conservation and promotion of the public health, good order and prosperity is a power originally, and always belonging to the States, no surrendered by them to the General Government nor directly restrained by the Constitution of the United States, and essentially exclusive, and the suppression of lotteries as a harmful business falls within this power, commonly called of police,” writes Justice Peckham in dissent. (Champion v. Ames)

In fact, the very practice of the federal government usurping power from sovereign state governments with regards to election laws has been clarified as unconstitutional.

Regarding the Voting Rights Act of 1965 Chief Justice Roberts noted that the law impedes on state sovereignty and equality among states to run their own elections. Roberts calls it a departure from the principles of the Constitution. “The Voting Rights Act sharply departs from these basic principles. It suspends “all changes to state election law—however innocuous—until they have been pre-cleared by federal authorities in Washington, D.C.,” writes the Chief Justice. He clarifies that if the Act was being drafted today it would in no way have become law due to the clear unconstitutionality of federal action in state elections (Shelby County v. Holder).

Knowing this, the Ohio Libertarian Party’s lawsuit focuses on something entirely different. “What we are asking for is the right to be able to use our First Amendment rights to be able to select our own candidates,” said Earl.

By framing their argument as a First Amendment violation, the party grossly misinterprets the federal Constitution as a means to an end.

The First Amendment has nothing to do with state law election laws, or state law in general. This is a hard pill to swallow for some. The Bill of Rights technically only applies to federal laws.

The Supreme Court has ruled multiple times that the Bill of Rights was not bound to state laws. Even Chief Justice John Marshall, American history’s greatest proponent of centralized federal power, knew this much. “The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states,” wrote Chief Justice Marshall for the Court (Barron v. Baltimore).

It is settled law (emphasis added) that the clause of the Fifth Amendment, protecting a person against being compelled to be a witness against himself, is not made effective by the Fourteenth Amendment as a protection against state action on the ground that freedom from testimonial compulsion is a right of national citizenship,” Justice Reed for the Court plurality (Adamson v. California).

The Founders never intended the Bill of Rights to be bound to state governments. Why? They were building a republic and nothing else. The Constitution only applies to federal laws. By keeping the Constitution restrained to the federal government only, the result is vast decentralization of power. This was the goal of the republic.

Eventually, the federal government came to an insidious conclusion. If they were to rule that the Fourteenth Amendment “incorporated” the bill of rights then they could vastly expand federal power and begin manipulating state law.

The Fourteenth Amendment never bound the Bill of Rights to the states. In fact, no such language to insinuate so can be found in this historical record. The Fourteenth Amendment applied exclusively to freed black slaves. Regardless, the Fourteenth Amendment has been used to grow the federal government at an alarming pace.

Where is the Court granted the power to “incorporate”, thus creating laws for all fifty states? Nowhere. But who cares, right? The incorporation doctrine now allows the federal government complete control over all police powers. This is the portrait of a dead republic.

Although the intentions of incorporation may have seemed innocuous, the move was dangerous because it centralized federal power.

Libertarians will gladly argue that the Sixteenth and Seventeenth Amendments may have never been properly ratified. However, the Fourteenth Amendment was certainly never ratified. Historical record definitely proves this much. Ohio Libertarians seem to be silent in their dissent now that they are relying on faulty theory as a means to an end.

Most important is to realize the precedent Ohio Libertarians are trying to set. By requesting the federal government rule with favor to their cause they are abandoning the principles of the constitutionally restrained federal government.

The federal Constitution delegates no power for federal involvement in state elections. Because of this, the federal judiciary, a branch of the federal government, has no jurisdiction to rule in favor, or against the Libertarian Party of Ohio. However, as a means to an end, the Libertarian Party is willing to abandon this constitutional principle.

The precedent? How can libertarians argue Obamacare is unconstitutional with this cognition in place? They can’t. Due to abandoning the principles of a constitutionally restrained federal government, liberals successfully sought the very same cognitive path to justify Obamacare.

Of course the Court upheld Obamacare. We have abandoned the principle of constitutional restraint in order to justify our individual means to an end. Once you abandon this principle you cannot protest the same actions by others. It is grossly hypocritical and the Courts will rule in favor of “equality” to ensure an ever expanding federal government.

The Solution? Remember the republic. The republic was designed with one goal in mind, which was decentralization of power. This decentralization of power allows for change on the local level. Running to the feds for help only sets the precedent that the feds can intervene where they cannot. Take responsibility of your state and local governments. No one said it was easy, but running to the feds creates corruption and usurpation of power on a much larger scale in the long run.

“We choose to go to the moon in this decade and do the other things, not because they are easy, but because they are hard…”- John F. Kennedy.

Reach for the stars Ohio.

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