Why the Paycheck Fairness Act is unconstitutional

Mike Church Host, The Mike Church Show
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Third time’s the charm goes the old adage, or in the case of the Paycheck Fairness Act, perhaps the third time will spare us the embarrassment of a fourth time. Our Dear Leader is determined to spend spring demagoguing the two-time-loser into yet another signing ceremony that shreds the Constitution. His Democrat accomplices in the U.S. Senate, last seen as the victims of a CIA spy caper gone bad, want to join the frivolity. Their abettors in the media have done nothing to vet the legality of the law and even engaged in a corny satire, staged Tuesday, in the White House briefing room, over what everyone knows are the bogus statistics anchoring the act’s necessity. From the White House transcript room.

Question: Jay [Carney], your own Labor Department has that gender pay equity metric at 81 cents. The numbers are a little bit all over the place, are they not? That number, 77 cents —

MR. CARNEY: Do you doubt — I mean, we can have this —

Q: I’m not saying there’s any doubt that there’s gender pay inequity.

MR. CARNEY: OK. There’s gender pay inequity. [emphasis mine — MC]

Got that, reader? While doubt remains over the current laws of astrophysics there is not an iota of doubt in the Minister of Propaganda’s office over something as subjective as gender pay equity. The WaPo’s Nia-Malika Henderson theorizes that FaceBook COO Sheryl Sandberg’s book, written 14 months ago and forgotten even faster, is a catalyst. Besides, in the eyes of the White House’s epigones, there is gender pay inequity and wherever an inequity is found, so must the imperial Congress and president be found, outlawing the inequity by the power of Congress.

Maybe instead of arguing over the census “data” that alleges to show the inequality, someone in the media could ask the most important question of all: Does Congress or the president actually have the legitimate power to address it? The answer is no, but the government, their trial lawyer friends and the court stenographers all have big stakes in the outcome. This is how a corrupt, immoral, banana republic operates and it’s high time to ask, why do the American people tolerate it? Because they don’t know how the Constitution’s system of separated powers worked. If we’re going to abide by a written Constitution and if that Constitution is to govern some of our affairs, this separation must be understood.

Back in the day…

Back in the days of Jefferson, Monroe, and Cleveland, federal power was limited while state power was nearly unlimited. In Federalist 45, James Madison proclaimed this to hesitant New Yorkers:

“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.” 

Madison’s definition does not leave any room, anywhere, for Congress or the president to meddle in any inequality, found anywhere, in any state in the union. This agreement was grudgingly obeyed in every Congress or by president’s checking derelict Congresses all the way up until the turn of the 20th century. Since then as federal power has expanded, state power has waned to the point where it only exists in the minds of a few thousand remnant dreamers, like me.

And so we come to the well-intentioned but misguided civil lawsuit in New Mexico. Elaine and Jonathan Huguenin ran a business called Elane Photography. The Hugienins refused to photograph the 2007 commitment ceremony of a lesbian couple, Vanessa Willock and Misti Collinsworth, for religious reasons. The couple sued under New Mexico’s Human Rights Act (HRA) and the State’s Human Rights Commission (HRC) unanimously agreed. The Huguenins unsuccessfully appealed to the New Mexico Supreme Court claiming protection for their acts under the federal Constitution’s First Amendment.

The problem is, the Bill of Rights does not apply to this case because Congress did not create the HRA or the HRC. I know that it is fashionable to believe that you have “constitutional rights” protected universally, in all instances in North America but that is a product of late twentieth century judicial engineering. A look at the complete Bill of Rights (BOR), as submitted to 12 states for ratification in 1789 reads:

“THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of ITS powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.” [emphasis mine — MC]

The BOR’s Framers were thus answering a call from the states to further restrict the powers of the new federal government, and that’s that. This fact is so little known yet so easily understood even the GEICO Caveman could do it. Why then did the Hugienin’s and their attorney eschew the ineligible First Amendment for the applicable New Mexico Constitution’s Religious Liberty clause in their Bill of Rights? It says in part “…no person shall ever be molested or denied any civil or political right or privilege on account of his religious opinion.” [emphasis mine – MC]

The explanation for the Hugienins choice is ignorance of how the federal system under the Constitution is supposed to function. An ignorance that gives Nancy Pelosi, Barbara Mikulski and President Obama license to propose and pass things like the Paycheck Fairness Act.

Does Congress even have the power?

Using the same federalist logic demonstrated above, we can see if Congress ever had the power to compel the people of the states to do anything in regard to gender. In 1916,  suffragettes organized under the National Women’s Party to demand the universal right to vote in federal elections. The Senate rejects the Suffrage amendment but the gals don’t relent, staging protests all over Washington, for three years until the Senate relents in 1919 and by August 1920, the right of women to vote is ratified in the style of the 19th Amendment.

If Congress had the power to compel the States, and the people therein, to let women vote in all elections, they could have declared it with the “Women’s Suffrage Act,” right? Wrong. Congress, then loosely tethered to the Constitution’s shackles knew the power didn’t exist without the Constitution being amended to say so. The same was true when the vote was denied on account of race and age. It took a Constitutional amendment to make black and youth voting legal and binding on all the states. Remember, the Democrats specifically deign to fix women’s pay inequity, a gender-specific act.

If we explore the ridiculous question under consideration with the Paycheck Fairness Act there is even more recent history that indicates Congress doesn’t have the power to “fix” it and they knew it. Recall that Congress DID attempt to remedy workplace iniquities via a constitutional amendment in 1982 (the year the ERA ratification deadline passed) with the ERA and It failed. Ironically it was a woman, Phyllis Schlafly, who did more to stop ratification than anyone else. The ERA stated “Equality of rights under the law shall not be abridged by the United States or by any State on account of sex.” So you see, as recently as 30 years ago, enough knowledge existed of our federal system’s separation and distribution of powers that the American peasantry were spared ill-advised, laughable and unconstitutional canards that are served up today like EBT shopping sprees at Louisiana Wal-Marts.

Congress is not authorized to pass the Paycheck Fairness Act — if a similar act required the ERA Amendment 32 years ago, it still requires an ERA-style amendment, but who is going to enforce this? An engaged, well-informed populace with State legislatures, jealous of their liberties and protective of their own powers would never allow it, but that is not what we have.

During the Congressional and presidential outrages of 1798-99 and 1800 it was said of then-private citizen and Founding Father John Taylor, “[H]e remained steadily at his post and adhered firmly to his principles [of ‘76] … Taylor has in truth been a true and faithful servant of his country.” We need more people like that to become faithful servants of their country, which in this case means their state. The alternative is the “Unearned Paycheck and Vacation Fairness Act” coming to a White House press briefing in 2015.

Mike Church is a New Orleans native and a radio host appearing daily on the SiriusXM Patriot Channel. He is an author and editor of “Patrick Henry-American Statesman” and is the writer and director of 7 Docudramas on American history including “The Spirit of ‘76” and the recently released “Times That try Men’s Souls-Washington’s Crossing.”