Date: 2009-12-11
Speaker: DANIEL E. LUNGREN (republican)
Chamber: H
State: Cali

fornia. Mr. Speaker. earlier the majority leader. in his dialogue with the Republican whip. stated that perhaps the reason that Republicans were relieved of their responsibility of being the majority in the House of Representatives was because of the substance of legislation considered at that time. rather than procedure. Well. I am not going to quarrel with the majority leader. but I would like to change our debate from the past to the present and the future. I would like to examine some common themes that are running through the substance of the legislation that has been presented on this floor during this year. I might say that my desire to have this hour today was prompted by a discussion I had with a member of my constituency. a woman living in my district. who came up to me at my last town hall meeting. As we were wrapping up the meeting and after I had spoken with a number of individual constituents. I was starting to leave the room when this woman. somewhat older than I. came up to me. and she had tears in her eyes and she literally began to tremble as she began to speak to me. What was noticeable immediately was that she spoke with a heavy Eastern European accent. She explained to me that decades ago she had had the opportunity to escape from a communist country and come to this country for the freedom that it allowed her. She said. with tears in her eyes. Mr. Congressman. please help us stop whats happened. She said. I fear that we are losing our freedom here in the United States and that my children and my grandchildren will not have the same freedoms that I came to this country for. She also said that she had recently visited friends in Europe. and she said. Mr. Congressman. they are laughing at us. They are seeing us give away our freedoms in this country. Please dont allow that to happen. I thought that it might be important for us to. on this occasion. pause for a moment and think about what that means. What do we mean when we talk about freedom in this country? What was this concept of freedom or liberty? How was it understood by our Founding Fathers? Well. the best way to try and figure that out. I would suggest. is to go to what we call our founding documents. the primary of which is the Declaration of Independence. In the second paragraph of the Declaration of Independence it says these words. We hold these truths to be selfevident. that all men are created equal. that they are endowed by their Creator with certain unalienable rights. that among these are life. liberty and the pursuit of happiness. that to secure these rights. governments are instituted among men. deriving their just powers from the consent of the governed. that whenever any form of government becomes destructive of these ends. it is the right of the people to alter or abolish it and to institute a new government. laying its foundation on such principles and organizing its powers in such form as to them shall seem most likely to affect their safety and happiness. Words that many of us have read as we have studied them in school. perhaps not studied them enough. These words are not that difficult to understand. Their meanings are not that difficult to ascertain. "We hold these truths to be selfevident": It means that they are easily understood. By applying reason. we can see that these truths exist. not just for us but for all people who have the capacity to reason. The first thing they say is that "all men are created equal." Of course. they meant that in the universal term. that all individuals are created equal. "That they are endowed by their Creator with certain inalienable rights." Now. the revolutionary aspect of that simple statement was this: Prior to that time. organized governments appeared to suggest that the rights that people had were not given to them by their creator. that is. they did not find themselves within individuals. Rather. all rights were those invested in the government. usually the majestic monarch. who. if they had a religious belief. it was that the monarch had a direct relationship with God far more direct than the individual. and that therefore the monarch decided what rights were given to the people. In other words. individuals only had rights at the sufferance of the government. The revolutionary aspect of this Declaration of Independence was not only that we were declaring our independence from the mother country but we were basing that declaration on selfevident truths that we as individuals had rights given to us directly by our God. This was a transformation of the then traditional thought that the individual was subservient necessarily to the state. And we went further in this statement. our forefathers did. That is to declare some of those unalienable rights to be life. liberty. and the pursuit of happiness. And then interestingly in this Declaration. our Founders thought it important to say this: "That to secure these rights. governments are instituted among men." Not to obtain these rights because the rights already exist. To secure these rights. Government is to be put in a place of protecting those rights that already exist. not to give us those rights. Now. this is revolutionary because it established a relationship in which the people essentially rule. And thats why it said further that governments are instituted among menmeaning men. women. and childrenamong all. deriving. that is. the governments. their just powers from the consent of the governed. In other words. once again it is the notion of limited government. a government limited in its power only by that which is given to them by the people and the people only give up those rights which they voluntarily decide to give up. And then. of course. when we get to our Constitution. the actual legal document which underlies all of the laws of the United States. it begins with these words: "We the People of the United States. in Order to form a more perfect Union. establish Justice. insure domestic Tranquility. provide for the common defense. promote the general Welfare. and secure the Blessings of Liberty to ourselves and our Posterity. do ordain and establish this Constitution for the United States of America." In other words. if you look at the operative parts of that opening sentence. it is "we the people of the United States" do ordain and establish the Constitution for the United States of America. "We the people." not the government. Were forming the government and were establishing the contract which then exists between ourselves and our government. And it very clearly states. as informed by the Declaration of Independence. that our independence comes as a right essentially of natural law. They didnt have any trouble saying "Creator" with a capital "C." Now. this doesnt mean that rights in this country are not acknowledged among people who dont believe in God. but what it means is our foundational documents presume that we have rights given to us directly by God. One would think. therefore. that under those circumstances when we the people decide to establish a governmental structure that that is a blueprint for majority rule. and in most cases that is true. But one of the other intriguing and important aspects of our Constitution. as amended by the Bill of Rights and the other amendments. is that the majority voluntarily restricted its majority rule in specific instances. We in some ways specifically said the majority rule will be limited so that minority rights in certain specific instances may exist. So in some ways you can say that the Constitution and the amendments put a restriction on democracy. It limits democratic practices. It limits our ability as free individuals to collectively make a decision as to our governance. But we accepted that. We volunteered that on our own. Why do I bring that up? I bring that up because essentially if were going to follow the Constitution. it means all branches of government must follow the Constitution and it means that we ought to be concerned if we have a court that presumes to trespass on the appropriate areas of responsibility that we the people did not give away or restrict but retained to ourselves and therefore allowed for decisions in the future to be made by majority rule. Thats why its important for us to understand that while the Congress has a role. the President has a role. and the courts have a role. none is truly superior to the other. There are certain areas in which we are given primacy of responsibility. Here in the Congress were responsible for legislating. the executive branch for executing. and the judicial branch for deciding in some ways proper interpretation of what the legislative branch has said or rules and regulations that the executive branch has promulgated. But just as importantly. if our courts are going to not unnecessarily interfere with our freedom. the courts should apply what I call "legal humility" and understand the limitations of their ambit of authority. And if they trespass into those other areas. they by that act take away from our individual freedom. Why? Because they then arrogate to themselves decisions that were to be left to the people. And if. in fact. they say they are doing it on a constitutional basis. they are saying. from our decision. there is no appeal. we are the ultimate decider. Now. to put it in simpler terms. one time. and I believe I was watching television when I saw this. I heard Justice Scalia attempt to explain this problem in this way: He said when he was a kid and you saw a problem. you saw something you didnt like. you saw something that ought to be changed. he said you would say "There ought to be a law." He said. unfortunately. now today all too often when people see something they dont like. see something that ought to be changed as far as theyre concerned they say. "Oh. its unconstitutional." Now. those two different statements convey a tremendous difference in substance. On the one case if you say. I dont like what Im seeing. there ought to be a law. you say the legislative process. the democratic process. people by way of persuasion and ultimately by vote either directly by the people. and in my home State of California we have some direct votes by way of initiative. or by our representatives. which is normally the case. either in our State legislatures or here in the Congress. you make an appeal to attempt to persuade a majority in those bodies to your position. and thats how you change law. Too often people give up on that process and attempt to try to say that their particular problem is uniquely a constitutional problem and that that problem. therefore. is so important it can only be decided by way of reference to the Constitution and the final arbiter of the Constitution is the Supreme Court. In one case in California in the Ninth Circuit. and Ill paraphrase this because I dont have the words exactly in front of me. a judge on the Ninth Circuit in dissent said that because something is important does not mean it is constitutional. And he went on to say it would seem in our scheme of government it should be just the opposite way. that most important questions would be decided by the people because were a democracy and that under only exceptional and limited circumstances would they be decided by the courts as something constitutional. But what have we done here in this House this year with respect to the freedoms? What. in fact. was my constituent saying to me. what was that lady saying to me. about her fear that were losing our freedoms? Well. I could engage in a conversation with her about my concerns over where the courts have overreached. I believe she was directing me to those subjects that we have been discussing here and voting here on this floor and in the Senate. in the other body. on matters of substance. the debate of which rarely includes a discussion of freedom. Let me just take one to start with: The health care bill that was on this floor and the provisions of a health care bill or bills that are being considered in the Senate. One of the rarely remarkedupon elements of that bill here. or the bills over in the Senate. is the mandate on the individual whereby it states that as a condition of remaining in the United States as a legal person in the United States. you must purchase health insurance as determined by the Federal Government on a yearly basis. Now. the argument has been made that. well. we have a problem with health care in this country. Some call it a crisis. I would say that I know of no one who wants us to maintain the status quo. The question is. what is the proper response to the challenges we have? But some have said if youre going to look at this from afar or systemically. what you ought to do is to require everybody to have health care insurance. Well. that might be an interesting idea. But we have a sense of limited government established in the Constitution of which I spoke before. and the idea that government is limited is essential to that understanding of freedom. And I look in vain in the words of the Constitution to find anywhere that I am charged with the authority as a Member of this body and working with other Members collectively in this body to say that an American may not remain an American unless or until he or she purchases the insurance that I deem they must have and that I could change from year to year to year. Not only that. I see nowhere where it says that I can enforce that obligation by way of threat of fine or jail sentence. and that is what happens in the bills that we have had before us. And my question is. as much as I want us to solve the problems inherent in the current health care system. I run up against. with all due respect to the former Vice President of the United States. what I consider to be the real inconvenient truth. It is called the Constitution. It doesnt allow us to do everything that we would like to do. It doesnt allow government to take all of the money or to take your freedoms away or my freedoms away when it is convenient. We have to do it within the context. within the four corners of the Constitution of the United States. Now the President of the United States in his address to the Congress said. well. this is similar to having auto insurance. It is not. Mr. President. And to those who have argued that on this floor. I would say it is not. If you have ever been involved in cases involving cars. automobile accidents. and insurance coverage. et cetera. you know that we do not have a right to drive on the public roads. it is called a privilege. You can condition a privilege. The other thing is no one has an obligation to have a car. If you choose not to have a car. you dont have to have car insurance. If you keep your car in the garage. you dont have to have car insurance. If you keep it on display in your house. you dont have to have car insurance. If you have a farm or ranch and you never put it on a public road. you dont have to have car insurance. Why. because you are not on the public roads upon which it is a privilege to drive. not a right. My right and your right and the right of anybody in this Chamber or any of our constituents to exist in the United States as a legal person should not be conditioned on some obligation that we in the Congress decide. Oh. we think it is a good thing for the overall system that everybody must have health care. therefore. we are going to require each person to have it. and if you dont have it in exactly the form we say. you are going to be fined. and if you dont pay the fine. you can be sent to prison. If we say that on this particular part of our life. where does it end? There has been very little talk about freedom when we talked about the capandtrade bill. and yet we know it is going to impose tremendous taxes and a regulatory regime on virtually everything we do. When you turn on your light switch at home. when you turn on your computer. when you pick up your telephone. when you walk out the door. when you get in your car. when you drive your car. when you go anywhere. the costs are going to be enormous. One of the dirty little secrets around here is that they hope we wont notice because they will be hidden costs. You are not going to be presented with the cost every time you turn on your light switch. but it will be embedded in the cost that you pay on a monthly basis. It is not going to affect you each time you turn on the car because they are not going to put a bill in front of you every time you drive your car. but every time you get gasoline. you will. Any time you use anything that is energy related. you are going to pay a penalty. essentially. for using that. and that determination will be made by the Federal Government. But that was not enough for some. No. last week. or was it earlier this weekI forget nowthe EPA administrator made an endangerment finding on C02 and other greenhouse gases as being pollutants. Now. you and I could sit down or others could sit down and argue about how we would define pollutants. but there is no one who can rationally argue. in my judgment. that the Clean Air Act. there was any anticipation by those who voted on it in the House or the Senate that this would include such a determination by the EPA administrator. and that as a result. the EPA administrator would be in the position of regulating our lives to the extent that he or she will have in the future. When you realize what this regulatory regime is going to be. they are telling us that if your Congressthat is. your legislators. and I am talking about generally if constituents would be told thisthat your elected officials as legislators make the decision not to eventually pass capandtrade and give that authority to the Federal Government. it will not matter because the EPA has. by administrative decision. taken that out of the hands of the Congress and now will decide it themselves. So. therefore. and I believe that many Federal employees are wonderful people attempting to do the job as they see fit. but nonetheless. in many ways they are faceless bureaucrats who are not responsive to people at town hall meetings. who do not have to go before the people for reconsideration or vote every 2 years as those in the House do. or every 6 years as those in the Senate do. In other words. they are part of the executive branch. and in administering. they are at least another arms length away from the people that are supposed to be free in our Nation. And so we are being told by some. that unless we in the Congress follow what they want us to do in the executive branch. they will take a command and control authority themselves and do even worse than we would do. so. therefore. we better act. Now. I dont know what you call that. There are a lot of words that come to mind. but "freedom" is not one of them. We also hear that Members of this body. including the Speaker. are desirous of attending the Climate Change Conference in Copenhagen. It used to be called "global warming." It is now called "climate change." Many people have questions about global warming. You cant say there is not climate change. because that is one thing we can all agree on. Climate does change. That certainly doesnt help us understand what the nature of the climate change is and the cyclical nature of the climate change and the natural part of the climate change versus the manmade part. In fact. we have been told by some. including the former Vice President. that we have no right to question it. I dont know. Mr. Speaker. what you were taught when you were in school. but I was taught that science is the continuing activity of questioning. that science is attempting to pursue certain truths in the natural world. and the only way you can determine those is by constantly putting up your proposition to peer review. if you will. and questioning and that skepticism is a good thing. not cynicism. but skepticism. And yet we have been told that we are not allowed to question it. that all of the questions have been answered and that. therefore. we should genuflect to this current notion of the scientific determination and. in essence. take the normal sense of politics in the best sense. that is. I mean. individuals through their power at the ballot box. to be able to make determinations as to how they wish to be ruled in this. a selfgoverning Nation. But we have been told. no. if we do that. we are selfish. In fact. the newly elected leader of the European Parliament announced that number one on his hit parade was to make sure that they had some sort of schematic achievement at this Copenhagen Conference. and in explaining it he used the term "global governance" at least three times. global governance. Interestingly. because I believe the former Vice President of the United States. in speaking to a group in London on the day that this House passed capandtrade. announced to that august group that this was a great triumph for what they were working on because it was the first real step toward global governance. I do know one thing about our Founding Fathers. the Founders of this country: they were not about global governance. They were not about the idea of a powerful. deciding force across an ocean ruling their lives. As a matter of fact. the essence of the revolution was casting off the authority of the mother country and allowing us here. in what became the United States. to be involved in a process. an experiment in selfgovernance that continues to this day. So when I hear the term "global governance." I get worried. I get worried because I think the Founding Fathers of this country would have been worried. Global governance suggests an authority somewhere up there with a global perspective that is somehow considered superior to our ability to govern in our country. in our State. and at the local level. And if we accept that argument. it seems to me that we reject the notion of federalism that is at the base of the protection of individual rights in this country. Some people have said or made the observation on more than one occasion that Congress appears to be an inefficient institution involved in an in inefficient process. Well. you know. that is right. And in some ways that is a direct result of the Founding Fathers who believed that in order to avoid the fads of the time. that they needed to have a system of checks and balances which sacrificed efficiency for the protection of freedom. That is. they thought that a government further away from you and more powerful than you and individual institutions closer to you could do more harm overall than a decision made by an individual or by a family or by a group where that wrong might be confined to just that individual. that family. or that group. So they believed that in order to protect against the overreach. the mistakes of a government that could have overwhelming power. they would try and defuse that power and promote the idea of numerous different entities recognizing what some calland it is called. actually. as a matter of Catholic social policythe principle of subsidiarity. That essentially means that decisions ought to be made by the individual when he or she can make them. then an individual within the family. and then an individual or family within or surrounding what are known as mediating institutions. voluntary institutions. churches. voluntary associations. clubs. neighborhood groups. and then government. but government at the closest level. meaning local government. then county government. then regional government. then State government. and then Federal Government. The interesting thought there is not only does it protect the freedom of the individual. but in most cases it creates a more vibrant society. because all parts of that society. beginning with the individual. contribute to the vitality of the society because they. in fact. themselves. are vital to that community. It is a notion that local government is important. I mean. if you look at Tocquevilles tremendous work about this country in the 1800s. he talked about us being a country of joiners. a country of voluntary associations. a country of churches. And he likened this new America to the old Europe. or he contrasted this new America to the old Europe. and suggested that America was different. and America had a future that was different than what Europe had precisely because of the recognition of the worth of the individual and all of these institutions that protected the individual from the overwhelming power of the government but also created a more vibrant society as a result of this activity. And yet. if youre looking at capandtrade. if youre looking at the EPA endangerment finding and the consequences of that. if youre looking at the hopes of the people at Copenhagen who wish they had global governance. it moves us in the other direction. What other decisions have we been making that may impinge upon the freedom of the American people? Well. you know. when you talk about taxes. youre not just talking about taking money out of somebodys pocket. youre talking about when you take money out of your pocket. they may have less money to do something that they. in their own individual lives. believe is best for them or best for their family or best for their church or best for their association or best for their local government. as opposed to the Federal Government. And too often. we have been told that its unAmerican to pay low taxes. In fact. I believe in the last election in an interview. the current Vice President of the United States said something to the effect that it is American to pay more taxes. The Supreme Court has said youre not obligated to pay any more taxes than youre legally required to. If you want to voluntarily give money to the government. thats fine. Why would the court say that. and why would that be right? Because taxes are an involuntary taking from an individual to the government. Dont get me wrongI dont think taxes are unnecessary. They are necessary. But I think we have a legal and moral obligation as protectors of the freedom of the people to not exact from them anything more than is absolutely necessary to do the proper functioning of government. Because if we do more than that. we are taking some of the freedom of the American people away. Similarly. in the area of spendingas well as in the area of debt. and perhaps even more in the area of debt because that not only impacts us today as individual members of this society. but that impacts our children and our grandchildren and children still unborn in terms of their ability to be able to live their lives and to have the free expression of their talents in such a way that they may make contributions to this world and that they may be free men and women. And so theI will use a legal termthe gravamen of my argument tonight or this afternoon is that my constituent who fled from communism in Eastern Europe to this country decades ago for the freedom that this country allowed her and the fear that shes expressed that were losing some of these freedoms is not a wild notion on her part but is in fact a significant concern that has a reasonable basis. And that we in Congress have an obligation to listen to people such as my constituent who said. Please dont take our freedom away. We rarely hear freedom spoken of on this floor. and we rarely hear it spoken of in the context of the legislation that we have before us. But we should understand. If we genuflect to an overweaningly powerful government. we are essentially changing the relationship that exists between those of us as individuals and our government as understood by our Founding Fathers in the Constitution. And I would stand with Abraham Lincoln when he said that the Constitution can only be properly understood as informed by the words of the Declaration of Independence. And the words of the Declaration of Independence. once again. tell us that we hold these truths to be selfevident. that all men are created equal. that they are endowed by their creator with certain unalienable rights. that among these are life. liberty. and the pursuit of happiness. that to secure these rights. governments are instituted among men. Not that government gives us these rights. government is supposed to protect those rights. secure those rights. those rights that we. through rational perception. can determineour Godgiven natural rights. I would hope that we wouldnt believe that those are just oldfashioned words. but those are in fact guiding lights by which we make our decisions here on the floor of the House. or that we ought to throw away or cast aside comments made by our constituents indicating to us that they fear we may be losing our freedoms. That is not a panic attack by someone. Thats not an act of delirium. Rather. it is a deepseated concern that I think we should follow advisedly. And Mr. Speaker. I would just hope that as we go forward with the remaining days of this year. and as we approach next year. that as we look at something as important as health care. we try and say. how do we deal with the challenges that exist in health care without subverting the sense of freedom and liberty that is contained in the Constitution? We can do it. we just have to think again. We can do it because we know generations that have gone before us have reached their challenges without in any way violating our Constitution but rather working towards securing those liberties that are recognized in our Constitution. And my friend from Texas. would you like me to yield to you?