Conservative Principles Now

The American Non-Governmental Organizations Coalition for the International Criminal Court (AMICC), a UN-aligned pressure group which advocates for U.S. membership in the International Criminal Court (ICC), has released an “analysis” of our recent paper, “An Inconvenient Founding: America’s Principles Applied to the ICC”. The paper argues that the Rome Statute and ICC are incompatible not only with U.S. constitutional principles but also with the lessons learned from America’s historical experiences involving the British Vice-Admiralty Courts of the 1700s and the International Slave Trade Tribunals of the 1800s. Instead of responding to the central thesis, the AMICC “analysis” myopically quibbles over the extent to which U.S. membership in the Rome Statute violates core American constitutional principles.

That the Rome Statute denies the American “right of trial by jury” is an incontrovertible fact. AMICC rightly notes that “it is not feasible for individuals to be tried by a jury of peers in international tribunals.” We could not have said it better, and this is precisely the problem with international tribunals.

While AMICC acknowledges this detail, their ICC advocacy is undeterred. AMICC defends its position by referencing the rare and extraordinary circumstances when U.S. citizens, at the discretion of the U.S. government, may be tried on a case-by-case basis without a jury trial overseas. But the Rome Statute presents a very different scenario wherein the ICC would categorically deny jury trial to all American citizens who the ICC independent Chief Prosecutor investigates and indicts. In essence, the Rome Statute would make the exception the rule and remove the due process protections of America’s constitutional rule of law.

The AMICC author (name unknown) cannot avoid the fact that institutionally excluding “the right to trial by jury” contradicts the wisdom of the U.S. Constitution, the Bill of Rights, Chief Justice Joseph Story, and John Quincy Adams, each referenced in my paper. Other than these, there are numerous sources better trusted, fairer and more articulate than AMICC who believe that constitutional due processes are worth keeping even in matters regarding international law (e.g. William Blackstone‘s observation that trial jury is the “palladium of our civil rights”)

“Representative government and trial by jury are the heart and lungs of liberty.”   - John Adams (1774)

“Illegitimate and unconstitutional practices get their footing … by silent approaches and slight deviations from legal modes of procedure … It is [our] duty … to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon …”  - Justice Joseph Bradley (1886)

“I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”    - Thomas Jefferson (1801)

By so dismissively relegating the principle of trial by jury to the dustbin of history, AMICC and its parent organization, the United Nations Association of the United States of America (UNA-USA) have seriously undermined their legitimacy as a trusted source on U.S. involvement in international law. If AMICC hopes to have any relevance to U.S. policy makers and the broader American public, they must take America’s history and political principles seriously. Progressive advocates of supranational solutions to the world’s many problems may indeed wish to move away from core principles of the American Founding, but they should do so openly and not couch their arguments in equivocating legalese. AMICC would do well to recognize that for America, the Rome Statute is still primarily a political issue, not a legal one: they do not yet have the luxury of ignoring the larger questions.

Today marks the seventh year that we have published the Index of Dependence on Government. And, for seven years running, our Index shows growing dependence. The Index now stands at 240, up from a value of 19 in 1962, or a nearly 13 fold increase since the Kennedy administration. The rate of growth, however, actually has increased over the last eight years. That period saw the second highest rate of growth in dependency creating programs: since 2001, the Index has increased 31 percent. Most disturbing of all, all of the evidence points to even more rapid increases in dependency ahead, which well could threaten democratic government.

From virtually the first day of his presidency, Barack Obama and his top deputies have advanced programs and initiatives that deepen and expand American citizens’ dependency on government. From new federal programs designed to boost economic activity to health care reform that could place the U.S. government at the center of the nation’s health care system, the central thrust of policy since January 2009 has been to increase Americans’ daily dependency on Washington.

However, the rapid expansion of dependency-creating programs did not begin with Barack Obama’s inauguration. Indeed, President Obama inherited substantial momentum toward greater dependency on government from the George W. Bush Administration and prior governments. President Bush’s years saw growth in all dependency creating categories, but particularly in programs aimed at health, education, and working-age income support.

Even more disturbing is the confluence of growth in the index with increases in the percentage of taxpayers who pay no taxes and Congress’s control over spending. The percentage who pay no taxes jumped from 21.3 percent in 1980 to 34 percent in 2008. In 1980, 20 million tax filers paid nothing; in 2008, 48 million paid nothing. This number will growth dramatically next year when the Index counts for the first time taxpayers who took advantage of Obama era credits, such as Making Work Pay and the first-time homebuyers credits.

Combine these two indexes with the Steuerle-Roeper Fiscal Democracy Index, and you have a perfect storm for the future of our republican form of government. The Fiscal Democracy Index measures the percent of revenues not allocated by previous Congresses to mandatory spending. In short, it measure the control that Congress has over outlays. This Index nearly hit zero in 2009 and is forecasted to be steadily below zero in 10 years.

The steady growth of dependency creating program, particularly the so-called entitlement programs, and the equally steady shrinking number of taxpayers who have any financial stake in the government threaten rapid growth in mandatory, dependency programs and our very democracy. Are Americans closing in on a tipping point that endangers the workings of their form of government? If citizens can vote ever greater outlays for their income, health, housing, education, and food support; will the growth of government overwhelm the delicate political balances between those citizens who provide the means for helping other citizens in need?