-Caveat Lector-
Brothers and Sisters: Always Remember "the rights of the people come from
God.
The powers of government come from the people."
Bard
"No one so explicitly or deftly connects what is happening in the world
today to the loss of our freedom and the systematic usurpations of
government -- absolutely no one.
Sobran is a cross between Mencken, Nock, and Cato's letters."
-- Sheldon Richman, editor of The Freeman magazine
"Perhaps the finest columnist of our generation."
-- Patrick J. Buchanan
"Joe Sobran is a national treasure."
-- Llewellyn Rockwell Jr.
http://www.sobran.com/tyranny.shtml
How Tyranny Came to America
One of the great goals of education is to initiate the young into the
conversation of their ancestors; to enable them to understand the language
of that conversation, in all its subtlety, and maybe even, in their
maturity, to add to it some wisdom of their own.
The modern American educational system no longer teaches us the political
language of our ancestors. In fact our schooling helps widen the gulf of
time between our ancestors and ourselves, because much of what we are taught
in the name of civics, political science, or American history is really
modern liberal propaganda. Sometimes this is deliberate. Worse yet,
sometimes it isn�t. Our ancestral voices have come to sound alien to us, and
therefore our own moral and political language is impoverished. It�s as if
the people of England could no longer understand Shakespeare, or Germans
couldn�t comprehend Mozart and Beethoven.
So to most Americans, even those who feel oppressed by what they call big
government, it must sound strange to hear it said, in the past tense, that
tyranny �came� to America. After all, we have a constitution, don�t we? We�
ve abolished slavery and segregation. We won two world wars and the Cold
War. We still congratulate ourselves before every ballgame on being the Land
of the Free. And we aren�t ruled by some fanatic with a funny mustache who
likes big parades with thousands of soldiers goose-stepping past huge
pictures of himself.
For all that, we no longer fully have what our ancestors, who framed and
ratified our Constitution, thought of as freedom � a careful division of
power that prevents power from becoming concentrated and unlimited. The word
they usually used for concentrated power was consolidated � a rough synonym
for fascist. And the words they used for any excessive powers claimed or
exercised by the state were usurped and tyrannical. They would consider the
modern �liberal� state tyrannical in principle; they would see in it not the
opposite of the fascist, communist, and socialist states, but their sister.
If Washington and Jefferson, Madison, and Hamilton could come back, the
first thing they�d notice would be that the federal government now routinely
assumes thousands of powers never assigned to it � powers never granted,
never delegated, never enumerated. These were the words they used, and it�s
a good idea for us to learn their language. They would say that we no longer
live under the Constitution they wrote. And the Americans of a much later
era � the period from Cleveland to Coolidge, for example � would say we no
longer live even under the Constitution they inherited and amended.
I call the present system �Post�Constitutional America.� As I sometimes put
it, the U.S. Constitution poses no serious threat to our form of government.
What�s worse is that our constitutional illiteracy cuts us off from our own
national heritage. And so our politics degenerates into increasingly bitter
and unprincipled quarrels about who is going to bear the burdens of war and
welfare.
I don�t want to sound like an oracle on this subject. As a typical victim of
modern public education and a disinformed citizen of this media-ridden
country, I took a long time � an embarrassingly long time � to learn what I�
m passing on. It was like studying geometry in old age, and discovering how
simple the basic principles of space really are. It was the old story: In
order to learn, first I had to unlearn. Most of what I�d been taught and
told about the Constitution was misguided or even false. And I�d never been
told some of the most elementary things, which would have saved me a
tremendous amount of confusion.
The Constitution does two things. First, it delegates certain enumerated
powers to the federal government. Second, it separates those powers among
the three branches. Most people understand the secondary principle of the
separation of powers. But they don�t grasp the primary idea of delegated and
enumerated powers.
Consider this. We have recently had a big national debate over national
health care. Advocates and opponents argued long and loud over whether it
could work, what was fair, how to pay for it, and so forth. But almost
nobody raised the basic issue: Where does the federal government get the
power to legislate in this area? The answer is: Nowhere. The Constitution
lists 18 specific legislative powers of Congress, and not a one of them
covers national health care.
As a matter of fact, none of the delegated powers of Congress � and
delegated is always the key word � covers Social Security, or Medicaid, or
Medicare, or federal aid to education, or most of what are now miscalled
�civil rights,� or countless public works projects, or equally countless
regulations of business, large and small, or the space program, or farm
subsidies, or research grants, or subsidies to the arts and humanities, or
... well, you name it, chances are it�s unconstitutional. Even the most
cynical opponents of the Constitution would be dumbfounded to learn that the
federal government now tells us where we can smoke. We are less free, more
heavily taxed, and worse governed than our ancestors under British rule.
Sometimes this government makes me wonder: Was George III really all that
bad?
Let�s be clear about one thing. Constitutional and unconstitutional aren�t
just simple terms of approval and disapproval. A bad law may be perfectly
constitutional. A wise and humane law may be unconstitutional. But what is
almost certainly bad is a constant disposition to thwart or disregard the
Constitution.
It�s not just a matter of what is sometimes called the �original intent� of
the authors of the Constitution. What really matters is the common,
explicit, unchallenged understanding of the Constitution, on all sides, over
several generations. There was no mystery about it.
The logic of the Constitution was so elegantly simple that a foreign
observer could explain it to his countrymen in two sentences. Alexis de
Tocqueville wrote that �the attributes of the federal government were
carefully defined [in the Constitution], and all that was not included among
them was declared to remain to the governments of the individual states.
Thus the government of the states remained the rule, and that of the federal
government the exception.�
The Declaration of Independence, which underlies the Constitution, holds
that the rights of the people come from God, and that the powers of the
government come from the people. Let me repeat that: According to the
Declaration of Independence, the rights of the people come from God, and the
powers of the government come from the people. Unless you grasp this basic
order of things, you�ll have a hard time understanding the Constitution.
The Constitution was the instrument by which the American people granted, or
delegated, certain specific powers to the federal government. Any power not
delegated was withheld, or �reserved.� As we�ll see later, these principles
are expressed particularly in the Ninth and Tenth Amendments, two crucial
but neglected provisions of the Constitution.
Let me say it yet again: The rights of the people come from God. The powers
of government come from the people. The American people delegated the
specific powers they wanted the federal government to have through the
Constitution. And any additional powers they wanted to grant were supposed
to be added by amendment.
It�s largely because we�ve forgotten these simple principles that the
country is in so much trouble. The powers of the federal government have
multiplied madly, with only the vaguest justifications and on the most
slippery pretexts. Its chief business now is not defending our rights but
taking and redistributing our wealth. It has even created its own economy,
the tax economy, which is parasitical on the basic and productive voluntary
economy. Even much of what passes for �national defense� is a kind of hidden
entitlement program, as was illustrated when President George Bush warned
some states during the 1992 campaign that Bill Clinton would destroy jobs by
closing down military bases. Well, if those bases aren�t necessary for our
defense, they should be closed down.
Now of course nobody in American politics, not even the most fanatical
liberal, will admit openly that he doesn�t care what the Constitution says
and isn�t going to let it interfere with his agenda. Everyone professes to
respect it � even the Supreme Court. That�s the problem. The U.S.
Constitution serves the same function as the British royal family: it offers
a comforting symbol of tradition and continuity, thereby masking a radical
change in the actual system of power.
So the people who mean to do without the Constitution have come up with a
slogan to keep up appearances: they say the Constitution is a �living
document,� which sounds like a compliment. They say it has �evolved� in
response to �changing circumstances,� etc. They sneer at the idea that such
a mystic document could still have the same meanings it had two centuries
ago, or even, I guess, sixty years ago, just before the evolutionary process
started accelerating with fantastic velocity. These people, who tend with
suspicious consistency to be liberals, have discovered that the
Constitution, whatever it may have meant in the past, now means � again,
with suspicious consistency � whatever suits their present convenience.
Do liberals want big federal entitlement programs? Lo, the Interstate
Commerce Clause turns out to mean that the big federal programs are
constitutional! Do liberals oppose capital punishment? Lo, the ban on �cruel
and unusual punishment� turns out to mean that capital punishment is
unconstitutional! Do liberals want abortion on demand? Lo, the Ninth and
Fourteenth Amendments, plus their emanations and penumbras, turn out to mean
that abortion is nothing less than a woman�s constitutional right!
Can all this be blind evolution? If liberals were more religious, they might
suspect the hand of Providence behind it! This marvelous �living document�
never seems to impede the liberal agenda in any way. On the contrary: it
always seems to demand, by a wonderful coincidence, just what liberals are
prescribing on other grounds.
Take abortion. Set aside your own views and feelings about it. Is it really
possible that, as the Supreme Court in effect said, all the abortion laws of
all 50 states � no matter how restrictive, no matter how permissive � had
always been unconstitutional? Not only that, but no previous Court, no
justice on any Court in all our history � not Marshall, not Story, not
Taney, not Holmes, not Hughes, not Frankfurter, not even Warren � had ever
been recorded as doubting the constitutionality of those laws. Everyone had
always taken it for granted that the states had every right to enact them.
Are we supposed to believe, in all seriousness, that the Court�s ruling in
Roe v. Wade was a response to the text of the Constitution, the discernment
of a meaning that had eluded all its predecessors, rather than an enactment
of the current liberal agenda? Come now.
And notice that the parts of this �living document� don�t develop equally or
consistently. The Court has expanded the meaning of some of liberalism�s pet
rights, such as freedom of speech, to absurd lengths; but it has neglected
or even contracted other rights, such as property rights, which liberalism
is hostile to.
In order to appreciate what has happened, you have to stand back from all
the details and look at the outline. What follows is a thumbnail history of
the Constitution.
In the beginning the states were independent and sovereign. That is why they
were called �states�: a state was not yet thought of as a mere subdivision
of a larger unit, as is the case now. The universal understanding was that
in ratifying the Constitution, the 13 states yielded a very little of their
sovereignty, but kept most of it.
Those who were reluctant to ratify generally didn�t object to the powers the
Constitution delegated to the federal government. But they were suspicious:
they wanted assurance that if those few powers were granted, other powers,
never granted, wouldn�t be seized too. In The Federalist, Hamilton and
Madison argued at some length that under the proposed distribution of power
the federal government would never be able to �usurp,� as they put it, those
other powers. Madison wrote soothingly in Federalist No. 45 that the powers
of the federal government would be �few and defined,� relating mostly to war
and foreign policy, while those remaining with the states would be �numerous
and indefinite,� and would have to do with the everyday domestic life of the
country. The word usurpation occurs numberless times in the ratification
debates, reflecting the chief anxiety the champions of the Constitution had
to allay. And as a final assurance, the Tenth Amendment stipulated that the
powers not �delegated� to the federal government were �reserved� to the
separate states and to the people.
But this wasn�t enough to satisfy everyone. Well-grounded fears persisted.
And during the first half of the nineteenth century, nearly every president,
in his inaugural message, felt it appropriate to renew the promise that the
powers of the federal government would not be exceeded, nor the reserved
powers of the states transgressed. The federal government was to remain
truly federal, with only a few specified powers, rather than �consolidated,�
with unlimited powers.
The Civil War, or the War Between the States if you like, resulted from the
suspicion that the North meant to use the power of the Union to destroy the
sovereignty of the Southern states. Whether or not that suspicion was
justified, the war itself produced that very result. The South was
subjugated and occupied like a conquered country. Its institutions were
profoundly remade by the federal government; the United States of America
was taking on the character of an extensive, and highly centralized, empire.
Similar processes were under way in Europe, as small states were
consolidated into large ones, setting the stage for the tyrannies and
gigantic wars of the twentieth century.
Even so, the three constitutional amendment ratified after the war contain a
significant clause: �Congress shall have power to enforce this article by
appropriate legislation.� Why is this significant? Because it shows that
even the conquerors still understood that a new power of Congress required a
constitutional amendment. It couldn�t just be taken by majority vote, as it
would be today. If the Congress then had wanted a national health plan, it
would have begun by asking the people for an amendment to the Constitution
authorizing it to legislate in the area of health care. The immediate
purpose of the Fourteenth Amendment was to provide a constitutional basis
for a proposed civil rights act.
But the Supreme Court soon found other uses for the Fourteenth Amendment. It
began striking down state laws as unconstitutional. This was an important
new twist in American constitutional law. Hamilton, in arguing for judicial
review in Federalist No. 78, had envisioned the Court as a check on
Congress, resisting the illicit consolidation or centralization of power.
And our civics books still describe the function of checks and balances in
terms of the three branches of the federal government mutually controlling
each other. But in fact, the Court was now countermanding the state
legislatures, where the principle of checks and balances had no meaning,
since those state legislatures had no reciprocal control on the Court. This
development eventually set the stage for the convulsive Supreme Court
rulings of the late twentieth century, from Brown v. Board of Education to
Roe v. Wade.
The big thing to recognize here is that the Court had become the very
opposite of the institution Hamilton and others had had in mind. Instead of
blocking the centralization of power in the federal government, the Court
was assisting it.
The original point of the federal system was that the federal government
would have very little to say about the internal affairs of the states. But
the result of the Civil War was that the federal government had a great deal
to say about those affairs � in Northern as well as Southern states.
Note that this trend toward centralization was occurring largely under
Republican presidents. The Democrat Grover Cleveland was one of the last
great spokesmen for federalism. He once vetoed a modest $10,000 federal
grant for drought relief on grounds that there was no constitutional power
to do it. If that sounds archaic, remember that the federal principle
remained strong long enough that during the 1950s, the federal highway
program had to be called a �defense� measure in order to win approval, and
federal loans to college students in the 1960s were absurdly called
�defense� loans for the same reason. The Tenth Amendment is a refined
taste, but it has always had a few devotees.
But federalism suffered some serious wounds during the presidency of Woodrow
Wilson. First came the income tax, its constitutionality established by the
Sixteenth Amendment; this meant that every U.S. citizen was now, for the
first time, directly accountable to the federal government. Then the
Seventeenth Amendment required that senators be elected by popular vote
rather than chosen by state legislators; this meant that the states no
longer had their own representation in Congress, so that they now lost their
remaining control over the federal government. The Eighteenth Amendment,
establishing Prohibition, gave the federal government even greater powers
over the country�s internal affairs. All these amendments were ominous signs
that federalism was losing its traditional place in the hearts, and perhaps
the minds, of Americans.
But again, notice that these expansions of federal power were at least
achieved by amending the Constitution, as the Constitution itself requires.
The Constitution doesn�t claim to be a �living document.� It is written on
paper, not rubber.
In fact the radicals of the early twentieth century despaired of achieving
socialism or communism as long as the Constitution remained. They regarded
it as the critical obstacle to their plans, and thought a revolution would
be necessary to remove it. As The New Republic wrote: �To have a socialist
society we must have a new Constitution.� That�s laying it on the line!
Unfortunately, the next generation of collectivists would be less candid in
their contempt for the federal system. Once they learned to feign devotion
to the Constitution they secretly regarded as obsolete, the laborious
formality of amendment would no longer be necessary. They could merely
pretend that the Constitution was on their side. After Franklin Roosevelt
restaffed the Supreme Court with his compliant cronies, the federal
government would be free to make up its own powers as it went along, thanks
to the notion that the Constitution was a malleable �living document,� whose
central meaning could be changed, and even reversed, by ingenious
interpretation.
Roosevelt�s New Deal brought fascist-style central planning to America �
what some call the �mixed economy� but Hilaire Belloc called the Servile
State � and his highhanded approach to governance soon led to conflict with
the Court, which found several of his chief measures unconstitutional. Early
in his second term, as you know, Roosevelt retaliated by trying to �pack�
the Court by increasing the number of seats. This power play alienated even
many of his allies, but it turned out not to be necessary. After 1937 the
Court began seeing things Roosevelt�s way. It voted as he wished; several
members obligingly retired; and soon he had appointed a majority of the
justices. The country virtually got a new Constitution.
Roosevelt�s Court soon decided that the Tenth Amendment was a �truism,� of
no real force. This meant that almost any federal act was ipso facto
constitutional, and the powers �reserved� to the states and the people were
just leftovers the federal government didn�t want, like the meal left for
the jackals by the satisfied lion. There was almost no limit, now, on what
the federal government could do. In effect, the powers of the federal
government no longer had to come from the people by constitutional
delegation: they could be created by simple political power.
Roosevelt also set the baneful precedent of using entitlement programs, such
as Social Security, to buy some people�s votes with other people�s money. It
was both a fatal corruption of democracy and the realization of the Servile
State in America. The class of voting parasites has been swelling ever
since.
So the New Deal didn�t just expand the power of the federal government; that
had been done before. The New Deal did much deeper mischief: it struck at
the whole principle of constitutional resistance to federal expansion.
Congress didn�t need any constitutional amendment to increase its powers; it
could increase its own powers ad hoc, at any time, by simple majority vote.
All this, of course, would have seemed monstrous to our ancestors. Even
Alexander Hamilton, who favored a relatively strong central government in
his time, never dreamed of a government so powerful.
The Court suffered a bloody defeat at Roosevelt�s hands, and since his time
it has never found a major act of Congress unconstitutional. This has
allowed the power of the federal government to grow without restraint. At
the federal level, �checks and balances� has ceased to include judicial
review.
This is a startling fact, flying as it does in the face of the familiar
conservative complaints about the Court�s �activism.� When it comes to
Congress, the Court has been absolutely passive. As if to compensate for its
habit of capitulation to Congress, the Court�s post�World War II �activism�
has been directed entirely against the states, whose laws it has struck down
in areas that used to be considered their settled and exclusive provinces.
Time after time, it has found �unconstitutional� laws whose legitimacy had
stood unquestioned throughout the history of the Republic.
Notice how total the reversal of the Court�s role has been. It began with
the duty, according to Hamilton, of striking down new seizures of power by
Congress. Now it finds constitutional virtually everything Congress chooses
to do. The federal government has assumed myriads of new powers nowhere
mentioned or implied in the Constitution, yet the Court has never seriously
impeded this expansion, or rather explosion, of novel claims of power. What
it finds unconstitutional are the traditional powers of the states.
The postwar Court has done pioneering work in one notable area: the
separation of church and state. I said �pioneering,� not praiseworthy. The
Court has consistently imposed an understanding of the First Amendment that
is not only exaggerated but unprecedented � most notoriously in its 1962
ruling that prayer in public schools amounts to an �establishment of
religion.� This interpretation of the Establishment Clause has always been
to the disadvantage of Christianity and of any law with roots in Christian
morality. And it�s impossible to doubt that the justices who voted for this
interpretation were voting their predilections.
Maybe that�s the point. I�ve never heard it put quite this way, but the
Court�s boldest rulings showed something less innocent than a series of
honest mistakes. Studying these cases and others of the Court�s liberal
heyday, one never gets the sense that the majority was suppressing its own
preferences; it was clearly enacting them. Those rulings can be described as
wishful thinking run amok, and touched with more than a little arrogance.
All in all, the Court displayed the opposite of the restrained and impartial
temperament one expects even of a traffic-court judge, let alone a Supreme
Court.
It�s ironic to recall Hamilton�s assurance that the Supreme Court would be
�the least dangerous� of the three branches of the federal government. But
Hamilton did give us a shrewd warning about what would happen if the Court
were ever corrupted: in Federalist No. 78 he wrote that �liberty can have
nothing to fear from the judiciary alone, but would have everything to fear
from its union with either of the other [branches].� Since Franklin
Roosevelt, as I�ve said, the judiciary has in effect formed a union with the
other two branches to aggrandize the power of the federal government at the
expense of the states and the people.
This, in outline, is the constitutional history of the United States. You
won�t find it in the textbooks, which are required to be optimistic, to
present degeneration as development, and to treat the successive
pronouncements of the Supreme Court as so many oracular revelations of
constitutional meaning. A leading liberal scholar, Leonard Levy, has gone so
far as to say that what matters is not what the Constitution says, but what
the Court has said about the Constitution in more than 400 volumes of
commentary.
This can only mean that the commentary has displaced the original text, and
that �We the People� have been supplanted by �We the Lawyers.� We the People
can�t read and understand our own Constitution. We have to have it explained
to us by the professionals. Moreover, if the Court enjoys oracular status,
it can�t really be criticized, because it can do no wrong. We may dislike
its results, but future rulings will have to be derived from them as
precedents, rather than from the text and logic of the Constitution. And
notice that the �conservative� justices appointed by Republican presidents
have by and large upheld not the original Constitution, but the most liberal
interpretations of the Court itself � notably on the subject of abortion,
which I�ll return to in a minute.
To sum up this little constitutional history. The history of the
Constitution is the story of its inversion. The original understanding of
the Constitution has been reversed. The Constitution creates a presumption
against any power not plainly delegated to the federal government and a
corresponding presumption in favor of the rights and powers of the states
and the people. But we now have a sloppy presumption in favor of federal
power. Most people assume the federal government can do anything it isn�t
plainly forbidden to do.
The Ninth and Tenth Amendments were adopted to make the principle of the
Constitution as clear as possible. Hamilton, you know, argued against adding
a Bill of Rights, on grounds that it would be redundant and confusing. He
thought it would seem to imply that the federal government had more powers
than it had been given. Why say, he asked, that the freedom of the press
shall not be infringed, when the federal government would have no power by
which it could be infringed? And you can even make the case that he was
exactly right. He understood, at any rate, that our freedom is safer if we
think of the Constitution as a list of powers rather than as a list of
rights.
Be that as it may, the Bill of Rights was adopted, but it was designed to
meet his objection. The Ninth Amendment says: �The enumeration in the
Constitution of certain rights shall not be construed to deny or disparage
others retained by the people.� The Tenth says: �The powers not delegated to
the United States by the Constitution, nor prohibited by it to the States,
are reserved to the States respectively, or to the people.�
Now what these two provisions mean is pretty simple. The Ninth means that
the list of the people�s rights in the Constitution is not meant to be
complete � that they still have many other rights, like the right to travel
or to marry, which may deserve just as much respect as the right not to have
soldiers quartered in one�s home in peacetime. The Tenth, on the other hand,
means that the list of powers �delegated� to the federal government is
complete � and that any other powers the government assumed would be, in the
Framers� habitual word, �usurped.�
As I said earlier, the Founders believed that our rights come from God, and
the government�s powers come from us. So the Constitution can�t list all our
rights, but it can and does list all the federal government�s powers.
You can think of the Constitution as a sort of antitrust act for government,
with the Ninth and Tenth Amendments at its core. It�s remarkable that the
same liberals who think business monopolies are sinister think monopolies of
political power are progressive. When they can�t pass their programs because
of the constitutional safeguards, they complain about �gridlock� � a clich�
that shows they miss the whole point of the enumeration and separation of
powers.
Well, I don�t have to tell you that this way of thinking is absolutely alien
to that of today�s politicians and pundits. Can you imagine Al Gore, Dan
Rostenkowski, or Tom Brokaw having a conversation about political principles
with any of the Founding Fathers? If you can, you must have a vivid fantasy
life.
And the result of the loss of our original political idiom has been, as I
say, to invert the original presumptions. The average American, whether he
has had high-school civics or a degree in political science, is apt to
assume that the Constitution somehow empowers the government to do nearly
anything, while implicitly limiting our rights by listing them. Not that
anyone would say it this way. But it�s as if the Bill of Rights had said
that the enumeration of the federal government�s powers in the Constitution
is not meant to deny or disparage any other powers it may choose to claim,
while the rights not given to the people in the Constitution are reserved to
the federal government to give or withhold, and the states may be
progressively stripped of their original powers.
What it comes to is that we don�t really have an operative Constitution
anymore. The federal government defines its own powers day by day. It�s
limited not by the list of its powers in the Constitution, but by whatever
it can get away with politically. Just as the president can now send troops
abroad to fight without a declaration of war, Congress can pass a national
health care program without a constitutional delegation of power. The only
restraint left is political opposition.
If you suspect I�m overstating the change from our original principles, I
give you the late Justice Hugo Black. In a 1965 case called Griswold v.
Connecticut, the Court struck down a law forbidding the sale of
contraceptives on grounds that it violated a right of �privacy.� (This
supposed right, of course, became the basis for the Court�s even more
radical 1973 ruling in Roe v. Wade, but that�s another story.) Justice Black
dissented in the Griswold case on the following ground: �I like my privacy
as well as the next [man],� he wrote, �but I am nevertheless compelled to
admit that government has a right to invade it unless prohibited by some
specific constitutional provision.� What a hopelessly muddled � and really
sinister � misconception of the relation between the individual and the
state: government has a right to invade our privacy, unless prohibited by
the Constitution. You don�t have to share the Court�s twisted view of the
right of privacy in order to be shocked that one of its members takes this
view of the �right� of government to invade privacy.
It gets crazier. In 1993 the Court handed down one of the most bizarre
decisions of all time. For two decades, enemies of legal abortion had been
supporting Republican candidates in the hope of filling the Court with
appointees who would review Roe v. Wade. In Planned Parenthood v. Casey, the
Court finally did so. But even with eight Republican appointees on the
Court, the result was not what the conservatives had hoped for. The Court
reaffirmed Roe.
Its reasoning was amazing. A plurality opinion � a majority of the
five-justice majority in the case � admitted that the Court�s previous
ruling in Roe might be logically and historically vulnerable. But it held
that the paramount consideration was that the Court be consistent, and not
appear to be yielding to public pressure, lest it lose the respect of the
public. Therefore the Court allowed Roe to stand.
Among many things that might be said about this ruling, the most basic is
this: The Court in effect declared itself a third party to the controversy,
and then, setting aside the merits of the two principals� claims, ruled in
its own interest! It was as if the referee in a prizefight had declared
himself the winner. Cynics had always suspected that the Court did not
forget its self-interest in its decisions, but they never expected to hear
it say so.
The three justices who signed that opinion evidently didn�t realize what
they were saying. A distinguished veteran Court-watcher (who approved of
Roe, by the way) told me he had never seen anything like it. The Court was
actually telling us that it put its own welfare ahead of the merits of the
arguments before it. In its confusion, it was blurting out the truth.
But by then very few Americans could even remember the original
constitutional plan. The original plan was as Madison and Tocqueville
described it: State government was to be the rule, federal government the
exception. The states� powers were to be �numerous and indefinite,� federal
powers �few and defined.� This is a matter not only of history, but of iron
logic: the Constitution doesn�t make sense when read any other way. As
Madison asked, why bother listing particular federal powers unless unlisted
powers are withheld?
The unchecked federal government has not only overflowed its banks; it has
even created its own economy. Thanks to its exercise of myriad unwarranted
powers, it can claim tens of millions of dependents, at least part of whose
income is due to the abuse of the taxing and spending powers for their
benefit: government employees, retirees, farmers, contractors, teachers,
artists, even soldiers. Large numbers of these people are paid much more
than their market value because the taxpayer is forced to subsidize them. By
the same token, most taxpayers would instantly be better off if the federal
government simply ceased to exist � or if it suddenly returned to its
constitutional functions.
Can we restore the Constitution and recover our freedom? I have no doubt
that we can. Like all great reforms, it will take an intelligent, determined
effort by many people. I don�t want to sow false optimism.
But the time is ripe for a constitutional counterrevolution. Discontent with
the ruling system, as the 1992 Perot vote showed, is deep and widespread
among several classes of people: Christians, conservatives, gun owners,
taxpayers, and simple believers in honest government all have their reasons.
The rulers lack legitimacy and don�t believe in their own power strongly
enough to defend it.
The beauty of it is that the people don�t have to invent a new system of
government in order to get rid of this one. They only have to restore the
one described in the Constitution � the system our government already
professes to be upholding. Taken seriously, the Constitution would pose a
serious threat to our form of government.
And for just that reason, the ruling parties will be finished as soon as the
American people rediscover and awaken their dormant Constitution.
http://www.sobran.com/tyranny.shtml
Bard
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