Passed on for information purposes only. I have not read
this entire article.
AKE
----- Original Message -----
Sent: Friday, March 31, 2000 9:26 AM
Subject: Fw: How Tyranny Came to America !!!
The following critique of the present state of our nation and
what the author (Joseph Sobran) refers to as "post-Constitutional America" is
one of the best articles I have ever seen. It is quite long, 13 pages, but I
found it such an excellent explanation of where we stand today that I
down-loaded it, printed it out and have read it three times. I am going to make
copies for each of my children and grandchildren, and a few extra for my
friends.
It may not mean a thing to those that are
already "brain-dead" and think we are still living in a free society governed by
our Constitution, however, to those who still have at least READ THE
CONSTITUTION at least once, I think it will serve as a wake-up call. Perhaps,
just perhaps, the message set forth in the article will remind us that we are
not a free people and the individual rights and states rights mentioned in the
Constitution are no longer in effect. As Mr. Sobran emphasizes, our basic rights
are God-given and do not come from the state, although Big Brother government
would have you believe otherwise.
I have never found a better critique of the
present state of affairs in America than this article. I would encourage you to
print it out and make copies. Give them to your children, neighbors, government
officials, teachers, and anyone else who may be receptive to learning the true
intent of the Founding Fathers, and how the intent has been subverted and powers
usurped by successive layers of government.
I share the belief stated by the author in
the last two paragraphs of the article. My only reservation is, "Do we have the
will to abandon the handouts being doled out by government to buy our freedom
and keep us subservient, and do what is necessary to restore individual
liberty and freedom in America?"
----- Original Message -----
Sent: Thursday, March 30, 2000 7:10 PM
Subject: How Tyranny Came to America !!!
I hunted for this Article for over a week and
it was well worth it....Please read !!!! It explains allot....
Death Before Dishonor____MIKE
CLAUSEN
How Tyranny Came to
America
by
Joseph Sobran
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 cliché 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.
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