The Primacy Of The Constitution

"Liberty may be endangered by the abuse of liberty, but also by the abuse of power."  James Madison


In my two previous posts, I provided some history on the magnificent document we call The Constitution. The ideas contained in it had only been espoused as ideals by European philosophers like Locke and Montesquieu, but never actually attempted by a free people. Until, that is, the summer of 1787. As I've established, the greatest concern of the Founding Fathers was the great tendency for the reach of government to become centralized, more powerful, and--if not properly checked by the people--tyrannical. This was what those same Founding Fathers had fought against--the tyranny of King George.

I also wrote of how the Constitution was elevated by many of the early Amendments, so that the freedoms established in the Constitution were extended to all Americans--not just in principle, but in fact. It's hard to imagine today a nation where only white men who owned property were allowed to vote, but that was the case in the first 75 years after the Constitution was ratified.

The beginning, however, of the era of Big Government has its genesis in the ratification of the 16th Amendment, which allowed for a national income tax. This differed from the taxation allowed in the original document, which amounted to a form of property tax. When the 16th Amendment was passed, the tax was a flat 3% of annual income. Would that it were so today. But--as is the case with virtually all taxes levied by an over-reaching government, tax rates would never come down. The Law of Gravity does not apply to taxes.

As the federal government's ability to tax its people increased, the money flowing into Washington also allowed for the unbridled growth of government. This process began during the Wilson Administration, gained great speed and footing during FDR's Administration, and saw its apex in the Great Society of Lyndon Johnson's Administration. Of late, the growth of the federal government expanded significantly under George W. Bush and has exploded under President Obama.

What is particularly grievous, however, is not the growth of government in and of itself, but the way in which the federal government has grown. In the last forty years, the American people have seen the creations of huge bureaucracies like the Environmental Protection Agency, the Department of Education, the Department of Homeland Security, and many others which are charged with interpreting laws passed by Congress and enforcing those laws. When some have challenged the constitutionality of those laws, they've often been rejected by Supreme Court justices who no longer actually reference the Constitution in their rulings, but see fit to interpret the law through the prism of their own "experiences".

Need some examples? Try these:

• In the case of Grutter v. Bollinger in 2003, the Supreme Court--in a narrow 5-4 vote--ruled that diversity in university admissions would provide "educational benefits that flow from a diverse student body". This ruling, which directly contradicts the 14th Amendment's provision of equal rights for all citizens regardless of race, is a classic example of the Court choosing to make law rather than interpret law. Some argue that diversity is necessary for the further integration of our society, and that members of certain race and backgrounds may have had fundamental societal disadvantages which beg the need for such diversity in our universities. Fair enough. Even if we accept that premise, my simple objection is this: write a new Constitutional Amendment to uphold diversity, get it approved by two-thirds of both houses of Congress, and have it ratified by three-quarters of the states as provided for in Article V of the Constitution.
• In the famous case of Roe v. Wade in 1973, the Supreme Court affirmed the right of a woman to have an abortion. Nowhere in the Constitution is this right provided for nor even implied. Indeed, the dilemma faced by the Court boils down to this: whose right to life prevails over the other? Is it the quality of the life of the mother, who finds a pregnancy inconvenient at best and possibly life-threatening at worst? Or is the very life of her developing child, who will not even have the chance at life if the pregnancy is ended? The Court, as we know, chose in favor of the mother. Once again, even if we accept the premise, the fact is that the Court created a new law out of whole cloth. No one would argue that the Court interpreted any section of the Constitution which could possibly have provided for abortion rights.
• In the notorious case of Kelo v. New London of 2005, the Court ruled that eminent domain applies in the transfer of private property from one private owner to another private owner, if the intended use of that property will benefit the greater good. This ruling represents a fundamental expansion of the "Takings Clause" of the Fifth Amendment, which specifically cites that private property shall not be taken for public use without just compensation. The City of New London, Connecticut intended to revitalize a depressed section of its waterfront with a mixed-use development of shops, residences, and restaurants. Is this "public use"? Never in the previous 218 years of Constitutional law had anything like this remotely resembled the proper use of eminent domain. The Kelo ruling trampled on the rights provided in the Fifth Amendment, expanded the power of local governments over private property owners, and all of it was done without the passage of a Constitutional Amendment.

How far have we fallen from the days when the Constitution was revered and respected as the true law of the land? Consider Mr. Phil Hare, a Democratic Congressman from Illinois, who was asked during a town hall meeting in the midst of the national debate on healthcare reform: "Where does it say in the Constitution that you have to buy healthcare insurance?" Hare's rather incredulous response? "In this case, I don't care about the Constitution...we in this country have the right to Life, Liberty, and the Pursuit of Happiness". When a citizen pointed out that that clause resides in the Declaration of Independence and not the Constitution, he further responded "it doesn't matter to me".

When a U.S. Congressman, who has sworn to "preserve, protect, and defend the Constitution of the United States" shows such little regard for that very Constitution, our country is on a slippery slope of making laws which seem either convenient or politically expedient. There was a reason that the Founding Fathers made the Amendment process so difficult. It was done to limit the power of the federal government, as was the structure of the three branches of government under the principle of the Separation of Powers. We, the People, must reclaim our political heritage by rejecting politicians who make un-Constitutional laws and judges who make law rather than interpreting it.