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.

Why America Needed The Constitution (A Brief History Lesson)

Nearly 250 years ago, beginning in the 1760's, American colonists experienced the first signs of monarchical power exerted against them with King George III's Proclamation of 1763. The king's proclamation stipulated that American settlers who had established land claims west of the Appalachians were not only violating English law, but would have to return to the eastern side of the mountain range or risk arrest. This law was followed in short order by a series of increasingly oppressive acts of Parliament, including the following:

• The Sugar Act of 1764, enacted as a substantial increase in the duty on the importation by England of sugar, coffee, wine, textiles, and indigo, as well as outlawing altogether the importation of rum and French wines. The Sugar Act was intended as a way of raising revenue to help offset the costs of the recently concluded Seven Years' War with France, otherwise known as the French & Indian War in colonial America;
• The Stamp Act of 1765, which is the first tax targeted directly at America by her mother country, taxing nearly all printed materials from newspapers to contracts.
• The Quartering Act of 1765, which required Americans to provide food and lodging to British troops who were being sent to occupy what the Parliament and the king felt were intransigent colonies--particularly the Massachusetts Bay colony and its largest city of Boston.
• The Declatory Act of 1766 which states that only the British government has the power to enact laws governing the American colonies.
• The Townshend Acts of 1767, which imposed taxes on paper, glass, lead--and tea. This last tax would be formally affirmed by the Tea Act of 1773.

As the king and the Parliament exerted increasing pressure to impose the will of the British government on the people of American colonies, the people reacted with increasing indignation. James Otis in 1764 was the first to utter the famous objection that these acts were inherently unfair because they represented "taxation without representation". Later, Samuel Adams--a cousin of John Adams--led the Sons of Liberty in rallies and public meetings to protest the increasing weight of oppression on the people of Massachusetts and her sister colonies.

Now skip ahead to a period some twenty years later. The Colonials have defeated the British Crown in the Revolutionary War and have gained their freedom. But it's one thing to win one's freedom; it is quite another to actually form a stable government that serves the people. America's first attempt, in fact, was acknowledged as an abject failure. The Articles of Confederation, enacted in 1781, established a weak central government that was soon recognized to be wholly inadequate to serve the young nation. And so, during the miraculous summer of 1787 in Philadelphia, a Constitutional Convention was called and was convened on 25 May 1787. 

During that hot summer, nearly all of the giants of the colonial era--including Washington, Madison, Hamilton, Adams, and Franklin (Thomas Jefferson would undoubtedly have been there except that he was serving as America's emissary to France at the time)--joined with other icons of the Revolutionary era to propose, debate, study, and ultimately forge what Gladstone would call "the most wonderful work ever struck by the brain and purpose of man".

With a crippling war in their rear view mirror--and with fresh memories of what oppression felt like when the British government levied taxes and enacted laws which increasingly restricted their individual freedoms--the Framers of the Constitution began by boldly claiming that the Constitution represented "the people of the United States", and that the people would form a republican government based on representative democracy. The Founders framed the new government with a series of checks and balances, designed to limit power in any one branch so that the pursuits of life, liberty and happiness would be less likely to be breached by a strong and overbearing central power such as they had seen embodied in King George. How were these checks and balances established?

Consider the following:

• The executive branch could propose--but could not enact--laws to govern the people. The passage of laws rested solely in the legislative branch. That said, the new law only became official when it was signed by the President. If the executive branch (embodied in the President) felt that a law had been passed too rashly, the executive had the power to veto a bill passed by the legislature and send it back to the legislative branch for reconsideration. The legislative branch could either revise the law so that it was palatable to the President and enable him to sign it, or it could override the President's veto--but only by a two-thirds supermajority of both houses of the legislature.
• The legislative branch itself was imbued with a series of checks and balances. Contrary to the original government established under the Articles of Confederation, the Congress consisted of two legislative bodies--the House of Representatives which were elected every two years and the Senate, whose members were elected every six years. These two bodies would by design also serve to check each other. The House (what is commonly referred to today as "Congress") was designed to be closer to the will of the people because it was subject to re-election much more often; the Senate, on the other hand, was designed to be more deliberative, less subject to hot issues which might die down over time. Only the House had (and has) the power to originate bills for raising revenue. Only the Senate has the power to confirm senior members of the executive branch (such as cabinet members) or nominees to the judicial branch (otherwise known as the Supreme Court and the federal court system). Only the House can vote articles of impeachment against a President; only the Senate can actually take testimony and try to President to determine if the President is convicted of those articles voted by the House and is therefore removed from office. The Senate also has the power to ratify treaties. Importantly, the legislative branch (both houses) has the power (not the President) to declare war on a foreign power.
• The judicial branch does not have the power to make laws, which power expressly resides--as stated above--in the legislative branch. The judicial branch does not have the power to raise revenue, declare war, ratify treaties, or any of the other duties of the legislative branch. Its purpose is to determine whether laws passed by the Congress and signed by the President conform to the Constitution. 
• But what about laws which might be written a century or two or three later which the Constitution might not expressly speak to? Or what if the Constitution needed to be changed to more accurately reflect the values of the people of a modern nation? The Founders provided for that, too--in the form of the Amendment process. This rigorous process requires that two-thirds of both houses of Congress--followed by the ratification of three-quarters of the states--can amend the Constitution. To affirm how difficult this is to do, consider that it's only been done 27 times since 1788--and the first ten of those in the form of the Bill Of Rights were passed in 1789 and ratified in 1791.

The clear intent of the Founding Fathers--and their collective brilliance--is seen in the Separation of Powers, designed solely to limit the size, scope, reach, and--ultimately--the power of the federal government. Many of the men who debated the Constitution during the summer of 1787 had fought against the oppression of British king. All of them had sacrificed their livelihoods, their treasure, and risked their lives for the liberties so eloquently proclaimed in the Declaration of Independence. When the Constitution was adopted on 17 September 1787, the Founders believed they had bequeathed to the young nation a structure designed to elevate liberty for its people, and for generations of Americans to come.

In the years to come (as we shall see), those liberties seemed only to increase in the form of Amendments to the Constitution. In the next post, we'll review the ways liberty increased during the 19th century. In a later post, we'll see how freedom was chipped away beginning in the early part of the 20th century, and how this phenomenon has gained great momentum in the past forty years or so.

The Ninth Circuit's Newest Nominee

There are eleven US Circuit Courts in the United States. Of those, the largest and the most controversial is the Ninth Circuit Court, headquartered in San Francisco. The Ninth Circuit Court's jurisdiction is huge, covering nine Western states, Guam, and the Marianas.

But it's not the Court's size which makes headlines; it's the extreme, sometimes bordering on ideologically radical, rulings handed down that gets peoples' attention. The fact that the Court is packed with a high percentage of liberals appointed by Democratic Presidents is not in itself objectionable. What is a matter of concern is the Court's atrocious record in adequately and accurately interpreting Constitutional law in its rulings. In 2009, for example, laws set by the Ninth Circuit were overturned in 15 of the 16 cases reviewed by the U.S. Supreme Court, which is hardly a bastion of conservatism.

Now President Obama has nominated a liberal, Goodwin Liu, who--if confirmed by the Senate--will accomplish the near-impossible feat of shifting the Ninth Circuit even further to the left. Liu, a University of California Berkeley law professor, is a committed left-wing idealogue. As we will soon witness with the confirmation hearings of Obama's newest Supreme Court nominee, Elena Kagan, it is customary for Senators to review a judge's past rulings, writings, opinions, speeches, even letters to the editor to try to divine how a judge will rule once he or she has a seat on the court to which they've been nominated.

But in Liu's case, he is asking the Senate to suspend disbelief by making this rather remarkable statement: "As scholars, we are paid, in a sense, to question the boundaries of the law, to raise new theories, to be provocative...but the role of a judge is to faithfully follow the law. Whatever I may have written would have no bearing on my role as a judge." And yet Liu, in his past writings and speeches, has advocated that the courts create constitutional rights to education, shelter, subsistence, and health care and to rule based on "how a judicial decision may help forge or frustrate a social consensus". He has advocated reparations for slavery, racial quotas in hiring, and the use of foreign statutes to discover the meaning of American laws. In short, Mr. Liu thinks that the U.S. Constitution means whatever he wants it to mean.

In their collective wisdom, the Founding Fathers knew that the Constitution would need to be changed over time to reflect the values and sensibilities of a modern nation. They provided an avenue for that change to occur in the form of Amendments. But they also placed an extremely high and difficult bar for change to occur: an amendment must be approved by two-thirds of both houses of Congress, followed by ratification of three-quarters of the state legislatures (all states except Nebraska have bicameral legislatures, meaning both houses of those states must also approve an amendment).

The Founding Fathers explicitly and deliberately did not provide for new law to be made from the bench of any court, including the Supreme Court and certainly not the Circuit Courts of Appeal. According to the Constitution, laws were and are to be made by the legislative branch and interpreted as consistent (or not) with the Constitution by the courts.

Goodwin Liu (and, for that matter, President Obama who has sworn to "preserve, protect, and defend the Constitution of the United States") would do well to re-read the Constitution.

Becoming A Constitutional Scholar

“If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be.”  Thomas Jefferson


Today--April 19--marks the 235th anniversary of The Shot Heard Round The World, when colonists from Massachusetts fired on British regulars on the Lexington green west of Boston and so fired the first shots of the Revolutionary War.


Beginning tomorrow--20 April 2010--you can participate in a great national call to join that patriotic effort and become a Constitutional scholar. Led by the actress Janine Turner (whose most prominent role was as the lead in the hit show Northern Exposure), a challenge has been placed before the American people to read and understand what our Founding Fathers wrought during those remarkable 17 weeks in the city of Philadelphia during the summer of 1787.


Never before had a nation been spoken forth from the minds and hearts of men elected for such a purpose. And today--some 225 years after its creation--the United States Constitution stands as both a symbolic as well as a practical model of individual freedom for nations around the world.


But our freedoms are being abrogated by the federal government--not just by the Obama Administration, but by the Supreme Court, the Bush Administration, the U.S. Congress, and the various agencies and bureaucracies that operate the government and enforce the laws that Congress makes with statutes which are increasingly overbearing, intrusive, and even confiscatory.


I will offer one simple example--and I will refrain from picking on the present Administration (though the examples after just fifteen months in office are legion): on June 22, 2005 the U.S. Supreme Court, in the case of Kelo vs. City of New London ruled in favor of the city's power to condemn a man's private property under eminent domain--not to build or widen a highway or to build a dam or some other public work--but in order to transfer private property from one private owner to another so that the latter--a developer--could build a downtown improvement project, including a waterfront development tract of 91 acres. (Ironically, five years after the ruling, the developer has been unable to get financing for the project and the site of the former Kelo property stands vacant and unoccupied--generating zero tax revenue for the city of New London.)

The Court ruled in a narrow 5-4 decision that the city of New London could condemn the property under the "Takings" Clause of the Fifth Amendment. So what would you have done if you were on the Court? Chances are you have no idea what the Takings Clause says. (Candid confession: As of this writing, I don't either.)


And that is exactly why the effort of Ms. Turner is so important. I urge you to go to the Constituting America website by clicking on this link: www.constitutingamerica.org .  Sign up on the right hand side. 


You can read the Constitution and the Federalist Papers (written most prominently by James Madison and Alexander Hamilton, as well as John Jay).  Reading assignments of about three pages per night will be assigned, and the readings will be discussed in an accompanying blog by invited Constitutional scholars.  And you can also participate, by simply offering your own thoughts in the public discussion section.


I invite you to join me in answering the call of Thomas Jefferson. Let us not be ignorant, or else we will no longer be free.