Usurpation of the Constitution  

Friday, July 22, 2005

In assembling the following post, the observations made by Timothy B. Lewis at the Constitutional Freedom Foundation were invaluable. While I have summarized pretty well the concepts he presented, there is still no substitute for reading the actual article he published.

In looking at the Left's penchant for getting around the Constitution at all costs, it is important to look at the history of the Constitution and the Founders' original intent. After all, it is THEIR vision we Americans cherish and seek to implement in our republican form of government.

It's important to understand that the majority of power in America is supposed to reside with the people, less with local governments, less still with states, and least of all with the federal government. This concept is known as Federalism. Our laws are designed to allow maximum freedom to the people with as little interference from government on any level as possible. The idea was that people would be guided by virtue (religion) as to the concepts of right and wrong, and problems with violations of God-given rights would be addressed through the democratic process.

Before I go to something very important that Mr. Lewis brought up, let me quote from the 2000 Democratic Party Platform ...

When Thomas Jefferson was elected as our Party's first president in 1800, America was a young country trying to find its place in the world.

That's quite interesting, to say the least, since the Donk party wasn't even founded until after the dissolution of the Federalist Party in 1816. Yes, many members of Jefferson's Democratic-Republican Party joined the new Democratic Party, but others joined the National Republican Party and the Whig Party as well. Just goes to show just how interested these people are in the truth (note: Andrew Jackson was the first president from their party). Still, if the Dems want to claim Jefferson as their own, let's get to a quote from Jefferson himself that Lewis used on the very subject of constitutional usurpation:

It has long, however, been my opinion, and I have never shrunk from its expression,... that the germ of dissolution of our federal government is in the constitution of the federal judiciary; an irresponsible body, (for impeachment is scarcely a scare-crow,) working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped from the States, and the government of all be consolidated into one. To this I am opposed; because, when all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power, it will render powerless the checks provided of one government on another, and will become as venal and oppressive as the government from which we separated.

The Founding Fathers' vision of a free America has succeeded as long as it has for a reason. That reason is simple - there is very little these guys didn't think of. Jefferson saw in 1821 (when he penned those words) that there would someday be a problem with judicial activism.

One of the most important documents to study in learning the Founders' perspective on their original intent is the Federalist, a series of essays by Alexander Hamilton, John Jay, and James Madison designed to persuade the people of New York to accept the Constitution and ratify it. These essays defend the idea of having the Constitution as the law of the land, and were often written in response to another set of articles, published anonymously under the pseudonym "Brutus", called the Anti-Federalist. In Federalist #78 and 79, Hamilton sets forth his opinions as to the appropriateness of the structure of the judiciary:

The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. (my emphasis) - Hamilton, Federalist 78
A constitution is, in fact, and must be regarded by the judges, as a fundamental law. - Hamilton, Federalist 78

They ought to regulate their decisions by the fundamental laws, rather than by hose which are not fundamental. - Hamilton, Federalist 7

... whenever an articular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former. - Hamilton, Federalist 78

To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them ... - Hamilton, Federalist 78
Upon the whole, there can be no room to doubt that the convention acted wisely in copying from the models of those constitutions which have established GOOD BEHAVIOR as the tenure of their judicial offices, in point of duration ... - Hamilton, Federalist 78
The precautions for their responsibility are comprised in the article respecting impeachments. They are liable to be impeached for malconduct by the House of Representatives, and tried by the Senate; and, if convicted, may be dismissed from office, and disqualified for holding any other. - Hamilton, Federalist 79
So the courts can't legally take any active resolution on their own. Think about that when some Leftist wingnut tries to argue that Roe v. Wade is not a violation of the Supreme Court's constitutional authority. As a fundamental law, all parties provided for in the Constitution are obligated to stay within the structure set forth, and all decisions must derive directly from the Constitution. Judges making decisions not backed up by the Constitution, and therefore engaging in bad behavior, are subject to impeachment. Sounds pretty clear to me.

But let there be no change by usurpation ... - Washington, Farewell Address, 1796

President Washington would clearly be disappointed in the US government of the last hundred years. He would further be disappointed in Americans' neglect of the situation in their refusal or inability to do something about it.

Lewis sums it up pretty nicely in his conclusion:
Jefferson correctly predicted the judicial destruction of federalism. That would not have happened had our federal judges stayed true to their proper roles in our constitutional scheme ...

And so it wouldn't. Nor would it have happened had Americans stood up and defended the Constitution against such usurpations. Lewis goes on in his next article, Virtue & Morality: Freedom's Prerequisites, to explain the proper role of the judiciary in American government. Of course, he nails it, so reading for yourself would be the way to go. The article covers many important concepts upon which my opinion is based, including natural law, the failure of Greece, the First Amendment, virtue, morality, religion, and self-government, and I want to get to the real meat and potatoes of the post.

First, a quote from Hamilton, also quoted by Lewis:

Nothing is more common than for a free people, in times of heat and violence, to gratify momentary passions, by letting into the government, principles and precedents which afterwards prove fatal to themselves.

Yup. Nothing better describes the so-called "New Deal", presented by our first real socialist president, Franklin "Don"t Call Me Francis" Roosevelt. During that time, people became so desperate they gave up on themselves, and President Roosevelt promised them that the fed was powerful enough to take care of it all. Someone forgot to tell ol' Frankie that the common dude like you and me is supposed to be more powerful than the fed in America. The whole idea has, as Hamilton correctly predicted, been reversed to gratify momentary passions, etc., and these precedents have clearly proven fatal to themselves (a great argument in favor of the New Federalist idea of having a "sunset" to all legislation and just starting over).

A major problem with FDR's program was that the Congress went along with it, despite the constitutional issues involved. Luckily, the courts struck down a lot of what he was trying to do. Unfortunately, FDR threatened to "pack the court" with judicial activists who would rule in his favor on such issues. When judges saw that he could easily do this, they basically caved, causing a constitutional crisis that continues to this day. A few cases in point:

1942 - Wickard vs. Filburn - The Supreme Court reversed its 1936 ruling (U.S. v. Butler) that Congress did not have the power under the commerce clause to tell farmers what to do with their land.

The original ruling (in Butler) was correct. The commerce clause reads as follows:
The Congress shall have Power ... To regulate Commerce with foreign Nations,
and among the several States, and with the Indian Tribes;

The Supreme Court had already ruled repeatedly that Congress's power did not extend to activities within the states, only AMONG the states. That is, after all what the Constitution says.

This was the beginning of the slippery slope that ultimately resulted in the 2005 Kelo case. Congress also used constitutional means to usurp the rights of the people and the states, such as passage of the 16th and 17th Amendments. Both of these amendments were passed with the purpose of giving more power to Congress. The 16th Amendment created an unlimited right to tax, while the 17th Amendment eliminated the Senate’s accountability to the states. Ratification of these two Amendments is the fault of the American people, and the same American people (and their descendants) must now fight to repeal them if there is to be any accountability to those who are supposed to have power in this country. Not judicial activism, but definitely a usurpation of the power of the people and the states.

1965 - Griswold v. Connecticut - The Supreme Court overruled a state's law banning the use of contraception. No prohibitions against states having such laws exist in the Constitution.

1973 - Roe v. Wade - The Supreme Court overruled a state's right to make its own laws governing abortion. No prohibitions against state laws regulating "medical procedures" exist in the Constitution. Furthermore, the Constitution protects a person’s right to life.

2003 - Lawrence v. Texas - The Supreme Court overruled a state's anti-sodomy law. No prohibitions against states having such laws exist in the Constitution.

2005 - Kelo v. New London - The Supreme Court allowed a city to commandeer land from a homeowner on the sole basis that higher tax revenues would be possible if the land were owned by a business. This is a violation of both the 4th and 5th Amendment.

Again, these are just a few. Virtually every socialist program is a violation of God-given rights and their constitutional guarantees. I have chronicled these before. Just because the court allows it does not make a law constitutional. Of course, if the Founding Fathers saw what was going on today, they would be intensely disappointed in Americans' willingness to accept this sort of garbage. It completely perplexes me that Alan Colmes would be surprised that Liberal judges would vote for usurpations of people's rights. They have done it routinely, and his pal FDR was the one who let the cat out of the bag in the first place. It was FDR who opened the door for the Johnson Administration's "Great Society" (read that "Huge Socialist Power Grab"), and the high taxation that required the genius of President Reagan to bring under control.

These are all clear cases of the government treading into unconstitutional waters. The courts have no right to make law, and the legislatures are limited in the kinds of law they may make. It's high time those limits were respected, and the laws that came out of these usurpations repealed. I'd go on, but the weekend calls, and the shows must go on!