It's old, out-dated, written by dead white guys who wore
wigs.
But who can blame them? Politicians don't consider
themselves obligated to obey the Constitution.
If we could transport the Signers of the Constitution into
the 21st century, not a single one of them would say we are under the
Constitution in any meaningful sense.
And not just "technically" or in some
"legalistic" sense are we no longer under the Constitution, but the
core values and philosophy which undergird the Constitution have been
lost.
The Constitution embodies values and beliefs,
many of which are not explicitly stated in the Constitution itself, and
prescribes a legal procedure to protect those
values from encroachment by the government.
The Values Behind the Constitution
Our nation's Declaration
of Independence, the charter that created the United States of
America, contains these words:
WE hold these Truths to be self-evident, that all Men are
created equal, that they are endowed by their Creator with certain
unalienable Rights, that among these are Life, Liberty and the Pursuit
of Happiness
Herein are contained the core values that distinguished America from
all other nations:
- There exist absolute values, known to us in our consciences, and
hence "self-evident." We are "a
government of laws" -- unchanging principles
-- "not
of men."
- America is an experiment in liberty, undertaken "with
a firm reliance on the Protection of Divine Providence."
Our National Motto is, "In
God We Trust."
- We all have God-given rights,
including the right to Life,
Liberty and
the Pursuit of Happiness
- Equality: A king or politician is no more benevolent, wise,
compassionate, intelligent, moral, or trustworthy than a citizen, and
the lowliest citizen has no fewer rights than the king.
- The rights of the lowliest serf cannot be taken
("alienated") by the government.
- All Americans have the right to better their condition, provided
that their pursuit of happiness is consistent with "The
Laws of Nature and of Nature's God."
The Declaration of Independence also says "it is the Right of the
People to alter or to abolish" the government "whenever any Form
of Government becomes destructive" of these values.
Constitutional Procedures to Protect
American Values
The theory behind our Constitution is that government can never do more
than any man can do individually or as a group. "The
People" can delegate to government only such powers as it is
legitimate for people to exercise. And the Framers of the Constitution
made it clear that the government has only those powers which "the
People" deliberately choose to delegate to it. Because we are "a
government of laws, not of men," our Constitution makes it
difficult for men to make changes in our system.
Probably 90% or more of our government's budget
today goes to functions which are unconstitutional. The only powers which
the federal government has are those expressly delegated to it in the
Constitution. The federal government has no constitutional power in the
area of religion, charity, education, hospitals, or herbal supplements.
The General
Welfare Clause is no exception to this rule.
Problems with the Constitution
- Was the
Constitution Really Meant to Constrain the Government?
-
Many advocates of liberty have thought they
just had to appeal to the “original meaning” of the
Constitution and things would more or less take care of
themselves. But if that were so, why are we in the mess we're in
now? I presume that earlier generations interpreted the
Constitution in a way more to the liking of today's
constitutionalists. What happened? Since that time, the
Constitution has never been suspended; the government wasn't
replaced by a non-constitutional regime. The formal Constitution
has been in force continuously since 1789. Everything that
happened was justified constitutionally.
So Lysander
Spooner was right: the Constitution "has either
authorized such a government as we have had, or has been powerless
to prevent it." The “parchment barrier” against power
(James Madison’s term for the Bill of Rights) wasn’t much of a
barrier.
- The
Constitution or Liberty
America is No Longer Under the Constitution
The fundamental structure of government created by America's Founding
Fathers no longer exists. The separation of powers has been replaced by
"The Administrative State," and the
system of federalism ("states' rights") embodied in the 9th and
10th Amendments and vigorously defended by Madison and Jefferson has been
destroyed by what is today a
powerful centralized federal government.
The values behind the Constitution have been abandoned. By joining the
modern secularist trends and repudiating the Christian foundations of the
Constitution, the courts have stripped the Constitution of all meaning.
The oath to "support the Constitution" or
to be "attached" to its principles likewise lacks any meaning.
America is no longer under the British Crown. America is no longer
under the Articles of Confederation. And -- not just de facto, but
(arguably) de jure, -- America is no longer under the
Constitution. Anyone taking an take an oath to "support" a
Constitution which no longer exists must not be oblivious to Secularism's
march toward tyranny.
Does the Constitution uphold private property?
At one time it did, but no longer. In 1933, a state of "national
emergency" was declared. Some researchers contend that wartime powers
were invoked to suspend
the Constitution. World War I produced legislation ("The Trading
with the Enemy Act") which was conscripted for duty in Roosevelt's
"war" against the "Great Depression." Congress
approved his Executive decrees which essentially declared all those who
might believe in a Constitutional Free Market to be "enemies"
of the State, and the gold of all these "enemies" was
confiscated.[7]
In 1973, a special Senate committee led by Senators Frank Church and
Charles Mathias confirmed that
Since March 9, 1933, the United States has been in a state of
declared national emergency. [H]undreds of statutes delegate to the
President extraordinary powers . . . which affect the lives of American
citizens in a host of all-encompassing manners. This vast range of
powers, taken together, confer enough authority to rule the country
without reference to normal constitutional processes. . . . A majority
of the people of the United States have lived all their lives under
emergency rule. For 40 years, freedoms and governmental procedures
guaranteed by the Constitution have, in varying degrees, been abridged
by laws brought into force by states of national emergency. [A]ctions
taken by the Government in times of great crises have -
from, at least, the Civil War - in important ways shaped the present
phenomenon of a permanent state of national emergency.[8]
National
Emergency and the Erosion of Private Property Rights
In 1943, the Supreme Court ruled that it could not be said for certain
that an admitted member of the Communist Party, holding positions in the Communist
Party's National Committee and being the Party's nominee for Governor of
Minnesota, was not "attached to the principles of the
Constitution."[9] In addition to working for the
violent overthrow of Representative Government, the Communist Party denies
the legitimacy of private property. But that
was no problem for the Court.[10] Through "New
Deal" policies, the "organic
law" of the Founders was completely overturned. According to such
organic charters as the Declaration of Independence, human beings are
created by God with unalienable rights to life, liberty and property.
These rights exist prior to the State. No longer. The "theoretical
basis" of property rights embodied in the "New
Deal" was "far different from what it had been"[11]
under America's organic law (e.g., the Declaration of Independence: rights
given by God, unalienable by the State):
Property rights, from this [new] perspective, are simply a
"delegation" from the state to the citizenry . . . . No longer
did "property" represent some prepolitical "natural"
entitlement; it now represented a public policy
judgment by the state that, overall, important social values would be
realized by leaving certain controls in the hands of ordinary citizens.[12]
To facilitate the State's unalienable rights over the
citizens, "a fourth branch of government"[13]
was established, which, to use Madison's words in The
Federalist, "may justly be pronounced the very definition of
tyranny."[14] For years, government officials with
strong Communist leanings had "urged differing degrees of
governmental ownership and control of natural resources,
basic means of production, and banks and the media of exchange, either
with or without compensation."[15] Between
1913 and 1937, most of the planks of the Communist Manifesto had been put
into law in America[16] by high-ranking
government officials, including President Roosevelt;[17]
officials who had taken a solemn oath to "support the
Constitution," and therefore, according to the Court, officials
"whose attachment to the general constitutional
scheme cannot be doubted."[18]
To "solemnly swear to support" a
Constitution which has been suspended for 70 years is - either knowingly
or ignorantly - to rubber-stamp the corporate-martial law that replaced
it.[19] Transport any of the Founding Fathers
into the first decade of the 21th century. Let them look at our schools,
our tax-rates, our mortality rate for pre-born children,[20]
and ask them if they will take a (secular)
oath to "support the Constitution." I dare say none of them -
except perhaps Alexander Hamilton - would take such an oath.[21]
Just months after the Schneiderman case, a
Nazi sympathizer, a devotee of Hitler who believed that when one became
"Americanized" one was "ruined," was held by the Court
to be "attached to the principles of the Constitution."[22]
Such secular, socialistic decisions of the Supreme
Court evidence "an unqualified hostility to the most fundamental and
universally recognized principles of the Constitution."[23]
And since the Constitution is whatever the Court says it is, I might be
deemed to be unable to "support the Constitution," and would
certainly be violating the supreme Law of the Land by
taking an oath declaring my "support" for the Constitution.[24]
In permitting Nazis and known Communists to take an oath to
"Support the Constitution," courts have relied on Article V,
which permits Amendments. Thus, a Communist, who might seek to amend the
Constitution out of existence and set up a Socialist Dictatorship, is held
by the courts to be "attached to the principles of the
Constitution," namely (or especially), the "Constitutional
principle" of amendment.
I have a strong revulsion against this "make-the-oath-mean-whatever-you-want-it-to-mean,-and-get-it-over-with"
attitude. The oath is a sacred and solemn act, not some
kind of ceremonial "silly putty."[26]
But in any case, the secularists are one step ahead of Amendment-minded
Christians. There appears to be an exception to this "Amendment"
rule. There seems to be one kind of Amendment that
cannot be suggested;[27] one kind of vision
that the Supreme Court has called "abhorrent to our tradition."[28]
It's not Naziism. It's not Communism.
It's "Liberty Under God."
Lysander Spooner opposed slavery and the federal postal monopoly on
constitutional grounds, but later confessed,
[W]hether the Constitution really be one thing, or another, this much is
certain --- that it has either authorized such a government as we have
had, or has been powerless to prevent it. In either case, it is unfit to
exist.
It's the closing line of "No
Treason: The Constitution of No Authority."
Resources on the Constitution
Documents
Basic Reading
Advanced Reading
Judge Andrew Napolitano:
The Constitution And Freedom
Introduction: Understanding The Constitution
Part 1: The Constitution
Part 2: The Congress
Part 3: The President
Part 4: The Courts
Part 5: The States
NOTES
| 7. |
R. Higgs, Crisis and Leviathan
168-180 (1987). The "limited government" rhetoric of
Constitutional conservatives has no effect during a time of
"national emergency." [Return to
text] |
|
|
| 8. |
Emergency Powers Statutes:
Provisions of Federal Law Now in Effect Delegating to the
Executive Extraordinary Authority in Time of National Emergency;
Report of the Special Committee on the Termination of the National
Emergency, U.S. Senate, 93rd Cong., 1st Session, iii, 1
(1973).
World War II, Korea, Vietnam, Nicaragua, Panama, and Iraq also
resulted in a number of additional "emergency" measures.
As a result of these hearings, Congress grew jealous of
Presidential powers, and in 1976 sought to establish its own
authority to determine "national emergencies" and
constitutional "enemies." T. Burzynski, "Is
the Constitution Suspended?" 12 The New American
15-16 (Feb. 5, 1996). You no doubt noticed the resulting dramatic
increase in Constitutional government.
Simply "cancelling" the "national
emergency" will
do nothing to reverse the trend toward socialism and
secularism. [Return to text] |
9. The words of the oath of allegiance required for
naturalization. Schneiderman v. U.S., 320 U.S. 118, 63 S.Ct. 1333,
87 L.Ed. 1796 (1943). [Return to text]
10. Although it was a problem for Justice Felix
Frankfurter, himself a naturalized citizen. Following circulation of a
draft opinion in the Schneiderman case, Justice Frankfurter sent a
note to Justice Murphy, who authored the opinion, suggesting that the
headnote to the opinion in the official reports read:
The American Constitution ain't got no principles. The Communist Party
don't stand for nuthin'. The Soopreme Court don't mean nuthin'. Nuthin'
means nuthin', and ter Hell with the U.S.A. so long as a guy is attached
to the principles of the U.S.S.R.
J. Howard, Mr. Justice Murphy: A Political Biography 315 (1968),
cited by Levinson, Constitutional Faith, p. 144. [Return
to text]
11. S. Levinson, "Unnatural Law" (Review of
C. Sunstein, The Partial Constitution) 209 The New Republic
40, 41 (July 19/26, 1993). [Return to text]
12. Idem. See also Senate Doc. 43 (73rd
Cong., 1st Sess.): "The ownership of all property is in the State;
individual so-called ''ownership' is only by virtue of Government, i.e.,
law, amounting to mere user; and use must be in accordance with law and
subordinate to the necessities of the State." Quoted in E. Schroder, Constitution:
Fact or Fiction, 36 (1995). [Return to text]
13. J. Freedman, Crisis and Legitimacy, 6
(1978). [Return to text]
14. Quoted in A. Gulas, "The American
Administrative State: The New Leviathan" 28 Duquesne L Rev.
489, 490 (1990). (With Madison's warning ringing in his ears, the author
nevertheless supports the "New Leviathan.") [Return
to text]
15. Schneiderman v. U.S., 320 U.S. 118, 141,
87 L.Ed. 1796, 1811 (1943). [Return to text]
16. M. Hendrickson, America's
March Toward Communism (1987). Update:
2000 [Return to text]
17. J. Flynn, The Roosevelt Myth (rev. ed.
1956); A. Sutton, Wall Street and FDR (1975). (Sutton was a
Research Fellow at the Hoover Institution, Stanford University.) [Return
to text]
18. Schneiderman, above, note 15. Justice
McReynolds might have doubted it. Dissenting in an important case
upholding flagrantly unconstitutional "New Deal" Legislation, he
cried: "This is Nero at his worst. The Constitution is gone."
Quoted by E.S. Corwin, Constitutional Revolution, Ltd. 46 (1941).
[Return to text]
19. Imagine a group of sinister Anti-Federalists in
1792 seizing control of a small town, cutting off all communication [they
didn't have Orwellian Memory-Holes back then] and forcing citizens to take
an oath to "support The Articles of Confederation." What
possible purpose could such an oath have but to solidify their
unconstitutional control over the town? America is no longer governed by
the Constitution. [Return to text]
20. Over 32 million killed since 1973. Human Life
Alliance of Minnesota, She's a Child, Not a "Choice," 10
(1995). [Return to text]
21. Hamilton would probably be guarding
multi-national corporate interests against upstart nationalists and
"agrarian reformers" from his positions on the Trilateral
Commission and Council on Foreign Relations. [Return
to text]
22. Baumgartner v. U.S., 322 U.S. 665, 669
(1944). See generally J. Flynn, As We Go Marching (1973
[1944]) (comparing "New Deal" fascism with "rule by
emergency" under Article 31 of the German Constitution). [Return
to text]
23. Schneiderman v. U.S., 320 U.S. 118, 195,
87 L.Ed. 1796, 1839 (1943) (Stone, C.J., dissenting). [Return
to text]
24. Cf. Summers.
[Return to text]
25. In re Saralieff, 59 F.2d 436, 437 (E.D.
Mo. 1932). See also In re Petition for Naturalization of Matz, 296
F.Supp. 927 (E.D. Cal., 1969) (denying naturalization to Jehovah's Witness
who, "because of religious training and belief refuses to vote, serve
on juries or otherwise participate in government" (at 929) (citing In
re Saralieff (at 930n6), and U.S. v. Macintosh, 285 U.S. 605,
51 S.Ct. 570 (at 931n.20) On Macintosh, cf. below, text
at notes 192-198). The Saralieff case obviously pre-dates the
"post-meaning" age. But the priority it gives to the State still
lives. [Return to text]
26. Jesus said, "I say to you that for every
idle word men may speak, they will give account of it in the day of
judgment. For by your words you will be justified, and by your words you
will be condemned" (Matthew 12:36-37). After studying the
metamorphosis of American Government since the
Civil War and the repudiation of the Founding Fathers (which,
admittedly, most people have never done), it is difficult to avoid the
conclusion that no more idle words could be spoken than "I swear to
support the Constitution." Cf. below, text
at note 216. [Return to text]
27. Cf. D. Linder, "What in the
Constitution Cannot be Amended," 23 Ariz. L Rev. 717 (1981).
[Return to text]
28. Girouard v. U.S., 328
U.S. 61, 69, 66 S.Ct. 826, 829 (1946). [Return to
text]