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The United State Constitution is a historical anomaly.  The Constitutions of the several States are as well.  Our English predecessors had a Constitution of sorts as did the Romans long before.  These are however, rarities.  Many nations today have “constitutions” or charters which allege the rule of law, but which in reality are no different from the dictatorships and dominions of old.

Traditionally, most people have lived under one regime or another which ruled by the whims of men and the force they could exert.  Ayn Rand discussed this phenomenon, labelling it “Attila and the Witch Doctor.”  For the New Intellectual (1961).  Attila is representative of the ruling big man, a brute whose law” extends from the barrel of a gun or the tip of a spear.  The Witch Doctor is the “holy” man who finds some “divine” reason to justify Attila’s power and also placated the people to avert their suspicion or anger.

In 1775 the American colonists were under the rule of a gentler Attila, King George, III, who was constrained by Parliament and the English Constitution.  He even had a state-chartered church to serve as the Witch Doctor.  The next year the colonists declared their independence from England and instituted on earth thirteen new nations.  During the Revolutionary War these nations were united in Congress due to their dire predicament.  In 1781 the 13 states adopted the Articles of Confederation (the ratification process began in 1777) which tied them loosely together for mutual benefit.

Not being satisfied with loose ties, in 1789 the early Americans drafted a stronger document to commence a stronger central government – the Constitution.  The first ten amendments to the document, the Bill of Rights, came along in 1791. 

Constitution_Pg1of4_AC

(The Constitution.  Federal Archives.)

People like me are always rallying to the Constitution, its limits on government power, and it’s protection of individual rights.  When comparing the reality of modern American government to the government set forth in the original text of the Constitution, the two things seem polar opposites.  Thus, the constant call for a return to Constitutional government.  There is no doubt, from a libertarian perspective, the latter would be far easier to accept than the former. 

However, the problem I have finally come to terms with is that the two opposites are really the same thing – separated only by time.  Again, I quote Lysander Spooner: “But whether 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.”  “Unfit” is a harsh assessment, but it is probably the most intellectually honest view. 

I have personally sworn (affirmed) several oaths to support and defend the Constitution as an attorney.  Then, immediately, I have been told to look the other way as nearly every provision of the document is rendered moot.  The government these days does what it wants, end of discussion.  Its power is always on display.  If one or two of your rights happen to be respected, be happy.  The government will tell you it gave you those rights!  There is no respect for the letter of the Supreme Law.

In 2009, then Speaker of the House, Nancy Pelosi, was asked by a reporter, “Madam Speaker, where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?”  Mrs. Pelosi responded with indignation, “Are you serious?  Are you serious?”  She then put on the record that the question was not serious.  http://www.aim.org/guest-column/yes-nancy-pelosi-we-are-serious/.  The question was dead serious and the true answer is “nowhere.”  Truth gets in the way.

Rep.  James Clyburn clarified the issue: “There’s nothing in the Constitution that says that the federal government has anything to do with most of the stuff we do.”  http://online.wsj.com/article/SB10001424052970203917304574412793406386548.html.  Jimmy was brutally honest.  Over the long-span of our Republic, a few pet phrases and ideas in the old parchment have been used to systematically justify the awesome growth of the federal government – the commerce clause, the necessary and proper clause, the general welfare clause, national defense, and taxation.  Today, when most of what the government does is illegal, they don’t even try to justify their actions.

This was hard for me to accept as an attorney.  Actually, I never did accept it.  In many (most) cases there absolutely nothing I could do for the interests of true justice and Constitutional fidelity.  However, I remain one of the few who will stand on principle to the point of Quixotic excess.  I do not fear being labeled wrong when I am right.

Here’s how the Constitution was supposed to work.  It was quite simply compared to today’s leviathan.

First, please read the Constitution.  Here’s a link: http://www.archives.gov/exhibits/charters/constitution.html.  This is the official site of the Constitution, complete with pictures of the original text.  Make it a “Favorites” link on your browser. 

The Constitution created the federal government, divided into three branches.  The branches were listed in order of importance.  Article One defines and empowers the legislative branch, Congress.  The powers of Congress or the legislative authority it has are mainly derived from Section Eight though a few powers reside elsewhere (some have been added by subsequent Amendments).  The powers enumerated in the text are the only powers which Congress may legally exercise.  The Tenth Amendment says so.  The number of these powers is the subject of some speculation among libertarians.  Some count the individual sub-sections only.  Some delineate each power from the subsections – I follow this approach.  Some extrapolate reasonable relations between the individual powers.  However you calculate them, the powers are few in number.  Let’s say there are about 30.  That’s it!  Those are the only things the government is supposed to do. 

Today we are trapped under tens of thousands of laws and countless regulations which cover literally everything imaginable.  The regulations are issued by various agencies, supposedly to implement the laws Congress passes.  You can find this mind-boggling collection of verbosity at: http://www.gpo.gov/fdsys/browse/collectionCfr.action?collectionCode=CFR.  Don’t make too close of a study; the regulations change constantly.  In my view none of these rules are valid as they are not the expressly permitted work of Congress.  However, the agencies that make them have armies of men with guns to ensure compliance.

Article Two concerns the executive, The President. The President’s authority is even more minimal than Congress’s.  He is supposed to only attempt to enforce the valid laws Congress passes, run the day-to-day operations of the government, and prosecute wars as declared by Congress.  That’s about it. 

Of course, today the President is a virtual government unto himself.  The executive’s ability to take “emergency” action and the constant acquiescence to these actions by the other branches, have made the President the most dangerous part of the central government.  He issues Executive Orders, which were originally only supposed to concern policy implementation within his administration, but today are taken as Acts of Congress (without Acts of Congress).  My view is that almost all of these Orders are invalid.  There again, the President is in charge of all those armies of armed men and the regular military too.  He usually gets his way.

Article Three concerns the federal Judiciary.  This article only established the Supreme Court.  It left another power to Congress to create and empower inferior courts of different kinds.  Originally, legal matters were supposed to be handled by State Courts for the most part, with the Supreme Court deciding differing outcomes from different States when a controversy arose.  Many libertarians think the judiciary has become too powerful.  Perhaps it has.  Most attorneys take the opinions of the courts to be divine.  I do not, for the most part, agree.  Congress has the ultimate authority over law in this nation and has the power to override a contrary court decision.  Congress also has the express authority to limit the jurisdiction of the courts, meaning Congress can prohibit a court from reviewing certain matters.  Congress rarely uses this power.

The rest of the original articles explain various concepts, procedures, and guarantees.  Perhaps the most important feature of the remaining articles is in Article Five – the procedure for adding Amendments to the Constitution.  This has been done 27 times since the original charter was enacted.

The Bill of Rights, those first 10 amendments, was added as a cautious afterthought.  The rights therein were acknowledged as Natural Law in origin and eternal.  In 1789 all ten were taken as a given.  The Founders assured everyone, including each other, that due to its explicitly limited nature, the new government would never be a threat to individual liberties.  There was no point in adding statements of protection.  But, in 1791, suspicion gave way to action, and several core rights were definitely stated and protected.  They have been poorly defended of late.

The remaining seventeen amendments were added over the course of years.  Most granted the government more power.  Only one of those has ever been repealed – the 21st Amendment, the only one ratified following State Convention origination, repealed the 18th Amendment, which outlawed alcohol.  In my estimation, of all the Acts of the federal government in its entire history, none were more cruel than the 18th Amendment.  During a period of dramatically increasing federal power and erosion of individual liberty, the government decided to take away the People’s ability to legally drink their serfdom away.  Thank God it was erased after only 14 years.  True to form though, the government could not simply end prohibition, rather, the ability to regulate alcohol was passed on the States.  The ATF and your State’s revenue department bear witness to the enduring character of legislative folly.

In conclusion, while the Constitution may be revered as creating a government of limited powers, it still created a government.  That government has vastly exceeded its authorized power to the detriment of our Liberty.  I would like to see a return to The Articles of Confederation or some other less powerful central state.  This is not likely to happen.  The best alternative would be to simply adhere to the Constitution as written, no more.  This is equally unlikely to occur.  As is, we will have to wait until time takes its toll on the remains of the Republic.  This process may not be pleasant for us.  Plato described the cycle of the theoretical state about 2500 years ago – we would appear to be somewhere near the end.  Aristocracy gives way to timocracy (rule of land owners).  Timocracy becomes oligarchy (the rule of an elite).  Oligarchy degenerates into democracy.  Democracy can also be called “ochlocracy” or mob rule.  Ultimately this paves the way for a despot to seize power.  The cycle then repeats. 

We can really only hope that someday, a future generation will learn from our mistakes and correct them.  History says that correction won’t last long.