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PERRIN LOVETT

~ Deo Vindice

PERRIN LOVETT

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Constitutional Law

13 Wednesday Mar 2013

Posted by perrinlovett in Legal/Political Columns

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This article is an extension of my recent columns on The Constitution, https://perrinlovett.wordpress.com/2013/03/08/the-united-states-constitution/, and Legal “Education,” https://perrinlovett.wordpress.com/2013/03/12/legal-education/.  One would think that the matter of Constitutional law would have been covered in my article on the Constitution itself – unless one also read my treatise on law schooling.

Oddly, in my experience, the Constitution itself is not required reading for Constitutional law classes. Rather, some imported parts of the document are set forth in the text-book used by the professor. This strikes me as intellectually dishonest and unwise, akin to using a dangerous power tool without first reading the directions. Herein, I briefly cover the usual course material from such as class. The professors, many of whom have never been in a court, let alone argued for or against the Constitution, regurgitate the rulings of different courts regarding a limited number of subjects. While there is an occasional discussion of the reasoning behind the opinions, they are generally viewed as sacred, unswerving law. Rare instances where history has determined the rulings to be invalid (i.e. Dred Scott v. Sandford, 60 U.S. 393 (1857)– slavery is okay pre war between the States) are swept under the proverbial rug, written off as mistakes made due to the prevailing thoughts of the cases’ times.

tribe conlaw

(Prof. Laurence Tribe’s ConLaw Book.  Google Images.)

As I have written elsewhere, no reference to Natural Law is made and no critical thought is given to the “why” behind the laws. As Max Tucker wrote recently, any student who dares to pose dissenting views or arguments is detested noticeably by the other students and the faculty. Rarely, student are given the opportunity to delve into the deeper meanings of the cases they study. I was fortunate to be able to write a short essay on the effects of Scott, in which I decried its universal sadness and the role it played in the schism in our nation circa 1861. Part of my essay was read aloud to the class by our professor – another rarity, a former practicing attorney. My points were well accepted. Of course, I had the benefit of over a century of progress on my side. Other topics, which require hypothetical deconstruction, are roundly ignored.

As with all other areas of the law, Constitutional law has degenerated into a study of the constantly shifting case-law which arises under the Constitution.  By the way, I always capitalize the “C” in Constitution out of reverence for the document and its place in our Republic (I do the same for “Republic” too).  I have explained my philosophical troubles and doubts about the Constitution but, due to my sworn allegiance to it, I am honor-bound to defend its ideals.

Case-law study is important and has a valid place in the legal practice.  After all, most attorneys make a living pushing various issues in courts through individual cases.  Each provision of any law is subject to some interpretation as part of its application to the circumstances of the real world.  The trick of “strict construction” application of the Constitution is to adhere as closely as possible to the text and plain meaning of the old parchment.  I follow strict construction as my approach to most laws, in and under the Constitution.  The first fork of any analysis is to determine if the issue scrutinized is compatible with the underlying law.  If the two are compatible, then the analysis shifts to application of your set of facts to the law.  If there is an incongruity, then it is necessary to decide whether the law is improper or if the facts are insufficient for action.

Here’s a brief, over-generalized example, ripped from the recent headlines!:  Mary lives in New York City; she is an avid consumer of Coca-Cola beverages, particularly in large volumes.  Mary went to the corner store in Hell’s Kitchen and ordered a 40-ounce frozen Coke treat.  She was informed by the clerk that a drink of such heft was just outlawed by the wise and magnanimous mayor of NYC, Michael “Soda Jerk” Bloomberg.  Mary, offended and hurt, contacts an attorney in order to take action against the mayor and the city.  Her attorney files a lawsuit seeking an injunction or some other remedy to force the city to curb its policing of soft drink size.  Upon reviewing the case, a judge decides that NYC’s ordinance is too vague to be enforceable and strikes it down accordingly.  Mary happily continues on her guest for obesity.  This represents proper application and analysis of the law and the facts – in this case Mary’s freedom to drink liquid sugar in peace.

Had Mary had a more pressing cause – say a desire to legally and permanently rid herself of a troublesome in-law and she requested her attorney file a similar action to invalidate New York’s statute against murder, her attorney would have likely declined the case.  If he was a fool, and filed an action anyway, the attorney would lose as any court would side with the law irregardless of Mary’s malicious desires.  While it is proper to allow peaceful people to purchase and consume products of their desire, it would be improper and an affront to Natural Law, to allow someone to kill another person without good cause (i.e. self-defence). 

These examples are extremely simple, but they demonstrate my core points.  The problem in the law has arisen from the over deference to certain laws as applied to the real world.  Today, the Constitution is not interpreted as strictly dictated by its own terms or by my previous explanation of the powers it grants.  As I noted before, a few select clauses have been given immortal omnipresence to the extent the entire document has been rendered a nearly lost cause.  All of these clauses give extra, unintended authority to the government to regulate and control everything.  Through various cases over the years, the courts have essentially made up the law or, at least by their interpretation of the laws, have allowed over-reaching actions of the government to stand as legitimate.

Popular of late is the criticism of “activist judges” who take on the role of a legislator in their quests to rewrite the laws of Congress.  Some courts have gone so far as to divine new rights and powers mentioned nowhere in the Constitution.  Roe v. Wade, 410 U.S. 113 (1973) is a poster case for such activism.  In Roe, the Supreme Court opined that abortion of unborn children is a right of pregnant women.  This right stems, allegedly, from the women’s “liberty interest” in their own bodies.  While not found in the text of the Bill of Rights (or elsewhere), this right does exist and should be protected.  However, the right, like all rights, has limits.  The high Court did not adequately consider the rights of the unborn children to be secure in the integrity of their own bodies during its decision.  Instead, the Court issued an incomprehensible psuedo-scienticifc approach to determined when a life becomes a life.  Medical science has definitely answered any related questions in favor of the unborn.  However, as is, about 1 Million children are murdered every year thanks to the Roe decision.  This was a case of improper balancing of competing interests under the umbrella of the law.

I do not roundly condemn “activists.”  Sometimes it is advantageous for a jurist to heavily scrutinize the law if the law actually impinges on protected rights.  The New York soda decision is a good, if oddly worded, example.  Problems happen when judges do not universally review the impact of a law, standing or undone.  It is also impermissible in a Republic for a court to institute new law – the domain of the legislature only. 

I will herein briefly explain a few of those key clauses and ideas of the Constitution which have given the federal government unlimited power over your lives.  These are the basis for Constitutional study in law schools.  In summary it suffices to say that they can and do anything they please, without hinderance.

The General Welfare Clause

This clause purportedly allowed Congress to use its defined powers for the betterment of all people.  It has been held it “has never been regarded as the source of any substantive power conferred on the Government of the United States or on any of its Departments.”  Jacobson v. Massachusetts, 197 U.S. 11 (1905).  However, in conjunction with other provisions, the clause has been used to justify countless spending sprees directed towards the profit of a select few, often at the expense of the People.

The Commerce Clause

Congress has the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Courts and commentators have tended to discuss each of these three areas of commerce as a separate power granted to Congress.” Constitution, Art. I, Section 8, Clause 3.  Rather than regulating commerce between the listed entities, this clause has been egregiously abused to empower Congress to regulate anything which can conceivably occur wishing any of the stated territories.  The poster case of the clause is Wickard v. Filburn, 317 U.S. 111 (1942) in which the Supreme Court declared that wheat grown by a farmer may not necessarily be used privately by the farmer because such use (bread baking) might negatively affect interstate commerce, the ability of bread companies to sell the farmer bread.  While defying belief, this case and its ilk are recited as if dictated by Jesus by law professors coast to coast.  The Commerce Clause saw minor setbacks in the 1990s but it remains as the basis for most criminal and civil statutes enacted by Congress.  Arguing against commerce connections in court is as successful as herding alley cats.  I know this from personal experience.

The Necessary and Proper Clause

This clause, known also as the “elastic clause,” appears in Article I, Section 8, Clasue 18.  It provides that Congress can authorize the steps required to implement their other enumerated powers.  The Anti-Federlists argued against this provision, fearing it would allow the central government to assume endless power in the name of affecting those valid programs instituted under the named authorities.  Turns out they were right.  In conjunction with the Commerce Clause, the Necessary and Proper clause has been used to justify federal intrusion into everything.  It was necessary and proper to prohibit farmers from utilizing their own crops to preserve commerce, and so forth.

National Security

“Patriotism” is regarded as the last refuge of a scoundrel.  Frequently, it is the first.  There exists an idea that an allegation that a legal measure is warranted in order to preserve security or defeat some enemy regardless of any other factors.  Frequently, the government will assert this as a defense in a court case in order to avoid any discussion of the underlying subject matter (torture, internment of citizens, etc.).  This tactic usually stops the case dead in its tracks.  In a true emergency such a policy might serve a valid purpose.  However, as we now are told we live under perpetual threat of all sorts of impropriety, the argument is used as a universal repeal of our rights.  History indicates that “emergencies” never go away.  For instance, 68 years after winning World War II, we still station troops in Japan and Germany.  We also have a portion of our incomes withheld prematurely for taxation purposes – this was supposed to be a temporary war-time measure of WWII.  History also shows that a government will do anything to maximize its power under a security “threat,” including the manufacture of threats from nothing.

Taxation

“That the power to tax involves the power to destroy; that the power to destroy may defeat and render useless the power to create….”  Chief Justice John Marshall, McCulloch v. Maryland, 17 U.S. 316 (1819).  Governments have proven themselves able to destroy just about anything, they create next to nothing.  Originally, our government was funded by tariffs and import fees and simple requests to the States for assistance.  The advent of the 16th Amendment gave Washington awesome power to take as much money as the need from the people’s labors.  The illegal Federal Reserve scheme allows them to create additional monies at will.  The courts have constantly upheld the power of taxation even when Congress didn’t know they were implementing a tax.  See: The Obamacare decision, Slip Opinion 11-393, June 28, 2012.  Taxation gets its own law school class – where it is worshipped like a god.  Dissenters are frowned upon as heretics (I know…).

A Few Rights

Over the years, several levels of scrutiny have been assigned to several pet rights.  I am suspicious of each of these levels and will not bore you with their application.  For the most part they apply rights based on classification of persons and against the backdrop of government “interests.”  It is interesting that usually deference is given to a particular law; the law is presumed Constitutional absence some showing that it is an abuse impermissible under one of the abstractly devised levels of scrutiny.  I would prefer deference to the Liberty of the People, with the government left to prove conclusively their law does not infringe that right or that any infringement is necessary in order to secure greater liberties for all.

Most Constitutional law teaching about “rights” center on the First Amendment.  There is usually a class devoted singularly to the subject.  The First is worthy of great attention.  However, too often the cases studied thereunder tend to regard outrageous acts.  Rather than securing rights to fundamental speech for example, such as protesting abortion, educating potential jurors, and protecting free speech during an election, the courts have wasted much time protecting things like naked dancing and wearing offensive sloganed t-shirts. 

Voting rights, due process, and equal protection in general have also received great review.  However, given the steady deterioration of fundamental due process and equal protection, it is obvious there is a systemic bias towards the government over the free people.  For example, Rand Paul’s protests aside, next to nothing has been done in response to the President’s plan to murder Americans in America using drones and no legal process.  The scheme is likely to survive (hopefully unused) due to deference to vague assertions of “national security.”

The rest of the Constitution is left in the dark void of undecided law.  It is either taken for granted that such matters will be resolved in due course by the courts or simply that the provisions have no effect.  In law school I was bluntly told that the Second, Ninth and Tenth Amendments didn’t exist.  I found this hard to believe.  Now, with several positive court cases to lean on, the Second has been given some legitimacy though many “scholars” still remain grounded in the ancient, misdirected past.  On Tuesday, March 19, 2013 I will attend a symposium on the Second Amendment, replete with reference to these lost interpretations.  I have several questions sure to generate discussion and maybe laughter among the gathering.  Join me if you will.

If you teach Constitutional law, incorporate the actual text into your class. It could be a prerequisite, covered at the beginning of the semester and then referred to during the subsequent discussion of cases.  Attorneys need to familiarize themselves with the text of the Constitution, everyone else should too.

Together, each of us acting as we may, we may be able to slowly restore a rational teaching and application of the Constitution.  Perhaps someday we will return to the looser confines of the Articles of Confederation, allowing the member States of the Union (closer to their respective citizens) to affect policies towards the People.  With an eye towards ultimate freedom, I can envision an even less restrictive society.  I am reminded that “anarchy is better than no government at all.”  I’m not sure society is ready for that level of responsibility yet.  Someday…

The United States Constitution

08 Friday Mar 2013

Posted by perrinlovett in Legal/Political Columns

≈ 8 Comments

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18th Amendment, 21st Amendment, Act of Congress, administration, agencies, amendment, America, aristocracy, Articles of Confederation, Attila and the Witch Doctor, attorneys, Ayn Rand, Bill of Rights, branches, CFR, commerce clause, Congress, Constitution, Courts, cycle of the state, democracy, emergency, English, Executive Orders, Federal government, For the New Inellectual, Founders, general welfare, history, James Clyburn, jurisdiction, King George III, law, leviathan, libertarians, Liberty, Lysander Spooner, Nancy Pelosi, national defense, necessary and proper, ochlocracy, oligarchy, Plato, power, President, Quiotic, republic, Revolutionary War, Romans, Speaker of the House, States, Supreme Court, taxation, Tenth Amendment, timocracy, truth, tyranny, wars

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.

Perrin Lovett

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