Wednesday, August 05, 2009

The Constitution of the United States and Its Usurpation

One of the more over-used claims I have heard in my lifetime, is how this condition or that somehow violates someone’s rights. The U.S. is a great country, in my opinion the very best, but we have waaaaaaaaaaaaay too many lawsuits, not to mention protests against just about everything. We read, see, and hear about ‘Animal Rights’ (not to mention that a certain Obama Administration official once wanted trees to have legal standing to file lawsuits), ‘Right to Life’ vs. “Woman’s Right to Choose’, ‘Right to Die’, and the popular meme of the moment, the ‘Right’ to Healthcare.

There are, it seems, three common sources for the notion of enumerated rights; the Declaration of Independence, the Constitution of the United States, and the popular imagination. The key phrase from the Declaration of Independence is that line about “certain unalienable rights, that among these are life, liberty and the pursuit of happiness”; while some folks try to draw inferences that government should be providing these things to people, I would remind the audience that when this document was written, the theme and tone were to tell the extant government – Britain, King George III and Parliament – where they could go and with what accessories. The Declaration of Independence was in no way an endorsement of government power and influence.

The Constitution of the United States is where most people come to think of rights, yet many beliefs are mistaken. The founding fathers, for instance, have made it abundantly clear not only in the text of the Constitution but in other writings of the time that the Constitution was created not to spell out the rights of the people, but to define the limits of the federal government’s power. The Bill of Rights was noted not to lay out what the citizens were allowed to do, but to emphasize certain boundaries which the government may under no circumstances trample. From that original context, therefore, it is important to understand that “rights” come to mean areas where the government is not allowed to exert power or influence, even with the best of intentions. The legitimate power and authority of government extends only to that degree where the Constitution specifically grants that power and authority – sadly, the actual affairs of government have gone well beyond those limits, and it is doubtful that we shall ever again see the government truly envisioned by the founding fathers. We must make do with the reality in which we live.

The reality of the Constitution, is that it’s really a very simple framework. Let’s have a walk through the structure of the thing and I hope you will see what I mean:


”We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

That sets out what we’re doing. Union, Justice, Peace, Defense, Welfare, and Liberty are the goals. The rest of the Constitution lays out how these goals are to be accomplished.

Article I

Article I lays out the Congress of the United States, how it is created and how it shall operate. Section 8 is particularly important, setting out taxation, debt, commerce, naturalization of citizens, bankruptcy law, the treasury, post office and rail roads, patents and copyright, the establishment of courts, and the conduct and operation of the military, in that order.

Article II

Article II lays out the Executive Branch, the qualifications for President of the United States and how he/she may be elected. The Constitution clearly shows the President to be Commander-in-Chief of the armed forces, to have the right to make appointments and to recommend actions to Congress, and that he may be removed only by impeachment for “high crimes”, such as Treason or Bribery. The President’s role is clearly set out distinct from the role of Congress; the Congress is expected to deliberate and move slowly and with the deliberation appropriate to its great power, while the President is in a leadership role, so that he may move more quickly but with less effect than the Congress.

Article III

Article III sets out the judicial system, derived from the Supreme Court and – as the Constitution describes them – inferior courts. It is interesting that Section 1 specifically qualifies the right of any judge to sit on the bench to their “good behavior”; I cannot help but wonder how many of our esteemed honors would actually pass a reasonable examination to see whether in fact their behavior as judges could properly be called ‘good’.

Article IV

Article IV gets into greater detail than the previous articles, addressing the rights of states to conduct their public acts with the confidence that other states will consider such acts as legitimate within their own jurisdiction to the degree that relations between those states are affected, the universal applicability of criminal law and civil judgments, the territory and boundaries of states, and the universal protection by the armed forces of each state from invasion or attack.

Article V

Article V sets out how amendments to the Constitution may be created and ratified. This plainly worded section is perhaps the most effective means by which the Constitution remains relevant.

Article VI

Article VI almost reads as an afterthought to the main body of the Constitution, but two points in this article are of paramount importance – the clear affirmation that the Constitution of the United States is the “supreme Law of the Land”, which rather snuffs the notion that interpretation of foreign law should be considered anything close to equal in standing to the Constitution as written and ratified; and the direct admonition that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States”, which is in actual fact the strongest clear statement of the separation of Church and State; note that this separation is effected in the conduct of public officials, not in the rights of private citizens.

Article VII

Article VII sets out the ratification of the Constitution.

The Amendments

The twenty-seven Amendments to the Constitution of the United States are, to me anyway, a fascinating historical commentary on the enduring value and stability of the Constitution. It should be remembered, after all, that other nations had Constitutions which failed because they ignored them – the politicians in, for example, the Soviet Union ignored their Constitution whenever they felt like it, or – why does this sound familiar – decided whatever they wanted to do was actually allowed under the Constitution, even where specifically proscribed by the actual document. We see maddening debates over the meaning of the wording in various places, but at least our judges still consider the Constitution as the rule book on our laws.

The first ten amendments, of course, were created at the time of the original Constitution, and are collectively known as the Bill of Rights. It shows something of the concern by Mr. Madison and his colleagues, that even in a document which clearly set out to limit the scope and power of government, they determined it was necessary to enumerate specific rights which may not, under any circumstances, be abrogated. In short summary they are as follows:

1. Freedom of Speech
2. Right to Firearms
3. Quarters for Troops
4. Search and Seizure limits
5. Rights of the Accused
6. Criminal Prosecutions
7. The Right to Juries
8. The Right to Bail, limits on Punishment
9. The Bill of Rights does not list all rights of the people
10. Powers not specifically accorded the federal government by the Constitution belong to the states, or to the people

It gets interesting after that. The eleventh amendment addresses lawsuits against states, the twelfth concerns the election of the President and Vice-President, the thirteenth abolishes slavery, the fourteenth details due process rights, equal protection, and voting rights, the fifteenth prohibits racial discrimination of voting rights, the sixteenth establishes income tax, the seventeenth addresses the election of senators in more detail, the eighteenth banned alcoholic drinks, the nineteenth confirmed the right of women to vote, the twentieth addresses the succession of the President of the United States, the twenty-first repealed the eighteenth amendment, the twenty-second limits the President of the United States to two full terms of office, the twenty-third allows D.C. residents to vote in Presidential elections, the twenty-fourth bans the poll tax, the twenty-fifth details specific conditions for succession of the President, the twenty-sixth sets the voting age at 18 across the nation, and the twenty-seventh prohibits the Congress from voting on their pay more than once in a two-year period. From this, we can see that of the 17 amendments after the Bill of Rights, four address the actions and election of the President of the United States, eight address elections and voting rights, two clarify the operation of the federal government, two ban certain practices, one establishes a new power for the federal government, and one simply cancels a prior amendment.

The sum effect of the Constitution and its amendments, for me anyway, is that this is a simple framework meant to be applied in the spirit of limited government and maximum rights for individuals. From this spirit, it follows that individuals may do as they please, with the common sense restrictions that each of us is responsible for the effect of our actions upon others, and that as a member of our community we have obligations to promote its welfare. There is no right to a certain minimum number of years of life, nor to perfect health, no right to social networking or a secure job, nor to the exclusion of annoying people or discomfort, no right to guarantee that the police can solve every crime or the government solve your every worry.

Which brings us to that problem of imagination. Where did all those government programs come from, if our founding fathers did not had over the authority to create them? In a word, sophistry. Consider the Louisiana Purchase, for example. While I agree that it was a great deal for the United States and a brilliant bit of strategy, it was also clearly unconstitutional. And what about Lincoln suspending the writ of Habeus Corpus during the Civil War? Many historians have argued persuasively that the action was necessary, but again there is no authority in the Constitution for President Lincoln to have done it. The New Deal? As grand as FDR described it and as proud as so many are of their work in those years, nowhere does the Constitution allow the President or the Congress to take over the commerce of the nation in order to try out political theory, as happened in the 1930s. And yes, that in turn makes the Bush and Obama attempts to do the same thing unconstitutional. Frankly, the very notion of borrowing huge amounts of taxpayer money for the benefit of selected companies and industries is so offensive that one imagines Hamilton and Franklin retching at the mere notion, not to mention its repetition in succeeding terms. It will, no doubt, be observed that many courts in the United States, including the Supreme Court, have signed off on these egregious violations of the limits of government, but one might remind such individuals that the courts have made myriad mistakes over the years, from Dred Scott to Plessy v Ferguson to Hepburn v Griswold to Everson to Roe v Wade to Grutter to Kelo v. New London and so on. To this, we must also note that when there is influence or power to be gained by advancing the breadth and grasp of the federal government, the Constitution fares badly throughout history, in courtrooms as much as the halls of Congress.

Many critics of the current proposals argue that we cannot afford them, but at some point it is bound to occur to the citizens of the United States that they never got to vote on these obscene orgies of spending, that the hateful practice of ‘taxation without representation’ is in full effect in the modern world, and that in the end the only hope for the Republic is for its citizens to demand its return. The only right we have, in the end, is the right to take responsibility for our own condition and actions, and their consequence. The only proper role for government is to protect the citizens from enemies and continue the maintenance of infrastructure, but otherwise to shut up and get out of the way of those who do the real work at hand.

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