On The Constitution – Part Five

“Our new Constitution is now established, and has an appearance that promises permanency; but in this world nothing can be said to be certain, except death and taxes.” — Benjamin Franklin

In Part Four I discussed the era of progressivisms and the slow, but steady reshaping the Constitution in a so called “living constitution” by the unelected members of the Supreme Court. In this chapter I will continue with that theme and expand on the continuing intrusion of the Executive and Legislative branches on our liberties as defined in the Declaration and Constitution.

The errant notion of a Constitution subject to the evolving interpretation of the judiciary has as its origin the 1803 case of Marbury v. Madison, where Chief Justice John Marshall ruled, "It is emphatically the province and duty of the judicial department to say what the law is." All well and good if the courts would continue to interpret the law exegetically, but as history would soon show, constitutional eisegesis was lurking just around the corner.

In fact, by the early 20th century the eisegetical interpretation of the Constitution had been given a name, courtesy of Howard McBain's 1927 book, The Living Constitution. In the decades that followed, this notion of a "living constitution," one subject to all manner of judicial interpretation, took hold in the federal courts. Judicial activists, who legislate from the bench by issuing rulings based on their personal interpretation of the Constitution, or at the behest of like-minded special-interest constituencies, were nominated for the federal bench and confirmed in droves.

This degradation of law was codified by the Warren Court, under the influence of Justice William Brennan, Jr., in Trop v. Dulles (1958). In that ruling, the High Court noted that the Constitution should comport with "evolving standards” that mark the progress of a maturing society." In other words, it had now become a fully pliable document — one that Jefferson had warned us would be a "mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please."

By 1987, living constitutionalism had become such the norm that Supreme Court Justice Thurgood Marshall delivered a lecture, "The Constitution: A Living Document," in which he argued that the Constitution must be interpreted to the age in which it existed, given prevailing political, moral and cultural norms.

More recently, "living" jurist Anthony Kennedy and court jesters Ruth Bader Ginsburg, Stephen Breyer, David Souter and John Paul Stevens cited "national consensus" as a factor in Roper v. Simmons ruling (2005). In doing so, they disregarded the Constitution's prescription for federalism and republican government in the name of unmitigated democracy — and took us one step closer toward what every serious thinker since Plato has described as governance in its most degenerative form.

Just as the problem of biblical and constitutional eisegesis is essentially the same, so too is the solution. For centuries, a fundamental guiding principle has directed proper scriptural exegesis: Scripture interprets Scripture. That is to say, the primary lens for understanding a text is the text elsewhere in the Bible — thus, we interpret the Bible through what the Bible says.

With the Constitution, the concept is easily applied. The Separation Clause certainly calls Marbury into question, and the Tenth Amendment contradicts the Roper decision, not to mention Roe v. Wade and the illusory constitutional "right to privacy." Further, the constitutional basis for Kelo v. New London is simply absent, as are our First Amendment rights under McCain-Feingold. And let's not forget the myriad laws that infringe upon our rights guaranteed by the Second.

Just as the Bible's New Testament may be said to interpret its Old Testament, so too is the Constitution accompanied by a binding interpretation, the Federalist Papers. Authored by Founding Fathers Alexander Hamilton, James Madison and John Jay, the Federalist Papers, as the definitive explication of our Constitution's original intent, clearly define original intent in regard to constitutional interpretation. In Federalist No. 78 Hamilton writes:

“The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. 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. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”

Today, more than two centuries later, Justice Antonin Scalia warns of such judicial activism: "As long as judges tinker with the Constitution to 'do what the people want,' instead of what the document actually commands, politicians who pick and confirm new federal judges will naturally want only those who agree with them politically."

By contrast, the heart of the Constitution, and hence the heart of constitutional constructionism, is this: The federal government should be sovereign and strong in its constitutionally delimited competencies; in matters where the Constitution is silent, however, the states and the people, not the national government, are sovereign. This understanding transforms the debate between strong governance (the liberal position) and weak governance (the libertarian position) to one of constitutional governance (the conservative, constructionist position). In this way, the text itself — not its judicial caretakers — interprets the text. This is exegetical governance. Indeed, this is constitutional governance.

At the close of the Constitution Convention in Philadelphia, Ben Franklin was asked if the delegates had formed a republic or a monarchy. “A republic,” he responded, “if you can keep it.”

To that end, as a warning for future generations to beware of “cunning, ambitious and unprincipled men,” George Washington wrote, “A just estimate of that love of power, and proneness to abuse it, which predominates in the human heart is sufficient to satisfy us of the truth of this position.”

Daniel Webster wrote, “Good intentions will always be pleaded for every assumption of authority. It is hardly too strong to say that the Constitution was made to guard the people against the dangers of good intentions. There are men in all ages who mean to govern well, but they mean to govern. They promise to be good masters, but they mean to be masters.”

Ominously, Alexander Hamilton noted, “Of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people, commencing demagogues and ending tyrants.”

John Adams observed, “Is the present state of the national republic enough? Is virtue the principle of our government? Is honor? Or is ambition and avarice, adulation, baseness, covetousness, the thirst for riches, indifference concerning the means of rising and enriching, the contempt of principle, the spirit of party and of faction the motive and principle that governs?”

Adams cautioned, “A Constitution of Government once changed from Freedom, can never be restored. Liberty, once lost, is lost forever.”

Unfortunately, and at the expense of our Liberty, the Constitution has suffered generations of “cunning, ambitious and unprincipled” politicians and judges whose successors now recognize only vestiges of its original intent for governance. Consequently, constitutional Rule of Law has been weakened by those who have failed to abide by their sacred oaths to “support and defend” the same.

As the erosion of constitutional authority undermines individual Liberty, it likewise undermines economic Liberty.

It can be argued that the most devastating insult to economic Liberty was in passage of the 16th Amendment in 1913, under the populist progressive, Woodrow Wilson. This amendment granted Congress the “power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.”

This measure would be used to enact unequal and discriminatory taxation of targeted groups of income classes, “progressive” taxation, which resulted in classism and the bulwark of all socialist movements, “class warfare.” It opened the floodgates for populist executives and legislators to enact taxes for expenditures not expressly authorized by our Constitution, thus the undoing of constitutionally limited government and accelerating the slide toward the rule of men.

At the onset of the Great Depression, Franklin D. Roosevelt, a wealthy aristocrat, instituted policies that greatly challenged constitutional limits on our government, the cost of which would, generations later, challenge our nation's economic solvency.

FDR's economic and social solutions were shaped by his upbringing as an "inheritance welfare liberal" (those raised dependent on inheritance rather than self-reliance). He used the Great Depression as cover to redefine and expand the role of the central government via countless extra-constitutional decrees as well as expanding Wilson's program for redistribution of wealth in order to fund such folly.

Roosevelt, in fact, issued this proclamation: “Here is my principle: Taxes shall be levied according to ability to pay. That is the only American principle.”

Upon review, though, his “American principle” is essentially a paraphrase of Karl Marx's maxim, “From each according to his abilities, to each according to his needs.”

Thus, it may be argued that Roosevelt's “principles” had no basis in the Rule of Law or the principles of free enterprise, and consequently, his New Deal policies and programs resulted in what now may be considered the central government's most oppressive weapon: The U.S. Tax Code.

In His Annual Message to Congress on January 11, 1944 President Roosevelt proposed a second Bill of Rights:

“It is our duty now to begin to lay the plans and determine the strategy for the winning of a lasting peace and the establishment of an American standard of living higher than ever before known. We cannot be content, no matter how high that general standard of living may be, if some fraction of our people—whether it be one-third or one-fifth or one-tenth—is ill-fed, ill-clothed, ill-housed, and insecure.

This Republic had its beginning, and grew to its present strength, under the protection of certain inalienable political rights—among them the right of free speech, free press, free worship, trial by jury, freedom from unreasonable searches and seizures. They were our rights to life and liberty.

As our Nation has grown in size and stature, however—as our industrial economy expanded—these political rights proved inadequate to assure us equality in the pursuit of happiness.

We have come to a clear realization of the fact that true individual freedom cannot exist without economic security and independence. “Necessitous men are not free men.” People who are hungry and out of a job are the stuff of which dictatorships are made.

In our day these economic truths have become accepted as self-evident. We have accepted, so to speak, a second Bill of Rights under which a new basis of security and prosperity can be established for all—regardless of station, race, or creed.

Among these are:

The right to a useful and remunerative job in the industries or shops or farms or mines of the Nation;

The right to earn enough to provide adequate food and clothing and recreation;

The right of every farmer to raise and sell his products at a return which will give him and his family a decent living;

The right of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home or abroad;

The right of every family to a decent home;

The right to adequate medical care and the opportunity to achieve and enjoy good health;

The right to adequate protection from the economic fears of old age, sickness, accident, and unemployment;

The right to a good education.

All of these rights spell security. And after this war is won we must be prepared to move forward, in the implementation of these rights, to new goals of human happiness and well-being.”

Of government welfare programs, Madison wrote, “I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents...”

Accordingly, Article 1, Section 8 of our Constitution, which addresses the powers of the legislature, does not give Congress the authority to collect taxes for banking, mortgage and automaker bailouts, or to subsidize production or service sectors like health care, or to fund education and retirement, or to issue tens of thousands of earmarks for special interest “pork” projects.

Nor is Congress authorized to institute countless conditions for the redistribution of wealth in its 20-volume, 14,000-page Tax Code, or to impose millions of regulations on everything from carbon emissions to toilet water volume.

As Justice John Marshall aptly noted, “An unlimited power to tax involves, necessarily, a power to destroy; because there is a limit beyond which no institution and no property can bear taxation.”

Wisdom of the Founders notwithstanding, at the dawn of the 21st century, more than 70 percent of the federal budget would be allocated for "objects of benevolence" for which there is no original constitutional authority. Put another way, much of your income is confiscated by the government and redistributed for purposes not expressly authorized by our Constitution. Consequently, the liberal hegemony controlling the federal budget in the first decade of the 21st century saddled the nation with more government debt than all previous administrations combined, a burden which may ultimately break the back of free enterprise and replace it with Democratic Socialism.

Of such debt, Jefferson concluded, “The principle of spending money to be paid by posterity, under the name of funding, is but swindling futurity on a large scale.”

Under siege of such economic oppression, can the Republic survive? Can Liberty endure?

Principium Imprimis -- Restoring First Principles

“In disquisitions of every kind there are certain primary truths, or first principles, upon which all subsequent reasoning must depend.” — Alexander Hamilton

If we are to bequeath to our posterity the Liberty that our Founders envisioned, then we must return to principium imprimis, or First Principles. Our freedoms cannot long endure unless we, the people, reaffirm what was well understood by our Founders: that our Creator is the only eternal assurance of Liberty.

The primacy of faith must be restored in order to preserve the conviction that, as Jefferson wrote, our “liberties are the gift of God”; traditional families and values must be restored as the foundation of our culture; individual rights and responsibilities must be restored as the underpinning of republican government; free enterprise must be unbridled from government constraints; and constitutional authority over each branch of government must be restored to ensure Liberty, opportunity and prosperity for a civil society.

The Cycle of Democracy has been summarized as follows: From bondage to spiritual faith; From spiritual faith to great courage; From courage to Liberty (Rule of Law); From Liberty to abundance; From abundance to complacency; From complacency to apathy; From apathy to dependence; From dependence back into bondage (rule of men).

Our Founders established a democratic republic, not a democracy, in order to enfeeble this cycle. However, with the erosion of constitutional authority, our Republic is now in jeopardy of following the same cycle as have all other democracies in history. Only intervention by citizens and leaders who advocate the primacy of constitutional authority, those committed to supporting and defending that authority above their self-interest, can save the Republic for the next generation.

Irrevocably linked to the Liberty ensured by constitutional Rule of Law is economic Liberty.

In 1916, a minister and outspoken advocate for Liberty, William J. H. Boetcker, published a pamphlet entitled “The Ten Cannots”:

1. “You cannot bring about prosperity by discouraging thrift.
2. You cannot strengthen the weak by weakening the strong.
3. You cannot help the poor man by destroying the rich.
4. You cannot further the brotherhood of man by inciting class hatred.
5. You cannot build character and courage by taking away man's initiative and independence.
6. You cannot help small men by tearing down big men.
7. You cannot lift the wage earner by pulling down the wage payer.
8. You cannot keep out of trouble by spending more than your income.
9. You cannot establish security on borrowed money.
10. You cannot help men permanently by doing for them what they will not do for themselves.”

Simply put, the central government cannot give to anybody what it does not first take from somebody else.

The Legacy of Liberty

"[T]he hour is fast approaching, on which the Honor and Success of this army, and the safety of our bleeding Country depend. Remember officers and Soldiers, that you are Freemen, fighting for the blessings of liberty — that slavery will be your portion, and that of your posterity, if you do not acquit yourselves like men." --George Washington

Some of our countrymen are overwhelmed with the current state of affairs. They have resigned to defeat and withdrawn from the fields of battle. In so doing, they forsake the legacy of Liberty extended to them by generations of Patriots who have pledged their lives, their fortunes and their sacred honor.

Of such resignation, Jefferson declared, “Honor, justice, and humanity, forbid us tamely to surrender that freedom which we received from our gallant ancestors, and which our innocent posterity have a right to receive from us. We cannot endure the infamy and guilt of resigning succeeding generations to that wretchedness which inevitably awaits them if we basely entail hereditary bondage on them.”

Hamilton wrote, “A nation which can prefer disgrace to danger is prepared for a master, and deserves one!”

Samuel Adams showed no sympathy for such retreat:

“Contemplate the mangled bodies of your countrymen, and then say ‘what should be the reward of such sacrifices?' ... If ye love wealth better than Liberty, the tranquility of servitude than the animated contest of freedom, go from us in peace. We ask not your counsels or arms. Crouch down and lick the hands which feed you. May your chains sit lightly upon you, and may posterity forget that you were our countrymen!”

Patrick Henry said famously, “Is life so dear or peace so sweet as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take, but as for me, give me Liberty or give me death!”

Plainly, none can claim the name “American Patriot” while submitting to laws and regulations that violate the most foundational tenets of our Constitution.

At its core, the word “patriot” has direct lineage to those who fought for American independence and established our constitutional Republic. That lineage has descended through our history most conspicuously by way of those who have pledged “to support and defend” our Constitution — those who have been faithful to and have abided by their oaths, even unto death.

Today, those who can rightly claim the name Patriot, those who have stood firm on the front lines of the struggle to restore constitutional integrity, can be encouraged. There is a groundswell of activism across the Fruited Plain, as our fellow countrymen are awakening to the very serious threat of constitutional adulteration and its natural terminus: tyranny.

The growing chorus of Patriot voices from every corner of the nation and all walks of life is demanding restoration of the Rule of Law as outlined by our Constitution.

Today's Patriots exemplify not only the eternal spirit of Liberty conferred through the ages by previous generations of Patriots, but also a spirit enlivened in recent history by a constitutional advocate who many historians regard as the greatest American president of the 20th century.

Ronald Reagan was elected president in 1980 on a platform of constitutional integrity and federalism, and he was devoted to that doctrine. He was re-elected on those principles four years later in a landslide victory — winning every state but his opponent's home state (and, tellingly, the District of Columbia).

In 1964, years before he had any presidential aspirations, Reagan delivered a treatise on Liberty, “A Time for Choosing,” which to this day appositely frames conservative philosophy.

In “The Speech,” as we know it, Reagan insisted, “I think it's time we ask ourselves if we still know the freedoms that were intended for us by the Founding Fathers. ... Whether we believe in our capacity for self-government or whether we abandon the American Revolution and confess that a little intellectual elite in a far-distant capital can plan our lives for us better than we can plan them ourselves.”

He continued: “You and I are told increasingly that we have to choose between a left or right, but I would like to suggest that there is no such thing as a left or right. There is only an up or down — up to a man's age-old dream; the ultimate in individual freedom consistent with law and order — or down to the ant heap of totalitarianism, and regardless of their sincerity, their humanitarian motives, those who would trade our freedom for security have embarked on this downward course.”

Reagan departed the Democrat Party at the dawn of his political career, but clarified, “I didn't leave the Democratic Party; the Democratic Party left me.”

Consistent with that assertion, contemporary leaders of the once-noble “party of the people” have turned the wisdom of their iconic sovereigns upside down.

In his 1961 Inaugural Address, liberal John F. Kennedy proclaimed, “My fellow Americans: Ask not what your country can do for you, ask what you can do for your country.”

Now it’s: "Ask not what you can do for your country, ask what your country can do for you."

In his famous address from the Lincoln Memorial in 1963, liberal Martin Luther King Jr. proclaimed, “I have a dream that my children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.”

Now it’s: "I have a dream that my children will one day be judged by the color of their skin, not the content of their character."

Some said President Reagan won broad support because he was a “great communicator,” but he said it more accurately in his farewell address:

“I wasn't a great communicator, but I communicated great things, and they didn't spring full bloom from my brow, they came from the heart of a great nation — from our experience, our wisdom, and our belief in principles that have guided us for two centuries.”

The principles of Liberty advanced by President Reagan were, and remain, a template for victory over tyranny.

But our Legacy of Liberty is at risk today because precious few aspire to public office in order to restore First Principles, and the American people lack the most fundamental understanding to articulate the difference between Rule of Law and rule of men. The consequence of such ignorance is the rise of a hegemony in Washington, whose agenda is to achieve the objective of "fundamentally transforming the United States of America," through the transformation of our economic system.

Thomas Jefferson warned, "I place economy among the first and most important virtues and public debt as the greatest dangers to be feared. ... To preserve independence ... we must not let our rulers load us with perpetual debt. ... [W]hen all government ... shall be drawn to Washington as the center of all power, it will render powerless the checks provided of one government on another. ... Were we directed from Washington when to sow, and when to reap, we should soon want bread. ... The fore horse of this frightful team is public debt. Taxation follow that, and in its turn wretchedness and oppression. ... We must make our election between economy and Liberty, or profusion and servitude."

Should our economy collapse under the weight of mounting debt, the ensuing crisis may result in government intervention under the pretense of "economic recovery" which could be structured to, ultimately, replace the last vestiges of free enterprise with a democratic socialist framework. However, historians and economists argue that Democratic Socialism, like Nationalist Socialism, is tantamount to Marxist Socialism repackaged. It seeks a centrally planned economy directed by a single-party state that controls economic production via regulation and income redistribution. All three socialist manifestations are formed around class warfare propaganda, and in opposition to free enterprise, a basic tenet of Liberty. As noted economist and philosopher F.A. Hayek wrote, "There is no difference in principle, between the economic philosophy of Nazism, socialism, communism, and fascism and that of the American welfare state and regulated economy."

In my final chapter of On The Constitution I will offer my concluding remarks and a roadmap for those who believe in Constitutional Government and the actions they should take. For Part Six please click here.