On The Constitution – Part Four

“For it is very clear that in fundamental theory socialism and democracy are almost if not quite one and the same. They both rest at bottom upon the absolute right of the community to determine its own destiny and that of its members. Men as communities are supreme over men as individuals. Limits of wisdom and convenience to the public control there may be: limits of principle there are, upon strict analysis, none.” — Socialism and Democracy, Woodrow Wilson, August 22, 1887

In Part Three of On The Constitution I covered the crisis of 1854 with the passage of the Kansas-Nebraska Act and Lincoln’s stance on the Declaration and Constitution. In this part I will discuss 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.

Article VI of our Constitution proclaims: "This Constitution ... shall be the supreme Law of the Land."

For its first 150 years (with a few exceptions), our Constitution and the Rule of Law it enshrined, stood as our Founders and "the people" intended — as is — in accordance with its original intent. In other words, it was interpreted exegetically rather than eisegetically — textually as constructed, rather than as a so-called "living" document, altered to express the biases of later generations of politicians and jurists.

But incrementally, constitutional Rule of Law in the United States has been diluted by the actions of those in the executive, legislative and judicial branches — most notably, the latter — at great hazard to the future of Liberty.

As Thomas Jefferson warned repeatedly, the greatest threat to the Rule of Law and constitutional limitations on central government was an unbridled judiciary:

“The original error [was in] establishing a judiciary independent of the nation, and which, from the citadel of the law, can turn its guns on those they were meant to defend, and control and fashion their proceedings to its own will. The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.”

Jefferson understood that should our Constitution ever become a straw man for a politicized judiciary to interpret according to executive and legislative special interest constituencies, Rule of Law would gradually yield to rule of men — the terminus of the latter being tyranny, as evidenced throughout history.

Our Framers did not subject judges to election to avoid political corruption, assuming judges would remain above such influences and true to the Rule of Law, thus protecting our Constitution from avarice and populist adulteration. Our Founders and early members of the judiciary were certainly men of such character, and singularly devoted to liberty and Rule of Law.

But as Jefferson predicted, many in the executive and legislative branches would eventually abandon their oaths of obligation to our Constitution, and consequently, as they nominate and appoint judges, the judiciary would suffer a similar fate of corruption, which would then be difficult to correct because judges are protected from electoral eviction. In effect, it may be argued that all three branches of government have devolved into “despotic branches.”

Regarding the process of amendment prescribed by our Constitution, George Washington wrote, "If in the opinion of the people the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates, but let there be no change by usurpation; for though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed.”

Alexander Hamilton concurred, "A sacred respect for the constitutional law is the vital principle, the sustaining energy of a free government." He also wrote, "[T]he present Constitution is the standard to which we are to cling. Under its banners, bona fide must we combat our political foes — rejecting all changes but through the channel itself provides for amendments."

On the subject of constitutional interpretation, Jefferson wrote:

"The Constitution on which our Union rests, shall be administered according to the safe and honest meaning contemplated by the plain understanding of the people of the United States at the time of its adoption — a meaning to be found in the explanations of those who advocated it. On every question of construction, carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates and instead of trying what meaning may be squeezed out of the text or invented against it, conform to the probable one in which it was passed."

Jefferson concluded, "Our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction."

James Madison agreed:

“I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that is not the guide in expounding it, there may be no security for a consistent and stable, more than for a faithful exercise of its powers.”

Justice James Wilson set forth, “The first and governing maxim in the interpretation of a statute is to discover the meaning of those who made it.”

The Federalist Papers, considered to be the definitive explication of our Constitution's original intent, clearly delineate constitutional interpretation. In Federalist No. 78 Alexander Hamilton wrote:

“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.”

In Federalist No. 81, Hamilton declared:

“In the first place, there is not a syllable in the plan under consideration which DIRECTLY empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State. I admit, however, that the Constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution.”

And yet this non-existent "spirit" is the essence of the so-called "living constitution," as amended by judicial diktat rather than its prescribed method in Article V.

“The basis of our political systems is the right of the people to make and to alter their Constitutions of Government. But the Constitution which at any time exists, until changed by an explicit and authentic act of the whole People is sacredly obligatory upon all.” — George Washington

The first significant instance of constitutional interpretation by the federal judiciary was the 1803 case of Marbury v. Madison. The Supreme Court, under Chief Justice John Marshall, denied a plaintiff's claim because it relied on the Judiciary Act of 1789, which the court ruled unconstitutional.

A century later, the Marbury precedent would serve to greatly expand the limits of judicial powers outlined in Article III of our Constitution in a frontal assault on the Rule of Law rivaled only by the constitutional disputes leading to the War Between the States. You can read more of my writings on Marbury by clicking here.

Prior to Franklin D. Roosevelt's "New Deal" expansion of central government authority in the 1930s, the courts were still largely populated with originalists, those who properly rendered legal interpretation based on the Constitution's "original intent." But Roosevelt grossly exceeded the constitutional restrictions on his office and that of the legislature in his failed "New Deal" policies during the Great Depression.

So determined was Roosevelt to enact his social welfare policies in defiance of constitutional limitations on the role of the central government, that in 1937 he sought to increase the number of justices on the Supreme Court from nine to 15, with the expectation that his appointees would give him a favorably predisposed activist majority. (It is no coincidence that the term “living constitution” was coined the same year.)

Roosevelt failed in this attempt to overtake the High Court, but during his unprecedented three terms in office, he managed to appoint eight justices, whose activist interpretation of the Constitution consistently validated his efforts to expand the power and scope of the central government.

In effect, Roosevelt had successfully converted the Judicial Branch from one of independent review according to Rule of Law to one of subservience according to political will.

In the decades that followed, the notion of a “living constitution,” one subject to contemporaneous judicial interpretation informed by political agendas, became the standard in federal courts. With increasing frequency, judicial activists, jurists who “legislate from the bench” by issuing rulings at the behest of like-minded special-interest political constituencies, were nominated and confirmed to the Supreme Court.

This degradation in the Rule of Law was codified by the Warren Court 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, the Warren Court concluded the Constitution should be a fully pliable document, “a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please,” as Thomas Jefferson had forewarned.

Since then, judicial despots have not only undermined the plain language of our Constitution, but have done equal injury to the Bill of Rights.

By the 1980s, judges had seemingly become the final arbiter of our Constitution, and its adulteration was so commonplace that Supreme Court Justice Thurgood Marshall would frequently lecture on “The Constitution: A Living Document,” in defense of constitutional interpretation based upon contemporaneous moral, political and cultural circumstances.

More recently, Justice Antonin Scalia wrote, “[There's] the argument of flexibility and it goes something like this: The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break. But you would have to be an idiot to believe that; the Constitution is not a living organism; it is a legal document. It says something and doesn't say other things.”

Justice Clarence Thomas followed, “[T]here are really only two ways to interpret the Constitution — try to discern as best we can what the framers intended or make it up. No matter how ingenious, imaginative or artfully put, unless interpretive methodologies are tied to the original intent of the framers, they have no basis in the Constitution. To be sure, even the most conscientious effort to adhere to the original intent of the framers of our Constitution is flawed, as all methodologies and human institutions are; but at least originalism has the advantage of being legitimate and, I might add, impartial.”

On the political consequences of a “living constitution,” Justice Scalia concluded plainly, “If you think aficionados of a living constitution want to bring you flexibility, think again. 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.”

The Wall of Separation

"I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation between church and State." — Thomas Jefferson in his letter to the Danbury Baptists, January 1, 1802.

The Danbury Baptist Association, aware of Thomas Jefferson’s earlier role in overturning the Anglican establishment in Virginia, expressed hope that as president he might help liberate them from the religious constraints in Connecticut. Jefferson’s response, in which he employs the famous “wall of separation between church and state” metaphor, is not a demand for the separation of religion and politics; rather, it addresses the principle of federalism. As president, Jefferson is unable to interfere in this state issue. Likewise, Congress is prohibited from doing so by the First Amendment’s religion clauses. The citizens of Connecticut must remedy their situation by amending their state constitution and statutes — as eventually they did.

Adopted by the Congress of the Confederation in 1787, the Northwest Ordinance set forth a model for the expansion of the American republic. Providing a governing structure for the territory that would later become Ohio, Indiana, Illinois, Michigan, and Wisconsin, it prohibited slavery, protected religious liberty, and encouraged education. Following the adoption of the Constitution, the new Congress passed the Northwest Ordinance again in 1789. It stated: “Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”

The First Amendment reads plainly: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Once again, in plain language: “Congress shall make no law...”

But the courts have ruled that this prohibition applies to virtually every public forum, from public schools and sporting events, to public squares.

There is no more ominous defilement of our Constitution than that of the errant notion of a “Wall of Separation” between our constitutional government and our Creator — ominous because if the knowledge of our Creator (at one time proliferate in every educational institution) is constrained, then the general knowledge that Liberty is “endowed by [our] Creator” will be equally diminished.

As noted in the previous section, our Founders' intent was that the central government would not appoint any state church by act of Congress. “Congress shall make no law...” It is just that which Thomas Jefferson referenced when noting the Constitution built "a wall of separation between church and State," and nothing more.

But judicial activists have for decades “interpreted” this First Amendment to suit their political agendas, placing severe constraints upon the free exercise of religion and invoking the obscure and wholly misrepresented “Wall of Separation” to expel religious practice from any and all public forums.

As noted by the late Chief Justice of the Supreme Court William Rehnquist, “The wall of separation between church and state is a metaphor based upon bad history, a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned. ... The greatest injury of the ‘wall' notion is its mischievous diversion of judges from the actual intention of the drafters of the Bill of Rights.”

Our Founders affirmed that the natural rights enumerated in our Declaration of Independence and, by extension, as codified in its subordinate guidance, our Constitution, are those endowed by our Creator. Regarding the supremacy of the Declaration's enumerations, Madison wrote to Jefferson, "On the distinctive principles of the Government ... of the United. States, the best guides are to be found in ... The Declaration of Independence, as the fundamental Act of Union of these States."

Thomas Jefferson proclaimed, “The God who gave us life, gave us Liberty at the same time. ... Can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are the gift of God? That they are not to be violated but with his wrath? Indeed I tremble for my country when I reflect that God is just: that his justice cannot sleep for ever.”

Alexander Hamilton insisted, “The sacred rights of mankind are not to be rummaged for, among old parchments, or musty records. They are written, as with a sun beam, in the whole volume of human nature, by the hand of the divinity itself; and can never be erased or obscured by mortal power.”

“Life, Liberty and the pursuit of happiness...” These are natural rights -- gifts from God, not government.

Moreover, it was with firm regard to this deeply held belief that our Constitution was written and ratified “in order to secure the Blessings of Liberty to ourselves and our Posterity.” As such, it established a constitutional republic ruled by laws based on natural rights, not rights allocated by governments or those in positions of power.

John Quincy Adams wrote, “Our political way of life is by the Laws of Nature and of Nature's God, and of course presupposes the existence of God, the moral ruler of the universe, and a rule of right and wrong, of just and unjust, binding upon man, preceding all institutions of human society and government.”

George Washington wrote in his 1796 Farewell Address, “Let it simply be asked where is the security for property, for reputation, for life, if the sense of religious obligation deserts the oaths, which are the instruments of investigation in the Courts of Justice? And let us with caution indulge the supposition, that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that National morality can prevail in exclusion of religious principle.”

Notably, the conviction that our rights are innately bestowed by “the Laws of Nature and of Nature's God,” is enumerated in the constitutional preambles of every state in our Union.

But, for many decades, those who advocate a “living constitution” have used the “despotic branch” to remove faith from every public quarter, ironically and erroneously citing the “Wall of Separation” metaphor — words from Jefferson's 1802 letter to the Danbury Baptists. The letter, in fact, denoted the barrier between federal and state governments, not a prohibition against faith expression in any and all public venues.

The intended consequence of this artificial barrier between church and state is to remove the unmistakable influence of our Creator from all public forums, particularly government education institutions, and thus, over time, to disabuse belief in a sovereign God and the notion of natural rights. This erosion of knowledge about the origin of our rights, the very foundation of our country and basis of our Constitution, has dire implications for the future of Liberty.

Meanwhile, judicial and legislative efforts endeavor to supplant authentic freedoms of speech and of press, while asserting that virtually all other mediums of expression constitute "free speech."

The Palladium of Liberties

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” — The Second Amendment of the Constitution.

As with the adulteration of the plain language of the First Amendment, executive, legislative and judicial principals are unceasing in their efforts to undermine the Second Amendment.

During the 1788 Massachusetts Convention debates to ratify the U.S. Constitution, Samuel Adams stated, “The Constitution shall never be construed ... to prevent the people of the United States who are peaceable citizens from keeping their own arms.”

That same year, James Madison wrote in Federalist No. 46,:

“They must be told that the ultimate authority, wherever the derivative may be found, resides in the people alone, and that it will not depend merely on the comparative ambition or address of the different governments, whether either, or which of them, will be able to enlarge its sphere of jurisdiction at the expense of the other.”

……………

“Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of.”

In his Commentaries on the Constitution (1833), Justice Joseph Story, appointed to the Supreme Court by James Madison, affirmed the pre-eminence of the Second Amendment:

“The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.

Similarly, Founder Noah Webster wrote, “Tyranny is the exercise of some power over a man, which is not warranted by law, or necessary for the public safety. A people can never be deprived of their liberties, while they retain in their own hands, a power sufficient to any other power in the state.”

"The Powers Not Delegated…"

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” — 10th Amendment to the Constitution of the United States.

However, the central government has routinely violated this amendment with all manner of legislation and regulation over what should be, according to the Rule of Law, matters “reserved to the States respectively, or to the people.”

Equally injurious to the Constitution is the manner in which the 10th Amendment's assurance of States' Rights has been eroded by legislative malfeasance and judicial diktat.

In Federalist No. 39, James Madison expounds upon the covenantal nature of the states' would-be federal arrangement, voluntarily bound by mutual obligation. "Each State," he wrote, "in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a FEDERAL, and not a NATIONAL constitution."

In Federalist No. 45, Madison highlights the definite limits placed upon power in such a federal structure, writing, "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite."

In assurance that the central government would not overstep its constitutional authority, Madison wrote in Federalist No. 46, that “But ambitious encroachments of the federal government, on the authority of the State governments, would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm.... But what degree of madness could ever drive the federal government to such an extremity."

But by 1794, Madison foresaw the potential for abuse, and protested loudly against the prospect of the new government's urge to redistribute the wealth of its citizens for purposes other than those expressly authorized by our Constitution: “If Congress can do whatever in their discretion can be done by money, and will promote the General Welfare, the Government is no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions.”

Jefferson wrote:

“Giving [Congress] a distinct and independent power to do any act they please which may be good for the Union, would render all the preceding and subsequent enumerations of power completely useless. It would reduce the whole [Constitution] to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States; and as sole judges of the good or evil, it would be also a power to do whatever evil they please. Certainly no such universal power was meant to be given them. [The Constitution] was intended to lace them up straightly within the enumerated powers and those without which, as means, these powers could not be carried into effect.”

In his remarkable wisdom, Jefferson also warned that the legislature and courts should not make laws so complex as to conceal their meaning and make the understanding of their implications so convoluted as to render them incomprehensible by those for whom they were, ostensibly, created: "Laws are made for men of ordinary understanding and should, therefore, be construed by the ordinary rules of common sense. Their meaning is not to be sought for in metaphysical subtleties which may make anything mean everything or nothing at pleasure."

Madison also saw this as a danger when he wrote in Federalist No. 62:

“The internal effects of a mutable policy are still more calamitous. It poisons the blessings of liberty itself. It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed.”

Unfortunately, the law today is barely comprehensible in its scope to even those who legislate and interpret it, with dire implications for the federalist system of government established by our Constitution.

In my next chapter of On The Constitution I will look at where we are today and the dangers we are facing of losing our Constitutional Republic to the statist and masterminds of the progressive movement.

Please click here for Part Five.