Conservative's Conscience

Independence Day Lives - Is the Constitution Dead?

INDEPENDENCE DAY LIVES - IS THE CONSTITUTION DEAD?

Yesterday was Independence Day, the day when 56 men (John Adams was the first) put their lives on the line to sign the Declaration of Independence, the first step in the creation of the grandest experiment in government in the history of man, all of this based upon a notion more theological and philosophical than political:

WE HOLD THESE TRUTHS TO BE SELF-EVIDENT, THAT ALL MEN ARE CREATED EQUAL, THAT THEY ARE ENDOWED BY THEIR CREATOR WITH CERTAIN UNAILIABLE RIGHTS, THAT AMONG THESE ARE LIFE, LIBERTY AND THE PURSUIT OF HAPPINESS....

Seldom has any human endeavor, especially as it relates to the sovereignty and the importance of the individual, been supported by such lofty principles. The Founders intended to form a government in which all men had a voice -- in which everybody had the chance to pursue his dignity as a human being.

It was a giant step from July 4, 1776, when the definition of liberty for the thirteen colonies was proclaimed, to September 17, 1787 when the Constitution was ratified. A war had to be fought and won that didn't end until 1783.

Then came years of haggling before the Constitution was drafted and sent on its difficult journey through the states for ratification, one that didn't end until it became the supreme law of the land.

The Founders, pragmatic realists, knew that the fragile instrument they created would be implemented by individuals with all the talents and faults that they found in themselves.

With this in mind, they created three powerful branches of government that would, by their nature, compete for power, thus reducing the likelihood that any one branch would accumulate undue power.

James Madison said: All men having power ought to be distrusted to a certain degree. ... The essence of Government is power; and power ...will ever be liable to abuse.

Fearing the tendency of politicians to hoard power, the Founders agreed on Article 1, Section 8 of the Constitution, which enumerates the seventeen powers considered necessary for an efficient central government to have.

1) To borrow money.
2) To regulate Commerce.
3) To establish a uniform rule of Naturalization, and uniform laws on bankruptcies.
4) To coin money.
5) To punish counterfeiters.
6) To establish post offices.
7) To promote science and the arts; to protect the exclusive rights of authors and inventors.
8) To constitute tribunals inferior to the Supreme Court.
9) To punish crimes on the high seas and offenses against the law of nations.
10) To declare war.
11) To raise and support armies.
12) To provide and maintain a navy.
13) To regulate land and naval forces.
14) To activate the militia against civil disobedience.
15) To organize, arm and discipline a militia.
16) To supervise the seat of government and land used for forts, magazines, etc.
17) To make laws necessary to carry out the above powers.

To remove doubt about the intent of the Founders to limit the powers of the central government, Amendment X was added in 1791 to the Constitution, as follows:

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.

The formation of the Constitution wasn't enough. Some were still concerned about the protection of state and individual rights -- they feared being engulfed by a mighty central government, much like the one they had recently escaped. Accordingly, the state-ratification process was laborious, exposing weaknesses in the original document that the drafters promised to rectify once it was ratified.

They kept their promise with the Bill of Rights (December 15, 1791), the first ten amendments to the Constitution that dealt with religion, the right to bear arms, private property, search and seizure, due process before the law, the right to a speedy trial, the right to a jury, cruel and unusual punishment, the protection of people's rights not enumerated in the Constitution and the limitation of federal powers to those described in Article 1, Section 8.

Two more house-cleaning amendments were added in 1795 and 1804 dealing with a clarification of judicial power and voting procedures. After that, the U.S.S. United States set sail into the waters that have brought it to this place, at this time.

How have we done? How have we managed this priceless patrimony?

The Constitution was stable for six decades and in operation revealed only two important weaknesses: Under its terms, slavery was legal and women were treated as second-class citizens.

A major step in solving the first of these hurdles was Amendment XIII (1865), which made slavery illegal; then came Amendment XIV (1868), which made blacks "born or naturalized in the United States" full-fledged citizens, and Amendment XV (1870), which gave blacks the clear right to vote. Women's rights, a matter of continuing debate, did not get resolved until the second decade of the next century.

After this influx of "Civil War" amendments, stability returned to the Constitution for three decades. Then came the progressive movement, and with it a serious challenge to the American system of government and the Constitution that ruled it.

The industrial revolution transformed America (and the world) in the late 18th and early 19th century, and gave birth to fringe political movements: Greenback (1876), Prohibition (1884), Union Labor (1888), Populist (1892), Socialist (1904) and, finally, Progressives (1912).

The flow of workers from farm to factory was the first of two primary causes of a wave of discontentment that spread across the nation. Working conditions, often unsafe and sometimes deplorable, unfair wages and long hours made up the environment that practically invited unions into existence, and with them the violent strikes that were constant as the nation, through communications and railroads moved west.

Secondly, the growing feeling of workers that they had lost control of their destiny and had nobody to protect them against the whims of the boss, was fertile ground for those who saw the American system as the foundation reason for social inequality.

Ben Franklin said: The Constitution only gives people the right to pursue happiness. You have to catch it yourself.

Upon these twin disturbances, plus a system of tariffs that benefited the manufacturer (North) and penalized the farmer and miner (South and West), progressives built their following for their major causes: social justice and economic reform, both requiring a strong, intrusive federal government.

Until progressives came along, government took a laissez-faire attitude toward the private sector. But as they became stronger, major political parties had to recognize their issues and deal with them in vote-getting ways. They needed, however, a champion to give them political respectability.

Presto! Republican Theodore Roosevelt to the rescue, making William McKinley the last president to govern the America of the Founders. .

In his first partial term as president (McKinley was assassinated in 1901) Roosevelt didn't do much to satisfy progressives in the field of social justice, but they were delighted with his reputation for challenging the power of large private sector groups, and in his reputation as a trust buster, so much so that when he broke with Republicans in 1912, they wooed and got him to represent their party in the election of that year.

But Roosevelt lost; Woodrow Wilson won, and before his first term ended, he became Mr. Progressive, an ardent supporter of their economic and social causes.

Thereafter, under a second-term Wilson, the nature of American government and the stability of its Constitution changed, as evidenced by the next chain of constitutional amendments:

o Amendment XVI (1913) authorized the income tax -- adds to the original seventeen powers of the federal government and legalizes an invasion of private property rights and a diminishment of personal liberty.
o Amendment XVII (1913) removed the right of states to select senators -- upsets the original balance of power and almost guarantees endless terms for senators.
o Amendment XVIII (1919) legalized Prohibition, a gross violation of personal rights that, among others things spawned the most notorious crime wave in American history. It was repealed in 1933.
o Amendment XIX (1920) giving women the right to vote was an overdue clarification of the original constitution.

These amendments were a direct reaction to the demands of the progressive movement.

The 1930s and the early 1940s belonged to President Franklin D. Roosevelt, who swallowed the progressive ideology whole, and went beyond its dreams in the private sector. Faced with a recession when he entered office, he had two choices:

o Reduce onerous excise taxes and tariffs and otherwise do everything possible to stimulate the private sector to expand and create jobs.
o Maintain high taxes and introduce job-making government programs based on the theory that they will increase buying power, generate demand and cause business to expand and create jobs.

Roosevelt chose the second course. Debt increased; the depression continued until World War Two activity cured the economic problem.

There have been seven other amendments since 1933, but only two are of interest here: Amendment XXIV (1964) protected the right to vote, irrespective of poll taxes paid or unpaid; Amendment XXVI (1971) lowered the voting age to eighteen.

There has been no amendment to the constitution for four decades. That simple statement suggests that presidents after Wilson did not find restrictions imposed by the Constitution troublesome. With respect to Harding and Coolidge, that is true; with respect to Hoover, not so true and with respect to Roosevelt, not true at all.

FDR wanted power and to a certain extent, the Constitution as interpreted by his Supreme Court was a barrier. So, he tried to pack it with his own people. He failed. Then he came upon the technique that explains the lack of amendments even during a period of never-before-seen government growth.

Why change the Constitution when you can change its interpretation to suit your needs?

To invade the private sector to a degree never before imagined FDR needed an imaginative interpretation of the Constitution that would allow him to escape the limitation on federal power imposed by Article 1, Section 8 of the Constitution. He found it in the preamble, and in the Commerce Clause of Section 8:

Preamble: ... to promote the general welfare....
Commerce Clause of Section 8: To regulate Commerce ... among the several states....

FDR interpreted this to mean that he could do anything he thought would help -- as if there were no other clauses to limit his power. And, for the most part, he got away with it.

James Madison said: Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government.

The result was the New Deal, a plethora of federal programs that increased debt but did nothing to cure the recession -- World War Two did that.

Congressman Lyndon B. Johnson was a Roosevelt acolyte. He supported everything FDR did and was rewarded for it by getting patronage power on federal job openings in his home state.

Johnson became president in 1963 when President Kennedy was assassinated. Faithful to his mentor, he expanded government again to a degree that would have made FDR proud. His Great Society on top of FDR's New Deal sent debt on an upward path that hasn't stopped since.

Now it's President Obama's turn. He seeks another American revolution that will change America even more. He is driving national debt to the ceiling. He is following the FDR path of government spending. It failed then; it is failing now as a solution to the recession. But debt is mushrooming and Obama doesn't have a young, robust post-war economy to lean on (as Truman did) to bail him out.

Keeping in mind the limited powers of the federal government enumerated in the Constitution, be aware that the American government now controls banks, investment houses, insurance companies and automobile companies; it dictates wage levels; it writes mortgage rules; it fires and hires chief executives; it panders to unions at the expense of others.

The hateful truth is this: Our revered Constitution is no longer revered by the nation's politicians and judges. It means what they want it to mean. Attacked from the judicial bench, the White House and the Congress for a century, it stands as a monument to what used to be, and no longer is.

Ben Franklin said: When the people find that they can vote themselves money, that will herald the end of the republic. ... They that can give up essential liberty to obtain a little temporary safety deserve neither safety nor liberty. ... This will be the best security for maintaining our liberties. A nation of well-informed men who have been taught to know and prize the rights which God has given them cannot be enslaved. It is in the religion of ignorance that tyranny begins.

Sorry, Ben. We let you down. The people have found their way to the treasury. They like it -- prefer it to the freedom they have lost. Safety has trumped liberty. We are what we have become. May the God you mention have mercy on us.