CRAIGforCONGRESS

Missouri's 7th District, U.S. House of Representatives

  
 

 

 

Congressional Issues 2012
GOVERNMENT
Is the Constitution Out of Date?




Who cares about the Constitution?


 

It's old, out-dated, written by dead white guys who wore wigs.

Millions of Americans have taken an oath to "support the Constitution" and they have never even read the document from cover to cover, and have no substantive understanding of its principles.

But who can blame them? Politicians don't consider themselves obligated to obey the Constitution.

If we could transport the Signers of the Constitution into the 21st century, not a single one of them would say we are under the Constitution in any meaningful sense.

And not just "technically" or in some "legalistic" sense are we no longer under the Constitution, but the core values and philosophy which undergird the Constitution have been lost.

The Constitution embodies values and beliefs, many of which are not explicitly stated in the Constitution itself, and prescribes a legal procedure to protect those values from encroachment by the government.

The Values Behind the Constitution

Our nation's Declaration of Independence, the charter that created the United States of America, contains these words:

WE hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness

Herein are contained the core values that distinguished America from all other nations:

  • There exist absolute values, known to us in our consciences, and hence "self-evident." We are "a government of laws" -- unchanging principles -- "not of men."
  • America is an experiment in liberty, undertaken "with a firm reliance on the Protection of Divine Providence." Our National Motto is, "In God We Trust."
  • We all have God-given rights, including the right to Life, Liberty and the Pursuit of Happiness
  • Equality: A king or politician is no more benevolent, wise, compassionate, intelligent, moral, or trustworthy than a citizen, and the lowliest citizen has no fewer rights than the king.
  • The rights of the lowliest serf cannot be taken ("alienated") by the government.
  • All Americans have the right to better their condition, provided that their pursuit of happiness is consistent with "The Laws of Nature and of Nature's God."

The Declaration of Independence also says "it is the Right of the People to alter or to abolish" the government "whenever any Form of Government becomes destructive" of these values.

Constitutional  Procedures to Protect American Values

The theory behind our Constitution is that government can never do more than any man can do  individually or as a group. "The People" can delegate to government only such powers as it is legitimate for people to exercise. And the Framers of the Constitution made it clear that the government has only those powers which "the People" deliberately choose to delegate to it. Because we are "a government of laws, not of men," our Constitution makes it difficult for men to make changes in our system.

Probably 90% or more of our government's budget today goes to functions which are unconstitutional. The only powers which the federal government has are those expressly delegated to it in the Constitution. The federal government has no constitutional power in the area of religion, charity, education, hospitals, or herbal supplements. The General Welfare Clause is no exception to this rule.


Problems with the Constitution

  • Was the Constitution Really Meant to Constrain the Government?
    • Many advocates of liberty have thought they just had to appeal to the “original meaning” of the Constitution and things would more or less take care of themselves. But if that were so, why are we in the mess we're in now? I presume that earlier generations interpreted the Constitution in a way more to the liking of today's constitutionalists. What happened? Since that time, the Constitution has never been suspended; the government wasn't replaced by a non-constitutional regime. The formal Constitution has been in force continuously since 1789. Everything that happened was justified constitutionally.
      So Lysander Spooner was right: the Constitution "has either authorized such a government as we have had, or has been powerless to prevent it." The “parchment barrier” against power (James Madison’s term for the Bill of Rights) wasn’t much of a barrier.

  • The Constitution or Liberty

Gary North, author of a multi-volume Economic Commentary on the Bible, writes:

The Articles of Confederation (1781) had the correct approach: no taxation of individuals by the national government. It was this that Alexander Hamilton correctly saw had to be overturned in order to establish an American empire, which he wanted to achieve. He argued explicitly that the central government needed far more money. He argued in Federalist 12 in favor of import taxes and taxes on liquor because they would be easier to collect than taxes on farmers. He argued, therefore, not for a principle of limiting national revenues, but rather for the central government's greater ease of tax collection in order to increase its revenue. From that day until this, most American politicians have adopted this principle of taxation: ease of collection.

The Constitutional Convention of 1787 was a conspiracy against the concept of a limited central government. In justifying the proposed Constitution against constitutionally decentralized political power (the Articles), Federalist 30 through 36, all written by Hamilton, promoted the concept of the central government's concurrent taxation of the people, along with the states. This was what the Articles prohibited in order to make difficult the creation of a centralized empire. This had to be overturned in order to create a new empire, which Hamilton favored. It was, and it did.


America is No Longer Under the Constitution

Whether the Constitution was a good idea or a bad one, the fundamental structure of government created by America's Founding Fathers no longer exists. The separation of powers has been replaced by "The Administrative State," and the system of federalism ("states' rights") embodied in the 9th and 10th Amendments and vigorously defended by Madison and Jefferson has been destroyed by what is today a powerful centralized federal government.

The values behind the Constitution have been abandoned. By joining the modern secularist trends and repudiating the Christian foundations of the Constitution, the courts have stripped the Constitution of all meaning. The oath to "support the Constitution" or to be "attached" to its principles likewise lacks any meaning.

America is no longer under the British Crown. America is no longer under the Articles of Confederation. And -- not just de facto, but (arguably) de jure, -- America is no longer under the Constitution. Anyone taking an take an oath to "support" a Constitution which no longer exists must not be oblivious to Secularism's march toward tyranny.

Does the Constitution uphold private property? At one time it did, but no longer. In 1933, a state of "national emergency" was declared. Some researchers contend that wartime powers were invoked to suspend the Constitution. World War I produced legislation ("The Trading with the Enemy Act") which was conscripted for duty in Roosevelt's "war" against the "Great Depression." Congress approved his Executive decrees which essentially declared all those who might believe in a Constitutional Free Market to be "enemies" of the State, and the gold of all these "enemies" was confiscated.[7]

In 1973, a special Senate committee led by Senators Frank Church and Charles Mathias confirmed that

Since March 9, 1933, the United States has been in a state of declared national emergency. [H]undreds of statutes delegate to the President extraordinary powers . . . which affect the lives of American citizens in a host of all-encompassing manners. This vast range of powers, taken together, confer enough authority to rule the country without reference to normal constitutional processes. . . . A majority of the people of the United States have lived all their lives under emergency rule. For 40 years, freedoms and governmental procedures guaranteed by the Constitution have, in varying degrees, been abridged by laws brought into force by states of national emergency. [A]ctions taken by the Government in times of great crises have - from, at least, the Civil War - in important ways shaped the present phenomenon of a permanent state of national emergency.[8]

National Emergency and the Erosion of Private Property Rights

In 1943, the Supreme Court ruled that it could not be said for certain that an admitted member of the Communist Party, holding positions in the Communist Party's National Committee and being the Party's nominee for Governor of Minnesota, was not "attached to the principles of the Constitution."[9] In addition to working for the violent overthrow of Representative Government, the Communist Party denies the legitimacy of private property. But that was no problem for the Court.[10] Through "New Deal" policies, the "organic law" of the Founders was completely overturned. According to such organic charters as the Declaration of Independence, human beings are created by God with unalienable rights to life, liberty and property. These rights exist prior to the State. No longer. The "theoretical basis" of property rights embodied in the "New Deal" was "far different from what it had been"[11] under America's organic law (e.g., the Declaration of Independence: rights given by God, unalienable by the State):

Property rights, from this [new] perspective, are simply a "delegation" from the state to the citizenry . . . . No longer did "property" represent some prepolitical "natural" entitlement; it now represented a public policy judgment by the state that, overall, important social values would be realized by leaving certain controls in the hands of ordinary citizens.[12]

To facilitate the State's unalienable rights over the citizens, "a fourth branch of government"[13] was established, which, to use Madison's words in The Federalist, "may justly be pronounced the very definition of tyranny."[14] For years, government officials with strong Communist leanings had "urged differing degrees of governmental ownership and control of natural resources, basic means of production, and banks and the media of exchange, either with or without compensation."[15] Between 1913 and 1937, most of the planks of the Communist Manifesto had been put into law in America[16] by high-ranking government officials, including President Roosevelt;[17] officials who had taken a solemn oath to "support the Constitution," and therefore, according to the Court, officials "whose attachment to the general constitutional scheme cannot be doubted."[18]

To "solemnly swear to support" a Constitution which has been suspended for 70 years is - either knowingly or ignorantly - to rubber-stamp the corporate-martial law that replaced it.[19] Transport any of the Founding Fathers into the first decade of the 21th century. Let them look at our schools, our tax-rates, our mortality rate for pre-born children,[20] and ask them if they will take a (secular) oath to "support the Constitution." I dare say none of them - except perhaps Alexander Hamilton - would take such an oath.[21]

Just months after the Schneiderman case, a Nazi sympathizer, a devotee of Hitler who believed that when one became "Americanized" one was "ruined," was held by the Court to be "attached to the principles of the Constitution."[22]

Such secular, socialistic decisions of the Supreme Court evidence "an unqualified hostility to the most fundamental and universally recognized principles of the Constitution."[23] And since the Constitution is whatever the Court says it is, I might be deemed to be unable to "support the Constitution," and would certainly be violating the supreme Law of the Land by taking an oath declaring my "support" for the Constitution.[24]

In permitting Nazis and known Communists to take an oath to "Support the Constitution," courts have relied on Article V, which permits Amendments. Thus, a Communist, who might seek to amend the Constitution out of existence and set up a Socialist Dictatorship, is held by the courts to be "attached to the principles of the Constitution," namely (or especially), the "Constitutional principle" of amendment.

I have a strong revulsion against this "make-the-oath-mean-whatever-you-want-it-to-mean,-and-get-it-over-with" attitude. The oath is a sacred and solemn act, not some kind of ceremonial "silly putty."[26]

But in any case, the secularists are one step ahead of Amendment-minded Christians. There appears to be an exception to this "Amendment" rule. There seems to be one kind of Amendment that cannot be suggested;[27] one kind of vision that the Supreme Court has called "abhorrent to our tradition."[28] It's not Naziism. It's not Communism.

It's "Liberty Under God."


Lysander Spooner opposed slavery and the federal postal monopoly on constitutional grounds, but later confessed,

[W]hether 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.

It's the closing line of "No Treason: The Constitution of No Authority."


Resources on the Constitution

Documents

Basic Reading

Advanced Reading


Judge Andrew Napolitano:
The Constitution And Freedom

Introduction: Understanding The Constitution


Part 1: The Constitution


Part 2: The Congress


Part 3: The President


Part 4: The Courts


Part 5: The States


NOTES

7. R. Higgs, Crisis and Leviathan 168-180 (1987). The "limited government" rhetoric of Constitutional conservatives has no effect during a time of "national emergency."  [Return to text]
 
8. Emergency Powers Statutes: Provisions of Federal Law Now in Effect Delegating to the Executive Extraordinary Authority in Time of National Emergency; Report of the Special Committee on the Termination of the National Emergency, U.S. Senate, 93rd Cong., 1st Session, iii, 1 (1973).

World War II, Korea, Vietnam, Nicaragua, Panama, and Iraq also resulted in a number of additional "emergency" measures.

As a result of these hearings, Congress grew jealous of Presidential powers, and in 1976 sought to establish its own authority to determine "national emergencies" and constitutional "enemies." T. Burzynski, "Is the Constitution Suspended?" 12 The New American 15-16 (Feb. 5, 1996). You no doubt noticed the resulting dramatic increase in Constitutional government.

Simply "cancelling" the "national emergency" will do nothing to reverse the trend toward socialism and secularism.  [Return to text]

9. The words of the oath of allegiance required for naturalization. Schneiderman v. U.S., 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796 (1943).  [Return to text]

10. Although it was a problem for Justice Felix Frankfurter, himself a naturalized citizen. Following circulation of a draft opinion in the Schneiderman case, Justice Frankfurter sent a note to Justice Murphy, who authored the opinion, suggesting that the headnote to the opinion in the official reports read:

The American Constitution ain't got no principles. The Communist Party don't stand for nuthin'. The Soopreme Court don't mean nuthin'. Nuthin' means nuthin', and ter Hell with the U.S.A. so long as a guy is attached to the principles of the U.S.S.R.
J. Howard, Mr. Justice Murphy: A Political Biography 315 (1968), cited by Levinson, Constitutional Faith, p. 144.  [Return to text]

11. S. Levinson, "Unnatural Law" (Review of C. Sunstein, The Partial Constitution) 209 The New Republic 40, 41 (July 19/26, 1993).  [Return to text]

12. Idem. See also Senate Doc. 43 (73rd Cong., 1st Sess.): "The ownership of all property is in the State; individual so-called ''ownership' is only by virtue of Government, i.e., law, amounting to mere user; and use must be in accordance with law and subordinate to the necessities of the State." Quoted in E. Schroder, Constitution: Fact or Fiction, 36 (1995).  [Return to text]

13. J. Freedman, Crisis and Legitimacy, 6 (1978).  [Return to text]

14. Quoted in A. Gulas, "The American Administrative State: The New Leviathan" 28 Duquesne L Rev. 489, 490 (1990). (With Madison's warning ringing in his ears, the author nevertheless supports the "New Leviathan.")  [Return to text]

15. Schneiderman v. U.S., 320 U.S. 118, 141, 87 L.Ed. 1796, 1811 (1943).  [Return to text]

16. M. Hendrickson, America's March Toward Communism (1987).  Update: 2000  [Return to text]

17. J. Flynn, The Roosevelt Myth (rev. ed. 1956); A. Sutton, Wall Street and FDR (1975). (Sutton was a Research Fellow at the Hoover Institution, Stanford University.)  [Return to text]

18. Schneiderman, above, note 15. Justice McReynolds might have doubted it. Dissenting in an important case upholding flagrantly unconstitutional "New Deal" Legislation, he cried: "This is Nero at his worst. The Constitution is gone." Quoted by E.S. Corwin, Constitutional Revolution, Ltd. 46 (1941).  [Return to text]

19. Imagine a group of sinister Anti-Federalists in 1792 seizing control of a small town, cutting off all communication [they didn't have Orwellian Memory-Holes back then] and forcing citizens to take an oath to "support The Articles of Confederation." What possible purpose could such an oath have but to solidify their unconstitutional control over the town? America is no longer governed by the Constitution.  [Return to text]

20. Over 32 million killed since 1973. Human Life Alliance of Minnesota, She's a Child, Not a "Choice," 10 (1995).  [Return to text]

21. Hamilton would probably be guarding multi-national corporate interests against upstart nationalists and "agrarian reformers" from his positions on the Trilateral Commission and Council on Foreign Relations.  [Return to text]

22. Baumgartner v. U.S., 322 U.S. 665, 669 (1944). See generally J. Flynn, As We Go Marching (1973 [1944]) (comparing "New Deal" fascism with "rule by emergency" under Article 31 of the German Constitution).  [Return to text]

23. Schneiderman v. U.S., 320 U.S. 118, 195, 87 L.Ed. 1796, 1839 (1943) (Stone, C.J., dissenting).  [Return to text]

24. Cf. Summers.  [Return to text]

25. In re Saralieff, 59 F.2d 436, 437 (E.D. Mo. 1932). See also In re Petition for Naturalization of Matz, 296 F.Supp. 927 (E.D. Cal., 1969) (denying naturalization to Jehovah's Witness who, "because of religious training and belief refuses to vote, serve on juries or otherwise participate in government" (at 929) (citing In re Saralieff (at 930n6), and U.S. v. Macintosh, 285 U.S. 605, 51 S.Ct. 570 (at 931n.20) On Macintosh, cf. below, text at notes 192-198). The Saralieff case obviously pre-dates the "post-meaning" age. But the priority it gives to the State still lives.  [Return to text]

26. Jesus said, "I say to you that for every idle word men may speak, they will give account of it in the day of judgment. For by your words you will be justified, and by your words you will be condemned" (Matthew 12:36-37). After studying the metamorphosis of American Government since the Civil War and the repudiation of the Founding Fathers (which, admittedly, most people have never done), it is difficult to avoid the conclusion that no more idle words could be spoken than "I swear to support the Constitution." Cf. below, text at note 216.  [Return to text]

27. Cf. D. Linder, "What in the Constitution Cannot be Amended," 23 Ariz. L Rev. 717 (1981).  [Return to text]

28. Girouard v. U.S., 328 U.S. 61, 69, 66 S.Ct. 826, 829 (1946).  [Return to text]


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