Joseph Sobran: The Lesser Evil

Once, before appearing on a TV talk show, I was told I must not advocate the violent overthrow of the U.S. Government. I hadn’t actually been planning to foment revolution, but this warning gave me an idea: "May I advocate the violent restoration of the Constitution?" I got no answer.

Some people think I’m a "purist," or even a "fundamentalist," for harping on the Constitution. Actually, it’s just the opposite. I’m willing to settle for the Constitution as a tolerable compromise. Really principled people, such as Lysander Spooner, the late, great Murray Rothbard, and a number of my living friends, consider the Constitution itself tyrannical, endowing the Federal Government with far too much power. (Don’t tell the children, but so did Patrick Henry.)

These are the real purists, and I honor them. My only point is that even if they’re right, returning to the Constitution – to a government strictly limited to its few enumerated powers – would be a huge improvement over the kind of government we have now. At this point I’d gratefully settle for that. I don’t ask much.

All I ask, really, is that our rulers, alias elected representatives, do that which they swear before Almighty God, staking their immortal souls on the promise, that they will do: uphold said Constitution. I think it’s actually rather patriotic – and even charitable – of me to hope that our rulers will stop damning themselves. But this seems to make me some sort of utopian. Who ever heard of a politician going to heaven?

These gents (all right, there are a few ladies among them) think an oath of office is something to be taken as lightly as, say, a wedding vow. They probably felt a deeper sense of obligation when they took their college fraternity pledges. Only one member of Congress seems to read the Constitution and vote against proposed laws on grounds that they lack constitutional authorization: the Texas Republican Ron Paul. And he’s considered a bit of a crank even by his own party. Whenever I read that the House has approved something by a 434-to-1 vote, I check to see if the 1 is Ron Paul. It usually is.

Of course the government has long since decided that the Constitution must be interpreted with a certain latitude, which always means letting the government stretch its own powers as far as it pleases. This is the familiar idea that the Constitution is a "living document," which is to say, a dead letter. How can it be "living" if it’s mere putty in the hands of the powerful? Really living things resist manipulation.

The Constitution is supposed to control the government, not vice versa. James Madison noted that the unwritten British Constitution could be changed at any time by a simple act of Parliament. Our Constitution, he said, would be better because it was an act of the people – remember "We the People"? – and would be "unalterable by the government." Any amendment would require very broad popular support.

But today We the People wait for the government – often meaning five members of the U.S. Supreme Court – to decide what the Constitution is going to mean. After all, they’re the experts. We the People are only ... people.

And We the People don’t protest, don’t even notice any incongruity, when we’re assured that this rank elitism is "democracy" and "self-government." We nod solemnly when we should be issuing a hearty horselaugh.

The current war is a good example. An emergency results from the government’s abuse of its powers, so the government claims new powers in order to cope with the emergency. And if you don’t support these claims, you’re unpatriotic; if you think the government’s foreign policy helped create this mess, you’re "blaming America first."

In other words, we are expected to equate an unconstitutional government with the Constitution! Logic, anyone? Tyranny doesn’t have to mean a grumpy dictator with a funny mustache; it can be exercised by pleasant guys who shave and smile. Its essence is lawless government – government that makes countless laws because it recognizes no law above itself.

Joe Sobran is a nationally syndicated columnist. He also writes "Washington Watch" for The Wanderer, a weekly Catholic newspaper, and edits SOBRAN'S, a monthly newsletter of his essays and columns.

He invites you to try his new collection of aphorisms, "Anything Called a 'Program' Is Unconstitutional: Confessions of a Reactionary Utopian." You can get a free copy by subscribing or renewing your subscription to Sobran's. Just call 800-513-5053, or see his website, www.sobran.com. (He's still available for speaking engagements too.)

Joseph Sobran Archives

Do you have a cite from the Constitution which provides lifetime tenure for the Supremes?

"Horowitz is still a communist. He pretends to be a "former" Marxist, but he's never been able to carry it off with me."

Interesting. I've held that sentiment in the back of my mind for years. I have to admit though, people tell me if I read one of his books, particularly Radical Son, my suspicions will be allayed.

Have you read any of his books?

4. To develop an attitude in the students of creative, innovative legal construction, as opposed to an inflexible, strict constructionist view of constitutional law.

That paragraph may do violence to the Constitution, but that is just what urban police supervisors expect of the officers working under them. Encoded from the pc, it means: in the Jim Snow system of justice, screw the rights of white, heterosexual, able-bodied males -- unless they are obviously rich -- and "enhance" the rights of blacks and Hispanics.

Once upon a time, urban police brass were at war with the racial left; the brass have since unconditionally surrendered.

Horowitz is still a communist. He pretends to be a "former" Marxist, but he's never been able to carry it off with me.

Fascinating topic. Care to elaborate, Twodees? There are all kinds of Marxists, right?

4. To develop an attitude in the students of creative, innovative legal construction, as opposed to an inflexible, strict constructionist view of constitutional law.

That's just scary.

4. To develop an attitude in the students of creative, innovative legal construction, as opposed to an inflexible, strict constructionist view of constitutional law...That's just scary.

Not only scary but true

That both the Left and the Right have this problem of forming a vanguard is complicated from the Hobbesian view of civil society, which H. alludes to: "It is because America is a democracy and the people endorse it [i.e. a people motivated by their selfish passions]."

In truth, "the left's anti-American, but "progressive" agendas can only be achieved by deceiving the people" is at the same time an apt description of the right.

No, I haven't read any of his books, just quite a few of his columns. The tone of those was enough to tip me that he's trying to remake conservatism into just another line of socialist thought. The neocon school of thinking that he seems to belong to is basically Trotskyite in form, though Horowitz seems more a Marxist.

The other neocons like Goldberg, Derbyshire and that group are less successful than Horowitz in hiding their socialist leanings. Their philosophical "daddy", ol' Bill Buckley was not at all successful at hiding the fact that he's a communist. He's really so poor at his protestations that he's a conservative, he surely has to know that nobody believes him except people too dense to be allowed to cross streets unaccompanied.

Horowitz gives himself away in subtle ways. One of those is his insistence that the US is a democracy. Another is his Lincoln worhip. Sorry I can't do better tonight, but the flu I thought I had whipped has come back with a vengeance and I'm wooly headed from it.

Their philosophical "daddy", ol' Bill Buckley was not at all successful at hiding the fact that he's a communist

Aha! And I've unmasked you. Why do you persist in hiding the fact that you're really Onedees--you sly devil. How do you it?

This is one cause I would gladly fight and die for. There is nothing better than REAL freedom, and we are losing it incrementally, though most people do not realize it.

No one is ever going to give us freedom. Our Founding Fathers fought to get it, and "we the people" will have to fight to keep it. The government is at odds with the Constitution. The government is NOT the Constitution. The government is a cancer and it is only "the people" who make our 3 branches of government adhere to the Constitution's principles and law, that will slow or reverse the loss of freedom.

I agree that the Constitution allowed a high degree of state interference with individual rights (although not all state constitutions did) and that some of the expansions of federal power in fact replaced state power and ended up increasing individual liberty by undoing anti-freedom state policies (e.g., Jim Crow).

Nevertheless, overall decentralism is most likely to maximize individual freedom. A highly centralized megastate offers individuals the fewest escape routes from government coercion. If a state were today to abuse our rights, it would be easy to move to another one.

As Joe Sobran says in this article, the Constitution isn't perfect. But it was crafted by people whose wisdom is superior to that of the current political leadership, and its restoration would be vastly preferable from the perspective of liberty than the current state of affairs.

You present a very interesting and thought-provoking perspective. However, I am going to disagree on the following grounds:

The "Bill of Rights" did not "give" us our rights starting from the time they were written or recorded. The "Bill of Rights" are rights given to individuals by their Creator and, as such, precede the formation of the State and Federal government and their respective Constitutions.

The recording of the "Bill of Rights" in the Constitution simply put everyone, and every entity (states and feds) on notice, saying, just in case anyone might forget, we are going to list our rights and enumerate and restrict government powers.

How can the state governments remove rights that preceded the state governments -- rights bestowed on each individual by his/her Creator. Governments, in practice, may abuse their power, but they don't have the legal authority to do it. What am I missing?

By contrast, those who stand foursquare for the Constitution and its rigid wall around the powers of the State, even when they lose, can say: "Now you'll get to see what comes of discarding our fundamental law." They cannot be identified with the results of extra-Constitutional tyranny. And people will look to them as the full and appalling consequences of principle-free, rights-disregarding government make themselves plain.
Patience in politics is perhaps the rarest of all virtues. They who hold fast to their principles, their rigid beliefs about right and wrong, honesty and deceit, integrity and opportunism, are the last repositories of that virtue. It is the best of all possible causes. In a good cause, there are no failures.

A most excellent bump to that! And a bookmark of your site. Thanks.

I thought that the lifetime tenure of Supreme Court and some other federal judges was established by an act of Congress. Article III, section one simply states that the justices and other judges will hold office during good behavior.

Do you have a cite from the Constitution which provides lifetime tenure for the Supremes?

Hey ho - nobody else seems to want to take a stab at this, so I will. That part you yourself cited (Art. III, Sec. 1) is itself the section granting lifetime tenure to federal judges. They serve during their good behavior - i.e., their terms are not time-limited like those of legislators or executives - so therefore the only way to remove them from office is upon their bad behavior, essentially. No time limits upon their service + can only be removed for cause + cannot have their compensation diminished = lifetime tenure ;)

It's not openly stated as such, but that's the practical effect of what's there.

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The Lesser Evil

by Joseph Sobran