Constitution- Who Cares?

It goes without saying among the few of us who care about such things that the United States has veered off track from the constitutional republic envisioned by its Founders. From a system of limited government, where the federal government had a few defined powers expressly delegated by the Constitution (shown, right) with the remainder left to the states, we have morphed into a regime under which the federal government defines its own powers and progressively turns the states into its own administrative units.

Part of the answer is monumental constitutional ignorance. People don't seem to understand that the Constitution is supposed to limit government, not just establish procedures by which the government operates. It says that the president must be at least 35 years of age and native-born, but it also contains a Second Amendment right to keep and bear arms that the federal government must not infringe upon. It enumerates the specific powers of the central government. The average American simply has no idea what the Constitution says or does.

Of course, it has long been the case that the Constitution was too radical for the American people. For a number of years, polls have shown majorities opposing protections afforded by the Bill of Rights when they were not identified as such. This doesn't even include the Tenth Amendment, but amendments that are ostensibly popular among liberals such as the First and the Fourth. So it isn't clear that a majority of Americans would support the Constitution even if they understood it.

This is tragic, because apart from constitutional government there is no basis for lawful government. In order for the law to act as a shield and not a weapon, the lawmakers cannot be a law unto themselves. We are devolving to precisely that point.

After all, we argue for and against various government spending programs or adding a prescription drug benefit to Medicare on the alleged merits of these proposals. Nobody bothers to ask whether any of these proposals are constitutional. Those who support them are never challenged to show where in the Constitution the federal government specifically received its authorization to intrude in that area. The columnist Joe Sobran has quipped that anything called a "program" is unconstitutional.

Constitutional conservatives don't always help their own cause. The reality is that while a government unconstrained by the Constitution is in principle tyrannical, most Americans are still free to live their lives largely as they please. So talk about our tyrannical government produces nods of agreement from true believers, but causes the average voter to roll their eyes. Rather than educating people about the Constitution, many constitutionalists would rather reinforce "black helicopter" and "tinfoil hat" stereotypes and drive soccer moms into the arms of Hillary Clinton.

Yes, horrible things happened at Waco and Ruby Ridge at the hands of the federal government. But most Americans don't identify with lunatics who believe they are Jesus Christ and start bizarre religious cults. Nor do they identify with nutty white separatists who want to isolate themselves from modernity. This does not mean that any of these people deserved to die. What it does mean is that Joe Average is not going to look at the burning compound in Waco on TV and say, "Wow, those people were so much like me, I fear that I could be next." Sure, some pretty awful things have happened to fairly ordinary people on account of the drug war, but by and large, the federal government hasn't given ordinary people much of a reason to worry.

Most people live in nice homes and enjoy a nice standard of living. They are free to go to school where they want, work where and what profession they want, live where they want, marry who they want, etc. Millions of Americans no longer even pay income taxes. The federal government doesn't significantly impede them in anyway. Once in a while somebody forgets to pay their income taxes, or runs afoul of racial quotas, or has their livelihood ruined by some regulation like the farmers of Klamath Falls. But it doesn't happen to enough people to spark much of a popular uprising the way inflation-induced "bracket creep" did 20 years ago.

A welfare state is not this writer's idea of a free society, but it is a great deal freer than totalitarianism. The difference between the two is as great as the difference between Bill Clinton and Joseph Stalin. People who can't tell this difference are why advocates of limited government get tarred as alarmists and nutcases.

Of course, some of the power gained by the federal government has not actually led to a net increase in government power over citizens' lives. The Constitution limited the federal government, but did not originally offer any protections against the depredations of state governments, which were still free (subject to their own constitutions) to establish churches, knock people's doors down and otherwise deny their rights. Some of the powers the federal government has gained resulted from curbing anti-freedom policies enacted at the state level.

The fact that Americans still enjoy a greater degree of freedom than most of the rest of the world does not mean that concerns about unconstitutional government are unwarranted. Just because we have retained our freedoms after the limits on government were uprooted doesn't mean that unlimited government will never be exploited for evil means. Some people suggest secession as a means of combating big government that doesn't respect the Constitution. In principle, secession is a valid tool for escaping a rapacious central government. But who is going to secede from what? It is not as if there is one constitutionally pure section of the country that is being oppressed by another. The American people have democratically chosen to go down the path of big government, North, South, East and West. The differences are only in degree.

Life is really good in the United States. The downside is, while preserving the Constitution may keep it that way, things being so good make it more difficult to make that case. Yet it is important to understand why this is so rather than make all kinds of proclamations that insure that constitutionalism will simply be ignored.

The so-called ''constitutional revolution'' of the 1930s, however, brought the latter word to its present prominence

''constitutional revolution''?????

from your link ...

The etymology of the word ''commerce'' carries the primary meaning of traffic, of transporting goods across state lines for sale. This possibly narrow constitutional conception was rejected by Chief Justice Marshall in Gibbons v. Ogden, which remains one of the seminal cases dealing with the Constitution.

Oh, I see, you agree with Marshall ...

''The subject to be regulated is commerce,'' the Chief Justice wrote. ''The counsel for the appellee would limit it to traffic, to buying and selling, or the interchange of commodities, and do not admit that it comprehends navigation. This would restrict a general term, applicable to many objects, to one of its significations. Commerce, undoubtedly, is traffic, but it is something more--it is intercourse.'' ...

''Congress can certainly regulate interstate commerce to the extent of forbidding and punishing the use of such commerce as an agency to promote immorality, dishonesty, or the spread of any evil or harm to the people of other states from the state of origin. In doing this, it is merely exercising the police power, for the benefit of the public, within the field of interstate commerce.''

You think it is all together fitting and proper to conclude that the founders meant ...

"enforce majority conceptions of morality, to ban racial discrimination in public accommodations, and to protect the public against evils both natural and contrived by people ..."

... when they came up with the phrase "regulate commerce among the several states"? That is an absolutely, breathtakingly warped opinion.

Here's more from your link ...

Marshall qualified the word ''intercourse'' with the word ''commercial,'' thus retaining the element of monetary transactions. But, today, ''commerce'' in the constitutional sense, and hence ''interstate commerce,'' covers every species of movement of persons and things, whether for profit or not, across state lines, every species of communication, every species of transmission of intelligence, whether for commercial purposes or otherwise, every species of commercial negotiation which will involve sooner or later an act of transportation of persons or things, or the flow of services or power, across state lines.

Thus, at one time, the Court held that mining or manufacturing, even when the product would move in interstate commerce, was not reachable under the commerce clause; ... Later decisions either have overturned or have undermined all of these holdings.

The "later decisions" have also overturned or undermined the original intent of the Constitution.

... the power to regulate commerce is the power to prescribe conditions and rules for the carrying-on of commercial transactions, the keeping-free of channels of commerce, the regulating of prices and terms of sale.

That was the original intent of the commerce clause, not that bunch of gobbledygook the good Justice Marshall read into it.

I agree with the other poster that said you have adopted the leftists "living document" interpretation of the Constitution.

Just for fun, here's what James Madison said in Federalist No. 42 ...

Were these (States) at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former. We may be assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquillity. To those who do not view the question through the medium of passion or of interest, the desire of the commercial States to collect, in any form, an indirect revenue from their uncommercial neighbors, must appear not less impolitic than it is unfair; since it would stimulate the injured party, by resentment as well as interest, to resort to less convenient channels for their foreign trade. But the mild voice of reason, pleading the cause of an enlarged and permanent interest, is but too often drowned, before public bodies as well as individuals, by the clamors of an impatient avidity for immediate and immoderate gain. The necessity of a superintending authority over the reciprocal trade of confederated States, has been illustrated by other examples as well as our own. In Switzerland, where the Union is so very slight, each canton is obliged to allow to merchandises a passage through its jurisdiction into other cantons, without an augmentation of the tolls. In Germany it is a law of the empire, that the princes and states shall not lay tolls or customs on bridges, rivers, or passages, without the consent of the emperor and the diet; though it appears from a quotation in an antecedent paper, that the practice in this, as in many other instances in that confederacy, has not followed the law, and has produced there the mischiefs which have been foreseen here. Among the restraints imposed by the Union of the Netherlands on its members, one is, that they shall not establish imposts disadvantageous to their neighbors, without the general permission.

I don't deny that there exists a power to regulate commerce among the several states, although I am thoroughly convinced that the Power has been perverted to include everything under the sun whether or not it has to do with commerce among the several states. Your link solidifies my opinion, and shows you for the leftist you apparently are.

I can't quote any one line that I disagree with from your post, because the whole thing is equally stupid.

There is no enumerated Power to do anything remotely involving education. The key word is ENUMERATED. There is no granted Power called common defense. The terms "general welfare" and "common defense" are used to describe the reasons for the enumerated Powers that ARE granted to the federal government. For example :

To borrow Money on the credit of the United States;

this will provide for the general welfare of the people of the U.S.

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

Again, general welfare of the people.

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

That's right, all general welfare.

Now these ENUMERATED powers ...

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

... are all ENUMERATED Powers that provide for the common defense.

Why do you think these specific Powers are ENUMERATED if anything that can be argued to be for the general welfare or the common defense could be considered a constitutional Power delegated to the central government?

And when you see this ...

Amendment X

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.

... what powers can you think of that aren't delegated to Feds when you view "general welfare" and "common defense" as liberally as you, and all leftists, do?

It is impossible to know where to begin in refuting such a diatribe as your response. The "general welfare" and "necessary and proper" clauses are not blank checks that authorize the Congress to pass whatever laws they choose. Historically, these clauses were understood to have a limited application. Based on your interpretation, the Constitution does not limit government at all. I also find your interpretation of the interstate commerce clause interesting.

By your logic, constitutional amendments would have been unnecessary to enact prohibition or abolish slavery, as fairly comprehensive legislative bans could have been accomplished citing the interstate commerce clause, as both are issues that touched heavily on interstate commerce. Yet it was widely understood by abolitionists and later prohibitionists that the Constitution did not give the federal government such authority and that it was necessary to amend the Constitution. This is why the Second, Fourth and Tenth amendments are not wiped out by verbal gymnastics about various "interstate commerce" connections found in federal laws or by citing common defense policy.

My reference to abortion and school prayer were simply to take two high-profile issues that demonstrate that Supreme Court decisions do not always reflect the intent of the Constitution's framers. Never before in history had the First Amendment been construed in such a way as to make prayer in a public school setting unconstitutional. Abortion is an even better example, since it took place since the founding of the republic, while public education is more recent. Never before Roe v. Wade had anyone interpreted the Constitution in such a way that would make the state laws of every state with regard to abortion, no matter how restrictive or permissive, unconstitutional. This has nothing to do with what the appropriate policy is on school prayer or abortion. It has to do whether the Constitution really mandated that state policies in that area be changed, and I think it is clear to any honest person who bases their interpretations on the Framers' intent and takes enumerated powers seriously that it did not.

Now, it would be off-topic to address your grotesque misrepresentation of my positions on abortion (where you oddly claim I would put people in prison and school prayer (where I am apparently putting people in prison for not praying or for worshipping as they please), although I would certainly be happy to explain my positions on these issues on a thread where they are germane. My point is that the Supreme Court, as well as Congress, can misintrepret the Constitution in the service of certain policy objectives.

In my opinion, your arguments seem to support my article. You believe that the federal government should have whatever powers it needs to do the things you believe are important for it to do and are not concerned about constitutional limitations on government. Your contention that policies should be debated on their merits is certainly a defensible position, although I think you understate the importance of limiting each level of government in principle. I entered this thread because I felt that the points you were raising spoke to some of the most important debates in constitutional law and it appeared to be building an interesting discussion. Unfortunately, you have increasingly demonstrated that you do not wish to argue civilly or in good faith, and without these components of a discussion, I am afraid I feel that it is really not worthwhile to continue. I have better things to do than have someone who lacks an even passing familarity with my views hysterically compare me to the Taliban.

If you wish to continue to twist my words, misrepresent my opinions and dismiss opponents' arguments as "jargon and slogans" without addressing their substance, I trust that other Freepers will see it for what it is.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.