The Neo-Con Assault on the Constitution

WorldNetDaily book editor Joel Miller recently authored one of the best common-sense constitutional arguments against the government’s failed “war on drugs” that I’ve seen (“Alan Keyes is Wrong!”, April 23). It was a response to neo-conservative Alan Keyes, who had written in support of U.S. Attorney General John Ashcroft’s use of the federal Controlled Substances Act to exert federal dominion over drug regulation by the states. Keyes was addressing Oregon’s “euthanasia laws” that permit the dispensation of lethal drugs, and Miller agreed with him that “killing yourself . . . is not medically legitimate.”

The bigger issue, though, is what constitutional right the federal government has to exert such control over drug regulation – or any kind of regulation for that matter – by the states. As Miller pointed out, Article I, Section 8 of the U.S. Constitution, which delineates the legitimate appropriations of Congress, does not include regulating drugs (or the vast majority of what the federal government does today, for that matter). The Tenth Amendment, moreover, reserves such powers “to the States respectively, or to the people.”

Miller interestingly quotes historian David Musto as having observed that until the late nineteenth century, the federal government laid no claim to such regulatory powers; such things were the responsibilities of the states, or the people. Miller is correct to invoke the Tenth Amendment in his argument, but this Amendment was all but destroyed during the War Between the States, after which federal political hegemony was established. As Dean Sprague wrote in Freedom Under Lincoln, “States Rights, which prior to 1860 had been as important a part of northern political beliefs as southern, were overturned.” This includes, first and foremost, the Tenth Amendment.

Miller also correctly observed that the “progressive era” federal regulatory agencies “were profoundly unconstitutional and un-American” and are “the elder bedmates of the coercive, expansionist politics of modern-day liberalism.” Exactly. This, however, is exactly the position that neo-conservatives like Alan Keyes hold.

There is a method in the neo-con assault on the Constitution: They routinely invoke the part of the Declaration of Independence about “all men are created equal,” but not the rest of the document, as our “national creed,” even if the policies they advance in the name of that creed are in deep conflict with the Constitution itself. For example, in Keyes’s article he bases his argument in support of federal drug regulation on the equality principle of the Declaration. He claims that the Constitution supposedly creates a “federal regime of ordered liberty” by which democratic mobs supposedly “govern themselves in dignity and justice” (I’m not making this up, honest).

To neo-cons like Keyes, the Constitution supposedly prohibits the interpretation of federal law by anyone but the federal government itself because the people of individual states are supposedly incapable of doing so; only “the people of the whole nation” are “competent” to perform this task. But his makes no sense, for there is no such thing as “the people as a whole” acting on this or any other issue. The fact that a small percentage of us votes every four years or so does not imply that we are acting with competence as “a whole people” on this or any other issue. A state referendum on a specific issue, on the other hand, is much more meaningful in terms of citizen participation.

Keyes barely ever makes a speech or writes a column anymore where he does not invoke the Declaration and make a not-too-subtle comparison between himself and Abraham Lincoln. Indeed, he frequently states that his main passion, the pro-life movement of today, is the equivalent of the abolition movement of the nineteenth century. (This comparison is not entirely accurate, however, if one acknowledges Pulitzer Prize winning Lincoln biographer David Donald’s statement that “Lincoln was not an abolitionist”).

The link between Lincoln and neo-con ideology is clear: Lincoln falsely claimed that the Union preceded the states, and was therefore not subject to their sovereignty. The neo-cons make the exact same argument in advancing whatever policy cause they happen to be involved in, whether it is drug regulation, abortion, censoring of television, waging war, etc. This is why so many neo-cons, such as the ones associated with Keyes and the Claremont Institute, are such slavish idol worshippers when it comes to Lincoln. They use his martyred “sainthood” to promote their political agenda through an ever more powerful federal government. That’s why they’re described as “neo-cons” and are not a part of the Old Right tradition: They are comfortable with Big Government, as long as it fights their wars and enacts their social and regulatory programs. This is one reason why there is such a large “Lincoln Cult” among conservative (but mostly left/liberal) academics and think tank employees.

But the alleged supremacy of the federal government over the states is a lie. It was established by the most violent means, a war that killed the equivalent of more than 5 million Americans (standardizing for today’s population), not logic, argumentation, or even legal precedent. It is a lie because:

Each American colony declared sovereignty from Great Britain on its own; After the Revolution each state was individually recognized as sovereign by the defeated British government; The Articles of Confederation said, “each state retains its sovereignty, freedom, and independence”; The states then decided to secede from the Articles and dropped the words “Perpetual Union” from the title; Virginia’s constitutional ratifying convention stated that “the powers granted resumed by them whensoever the same shall be perverted to their injury or oppression.” This right was also asserted for all other states; In The Federalist #39 James Madison wrote that ratification of the Constitution would be achieved by the people “not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong,” flatly contradicting the contrary assertions of Keyes and other neo-cons; The Constitution always speaks of “the United States” in the plural, signifying that the individual states were united in forming the federal government as their agent while maintaining their sovereignty over it; The Constitution can only be amended with the authority of the states; Until 1914 U.S. Senators were appointed by state legislatures so that the states could retain a degree of sovereignty over federal “officials,” who now have carte blanche to rule over us as they wish.

Only by endlessly repeating what Emory University philosopher Donald Livingston calls Lincoln’s “spectacular lie” that the federal government created the states (and not the other way around), and that the nation was supposedly founded by “the whole people” and not the people of the states in political conventions can the neo-cons continue to champion the further centralization of governmental power to serve their own political ends, whatever they may be.

Of course, it’s not only the neo-cons who perpetuate this lie. Liberals and other assorted leftists do so as well. The left-wing journalist Garry Wills, for example, praises Lincoln’s “open air sleight of hand” in effectively rewriting the true history of the founding (not unlike so many of the former communist governments rewrote their own histories during the twentieth century) because it enabled us to embrace “egalitarianism” and the massive welfare state in whose name it has been advanced (Lincoln at Gettysburg).

Columbia University law professor George P. Fletcher echoes the neo-con mantra in Our Secret Constitution, where he celebrates the fact that the centralized state that was imposed on the nation by the Lincoln administration has led directly to the adoption of myriad “welfare programs,” “affirmative action measures,” the New Deal, modern workplace regulation, etc. He is quite gleeful in his description of the Gettysburg Address as “the preamble of the second American constitution.” This is not necessarily a written constitution, however, but one that has been imposed by federal policy.

This transformation of American government from one in which federalism, states rights, and the rights of nullification and secession allowed the citizens of the states to retain sovereignty over the federal government to a consolidated, monolithic Leviathan, means that Americans now live under what historian Clinton Rossiter called a “constitutional dictatorship.” He used this phrase in a book of the same name which appropriately featured an entire chapter on the “Lincoln Dictatorship.”

You seem to think YOUR beliefs about life, - death , -- & liberty, -- trump mine.

Nope. I think the American beliefs on life, death and liberty, on which the national union was explicitly and formally based at the beginning, in what Jefferson and Madison called "the fundamental act of union of these states,", i.e. the Declaration, DOES trump your beliefs about those matters.

You admit above [underlined] that what YOU think the declaration means, trumps what I think. -- All the rest is cheap flag waving rhetotic as you equate your thinking as being 'American', mine as somehow less. - A silly debate tactic. ---------------------

I asked you if the Oregon assisted suicide referendum contradicts the most fundamental principle of ANY federal law? -- And, - is this supposed 'law' based on any constitutional fundamentals?

Perhaps the notion of "principle" is unclear to you . The principles of a thing are distinct from the thing. Principles are that from which a thing comes, or upon which a thing is based.

-- More silly bafflegab rhetoric. We both know what principles are.

My answer to you, and the point of the Keyes column, was that Ashcroft was justified in looking to the principles of ALL federal law -- the foundation of all federal law.

--- Which is not in dispute. In fact, it was MY contention that he is not doing so. ---- If he did, he would find NO SUCH principle. -- Just as you cannot.

The Declaration expresses that foundation. Without some such foundation, there is no basis that I am aware of that obliges me to even obey federal law.

-- Yes, the Declaration so expresses. But not as you religiously interpret it, imo.

When an officer of the executive branch finds himself obliged to pass judgment on the particular matters about which a federal law obliges him to pass judgment, the formal and official criteria to which he must look are not the opinions of one out of fifty states, but of the national principles that illuminate the meaning and purpose of all federal law.

Exactly, you make my point, -- but you have not answered specificly, because you cannot. There is no consitutitional principle that allows the feds to dictate state laws on suicide, drugs, etc, --- beyond the constitutional mandate itself. -- If there were, you could cite it, couldn't you?

The "unalienable right to life" is foundational to all federal law, and indeed to all American law -- federal, state or local. It is, says the Declaration, foundational to all government power whatsoever.

--- We agree! -- My life is mine to do with as I please, within the constitutional limits I agreed to as a citzen. I gave no government the power to tell me when, or how I could end my life, nor did my forefathers, the framers of the constitution.

Legal suicide, and particular the granting of power over one's life to another, is the alienation of one's right to life.

-- To whom is the life 'given'? Granting a doctor the legal power to assist me in my own death gives him no life. - Or any right to 'life' except for his own. -- You are simply attempting to cloak your religious opinion about suicide in legalistic language.

And, in fact, -- you can grant your life to save others, or your country, -- Many do in war. Others in peace. -- We call em heros.

"Unalienable" rights are rights that cannot be given away, and the exercise of which is not voluntary, but obligatory. The origin of the notion is in "unalienable" ownership of land -- land which the owner could not part with, whatever his wish to. What part of "unalienable right to life" don't you understand? If you find this to be "bafflegab" as well, let's just call it a day, and I wish you well.

I think I understand my rights, and have demonstrated that fact here. You have demonstrated a gift for gab, little else, --- save for a seeming desire to have government law control the 'moral' actions of your peers. -- Can you say this isn't so?

Presuming that you really are interested in understanding what I am saying, I will try once more.

It is not legal to sell yourself into slavery in the United States. Why is this? It is because the ownership of a man by another is intrinsically inconsistent with the right to liberty. Our right to liberty is unalienable -- we don't have the right deliberately to give our claim to liberty away, to sell it, to barter it. It is unalienable.

Similarly, we do not have the right to place our own claim to life beyond our own power to assert that claim, which suicide rather plainly does -- we do not have the right to alienate our own right to life.

If you care to discuss this matter seriously, please be so kind as to indicate what you understand an unalienable right to be. The Declaration says -- although you may disagree -- that God has endowed us with rights we CANNOT separate from ourselves. They are unalienable. Divesting ourselves of capacity to live, to be free, or to pursue happiness, among other things, is to alienate from ourselves the rights that the Declaration says are unalienable by the will of God in His creative endowment.

I understand that you wish to interpret the Declaration as meaning that you have the right to dispose of your liberty and life as it pleases you. My point is that the Declaration rather plainly indicates that God did not just give us rights, he stuck them permanently to us -- we can't escape them. I do not see how you are taking any serious account of the unalienability of these rights. Are you?

I am aware of no situation in military or civilian life in which the death of an innocent person, soldier or otherwise, is the intention of a licit action. I know of no "hero" whom we understand to have deliberately sought death, or whom the government has acted as though it had the right to kill in the pursuit of any end. (I except, of course, manifestly illegitimate practices such as abortion, of which no serious moral defense is offered).

We could cheerfully disagree if you will simply acknowledge that the Declaration is not consistent with the right to suicide, but that you disagree with the Declaration on this point, even though the Declaration expresses the principles of legitimate American government.

Euthanasia laws, even when they require consent of the person to be killed, are exactly equivalent to laws permitting a man to sell himself into slavery. They are fundamentally perverse, because government exists to secure unalienable rights, not to facilitate the alienation of such rights.

The reason the Texas theater was essentially irrelevent was due to the fact that the Union armies understood that since Texas was cut off from the rest of the Cornfederacy from an early date it was not necessary to commit any significant forces to subdue it. Texas units were fighting in the east and those were a larger threat than any remaining in the state.

I don't see how this battle's outcome had any impact on Texas history since it had no impact on the outcome of the war or the policies which came after it. Had it been won by the Union it would have had a trivial impact on the plans of the Union.

From what I have read this battle cannot be compared to Thermopylae in any way. A fort against a couple of gunboats is not similiar to 300 Spartans against a force of 100,000 Persians. Sorry but your hyperbole is vastly overblown as I said initially in our exchange.

Beating Benjamin Butler, a terrible general by any measure, was not difficult for any competent soldier (which he wasn't being a political appointee.) Had the forces been led by a Grant, Sherman or Sheridan the story would have been totally different.

- My point is; -- You want government to make laws enforcing your religious views on suicide. -- That is an unconstitutional objective. Give it up.

The doctor is irrelevant to the fundamental point. Suicide is the illegitimate alienation of the right to life, as enslavement - even voluntary - is the illegitimate alienation of the right to liberty. You can call it my religious opinion all night. I am giving the argument of the Declaration, and you will not say what "unalienable" means.

Suicide is an 'illegitimate' right? - Says who? - [we know, it is your God that tells you so.]

Unalienable rights cannot be taken from you, except by force. You can freey give, delegate, contract [as in a constitution] , some of them to government, or to your employer, to the army, etc.. -- But you retain the freedom to take them back if the contract is broken, or expires.
-- But I really shouldn't have to explain this elementary stuff, should I?

The point is not that life, or the right to it, is given TO anyone. The point is that life, or the right to it, are given AWAY from someone, namely, the one whom the Declaration says has received such a right as an unalienable endowment.

Poorly expressed, but 'given away' means taken. -- You, -- and the Bush/Ashcroft 'justice dept' want to take away the people of Oregons right to end their lives in dignity, with the assistence of a doctor. -- That is the point here.

- Unless you think that Jefferson also, as you so charmingly put it, ran off at the mouth, perhaps you would take a crack at saying what you think those words in the Declaration mean, why you think so, and whether that meaning is binding on all American law. I am unaware that my personal religious views need distract you from answering that question.

In other words, - you can't make a sensible argument, so you dare me to do so. -- I have. -- You just can't seem to accept it, or maybe you are so blinded by your religious views that you do not understand. - In which case, get help.

If that is so, why then did the yankees commit several significant forces to subdue it including multiple invasion attempts and a flotilla of warships accompanied by a 5,000 man army?

Texas units were fighting in the east and those were a larger threat than any remaining in the state.

Those remaining in state continued in military operation past appomattox and enjoyed a record of beating the yankees to the very end.

I don't see how this battle's outcome had any impact on Texas history

Look at it this way. Texas would be an entirely different state today had its population experienced what happened to, say, the citizens of Georgia when the union invasion forces came marching through. If you cannot figure out why, you should not be taking on the topic of the war and its fallout to begin with.

since it had no impact on the outcome of the war or the policies which came after it. Had it been won by the Union it would have had a trivial impact on the plans of the Union.

I would beg to differ, noting that had Sabine Pass been lost, an invasion campaign up the Sabine and over the Red river would have occured meaning an entirely different history for, primarily, Texas as well as borderland Louisiana, Arkansas, and what would become Oklahoma.

From what I have read this battle cannot be compared to Thermopylae in any way. A fort against a couple of gunboats is not similiar to 300 Spartans against a force of 100,000 Persians.

Make that an earthen fort with only 6 guns, two of them disabled, manned by only 44 dockworkers under the command of a lieutenant. They were up against 4 steam gunboats escorting a flotilla of over 5,000 troops for a combined total of over 20 ships. 5,000 troops accompanied by over 20 ships, four of them armed warships, should have been able to easily overrun an earthen fort with only 44 men, just as the Persians should have been able to easily overrun the Greeks. Yet they did not. The persians were held up at the pass far longer than should have been the case.

The yankees were not only held up at a pass they should have been able to walk right over, but were thoroughly routed. All four of their warships were disabled including two of them destroyed. The 44 dockworkers killed as many as five times their numbers and captured even more. So yes, I do think a valid comparison in the terms of odds may be made.

Sorry but your hyperbole is vastly overblown as I said initially in our exchange.

And with that assertion, I would beg to differ as I noted above. Take some time to familiarize yourself with the battle at Sabine pass and its circumstances. I also ask that you temporarily set aside any biases toward the north while doing so. You will find a confederate victory against near impossible odds that sent shockwaves across both nations. The confederates at sabine pass were arguably down by greater odds than in any other battle during the war. Yet they prevailed.

Beating Benjamin Butler, a terrible general by any measure, was not difficult for any competent soldier (which he wasn't being a political appointee.)

Perhaps, and in a standard engagement I would probably agree. But this was by no means a standard engagement. It was 44 dockworkers, none of them professional soldiers, led by a lieutenant, himself not a soldier. They used four cannon behind an earthen wall to stop an entire invasion fleet. They were outnumbered well over 100 to 1 in men alone, and that is to say nothing of the disadvantages in their weaponry. In other words, while Butler himself may have lacked in military experience, he faced a smaller force of men even less qualified than himself. Butler and his forces were, at the time, war hardened and experienced. Most of those confederates had never fired a single shot in wartime circumstances. Most of them had never even recieved basic military training. They were led by a tavern owner turned part time lieutenant.

Had the forces been led by a Grant, Sherman or Sheridan the story would have been totally different.

Do you honestly think so? In a naval to shore battle as well?

Key to the confederate victory was Dowling's ability to hide from the yankees how few men they were actually up against. The yankees had little way of knowing how many confederates were in that fort before hand, regardless of who led them - Grant, Sherman or otherwise. Dowling carried through on the deception by putting out so much fire power the yankees didn't know what hit them. Some of the fiercest bombardments of the war occured in those confederate hits on the yankee ships. It happened because, despite their lack of training as a military unit, the dockworkers proved to be dead-on shots and made the hits count. I would venture to say that what happened there would have happened under practically any general no matter who led the ships up the channel.

The battle was won because the officer in charge of the fort had determined the effective range of his guns and did nothing until the ships were within that range. When they steamed past it the men were ordered up from under the fort and the guns opened fire hitting the boilers of the ships which killed most of the men killed. The soldiers never became relevent since they did not land.

It in no way compares to Thermopylae and was not a significant battle.

Sherman and Grant would not have been fooled and would have destroyed the fort and its men had they not been occupied in more important areas.

Texas history would not have changed in any way except that Blacks may have had a brief period of freedom and a degree of power as they had when the murderous vengence of the Slaveocrats was prevented by the victorious Union army from exercising its full power over them. As far as I am aware there weren't thousands of Blacks murdered after the war there as there were in the Deep south. Since the Slaveocracy was not as strong in Texas the ex-slaves could always go to the west where the cotton culture was non existent. This moderated the need for Union forces which were required to stop wholesale slaughter by the Red Shirts and the KKK in Tenn., Ga., La., and S. Carolina.

Texas turned its back on its greatest citizen when Sam Houston was forced by the Slaveocracy to resign his Senate seat because he believed in and supported the Constitution against those determined to wipe their @$$es with it.

-- But I really shouldn't have to explain this elementary stuff, should I?

unalienable
adj : incapable of being repudiated or transferred to another; "endowed by their Creator with certain unalienable rights" - posted by DJQ -

How lame. -- Your dictionary cannot win this argument for you. -- In any case;
--- Even you would agree that the right to self defense is unalienable, correct? - Yet we delegate large portions of that right to our police forces, & army, - for instance. Correct? -- And, we have an unalienable right to so delegate and transfer limited power to government, correct?

- Thus, you have a contradiction inherent in your definition. - Can you explain?

How lame. -- Your dictionary cannot win this argument for you. --

I'm sorry that you find it "lame" to attempt to settle the question of the meaning of a key word in our discussion.

In any case; --- Even you would agree that the right to self defense is unalienable, correct? - Yet we delegate large portions of that right to our police forces, & army, - for instance. Correct? -- And, we have an unalienable right to so delegate and transfer limited power to government, correct?

- Thus, you have a contradiction inherent in your definition. - Can you explain?

Delegating the exercise of a right is not alienating that right. When I delegate, I make someone my instrument in the exercise of my right. When I alienate a right, I give up, or attempt to give up, my claim on the object of the right.

The unalienable right to transfer limited power to government is an unalienable right subordinate to, because instrumental to, the unalienable rights to life, liberty, and the other fundamental rights, self-defense among them. The unalienable right to form governments follows from the unalienable rights enumerated in the Declaration because it is a necessary means to securing those rights.

Perhaps you could try to lay out more clearly what contradiction you find in this, observing the fact that delegating a right is a means of securing it, not of alienating it. If I speak of delegating my right to life to a doctor, for example, it can only mean that I charge him with securing that right.

You claimed:

I replied:

------------------------------

-- Which you then attempted to refute with the dictionary line, now abandoned in your last post. - You now admit an inalienable right can be delegated, - ie, - partially 'given away'.

Therefore, -- we, [the people] never 'gave away' the unalienable right to end our lives as per the Oregon law, nor did we delegate the power in the constitution to the justice dept to 'regulate' that right.

Get it? -- [I won't hold my breath]

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.