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.”

I was responding to the point in your post, although I admit I did so sarcastically.

My point was that a common defense is provided for in Article I, Section 8 as a legitimate part of the central (federal) government.

The states most certainly could decide most matters locally, as the Constitution and the 10th Amendment mandates, without compromising the national defense.

Your assertion that a strict interpretation of the Constitution would allow an invasion of Nazis or communists is wrong, and is a scare tactic that holds no basis in reality.

Furthermore, the steady drift away from the Constitution highlighted in the article is causing our nation to more closey resemble the hightly centralized governments of the Nazis and the communists than the constitutional republic the Founders established.

Lew Rockwell is off his rocker, 99.9% of the time. I may not like Alan Keyes, but truth be told, he was never a liberal, hence he isn't a neo-con. Of course, when it comes to the truth, Rockwell is a seriously lost soul.

I used to like Rockwell's lectures on the virtues of limited government. However, I do agree Lew Rockwell's libertarian tirades have gotten old with time. Most offensive of all is his equivocating the US to the Soviet Union as an evil empire, something all anti-war Libertarians and liberals appear to be guilty of doing. Furthermore, Joel Miller is an idiot who regularly campaigns for immorality in the forms of legalized drugs, porn, prostitution, gambling in the traditional Libertarian fashion.

On the other hand, Alan Keyes is a conservative hero. How can you disagree with him? Perhaps because he has been critical of your hero, neoconservative President George W. Bush, the Neville Chamberlain of the Republican Party, who singlehandedly unconditionally surrendered the Republican Congressional majority to his Democrap buddies, McCain, Daschle and Gephardt. I'm sorry, but I will never get over Bush's betrayal of the Republican Party's hard-won Congressional majority. The man is a traitor to his Party, pure and simple. I think all clear-eyed Republican conservatives, who are not blinded by naive and unfounded unconditional loyalty to the President have come to realize that by now.

Your assertion that a strict interpretation of the Constitution would allow an invasion of Nazis or communists is wrong, and is a scare tactic that holds no basis in reality.

Actually my assertion had nothing to do with a strict interpretation of the Constitution, which I support. It had to do with whether two or three or ten countries rather than the USA could have won WWII and the Cold War. I don't think they could have.

BTW, a strict interpretation of the Constitution does not deal with the legitimacy of seccession, because the Constitution does not deal with it. Another point the Lincoln haters ignore is that Lincoln did not attack to south. He promised to do nothing and urged them to reconsider. But he refused to surrender US bases in the South. The successionists then attacked Fort Sumter thus bringing the war on themselves. Lincoln's extra-Contstitutional action have to be seen in the light of an unprecedented war for the survival of the country.

The "war on drugs" that so many conservatives blindly subscribe to is pure liberalism diguised as conservatism. It has consumed billions.....I mean $$$$BILLIONS! Those are dollars taken from citizens in taxes. And that money is handed to law enforcement, prisons, and the legal system. Year after year. And for what??! Have they stopped the supply or consumption of drugs. NO! What a freaking waste. Well folks, that is the definition of liberalism. Tax the people...line a few folks pockets...and get nothing done for society. But the real damage is to our Constitution! And if I'm not mistaken, those who would love to see our Constitution destroyed would tend to be liberals. Not conservatives.

a strict interpretation of the Constitution does not deal with the legitimacy of seccession

I agree. That is a fault that I wish the Founders would have directly addressed.

Lincoln's extra-Contstitutional action have to be seen in the light of an unprecedented war for the survival of the country.

But look what it led to: a centralized form of government, alien to what is found in the Constitution. Sometimes I think Lincoln's cure is worse than the problem.

The Confederacy didn't lose, Billbears, it ran out of food, shoes, ammo and countless other supplies. It's military, unlike northern leaders, also did not advocate savaging enemy civilians and at no time was there any intent or attempt by the Confederacy to stage a coup. It was defending its homeland, pure and simple. Or as Pres. Davis said: "The principle for which we contend is bound to reassert itself, though it may be at another time and in another form." Amazing, isn't it, how that principle, more than 140 years later, continues to resonate with so many of Southern birth or Southern by choice?

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.

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I agree with the author about Keyes & the neo-cons.

But his underlined irrationalities about Lincoln and the 'destruction of the 10th', mystify me.

The 14th was ratifyed in 1868 to make it clear that state governments must not ignore individual rights in writing law.
-- It did not remove any 10th amendment powers from states, as the author alleges in his 'hegemony' hype. --
Amusingly, the author admits in the previous undeline that Musto observed that this federalism did not occur till very 'late' in the 1800's, which is correct.

-- Thus, -- Lincoln & the 14th had little/nothing to do with the death of states 'rights'.
The loss of these state powers had everything to do with the rise of national political parties that embraced socialist principles at both state and federal levels.

The tenth is full functional, -- but states political regimes refuse to use it to fight the feds. -- Nothing is wrong with the constitution [that can't be easily fixed]. Everything is wrong about our political process.

As the Scottish noble said in Monty Python and the Holy Grail, let's not get all bogged down in details about who killed who. Lincoln did a fair amount of damage, albeit he thought he was doing what he had to do. So did Wilson, and so did the two Roosevelts.

The article is, by and large, quite a good one. I'd take exception to diLorenzo's characterization of Dr. Keyes as a neo-con; I think he's a good solid conservative with one or two revulsions that cause him to make exceptions to strict Constitutional observance. Therein lies the rub: all of us have revulsions, or sympathies, that we think justify a departure from the strict terms of the law.

To get real, solid Constitutional fidelity from Washington today is probably beyond anyone's powers. Reagan couldn't do it, and he was about as tough as they come. Who do we hire next? Clint Eastwood? Or Ghengis Khan? Or do we settle for what we can get -- right now we've got a pretty good man at the helm, even if he's no Constitutional bulwark either -- and try to make our peace with a state of affairs that, while not what we'd want if we had our absolute free choice, still offers the individual and his "little platoons" a pretty good deal?

Tough call, really. And no, I'm not being sarcastic.

Freedom, Wealth, and Peace,
Francis W. Porretto
Visit The Palace Of Reason: http://palaceofreason.com

Actually it did. Read his book that's been discussed in depth around here, The Real Lincoln. One of the things that happened with the 14th was that it received a no vote from the Southern states (a right of the state to turn down proposed amendments), which was followed quickly by occupation and another vote to get the 'correct' response. Two northern states were so adamant against the actions of the union that they reversed their votes on the Amendment (New Jersey and one other). The new no votes of the northern states were not counted and their original yes vote was kept

Lincoln established the supremacy of federal authority over the rights of the state governments. FDR established the supremacy of federal authority over the rights of the individual.

See my last post.

The 14th established the supremacy of constitutional authority over the powers of the state governments to regulate the rights of the individual.
FDR unconstitutionaly established the supremacy of federal authority over the rights & powers delegated to the states.

And the states let him do it.

FDR unconstitutionaly established the supremacy of federal authority over the rights & powers delegated to the states.

I can see it from that perspective, too.

And the states let him do it.

I think it's more accurate to say Congress let him do it. Using creative semantics to twist the Commerce Clause, rather than having public debate, vote and ratification of amendment, he effectively bypassed letting the states have any say in the matter.

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