Transforming the Constitution

Our Savaged 'Living' Constitution

Most Americans are taught, and assume, that we still live under the Constitution of the United States. We are even told that the Constitution improves with age – that it's a “living document” whose full potential has only been realized in modern times thanks to the interpretations of the Supreme Court.

Thanks to the Court, we now know that the First Amendment protects obscenity, but forbids prayer in public schools. We know – again thanks to the Court – that we have a constitutional right to “privacy,” which means that a woman may have her child aborted without consulting or informing the father. We know that the abortion laws of all 50 states, even the most permissive, had been in violation of the Constitution.

We know, in short, that many of our moral and religious traditions are “unconstitutional” – in the eyes of our ruling elite. It seems to make no difference that most of us had no inkling that we were acting unconstitutionally until the modern Court announced the fact to us.

On the other hand, the Court finds nothing unconstitutional about the countless new powers constantly claimed by the federal government, even when these clash directly with the Bill of Rights. The Court upholds federal gun control laws, even though the Second Amendment says plainly “the right of the people to keep and bear arms shall not be infringed.”

So the Court can create “rights” that are nowhere mentioned or implied by the Constitution; and it may set aside rights that are explicitly listed in the Constitution.

It is all, of course, nonsense.

This is what the idea of a “living document” comes down to: The Court is not bound by the plain meaning of the words it interprets. It may assign unsuspected new meanings to those words, disregarding history, tradition, and the dictionary.

The Constitution was not “dead” before the modern Court went to work on it. It had been amended five times in the two decades before Franklin Roosevelt sought to change it by stealth during the New Deal. That was the fastest rate of amendment since the adoption of the Bill of Rights.

Far from being dead, the Constitution proved capable of being changed by the people themselves through the amending process the Constitution provides for in Article V. It didn't have to be subtly twisted by clever jurists bent on reading their pet notions into it.

There is no need to rehearse all the details of the great change that has occurred since Roosevelt filled the Court with his cronies. In fact, many learned constitutional scholars know the details without seeing the pattern those details form: They don't grasp that the Constitution has been stood on its head.

The clear purpose of the Constitution is to distribute power very carefully. Most powers of government are reserved to the states and the people; this is implicit throughout, but it is affirmed expressly by the Tenth Amendment, and is clear from all the ratification debates of 1789. A very few powers, carefully listed and defined, are delegated (key word!) to the federal government. These few powers, in turn, are divided among three branches of government, one of which (Congress) is further divided into two houses.

In granting new powers to the federal government, then, the framers of the Constitution were anxious to prevent power from being centralized, or (in their fearful word) “consolidated.” The idea of trusting any single man, group, or branch of government with all power was the very opposite of what they had in mind.

It is worth noting that a close modern synonym of the word “consolidated” is “fascist.” Centralization of power is the fascist – as well as the “socialist and communist” ideal. And elements of all three systems, which were sweeping Europe and Russia, helped inspire and form the New America of the New Deal.

The champions of consolidated government knew that the old Constitution was the great obstacle to their designs. They wanted to preserve the outward forms of constitutional government while emptying those forms of content, because an openly revolutionary government could not command the allegiance of the American people. So they developed the strange idea of a “living” or “evolving” Constitution that somehow became the opposite of itself and actually reversed its meaning with the passage of time.

Today the plain and original meaning of the Constitution exists only on paper, and in the minds of a shrinking number of Americans who still understand the heritage they have been robbed of. We live in what might be called post-constitutional America, where the arbitrary and purposeful misinterpretation of the Constitution has turned ours into a government of men, not laws. The doctrine of the “living document” really makes the Constitution a dead letter, a law without effect.

Does this sound gloomy? There is no need to despair. By recognizing the idea of a “living document” for the nonsense it is, we can restore the Constitution and reclaim the liberty our ancestors earned for us.

Joseph Sobran

Base Motives

The Pentagon's plan to close 33 military bases and shrink 86 more has raised howls of anguish and congressional opposition – not because it would expose the nation to military attack, but because it would eliminate tens of thousands of jobs and hurt the economies of the host communities. Some are crying that the cuts would be “unfair.”

Well, the purpose of national defense is not “fairness.” It is defense. If a base, or for that matter a single rifle, is not needed, nobody should be taxed to pay for it. Behold how “defense” has become an entitlement program. We have also become accustomed to the phrase “defense industry.” What it all means is that we are supporting a parasitic military economy that bears no relation to “the common defense of the United States” as intended by the Constitution.

The phrase “common defense” is as badly abused as the phrase “general welfare,” which was never meant to authorize “welfare” in the current sense of the word. Nobody now seriously pretends that the things referred to under the headings of “defense” and “welfare” benefit the entire population. We have come to accept them as special interests, and we're not outraged when politicians fight for them as such.

No marvel we have those deficits. The problem lies in our political ethos, the remedy for which is not another constitutional amendment – unless it's an amendment to strip the federal government of the powers to tax and to control the currency. One of the most pivotal years in American history was 1913, when the federal government acquired the constitutional authority to levy income taxes, while relieving itself of the duty of maintaining sound money by creating the Federal Reserve Bank. Yet even with the great prerogatives of confiscation and counterfeiting, it has been unable to stay in the black, because these tyrannical powers have given it the tyrant's fatal illusion that there are no limits. The illusion is all the more deadly because we haven't had a single dictator to whom responsibility may be referred: The dictatorial powers have been distributed among so many politicians that none has had to worry about taking the consequences or bearing the disgrace due to a wastrel regime.

As We Were

As the two parties in Washington quibbled about how and when to balance the budget, an article by Harold Faber in the December 31 [1995] New York Times recalled that the federal government once paid off its debts and had an actual surplus of $19 million – a lot of money in 1836. This surplus was matched the following year. What to do with it? Senator Henry Clay proposed giving the extra money back to the states.

“But,” writes Faber, “there was a serious problem – the Constitution. Disposing of surplus money was not one of the powers enumerated for Congress in the Constitution, and, in those days when the Constitution was taken far more literally than it is now, that was a major obstacle.”

Such was American life back in what might be called the constitutional era. Evidently the Commerce Clause hadn't been discovered yet, and Congress didn't realize it had unlimited power to follow its fancies. Again we find that our ancestors are strangers to us.

Faber sketches the situation: “In those simple days, before income and corporate taxes, the United States got its money from two major sources: customs duties and the sale of public lands. And there were only five categories of expenses: the Army, the Navy, pensions, payments to Indians, and miscellaneous.” Today, of course, such items as “payments to Indians” would be lost under “miscellaneous.”

The Times presented this story as a minor historical curiosity. But compared with what the Paper of Record usually deems “all the news that's fit to print,” it's a major revelation. It shows how deeply the ethos of limited government was ingrained in the people and the politicians in those days of innocence (not to be confused with naivete).

Try to imagine today's Congress deliberating so conscientiously. Try to imagine Alphonse D'Amato and Robert Byrd in the same room with Clay and Calhoun. In 1836 Congress had little taxing power and was too scrupulous to debase the currency, yet it still ran a $19 million surplus. Today Congress can tax every falling sparrow and has elevated inflation to the status of tradition, but has nevertheless run up a debt of $5 trillion.

The Constitution is to today's federal government what the Book of Revelation is to the Unitarian Church. Of course Unitarian ministers don't pretend they're being faithful to Scripture.

It's not just that the Constitution was read more “literally” in the old days, though it was. An even more basic difference was that the federal government hadn't yet assumed the monopoly of interpretation it now enjoys. Everyone still understood that the Constitution was “We the, People” speaking to the federal government, telling it both its powers and its limits. “We the People” carefully “enumerated” the powers which had been “granted” or “delegated” to the government we had created, specifying that all other powers were “reserved” to the states or to the people themselves. If Congress couldn't cite chapter and verse for any power it chose to exercise, that power was “usurped,” and the line between legitimate authority and tyranny had been crossed.

For the federal government to be the sole or final interpreter of its own commission would have been absurd – and dangerous. It would mean that the government could add to its own powers by disingenuous construction. And that is exactly what happened. By the twentieth century it had become true that the Constitution meant whatever the Supreme Court said it meant. And with the New Deal it turned out to “mean” that Congress could grab any power it chose to claim under, say, the interstate commerce provision. The usurpation of power became routine.

What's more, the Court, after World War II, also began to strip the states of their reserved power under the application of the Bill of Rights via the totally specious “incorporation” doctrine of the Fourteenth Amendment. Instead of defending the peopIe's rights agajnst the federal government, the Court was now accusing the states of violating them – whether by segregating the races, sponsoring school prayer, inflicting the death penalty, or banning abortion. Hundreds of legitimate state laws were struck down, while Congress passed hundreds of unconstitutional laws that went unchallenged by the Court.

All this in turn meant that instead of obeying the Constitution, the federal government was now pretending to enforce it; that instead of preventing federal usurpations of power, the Constitution itself had become the instrument and pretext of federal usurpation.

The point can be put another way. The Constitution has ceased being the voice of “We the People” and has become the oracle of the federal government, which solely controls its meaning and is prepared to impute to it any absurdity necessary to maintain and enlarge federal power. “We the People” now wait passively for our alleged servants to tell us what their power, and our rights are. It shouldn't surprise us that the servants keep discovering that their constitutional powers are greater today than they were yesterday. Sometimes they also “expand” our rights, but only in the course of stripping away the reserved powers of the states. (We acquired the “right” of abortion only because the Court stole the states' power to regulate it. Roe v. Wade increased the actual ratio of federal to state power.)

The American people have supinely allowed their Constitution to be stolen from them. Almost all of them now assume that it's virtually federal property, which only the Supreme Court can interpret with authority.

But any responsible reading of the Constitution is fatal to the standard liberal interpretation of it. That interpretation is simply incoherent, for all the support it enjoys from prostitute scholars and journalists. The Constitution not only doesn't but can't mean what they want it to mean. In Federalist 41, James Madison tried to reassure his readers that federal power would be limited. Why enumerate Congress's powers in detail, he asked, if Congress was supposed to exercise a single, monolithic, consolidated power? Still, just to make sure everyone got the point, the Tenth Amendment spelled it out: any power not delegated to the federal government belonged to the states and the people.

Nobody in 1789 could have foreseen that one day Congress would claim 95 percent of its powers under a single innocuous phrase of the Commerce Clause. Such an interpretation would have been too outlandish for the most ardent advocate of strong federal government.

But outlandish interpretation, contemptuous of logic, history, plain meaning, and justice, has become the rule. And it's feasible only because the federal government gets to say what the Constitution means; because its highest court can be relied on to rule in its interests; and because the American people don't understand the whole confidence game that has taken their own Constitution out of their hands.

The situation will cease to be hopeless only when we begin to grasp how bad it really is. In the 1992 case of Planned Parenthood v. Casey, the Court reaffirmed Roe v. Wade on grounds that (according to three members of the majority) its own authority would suffer if it were to reverse that dubious ruling. In other words, the Court was treating itself as a party to the controversy and deciding in its own favor, in defiance of every principle of jurisprudence. In effect it was confessing that it couldn't afford to admit error, because its own interest was paramount; and so much the worse for truth.

In his 1798 Draft of the Kentucky Resolutions, Jefferson wrote, with his usual firm logic, that “the [federal] government created by this compact [i.e., the Constitution] was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers.” To allow the federal government such discretion, he added, “would be to surrender the form of government we have chosen, and live under one deriving its powers from its own will, and not from our authority.” “Its dominion,” he said, “would be absolute and unlimited.”

I am tempted to call Jefferson clairvoyant, but he wasn't. He was merely splendidly rational. He didn't need a crystal ball to predict where the tendency he saw must lead in the end. It would lead to us.

By simple deduction from the nature of the issue, Jefferson foresaw what most Americans can't see even in hindsight. We are so politically decadent that we have accepted as right and natural that our rulers should claim the prerogative of deciding arbitrarily what this “compact” means. It's up to them, and them alone, to say what “We the People” have authorized them to do. A sane system has been displaced by a crazy one that utterly defeats the purpose of the original. And we don't realize it was ever any different.