Often in discussions with conservatives I hear calls for us to return to constitutional principles, and a certainty that if this happened, all would be well. The Constitution was a marvelous construction of political balance. I fear, however, that pining for a document so shredded in so many ways, is silly and futile.
Congress is preparing to grant the District of Columbia a voting representative in the House of Representatives. The Constitution explicitly defines members of the House and that does not include representatives of federal districts or territories - - but Congress will do this anyway. Soon enough, I suspect, there will be two senators from the District of Columbia as well, even though the single way in which the Constitution may never even be amended is by depriving each state of its equal representation in the Senate, which that would do.
The “Necessary and Proper” clause of Article I is routinely stretched to infinite lengths so that there is almost nothing anywhere that the federal government may not do these days. This is true also of the “Interstate Commerce” clause, which was absurdly extended during the New Deal to include any activity which impacts interstate commerce (and which means almost anything.)
What Congress has not done through a self-serving power-grabbing reading of Article I has been done by the Supreme Court through its omnipotent power to “interpret the Constitution.” Do not bother reading the Constitution for this vast prerogative: it is not in the document anywhere at all. In fact, Congress may define the jurisdiction of the Supreme Court, if it wishes, although Congress has cravenly abandoned this power.
Murder is defined by state law, but through an interpretation of the Constitution which makes a Rube Goldberg machine look simple and direct by comparison, “penumbra” rights have been found which keep states from outlawing abortion. The Equal Protection Clause of the Fourteenth Amendment has been interpreted to require that the federal Bill of Rights, rather than the Bill of Rights found in each state constitution, be imposed on the states and that the unequal protection of the law through affirmative action can be mandated by law and by regulation.
The president was intended to execute the laws, but President Obama has formed his own legislative work groups and already issued executive orders which have the practical effect of law. Perhaps worse, independent regulatory agencies like the FCC make, enforce, and judge regulations - - effectively combining all three types of power in one body - - and the commissioners are intended to be free from the influence of the voter.
What we should do, instead of hunting through the strands of a broken document, is to reassert the foundational principles of America. We should look at what our Founding Fathers were trying to create in the Declaration of Independence and later in the Constitution. It is the set of principles that matter. Those principles are vanishing from our political system. What are those principles?
Limited government must be at the top of the list. Government was intended to secure ordered liberty, to protect us from foreign enemies, and to create the rudimentary tools for travel, trade, and commerce. When the role of government grows infinitely, then the powers of government will grow correspondingly.
This does not mean a society should reject charity and welfare. It does mean that these moral duties are not legal duties. Christianity and Judaism both enjoin charity strongly. Mormons, Orthodox Jews, Quakers, and many other branches of Judeo-Christian tradition, have proven to be a marvelous social safety net based upon conscience instead of coercion. What we call welfare, however, is a bottomless pit into which tax dollars, self reliance, and serious lives are lost.
Federalism is a second key principle. In 1809, state legislatures elected the United States Senate, chose the presidential electors, determined the districts of House members, approved or vetoed all constitutional amendments, and passed nearly all important legislation. These legislatures, collectively, held nearly all real political power.
When state governments controlled the election of federal politicians, the diversity and safety which came from a true federal system was protected.
Now senators are elected by the people (which, incidentally, means that men like Al Franken can steal elections through voter fraud), state legislatures have all relinquished their power to elect the president by providing that presidential electors are chosen by the people, and all practical amendments to the Constitution have come from unelected federal judges without the formality of state legislatures approving the changes.
Unfettered expression is another principle of our nation, and this is not because of the Bill of Rights, but rather because as a people saw that this freedom was vital. This right existed long before the Bill of Rights and it was protected by state governments for more than a century under state constitutional protections (the Bill of Rights did not affect state government at all until the early part of the Twentieth Century.)
Now campaign finance laws, state university speech codes, threats to re-impose the fairness doctrine, vast damage awards for “misleading” advertising (for those who never knew tobacco was harmful), and government sponsored public relations efforts swamp us. Government has a duty to “bring us together,” even at the expense of free minds and true consciences.
Those men who created a new order in the world, who wrote and signed the Declaration of Independence, intended the Constitution to be a tool of liberty and not the definition of good government. The Constitution itself is broken, probably beyond reasonable repair. It used to work, but it does not now. We should no longer be outraged when representatives from the District of Columbia vote in Congress or when Congress passes laws limited freedom of speech.
What we should do, instead, is to reassert the vital importance of those broad principles which the Constitution tried, and failed, to protect. We must demand that government do only what it must, not what it wants. We must call for a division of power in government with robust states able to resist federal power and federal power held by elected officials, not appointed judges or regulatory commissioners. We must declare that freedom of expression, especially criticism of government, can never be safely regulated by that government.
America is an idea, a magnificent idea which transformed the world. We need and we must reclaim that idea. Worry less about the letter of a Constitution which few people have ever read and whose purposes has been hopelessly misstated. Worry instead about what our foundational documents and the men who created them wanted for us: ordered liberty.
