How Tyranny Came to America *........ Joseph Sobran
One of the great goals of education is to initiate the
young into the conversation of their ancestors; to enable them to
understand the language of that conversation, in all its subtlety, and
maybe even, in their maturity, to add to it some wisdom of their own.
The modern American educational system no longer teaches
us the political language of our ancestors. In fact our schooling helps
widen the gulf of time between our ancestors and ourselves, because much
of what we are taught in the name of civics, political science, or
American history is really modern liberal propaganda. Sometimes this is
deliberate. Worse yet, sometimes it isn’t. Our ancestral voices have
come to sound alien to us, and therefore our own moral and political
language is impoverished. It’s as if the people of England could no
longer understand Shakespeare, or Germans couldn’t comprehend Mozart
and Beethoven.
So to most Americans, even those who feel oppressed by
what they call big government, it must sound strange to hear it said, in
the past tense, that tyranny "came" to America. After all, we
have a constitution, don’t we? We’ve abolished slavery and
segregation. We won two world wars and the Cold War. We still
congratulate ourselves before every ballgame on being the Land of the
Free. And we aren’t ruled by some fanatic with a funny mustache who
likes big parades with thousands of soldiers goose-stepping past huge
pictures of himself.
For all that, we no longer fully have what our
ancestors, who framed and ratified our Constitution, thought of as
freedom — a careful division of power that prevents power from
becoming concentrated and unlimited. The word they usually used for
concentrated power was consolidated — a rough synonym for fascist. And
the words they used for any excessive powers claimed or exercised by the
state were usurped and tyrannical. They would consider the modern
"liberal" state tyrannical in principle; they would see in it
not the opposite of the fascist, communist, and socialist states, but
their sister.
If Washington and Jefferson, Madison, and Hamilton could
come back, the first thing they’d notice would be that the federal
government now routinely assumes thousands of powers never assigned to
it — powers never granted, never delegated, never enumerated. These
were the words they used, and it’s a good idea for us to learn their
language. They would say that we no longer live under the Constitution
they wrote. And the Americans of a much later era — the period from
Cleveland to Coolidge, for example — would say we no longer live even
under the Constitution they inherited and amended.
I call the present system "Post–Constitutional
America." As I sometimes put it, the U.S. Constitution poses no
serious threat to our form of government.
What’s worse is that our constitutional illiteracy
cuts us off from our own national heritage. And so our politics
degenerates into increasingly bitter and unprincipled quarrels about who
is going to bear the burdens of war and welfare.
I don’t want to sound like an oracle on this subject.
As a typical victim of modern public education and a disinformed citizen
of this media-ridden country, I took a long time — an embarrassingly
long time — to learn what I’m passing on. It was like studying
geometry in old age, and discovering how simple the basic principles of
space really are. It was the old story: In order to learn, first I had
to unlearn. Most of what I’d been taught and told about the
Constitution was misguided or even false. And I’d never been told some
of the most elementary things, which would have saved me a tremendous
amount of confusion.
The Constitution does two things. First, it delegates
certain enumerated powers to the federal government. Second, it
separates those powers among the three branches. Most people understand
the secondary principle of the separation of powers. But they don’t
grasp the primary idea of delegated and enumerated powers.
Consider this. We have recently had a big national
debate over national health care. Advocates and opponents argued long
and loud over whether it could work, what was fair, how to pay for it,
and so forth. But almost nobody raised the basic issue: Where does the
federal government get the power to legislate in this area? The answer
is: Nowhere. The Constitution lists 18 specific legislative powers of
Congress, and not a one of them covers national health care.
As a matter of fact, none of the delegated powers of
Congress — and delegated is always the key word — covers Social
Security, or Medicaid, or Medicare, or federal aid to education, or most
of what are now miscalled "civil rights," or countless public
works projects, or equally countless regulations of business, large and
small, or the space program, or farm subsidies, or research grants, or
subsidies to the arts and humanities, or ... well, you name it, chances
are it’s unconstitutional. Even the most cynical opponents of the
Constitution would be dumbfounded to learn that the federal government
now tells us where we can smoke. We are less free, more heavily taxed,
and worse governed than our ancestors under British rule. Sometimes this
government makes me wonder: Was George III really all that bad?
Let’s be clear about one thing. Constitutional and
unconstitutional aren’t just simple terms of approval and disapproval.
A bad law may be perfectly constitutional. A wise and humane law may be
unconstitutional. But what is almost certainly bad is a constant
disposition to thwart or disregard the Constitution.
It’s not just a matter of what is sometimes called the
"original intent" of the authors of the Constitution. What
really matters is the common, explicit, unchallenged understanding of
the Constitution, on all sides, over several generations. There was no
mystery about it.
The logic of the Constitution was so elegantly simple
that a foreign observer could explain it to his countrymen in two
sentences. Alexis de Tocqueville wrote that "the attributes of the
federal government were carefully defined [in the Constitution], and all
that was not included among them was declared to remain to the
governments of the individual states. Thus the government of the states
remained the rule, and that of the federal government the
exception."
The Declaration of Independence, which underlies the
Constitution, holds that the rights of the people come from God, and
that the powers of the government come from the people. Let me repeat
that: According to the Declaration of Independence, the rights of the
people come from God, and the powers of the government come from the
people. Unless you grasp this basic order of things, you’ll have a
hard time understanding the Constitution.
The Constitution was the instrument by which the
American people granted, or delegated, certain specific powers to the
federal government. Any power not delegated was withheld, or
"reserved." As we’ll see later, these principles are
expressed particularly in the Ninth and Tenth Amendments, two crucial
but neglected provisions of the Constitution.
Let me say it yet again: The rights of the people come
from God. The powers of government come from the people. The American
people delegated the specific powers they wanted the federal government
to have through the Constitution. And any additional powers they wanted
to grant were supposed to be added by amendment.
It’s largely because we’ve forgotten these simple
principles that the country is in so much trouble. The powers of the
federal government have multiplied madly, with only the vaguest
justifications and on the most slippery pretexts. Its chief business now
is not defending our rights but taking and redistributing our wealth. It
has even created its own economy, the tax economy, which is parasitical
on the basic and productive voluntary economy. Even much of what passes
for "national defense" is a kind of hidden entitlement
program, as was illustrated when President George Bush warned some
states during the 1992 campaign that Bill Clinton would destroy jobs by
closing down military bases. Well, if those bases aren’t necessary for
our defense, they should be closed down.
Now of course nobody in American politics, not even the
most fanatical liberal, will admit openly that he doesn’t care what
the Constitution says and isn’t going to let it interfere with his
agenda. Everyone professes to respect it — even the Supreme Court.
That’s the problem. The U.S. Constitution serves the same function as
the British royal family: it offers a comforting symbol of tradition and
continuity, thereby masking a radical change in the actual system of
power.
So the people who mean to do without the Constitution
have come up with a slogan to keep up appearances: they say the
Constitution is a "living document," which sounds like a
compliment. They say it has "evolved" in response to
"changing circumstances," etc. They sneer at the idea that
such a mystic document could still have the same meanings it had two
centuries ago, or even, I guess, sixty years ago, just before the
evolutionary process started accelerating with fantastic velocity. These
people, who tend with suspicious consistency to be liberals, have
discovered that the Constitution, whatever it may have meant in the
past, now means — again, with suspicious consistency — whatever
suits their present convenience.
Do liberals want big federal entitlement programs? Lo,
the Interstate Commerce Clause turns out to mean that the big federal
programs are constitutional! Do liberals oppose capital punishment? Lo,
the ban on "cruel and unusual punishment" turns out to mean
that capital punishment is unconstitutional! Do liberals want abortion
on demand? Lo, the Ninth and Fourteenth Amendments, plus their
emanations and penumbras, turn out to mean that abortion is nothing less
than a woman’s constitutional right!
Can all this be blind evolution? If liberals were more
religious, they might suspect the hand of Providence behind it! This
marvelous "living document" never seems to impede the liberal
agenda in any way. On the contrary: it always seems to demand, by a
wonderful coincidence, just what liberals are prescribing on other
grounds.
Take abortion. Set aside your own views and feelings
about it. Is it really possible that, as the Supreme Court in effect
said, all the abortion laws of all 50 states — no matter how
restrictive, no matter how permissive — had always been
unconstitutional? Not only that, but no previous Court, no justice on
any Court in all our history — not Marshall, not Story, not Taney, not
Holmes, not Hughes, not Frankfurter, not even Warren — had ever been
recorded as doubting the constitutionality of those laws. Everyone had
always taken it for granted that the states had every right to enact
them.
Are we supposed to believe, in all seriousness, that the
Court’s ruling in Roe v. Wade was a response to the text of the
Constitution, the discernment of a meaning that had eluded all its
predecessors, rather than an enactment of the current liberal agenda?
Come now.
And notice that the parts of this "living
document" don’t develop equally or consistently. The Court has
expanded the meaning of some of liberalism’s pet rights, such as
freedom of speech, to absurd lengths; but it has neglected or even
contracted other rights, such as property rights, which liberalism is
hostile to.
In order to appreciate what has happened, you have to
stand back from all the details and look at the outline. What follows is
a thumbnail history of the Constitution.
In the beginning the states were independent and
sovereign. That is why they were called "states": a state was
not yet thought of as a mere subdivision of a larger unit, as is the
case now. The universal understanding was that in ratifying the
Constitution, the 13 states yielded a very little of their sovereignty,
but kept most of it.
Those who were reluctant to ratify generally didn’t
object to the powers the Constitution delegated to the federal
government. But they were suspicious: they wanted assurance that if
those few powers were granted, other powers, never granted, wouldn’t
be seized too. In The Federalist, Hamilton and Madison argued at some
length that under the proposed distribution of power the federal
government would never be able to "usurp," as they put it,
those other powers. Madison wrote soothingly in Federalist No. 45 that
the powers of the federal government would be "few and
defined," relating mostly to war and foreign policy, while those
remaining with the states would be "numerous and indefinite,"
and would have to do with the everyday domestic life of the country. The
word usurpation occurs numberless times in the ratification debates,
reflecting the chief anxiety the champions of the Constitution had to
allay. And as a final assurance, the Tenth Amendment stipulated that the
powers not "delegated" to the federal government were
"reserved" to the separate states and to the people.
But this wasn’t enough to satisfy everyone.
Well-grounded fears persisted. And during the first half of the
nineteenth century, nearly every president, in his inaugural message,
felt it appropriate to renew the promise that the powers of the federal
government would not be exceeded, nor the reserved powers of the states
transgressed. The federal government was to remain truly federal, with
only a few specified powers, rather than "consolidated," with
unlimited powers.
The Civil War, or the War Between the States if you
like, resulted from the suspicion that the North meant to use the power
of the Union to destroy the sovereignty of the Southern states. Whether
or not that suspicion was justified, the war itself produced that very
result. The South was subjugated and occupied like a conquered country.
Its institutions were profoundly remade by the federal government; the
United States of America was taking on the character of an extensive,
and highly centralized, empire. Similar processes were under way in
Europe, as small states were consolidated into large ones, setting the
stage for the tyrannies and gigantic wars of the twentieth century.
Even so, the three constitutional amendment ratified
after the war contain a significant clause: "Congress shall have
power to enforce this article by appropriate legislation." Why is
this significant? Because it shows that even the conquerors still
understood that a new power of Congress required a constitutional
amendment. It couldn’t just be taken by majority vote, as it would be
today. If the Congress then had wanted a national health plan, it would
have begun by asking the people for an amendment to the Constitution
authorizing it to legislate in the area of health care. The immediate
purpose of the Fourteenth Amendment was to provide a constitutional
basis for a proposed civil rights act.
But the Supreme Court soon found other uses for the
Fourteenth Amendment. It began striking down state laws as
unconstitutional. This was an important new twist in American
constitutional law. Hamilton, in arguing for judicial review in
Federalist No. 78, had envisioned the Court as a check on Congress,
resisting the illicit consolidation or centralization of power. And our
civics books still describe the function of checks and balances in terms
of the three branches of the federal government mutually controlling
each other. But in fact, the Court was now countermanding the state
legislatures, where the principle of checks and balances had no meaning,
since those state legislatures had no reciprocal control on the Court.
This development eventually set the stage for the convulsive Supreme
Court rulings of the late twentieth century, from Brown v. Board of
Education to Roe v. Wade.
The big thing to recognize here is that the Court had
become the very opposite of the institution Hamilton and others had had
in mind. Instead of blocking the centralization of power in the federal
government, the Court was assisting it.
The original point of the federal system was that the
federal government would have very little to say about the internal
affairs of the states. But the result of the Civil War was that the
federal government had a great deal to say about those affairs — in
Northern as well as Southern states.
Note that this trend toward centralization was occurring
largely under Republican presidents. The Democrat Grover Cleveland was
one of the last great spokesmen for federalism. He once vetoed a modest
$10,000 federal grant for drought relief on grounds that there was no
constitutional power to do it. If that sounds archaic, remember that the
federal principle remained strong long enough that during the 1950s, the
federal highway program had to be called a "defense" measure
in order to win approval, and federal loans to college students in the
1960s were absurdly called "defense" loans for the same
reason. The Tenth Amendment is a refined taste, but it has always had a
few devotees.
But federalism suffered some serious wounds during the
presidency of Woodrow Wilson. First came the income tax, its
constitutionality established by the Sixteenth Amendment; this meant
that every U.S. citizen was now, for the first time, directly
accountable to the federal government. Then the Seventeenth Amendment
required that senators be elected by popular vote rather than chosen by
state legislators; this meant that the states no longer had their own
representation in Congress, so that they now lost their remaining
control over the federal government. The Eighteenth Amendment,
establishing Prohibition, gave the federal government even greater
powers over the country’s internal affairs. All these amendments were
ominous signs that federalism was losing its traditional place in the
hearts, and perhaps the minds, of Americans.
But again, notice that these expansions of federal power
were at least achieved by amending the Constitution, as the Constitution
itself requires. The Constitution doesn’t claim to be a "living
document." It is written on paper, not rubber.
In fact the radicals of the early twentieth century
despaired of achieving socialism or communism as long as the
Constitution remained. They regarded it as the critical obstacle to
their plans, and thought a revolution would be necessary to remove it.
As The New Republic wrote: "To have a socialist society we must
have a new Constitution." That’s laying it on the line!
Unfortunately, the next generation of collectivists
would be less candid in their contempt for the federal system. Once they
learned to feign devotion to the Constitution they secretly regarded as
obsolete, the laborious formality of amendment would no longer be
necessary. They could merely pretend that the Constitution was on their
side. After Franklin Roosevelt restaffed the Supreme Court with his
compliant cronies, the federal government would be free to make up its
own powers as it went along, thanks to the notion that the Constitution
was a malleable "living document," whose central meaning could
be changed, and even reversed, by ingenious interpretation.
Roosevelt’s New Deal brought fascist-style central
planning to America — what some call the "mixed economy" but
Hilaire Belloc called the Servile State — and his highhanded approach
to governance soon led to conflict with the Court, which found several
of his chief measures unconstitutional. Early in his second term, as you
know, Roosevelt retaliated by trying to "pack" the Court by
increasing the number of seats. This power play alienated even many of
his allies, but it turned out not to be necessary. After 1937 the Court
began seeing things Roosevelt’s way. It voted as he wished; several
members obligingly retired; and soon he had appointed a majority of the
justices. The country virtually got a new Constitution.
Roosevelt’s Court soon decided that the Tenth
Amendment was a "truism," of no real force. This meant that
almost any federal act was ipso facto constitutional, and the powers
"reserved" to the states and the people were just leftovers
the federal government didn’t want, like the meal left for the jackals
by the satisfied lion. There was almost no limit, now, on what the
federal government could do. In effect, the powers of the federal
government no longer had to come from the people by constitutional
delegation: they could be created by simple political power.
Roosevelt also set the baneful precedent of using
entitlement programs, such as Social Security, to buy some people’s
votes with other people’s money. It was both a fatal corruption of
democracy and the realization of the Servile State in America. The class
of voting parasites has been swelling ever since.
So the New Deal didn’t just expand the power of the
federal government; that had been done before. The New Deal did much
deeper mischief: it struck at the whole principle of constitutional
resistance to federal expansion. Congress didn’t need any
constitutional amendment to increase its powers; it could increase its
own powers ad hoc, at any time, by simple majority vote.
All this, of course, would have seemed monstrous to our
ancestors. Even Alexander Hamilton, who favored a relatively strong
central government in his time, never dreamed of a government so
powerful.
The Court suffered a bloody defeat at Roosevelt’s
hands, and since his time it has never found a major act of Congress
unconstitutional. This has allowed the power of the federal government
to grow without restraint. At the federal level, "checks and
balances" has ceased to include judicial review.
This is a startling fact, flying as it does in the face
of the familiar conservative complaints about the Court’s
"activism." When it comes to Congress, the Court has been
absolutely passive. As if to compensate for its habit of capitulation to
Congress, the Court’s post–World War II "activism" has
been directed entirely against the states, whose laws it has struck down
in areas that used to be considered their settled and exclusive
provinces. Time after time, it has found "unconstitutional"
laws whose legitimacy had stood unquestioned throughout the history of
the Republic.
Notice how total the reversal of the Court’s role has
been. It began with the duty, according to Hamilton, of striking down
new seizures of power by Congress. Now it finds constitutional virtually
everything Congress chooses to do. The federal government has assumed
myriads of new powers nowhere mentioned or implied in the Constitution,
yet the Court has never seriously impeded this expansion, or rather
explosion, of novel claims of power. What it finds unconstitutional are
the traditional powers of the states.
The postwar Court has done pioneering work in one
notable area: the separation of church and state. I said
"pioneering," not praiseworthy. The Court has consistently
imposed an understanding of the First Amendment that is not only
exaggerated but unprecedented — most notoriously in its 1962 ruling
that prayer in public schools amounts to an "establishment of
religion." This interpretation of the Establishment Clause has
always been to the disadvantage of Christianity and of any law with
roots in Christian morality. And it’s impossible to doubt that the
justices who voted for this interpretation were voting their
predilections.
Maybe that’s the point. I’ve never heard it put
quite this way, but the Court’s boldest rulings showed something less
innocent than a series of honest mistakes. Studying these cases and
others of the Court’s liberal heyday, one never gets the sense that
the majority was suppressing its own preferences; it was clearly
enacting them. Those rulings can be described as wishful thinking run
amok, and touched with more than a little arrogance. All in all, the
Court displayed the opposite of the restrained and impartial temperament
one expects even of a traffic-court judge, let alone a Supreme Court.
It’s ironic to recall Hamilton’s assurance that the
Supreme Court would be "the least dangerous" of the three
branches of the federal government. But Hamilton did give us a shrewd
warning about what would happen if the Court were ever corrupted: in
Federalist No. 78 he wrote that "liberty can have nothing to fear
from the judiciary alone, but would have everything to fear from its
union with either of the other [branches]." Since Franklin
Roosevelt, as I’ve said, the judiciary has in effect formed a union
with the other two branches to aggrandize the power of the federal
government at the expense of the states and the people.
This, in outline, is the constitutional history of the
United States. You won’t find it in the textbooks, which are required
to be optimistic, to present degeneration as development, and to treat
the successive pronouncements of the Supreme Court as so many oracular
revelations of constitutional meaning. A leading liberal scholar,
Leonard Levy, has gone so far as to say that what matters is not what
the Constitution says, but what the Court has said about the
Constitution in more than 400 volumes of commentary.
This can only mean that the commentary has displaced the
original text, and that "We the People" have been supplanted
by "We the Lawyers." We the People can’t read and understand
our own Constitution. We have to have it explained to us by the
professionals. Moreover, if the Court enjoys oracular status, it can’t
really be criticized, because it can do no wrong. We may dislike its
results, but future rulings will have to be derived from them as
precedents, rather than from the text and logic of the Constitution. And
notice that the "conservative" justices appointed by
Republican presidents have by and large upheld not the original
Constitution, but the most liberal interpretations of the Court itself
— notably on the subject of abortion, which I’ll return to in a
minute.
To sum up this little constitutional history. The
history of the Constitution is the story of its inversion. The original
understanding of the Constitution has been reversed. The Constitution
creates a presumption against any power not plainly delegated to the
federal government and a corresponding presumption in favor of the
rights and powers of the states and the people. But we now have a sloppy
presumption in favor of federal power. Most people assume the federal
government can do anything it isn’t plainly forbidden to do.
The Ninth and Tenth Amendments were adopted to make the
principle of the Constitution as clear as possible. Hamilton, you know,
argued against adding a Bill of Rights, on grounds that it would be
redundant and confusing. He thought it would seem to imply that the
federal government had more powers than it had been given. Why say, he
asked, that the freedom of the press shall not be infringed, when the
federal government would have no power by which it could be infringed?
And you can even make the case that he was exactly right. He understood,
at any rate, that our freedom is safer if we think of the Constitution
as a list of powers rather than as a list of rights.
Be that as it may, the Bill of Rights was adopted, but
it was designed to meet his objection. The Ninth Amendment says:
"The enumeration in the Constitution of certain rights shall not be
construed to deny or disparage others retained by the people." The
Tenth says: "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."
Now what these two provisions mean is pretty simple. The
Ninth means that the list of the people’s rights in the Constitution
is not meant to be complete — that they still have many other rights,
like the right to travel or to marry, which may deserve just as much
respect as the right not to have soldiers quartered in one’s home in
peacetime. The Tenth, on the other hand, means that the list of powers
"delegated" to the federal government is complete — and that
any other powers the government assumed would be, in the Framers’
habitual word, "usurped."
As I said earlier, the Founders believed that our rights
come from God, and the government’s powers come from us. So the
Constitution can’t list all our rights, but it can and does list all
the federal government’s powers.
You can think of the Constitution as a sort of antitrust
act for government, with the Ninth and Tenth Amendments at its core. It’s
remarkable that the same liberals who think business monopolies are
sinister think monopolies of political power are progressive. When they
can’t pass their programs because of the constitutional safeguards,
they complain about "gridlock" — a cliché
that shows they miss the whole point of the enumeration and separation
of powers.
Well, I don’t have to tell you that this way of
thinking is absolutely alien to that of today’s politicians and
pundits. Can you imagine Al Gore, Dan Rostenkowski, or Tom Brokaw having
a conversation about political principles with any of the Founding
Fathers? If you can, you must have a vivid fantasy life.
And the result of the loss of our original political
idiom has been, as I say, to invert the original presumptions. The
average American, whether he has had high-school civics or a degree in
political science, is apt to assume that the Constitution somehow
empowers the government to do nearly anything, while implicitly limiting
our rights by listing them. Not that anyone would say it this way. But
it’s as if the Bill of Rights had said that the enumeration of the
federal government’s powers in the Constitution is not meant to deny
or disparage any other powers it may choose to claim, while the rights
not given to the people in the Constitution are reserved to the federal
government to give or withhold, and the states may be progressively
stripped of their original powers.
What it comes to is that we don’t really have an
operative Constitution anymore. The federal government defines its own
powers day by day. It’s limited not by the list of its powers in the
Constitution, but by whatever it can get away with politically. Just as
the president can now send troops abroad to fight without a declaration
of war, Congress can pass a national health care program without a
constitutional delegation of power. The only restraint left is political
opposition.
If you suspect I’m overstating the change from our
original principles, I give you the late Justice Hugo Black. In a 1965
case called Griswold v. Connecticut, the Court struck down a law
forbidding the sale of contraceptives on grounds that it violated a
right of "privacy." (This supposed right, of course, became
the basis for the Court’s even more radical 1973 ruling in Roe v.
Wade, but that’s another story.) Justice Black dissented in the
Griswold case on the following ground: "I like my privacy as well
as the next [man]," he wrote, "but I am nevertheless compelled
to admit that government has a right to invade it unless prohibited by
some specific constitutional provision." What a hopelessly muddled
— and really sinister — misconception of the relation between the
individual and the state: government has a right to invade our privacy,
unless prohibited by the Constitution. You don’t have to share the
Court’s twisted view of the right of privacy in order to be shocked
that one of its members takes this view of the "right" of
government to invade privacy.
It gets crazier. In 1993 the Court handed down one of
the most bizarre decisions of all time. For two decades, enemies of
legal abortion had been supporting Republican candidates in the hope of
filling the Court with appointees who would review Roe v. Wade. In
Planned Parenthood v. Casey, the Court finally did so. But even with
eight Republican appointees on the Court, the result was not what the
conservatives had hoped for. The Court reaffirmed Roe.
Its reasoning was amazing. A plurality opinion — a
majority of the five-justice majority in the case — admitted that the
Court’s previous ruling in Roe might be logically and historically
vulnerable. But it held that the paramount consideration was that the
Court be consistent, and not appear to be yielding to public pressure,
lest it lose the respect of the public. Therefore the Court allowed Roe
to stand.
Among many things that might be said about this ruling,
the most basic is this: The Court in effect declared itself a third
party to the controversy, and then, setting aside the merits of the two
principals’ claims, ruled in its own interest! It was as if the
referee in a prizefight had declared himself the winner. Cynics had
always suspected that the Court did not forget its self-interest in its
decisions, but they never expected to hear it say so.
The three justices who signed that opinion evidently
didn’t realize what they were saying. A distinguished veteran
Court-watcher (who approved of Roe, by the way) told me he had never
seen anything like it. The Court was actually telling us that it put its
own welfare ahead of the merits of the arguments before it. In its
confusion, it was blurting out the truth.
But by then very few Americans could even remember the
original constitutional plan. The original plan was as Madison and
Tocqueville described it: State government was to be the rule, federal
government the exception. The states’ powers were to be "numerous
and indefinite," federal powers "few and defined." This
is a matter not only of history, but of iron logic: the Constitution
doesn’t make sense when read any other way. As Madison asked, why
bother listing particular federal powers unless unlisted powers are
withheld?
The unchecked federal government has not only overflowed
its banks; it has even created its own economy. Thanks to its exercise
of myriad unwarranted powers, it can claim tens of millions of
dependents, at least part of whose income is due to the abuse of the
taxing and spending powers for their benefit: government employees,
retirees, farmers, contractors, teachers, artists, even soldiers. Large
numbers of these people are paid much more than their market value
because the taxpayer is forced to subsidize them. By the same token,
most taxpayers would instantly be better off if the federal government
simply ceased to exist — or if it suddenly returned to its
constitutional functions.
Can we restore the Constitution and recover our freedom?
I have no doubt that we can. Like all great reforms, it will take an
intelligent, determined effort by many people. I don’t want to sow
false optimism.
But the time is ripe for a constitutional
counterrevolution. Discontent with the ruling system, as the 1992 Perot
vote showed, is deep and widespread among several classes of people:
Christians, conservatives, gun owners, taxpayers, and simple believers
in honest government all have their reasons. The rulers lack legitimacy
and don’t believe in their own power strongly enough to defend it.
The beauty of it is that the people don’t have to
invent a new system of government in order to get rid of this one. They
only have to restore the one described in the Constitution — the
system our government already professes to be upholding. Taken
seriously, the Constitution would pose a serious threat to our form of
government.
And for just that reason, the ruling parties will be
finished as soon as the American people rediscover and awaken their
dormant Constitution.
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