"Looking at the two possible
interpretations of what had happened in the United States, either that
the Constitution was being blatantly violated or that it indeed allowed
for the abusive federal government he saw, Spooner summed up my current
attitude: “But whether the Constitution really be one thing, or another,
this much is certainthat it has either authorized such a government as
we have had, or has been powerless to prevent it. In either case, it is
unfit to exist.”"
Thoughts for Constitution
Day
By
Anthony
Gregory
Monday September 17, 2012
By my reading, almost nothing the federal government does is
Constitutional. The entire national security state and empire are dubious
at best. The welfare state is unauthorized. Nothing in Article I, Section
8, the clause empowering Congress to legislate, gives that body the
general authority over education, health care, the environment, most
businesses, and most law and order issues. A strict interpretation of the
Constitution would mean the immediate abolition of the Department of
Education, the Department of Health and Human Services, the Federal
Bureau of Investigation, the Central Intelligence Agency, federal
immigration controls, the Drug Enforcement Administration, the Department
of Energy, antitrust regulation, the Food and Drug Administration, NASA,
Obamacare, Medicare, Social Security, and hundreds of other programs and
agencies.
Virtually everything that both Obama and Romney propose to do as
president is unconstitutional and therefore illegal.
Yet this seems not to matter to most Americans. And sadly, it has been
this way for a long time. In fact, the first few presidents of the United
States violated the Constitution flagrantly. Washington’s championing of
a National Bank, Adams’s Alien and Sedition Act, and Jefferson’s embargo
and Louisiana Purchase were all on very shaky ground. But the
Constitution was at least taken seriously on some theoretical level for
most of the nineteenth century. As late as the 1920s, politicians
realized they could not simply ban alcohol on the federal level without
changing the Constitution with the Eighteenth Amendment. By 1937, no such
amendment was even seriously considered for Franklin Roosevelt to ban
marijuana. And why would it? The entire New Deal was a war on the
Constitution that early on faced resistance from the Supreme Court, which
only ultimately caved and supported FDR’s power grabs.
Partisans yap about the Constitution, but I don’t think they almost ever
mean it. During the Bush administration, liberal Democrats attacked the
president for unconstitutional searches on citizens without warrants and
unconstitutionally depriving prisoners of due process rights in the war
on terror. Now that Obama has run with these programs, his comrades have
simply shut up about them. When Bush did it it was criminal. When Obama
does it it is just playing politics, you see.
Similarly, conservative Republicans talk about Obama’s many crimes
against the Constitution, yet where were they when Bush expanded
Medicare, signed No Child Left Behind, and shredded the Bill of Rights in
the undeclared war on terror? Almost everything Bush did was just as
unconstitutional as everything Obama does.
It would be easier to count the number of things Congress and the
president do that do have some Constitutional legitimacy. They fund and
run the Post Office. Senators face election contests every six years. The
federal government levies an income tax.
But this raises the question of how great the Constitution is to begin
with. It was ratified in 1789 and amended with the Bill of Rights in
1791, after years of revolution against Great Britain over centralized
authority, militarized law enforcement, and taxation. Soon after, the DC
government cracked down on tax protests and stripped American political
enemies of due process rights and the freedom of speech.
The Constitution, indeed, ushered in a far bigger, more powerful, more
easily exploitable government than had existed under the Articles of
Confederation. Founding Fathers like Patrick Henry wanted nothing to do
with it. Thomas Jefferson thought it was unnecessary. The document
created a powerful president, advocated by quasi-monarchists to resemble
the English king, a tyrannical judicial branch, and a powerful Congress
with the authority to tax, declare war, create bureaucracies, and suspend
habeas corpus, over the wishes of individual states. The so-called
Anti-Federalists saw the Constitution as a betrayal of the American
Revolution. In many ways, it was.
In short, the Constitution authorized a government worse than what
existed before, and in some ways created a system worse than what the
American colonists faced under British rule. Yet compared to the
Constitution of 1789, the current federal government is still despotic.
As I’ve said before, the Constitution is far from libertarian, but the
federal government is far from constitutional.
Lysander Spooner, probably America’s greatest nineteenth century
libertarian, was very critical of the Constitution, although believed the
worst crime against liberty in his time -- slavery -- was illegal even by
the imperfect Constitution’s standards. I guess that’s about how I
feel.
Today, many Americans would say that my particular interpretation of the
Constitution is both too cynical and too romantic. It is too cynical,
presumably, because I see the abuses of liberty so early on in the
framing of the document. It is too romantic, I suppose, because I still
think today’s government is even worse than what the Constitution
authorizes. For example, most Americans think plenty of thingsthe
president’s powers to assassinate anyone he wants, to regulate whatever
he desires, to bomb any country his heart is intent on bombing, to use
the police power to shape the economy as he wishesare perfectly
Constitutional.
Looking at the two possible interpretations of what had happened in the
United States, either that the Constitution was being blatantly violated
or that it indeed allowed for the abusive federal government he saw,
Spooner summed up my current attitude: “But whether the Constitution
really be one thing, or another, this much is certainthat it has either
authorized such a government as we have had, or has been powerless to
prevent it. In either case, it is unfit to exist.”
http://blog.independent.org/2012/09/17/thoughts-for-constitution-day/
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