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Posts Tagged ‘original intent’

Why Does America Have a Written Constitution?

Recently I spent some time with a person I respect highly, who is very intelligent, and who has thought about and reached conclusions concerning America’s Constitution.  This person, who is representative of many others, believes that a document written hundreds of years ago is meaningless in today’s America.  He cited the fact that many of the Framers were slave owners, they could not have imagined a nation of hundreds of millions, they could not foresee the technologically rich environment we call home, or the diverse population that now constitutes the body politic.

None of the things cited above can be refuted because they are all true.

First of all, what is a constitution?  A constitution organizes, distributes and regulates the power of the state.  A constitution sets out the structure of the state, the major state institutions, and the principles governing their relations with each other and with the state’s citizens.

So, why do we have a written Constitution, and does this written Constitution still matter?

When the American Revolutionaries broke free from Great Britain they wanted to build their new nation on a solid foundation.  They most assuredly did not want what they had just rebelled against, a monarchy or an unlimited government.

Did the British have a constitution? In the Eighteenth Century just as it is now Britain is unusual in that it has an ‘unwritten’ constitution: unlike the great majority of countries there is no single legal document which sets out in one place the fundamental laws outlining how the state works. Britain’s lack of a ‘written’ constitution can be explained by its history. In other countries, many of whom have experienced revolution or regime change, it has been necessary to start from scratch or begin from first principles, constructing new state institutions and defining in detail their relations with each other and their citizens. By contrast, the British Constitution has evolved over a long period of time, reflecting the relative stability of the British polity. It has never been thought necessary to consolidate the basic building blocks of this order in Britain. What Britain has instead is an accumulation of various statutes, conventions, judicial decisions and treaties which collectively can be referred to as the British Constitution. It is thus more accurate to refer to Britain’s constitution as an ‘uncodified’ constitution, rather than an ‘unwritten’ one.

The British Constitution can be summed up in eight words: What the monarch in Parliament enacts is law. This means that Parliament, using the power of the Crown, enacts law which no other body can challenge. Parliamentary sovereignty is commonly regarded as the defining principle of the British Constitution. This is the ultimate lawmaking power vested in a democratically elected Parliament to create or abolish any law. Other core principles of the British Constitution are often thought to include the rule of law, the separation of government into executive, legislative, and judicial branches, and the existence of a unitary state, meaning ultimate power is held by ‘the center’ – the sovereign Westminster Parliament.  In other words there is neither check upon nor balance to the power of the government.  The entire shape, form, and substance of the government can change at any time by a simple majority vote of Parliament.  To sum up: the British Constitution is a living document.

This is what caused the revolution.  If you look at the list of particulars that are in the overlooked or forgotten part of the Declaration of Independence you see that many of these individual charges against the Monarch as the representation of the government are changes made by arbitrary and unilateral acts of Parliament.

  • He has refused his Assent to Laws, the most wholesome and necessary for the public good.
  • He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.
  • He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.
  • He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.
  • He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.
  • He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time (sic) exposed to all the dangers of invasion from without, and convulsions within.
  • He has endeavoured (sic) to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.
  • He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.
  • He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.
  • He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.
  • He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.
  • He has affected to render the Military independent of and superior to the Civil power.
  • He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

 

  • For Quartering large bodies of armed troops among us
  • For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States
  • For cutting off our Trade with all parts of the world
  • For imposing Taxes on us without our Consent
  • For depriving us in many cases, of the benefits of Trial by Jury
  • For transporting us beyond Seas to be tried for pretended offences
  • For abolishing the free System of English Laws in a neighbouring (sic) Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies
  • For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments
  • For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever

 

 

  • He has abdicated Government here, by declaring us out of his Protection and waging War against us.
  • He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people.
  • He is at this time transporting large Armies of foreign Mercenaries to compleat (sic) the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.
  • He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.
  • He has excited domestic insurrections amongst us, and has endeavoured (sic) to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

The colonists tried to follow the procedures as they knew them to find relief within the system.  But they were ignored and baffled as the system kept changing.  They describe their experience dealing with the shifting sands of their revered living document in the following words.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our Brittish (sic) brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

It was because of this failed effort to deal with a system that has no solid structure, a system that can change at the will of a simple majority that the Framers were determined to set our new nation on the solid rock of a written constitution.  What did the Founders and Framers have to say?

George Washington said, “The basis of our political systems is the right of the people to make and to alter their constitutions of government. But the Constitution, which at any time exists, ‘till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all. … If in the opinion of the people the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed.”

Thomas Jefferson said, “Our peculiar security is in possession of a written Constitution. Let us not make it a blank paper by construction. … If it is, then we have no Constitution.”

James Madison said, “Can it be of less consequence that the meaning of a Constitution should be fixed and known, than a meaning of a law should be so?”

This is what we were founded upon and this is the philosophical underpinning for the originalist view of the constitution as championed by the late Supreme Court Justice Antonin Scalia.

What do the leading lights of the living document side of the argument have to say?

Woodrow Wilson said, “Living political constitutions must be Darwinian in structure and in practice. Society is a living organism and must obey the laws of life, not of mechanics; it must develop.  All that progressives ask or desire is permission—in an era when ‘development,’ ‘evolution,’ is the scientific word—to interpret the Constitution according to the Darwinian principle; all they ask is recognition of the fact that a nation is a living thing and not a machine.”

FDR said, “The United States Constitution has proved itself the most marvelously elastic compilation of rules of government ever written.”

Supreme Court Justice Felix Frankfurter said, “The words of the Constitution … are so unrestricted by their intrinsic meaning or by their history or by tradition or by prior decisions that they leave the individual Justice free, if indeed they do not compel him, to gather meaning not from reading the Constitution but from reading life.”

Supreme Court Justice Thurgood Marshall said, “I cannot accept this invitation [to celebrate the bicentennial of the Constitution], for I do not believe that the meaning of the Constitution was forever ‘fixed’ at the Philadelphia Convention … To the contrary, the government they devised was defective from the start.”

Supreme Court Justice Antonin Scalia summed up the end result of more than a century of Progressive constitutional stretching.  “If we’re picking people to draw out of their own conscience and experience a ‘new’ Constitution, we should not look principally for good lawyers. We should look to people who agree with us. When we are in that mode, you realize we have rendered the Constitution useless.”

Or to put it another way the Progressive’s living document has gone a long way to changing the Constitution from something carved in stone to a mirage written in the sand.  So why do we have a written constitution?  In my opinion we need a written constitution so that the government cannot change the social contract with the wave of its hand or the passage of thousand page bills no one even reads.

So why do we have a written constitution?

To keep demagogues and tyrants from arbitrarily changing the rules by which we live.  If you think this has worked see my book The Constitution Failed.  As a professor of Political Science and as the Director of one of the largest Political Science Departments at any university I have long advocated that the study of the Constitution should be moved from Political Science to History because it has become merely an historical document and now has little to do with how our country is administered by the political class.

Does it still matter?  Only if the citizens of this nation have the fortitude to rise up and demand that it matters.

Keep the faith.  Keep the peace.  We shall overcome.

Dr. Owens teaches History, Political Science, and Religion.  He is the Historian of the Future @ http://drrobertowens.com © 2016 Contact Dr. Owens drrobertowens@hotmail.com  Follow Dr. Robert Owens on Facebook or Twitter @ Drrobertowens / Edited by Dr. Rosalie Owens

 

 

We Need More of Moore

The Ninth Amendment to the Constitution states that, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

This past Sunday Chris Wallace interviewed Alabama Chief Justice Roy Moore.  Chief Justice Moore is once again in the news for standing up for the rule of law, limited government, and the viability of the Constitution as a meaningful document as opposed to a Living Document that means whatever the nine black robed oligarchs say it means.

This happened once before.  Back in 2000 he was elected to the position as Alabama’s top jurist on the promise that he would restore the moral foundations of the law in Alabama.  Several months later he made good on that promise when he set a Ten Commandments monument in the rotunda of the Alabama Judicial Building.  He was promptly sued in federal district court by the Southern Poverty Law Center, the American Civil Liberties Union and Americans United for the Separation of Church and State who complained that the Chief Justice’s actions were an unconstitutional “establishment of religion.”

The lawyers had charged the Chief Justice with illegally establishing “religion.”   But what religion was he trying to establish?  That remained a mystery since these aggrieved lawyers also argued that the court should not define the term “religion.” The federal district court judge, Myron Thompson, agreed with their argument refusing to render a definition of “religion.” Judge Thompson nevertheless found the Chief Justice guilty of establishing that which he himself could not define and ordered the monument removed.

The Chief Justice refused to comply with this order.  Chief Justice Moore said, “The entire judicial system of the State of Alabama is established in the Alabama constitution invoking the favor and guidance of almighty God. The 10th amendment of the United States Constitution prohibits federal courts from interfering with that power to establish a judicial system. They have no power, no authority no jurisdiction to tell the State of Alabama that we cannot acknowledge God as the source of our law.”

At least in Alabama the Chief Justice did not stand alone.  Another man elected by the voters of the State, Governor Bob Riley said, “I have a deep and abiding belief that there is nothing wrong or unconstitutional about the public display of the Ten Commandments and disagree with the court’s mandate to remove them.”

And yet this representative of the people of Alabama was removed from the Alabama Supreme Court in November 2003. A state ethics panel unanimously decided to remove him from the bench owing to his refusal to follow judicial rulings.

That was then.  This is now.

In 2015 the courageous Chief Justice Moore (he was re-elected in 2012) has ordered probate judges in his state to ignore a Supreme Court ruling allowing same-sex marriages to go forward over the state’s constitutional ban.  Once again the Chief Justice is standing up for State sovereignty against a judicial system that believes they can make law.  This time the battle is over gay marriage.  The Alabama Constitution as amended in 2006 by Amendment 774, the Alabama Sanctity of Marriage Amendment, makes it unconstitutional for the state to recognize or perform same-sex marriages or civil unions.  This amendment was approved by 81% of the voters.  On January 23, 2015, Chief Judge on the United States District Court for the Southern District of Alabama, Callie V. Grenade, issued a ruling striking down Alabama’s ban on same-sex marriage as violations of the Fourteenth Amendment’s guarantees of equal protection and due process.

This brings us to the aforementioned interview of Chief Justice Moore by Chris Wallace on his Sunday Fox television program.

Chris Wallace seemed baffled by Chief Justice Moore’s arguments as if he had never heard such things before.  When he questioned how anyone could dispute a ruling of a Federal Judge, Chief Justice Moore replied, “When federal courts start changing our Constitution by defining words that are not even there, like marriage, they’re going to do the same thing with family in the future,” Moore declared.  The Chief Justice went on to say, “When a word’s not in the Constitution, clearly the powers of the Supreme Court do not allow them to redefine words and seize power. 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. This power over marriage which came from god under our organic law is not to be redefined by the United States Supreme Court or any federal court.”

The look on Mr. Wallace’s face was one of bewilderment.

To support his argument that the words of Federal Judges are final Mr. Wallace appealed to President Obama who stated in an interview with Buzzfeed News about this controversy saying, “When federal law is in conflict with state law, federal law wins out.”

The Chief Justice answered, “I’d like to tell President Obama that he’s entirely correct, federal law does trump state law,” Moore said. “But what this Harvard professor who is president of the United States does not understand, is that a trial court’s decision on the constitutionality of a federal question is just that — it’s an opinion. It may be law of the case before her. It is not overturning the Alabama constitution. Federal law is not made by judges.”

Mr. Wallace looked at the Chief Justice as if he were speaking a foreign language.  I believe that the reason for this disconnect is not merely Mr. Wallace’s.  It is shared by many who have had the benefit of America’s progressive education.   It has been drummed into generations of Americans that the opinion of judges about the meaning of the Constitution, and not the Constitution itself, is the law of the land. For them, whether conservative or liberal they have an allegiance to the judiciary rather than to the Constitution and the laws enacted pursuant to it.

A still apparently amazed Wallace then accused Moore of being “a little fuzzy” on whether state judges would have to adhere by a SCOTUS ruling in favor of allowing same-sex marriage.

To which Chief Justice Moore replied, “State courts are bound by the ruling of the Supreme Court,” Moore replied. “But when a strict interpretation of the Constitution…is abandoned in the theoretical opinion of individuals are allowed to control its meaning, we have no longer a Constitution. We’re under the government of individual men who for the time being declared what the Constitution is according to their own views.”

As if saying something is the same as proving something Mr. Wallace replied, When Mr. Wallace stated that, “When the Supreme Court Rules, It Rules.”

However, there is a fundamental principle of constitutional law that most Americans have never been taught.  According to the Constitution Congress, and Congress alone, has the power to make law.  According to the Constitution Federal Courts have the power only to apply law in particular cases and controversies. Yet in the face of the clear language of the Constitution, most Americans who have been progressively indoctrinated over several generations blindly repeat the platitude as if it is common knowledge that courts make law.

An error that flows from this false view that courts have the power to make law is the belief that the law is not what the Constitution says but rather what judges say about the Constitution. Through a distortion of the common law principles of precedent and stare decisis, a court’s holding in a particular case is converted into a law binding on all persons within the court’s jurisdiction and all inferior courts. The proper use of the principles of precedent and stare decisis is that holdings in past court decisions serve as a compelling guide in subsequent proceedings, but they do not bind unless they are themselves consistent with the law.

We have come to the place where the Progressives want to ignore the clear language of the Constitution as in the Second Amendment protection of citizens to own and carry guns.  At the same time these same big government statists demand that citizens submit to decisions carrying the weight of law based on the partisan interpretations of words which are found nowhere in the document such as Privacy and Marriage.

The Tenth Amendment to the Constitution states that, “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.”

With a vision of State Sovereignty, individual liberty, personal freedom and economic opportunity framed by the ninth and tenth amendments to the Constitution. Looking at the current crop of right and left wing Progressives and the coming crop of potential right and left wing Progressives my only reaction is, “We need more of Moore.”

Dr. Owens teaches History, Political Science, and Religion. He is the Historian of the Future @ http://drrobertowens.com © 2015 Contact Dr. Owens drrobertowens@hotmail.com Follow Dr. Robert Owens on Facebook or Twitter @ Drrobertowens / Edited by Dr. Rosalie Owens

 

Is the Necessary and Proper Clause either Necessary or Proper?

I want to begin by saying that I believe the Preamble to the Declaration of Independence and the Constitution, with the Bill of Rights included, comprise the most enlightened, ennobling, and beneficial documents ever penned by the hand of man. I also believe that the Constitution afforded the United States the greatest level of freedom and opportunity ever experienced by humanity. This freedom and opportunity in turn released the talents and abilities of the American people to build the greatest nation ever to exist, rising from thirteen states exhausted and impoverished from years of war into a prosperous and powerful nation which by the end of the twentieth century stood upon the world stage as the uncontested sole superpower.

Simplicity is the essence of genius while over-simplification is the essence of fraud. In a picture perfect example of the truism “The victors write history” what we have been taught concerning the writing and ratification of the Constitution is actually a politically slanted version of the truth. This highly patrician account is also an example of over-simplification.

We are taught that the Articles of Confederation were an abject failure because they were too weak. Shay’s Rebellion scared the venerable leaders who had led and won the Revolution. George Washington and Co. came back from retirement to once again save the nation writing an “almost” divinely inspired document. There was only token dissent to the immediate acceptance of this tablet from the mount by some shadowy unknown people collectively called the “Anti-Federalists.” However after some well-written articles by future leaders called the Federalists, We the People overwhelmingly voted for ratification and the Constitution immediately ushered in the blessings of liberty and opportunity for all rescuing the United States from anarchy and stagnation. Amen.

This is a thumb-nail sketch of what our thumb-nail sketch type history education once delivered as gospel in American public schools. Today, those lucky enough to live in a school district that still includes American History are instead treated to the progressive’s litany of American crimes and debauchery. However, as our constitutionally limited government exceeds all previous limits, is either of these offerings good enough? Americans from all walks of life watch in stunned disbelief as the Federal Government on steroids swallows the economy, health care, the financial system, major manufacturing, the insurance industry, and anything else that doesn’t move fast enough to get out of the way. Can the States themselves be far behind?

How did this come about? How did a government born in the shackles provided by a written constitution designed to limit its power swell into the all-powerful OZ?

Quite simply it was through the deception of the Progressives evolving our Constitution from a rock-solid framework limited to what it actually said to a living document that is constantly being re-interpreted. Thus without amendment, without debate, without a vote our leaders have nudged us from land of liberty to the centrally-planned surveillance state which today sends the IRS after their enemies, leaves our borders open, our opportunities closed, and our sons and daughters manning hundreds of garrisons around the world.

One of the key tools in this century long quest to transform America has been the use of the so-called elastic clauses in the Constitution. One major clause used to accomplish this is found in Article I, Section 8, Clause 18 which states, “The Congress shall have Power To …make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

There are several ways to look at this clause and its meaning. First we need to look at what is called “Original Intent,” or what those who wrote the clause meant. Then we will look at what those who ratified the Constitution thought it meant. Finally we will look at how the Progressives interpret and re-interpret their favorite clause.

The necessary and proper clause was added to the Constitution by the Committee of Detail with no debate. Nor was it the subject of any debate during the remainder of the Convention. The reason why this clause was neither attacked nor defended during the Convention becomes clear from the statements of the Framers during the ratification process. James Wilson, one of the most eloquent defenders of the Constitution, a signer of the Constitution, and one of the first justices of the Supreme Court, said that this clause gave the federal government no more or other powers than those already enumerated in Section 8 of Article I and that “It is saying no more than that the powers we have already particularly given, shall be effectually carried into execution.” The Framers felt as if the clause was merely saying that which had been delegated could be used.

During the ratification debates this clause was a hot topic. Brutus proclaimed that through the Necessary and Proper Clause “This government is to possess absolute and uncontrollable power, legislative and judicial, with respect to every object to which it extends…” the debate raged back and forth between the Federalists and the Anti-Federalists in newspapers, pamphlets, and on the floor of the ratification conventions. Eventually the Federalists won the day and the Constitution was ratified. The result? The interpretation of this clause that was generally accepted by the ratification conventions was that it added no new or expandable powers to the federal government.

Since the New Deal era, Progressives have argued that the Necessary and Proper Clause expands the powers of the federal government to any it deems necessary and proper. In other words the federal government has all the power necessary to do whatever they want about anything they want. The executive department has been using this clause to grab power since Hamilton used it to found the First bank of the United States in 1791. The Supreme Court has been stretching this clause since they ruled in Mcculloch v. Maryland, 17 U.S. 316 (1819) to give themselves the power of judicial review. This expansionist interpretation has been upheld by the Supreme Court on numerous occasions and is today the accepted opinion amongst the political-media-corporate establishment.

It is my belief that if we have a better understanding of where we came from and how we got here that we would have a better understanding of where we are. If we understand where we are perhaps we will see the way to get back to where we wanted to go when we started: back to a limited government of the people, by the people and for the people.

Knowing how a simple clause meant to say that what had been delegated could be used has evolved into near totalitarian power shows us that just as the present use of the Necessary and Proper Clause is neither necessary nor proper.  And thus a government of the people, for the people and by the people has been hijacked and become something else.

No matter what we have been taught, no matter even what the reality was the reality is that the Constitution replaced the Articles of Confederation as the supreme law of the land. The announced purpose of the Constitution’s writing and adoption was to provide a limited government which respected both the rights of the States and the people. Since this was the stated and accepted purpose of the Constitution after two centuries and several decades can We the People deny any longer that it has failed?

Failing and failure are two different things. Everyone who has ever succeeded has failed. It is falling forward from that failure which ultimately brings success. If the Constitution has failed what do we do now? Where’s the reset button.

Dr. Owens teaches History, Political Science, and Religion.  He is the Historian of the Future @ http://drrobertowens.com © 2013 Robert R. Owens drrobertowens@hotmail.com  Follow Dr. Robert Owens on Facebook or Twitter @ Drrobertowens / Edited by Dr. Rosalie Owens

 

The Great Civil Debate

It is admitted by all except the liberal media and left-wing ideologues jockeying for political and partisan advantage, neither the tenor nor the content of our public discourse had any bearing upon the tragedy in Tucson.  Nevertheless there have been calls for a return to civility in our speech.  I heartily second that motion, believing as I do that civility should always be the hallmark of discussion among ladies and gentleman.  However, that is not the topic of this discourse.

I seek to call my fellow Americans not to a more civil debate but to The Great Civil Debate.  This is the debate we need if we’re to move beyond the gridlock of right versus left, the vitriol of Democrat versus Republican, and the hysteria of a coming conservative authoritarianism or a looming socialist one.  The debate I’m calling for is not an innovation in American History.  Instead it’s a re-play of a previous event and the sequel to our preliminary event: the debate over the ratification of the Constitution.  What we need now is a debate over the relevance of the Constitution with regard to the actions of the Federal Government. 

From the day the Constitution was signed, September 17, 1787 to the day it was ratified June 21, 1788, this country rang with the impassioned speeches and stirring essays of both the opponents and the proponents of this our founding document.  Today is the day and now is the time for the debate to once again stir the hearts of the nation, will we have a limited government, personal liberty and free enterprise or are we going to have something else?  There’s no greater admirer of the United States Constitution then the author of this article.  None can be found who gives more veneration to the Framers or who pays more attention to its words.

However, after 222 years there’s no one more convinced that we’ve reached an historical impasse.  The Constitution is still in force.  It has been amended twenty seven times, but it has not been supplanted.  Yet, it’s all but ignored by the Federal Government.  Our continually expanding federal bureaucracy tips its hat to the commerce clause or uses the elastic necessary and proper clause as a political fig leaf to do whatever they want.  This being the current situation this article is in fact an intervention.  It’s well known that until a problem is recognized there’s no hope for a solution.  Therefore, since every other commentator I’m aware of dances around the 800 pound gorilla in the middle of the room, I’ll acknowledge the obvious and take the afore-mentioned primate as my dancing partner and say what must be said: the Constitution has failed.

This is not to say that it is a flawed document, a vehicle for ulterior motives, or that it has always been a failure.  This is not to say that I’m offering or advocating for a replacement.  As I mentioned earlier, there is no greater admirer of the United States Constitution then the author of this article.  What I do mean to say is that this great document which birthed and sustained a limited government for more than two hundred years has now become effectively irrelevant.

The proof for this sad statement can be seen in the unguarded rhetoric of the movers and shakers of our now unlimited government.  When asked where in the Constitution a warrant for mandated health care could be found one congressman answers, “I don’t worry about the Constitution.”  Another congressman  says, “There’s nothing in the Constitution that says that the federal government has anything to do with most of the stuff we do. It means what we say it means.”  When asked a question about the constitutionality of health care legislation former Speaker of the House Nancy Pelosi’s response is, “Are you serious?” 

And we have a President who writes that the Constitution is not “…static but rather a living document, and must be read in the context of an ever-changing world.”  No wonder a liberal pundit finds it odd that a candidate for Congress would promise to consider the constitutionality of legislation saying, “that certainly isn’t the job of Congress. They should just pass whatever they want and let the courts worry about it later.”  These examples are joined by volumes of others, which show that not only is the Constitution irrelevant to these leaders it has become so accepted as irrelevant that they no longer even have to pay lip service to the integrity of the document they’ve sworn to uphold and defend.

We need a reset button.  We need to return to limited government.  But how do we get there from here?  The Tenth Amendment which 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” has been emasculated through court rulings.  The legal system has moved from original intent to precedent.  From what the words mean to what can we say the words mean.  This tsunami of change is led by the Progressives who believe that we need to evolve past the ideas and procedures devised and set down by the Framers and create a New America. A transformed America founded not on the equality of opportunity but on the equality of outcome.  These big government leaders in both parties seek not mere equal justice for all but social justice, not free enterprise but central planning.

This intervention sadly begins with the assessment based upon the current reality that the Constitution has failed.  However, it ends on a note of hope.  We’re the descendants of the Pioneers, the offspring of the Framers, and we can do this.  We can find a way within the legal framework of the Constitution itself to press that reset button.  We can solve this problem, because we’re Americans and we’re a can-do, get-it-done people.  But if we refuse to admit there’s a problem we’ll be doomed to suffer silently in the shadows as our beloved city on the hill becomes a lost dream in the twilight of freedom.  Instead let’s start The Great Civil Debate. How can we restore limited government, ensure liberty and revitalize free enterprise?  How can we get there from here?  Keep the faith.  Keep the peace.  We shall overcome.

Dr. Owens teaches History, Political Science, and Religion for Southside Virginia Community College.  He is the author of the History of the Future @ http://drrobertowens.com View the trailer for Dr. Owens’ latest book @ http://www.youtube.com/watch?v=_ypkoS0gGn8 © 2011 Robert R. Owens dr.owens@comcast.net  Follow Dr. Robert Owens on Facebook.