There’s a war for that

The United States of America was born out a war for freedom from what was perceived as an oppressive government. The Constitution of the United States which “constituted” — in other words, created — our country, was deliberately written to try to ensure our new government did not develop into one just as oppressive as that from which we’d just fought and died to free ourselves.

At the end of the constitutional convention — the birthplace of the Constitution — a woman supposedly asked Benjamin Franklin something to the effect of,

So, doctor, what kind of government have you all given us?

Franklin’s pithy reply was, “A republic, if you can keep it.”

Another of the Founders, Thomas Jefferson, had some doubts as to whether or not we could keep it. He must have been quite the cantankerous old dude, because he allegedly believed, among other things, that the United States should have a new Revolution approximately every 20 years. He also warned his fellow citizens that,

The price of freedom is eternal vigilance.

Unfortunately, we have not been vigilant.

More accurately, we have been cowards. Though Lincoln first forged the modern all-controlling nation-from-which-there-is-no-escape, the modern anti-libertarian, anti-individualist, anti-constitutional government pretty much started in the 1930s, when Franklin D. Roosevelt, angry that the United States Supreme Court actually did their job, defended the Constitution, and refused to allow him to appropriate more power to himself and Congress than that Constitution allowed, tried to dilute the Court’s power by “packing” it with Justices he hoped would be more favorable to his abrogation of constitutional limitations. The court-packing attempt failed to achieve its immediate goal, but scared the shit out of the Court, which feared losing its power and thus abandoned the Constitution it had sworn to protect.

As the Founders knew would happen, once the system of checks and balances on concentrated power in the federal government were destroyed, the government continued to grow.

Individual rights, of necessity, shrank.

The government usurps its power through the clever picking and choosing of which parts of the Constitution to quote. Forgetting the limitations placed upon it by the “enumerated powers” and the absence of a general police power, everything today is done “for the general welfare” — a phrase that appears in the Preamble to the Constitution.

This phrase should be understood in light of the entire Constitution. Imagine I tell you that, in order to provide for the general welfare of my pets, I’m giving you the key to my house while I’m away for the weekend, and then I clarify that I’m leaving food on the counter in the kitchen, along with emergency numbers for the vet, etc. Upon my return, I find that you’ve spread kitty litter all over because you thought the cats felt constrained by their small litter box, taken money from my private stash you discovered to purchase them “better food,” and that you called the vet, made an appointment, and then took my dog to be neutered because you thought that would be the best thing for his welfare in the long run. I doubt I — or anyone else — is going to believe that I’d given you permission to do those things. I suspect I’d be quite upset with you.

So, too, should we understand that the Preamble to the Constitution is not meant to suggest that the enumerated powers ceded, along with restrictions, were in fact unlimited. But the recognition of a limited government would require us to take a more libertarian view, which means less power for those in government.

So that just isn’t going to happen.

Thus for years, despite the fact that in a free country grounded on a Constitution such as ours most of what we do should be nobody’s business, our government has poked itself into everyone’s business. Nor do our laws and agencies and police units do so in any kind of measured or restrained way, taking care for not to trample the specific rights further protected — after governmental power was already limited by the main body of the Constitution — by our Bill of Rights. No, it is an all-out war.

Using, or supporting those who use, recreational drugs? Well, there’s a war for that — the War on Drugs. Frankly, this should be no business of the government. People should be able to make their own choices, even if those choices may be bad for them.

Don’t have a job? Don’t want a job, because the only ones you’re qualified for are “beneath you” or don’t pay you what you want? There’s a war for that — the War on Poverty.

Bought stock in Boeing, or General Dynamics, or any of a large number of other companies of the military-industrial complex? Maybe an oil company or two? Never fear, we’ve plenty of wars for that!

And now, it comes to this:

The Obama administration and congressional Democrats have adopted a view of virtually unlimited government power that is clearly contrary to the Founders’ vision of a constitutionally limited government. In their vision, government roams the countryside fixing problems — any problems. Having trouble paying your mortgage? Don’t worry, the federal government will help you. Your local school not doing a good job? The federal government will be there to help. Don’t have health insurance? The federal government will make you buy it. As Rep. Pete Stark (D., Calif.) told constituents, “the federal government can do most anything.” (Michael D. Tanner, “Democrats: The Constitution is ‘Weird'” (September 29, 2010) via Cato Institute, emphasis added.)

Meanwhile, as the government continues to grow into an ever-larger and more-difficult-to-manage beast, our “original intent” Justices on the United States Supreme Court continue to rubber-stamp the usurpation of power started in the 1930s, with rare and temporary exceptions for criminal defendants.

It’s funny that a vague phrase like “for the general welfare” can be interpreted so widely as to allow the government such unlimited power. Yet the more specific language of, say, the Fourth Amendment, is twisted beyond recognition to avoid having it do exactly what it was meant to do: limit the government.

The real reason this happens is because the United States no longer actually follows the Constitution. It simply plays with the words. The primary use of the Constitution these days, if it has one at all, is to provide electioneering politicians with a lot of sound and fury which, in the end, signifies nothing.

Don’t take my word for it, though, listen to what our own leaders say.

The Constitution, with all its messy checks and balances and its attempt to limit government to only certain “enumerated powers,” is little more than a nuisance. “I don’t worry about the Constitution,” if it gets in the way of passing legislation, Rep. Phil Hare (D., Ill.) told a town-hall meeting. And Rep. James Clyburn (D., S.C.), the third-highest-ranking Democrat in the House, proudly told Fox News, “There’s nothing in the Constitution that says that the federal government has anything to do with most of the stuff we do.” (Tanner, supra.)

It’s strange to see such honesty combined with a lack of integrity. Congress — and the President — have taken oaths to defend the Constitution. Instead they ignore it.

This nation, which fought a war to break away from an over-reaching, too-powerfully-intrusive government, and established a Constitution to try to ensure it would never happen again, finds itself right back where it started.

I suspect there’s a war for that.

About Rick Horowitz:
Rick is a criminal defense attorney with an office in Fresno, California. He also writes Probable Cause: The Legal Blog with the Really Low Standard of Review.
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3 Comments

  1. Dark Phoenix
    Posted May 4, 2011 at 9:55 am | Permalink

    I would say the problem here is less that the US Government is violating the Constitution, and more they’re having trouble (or intentionally not caring) identifying what the government should be responsible for and what they shouldn’t. Things like universal health care and welfare should most definitely be run by the government, because they’re one of the few organizations large enough to handle such large projects.

  2. Posted May 4, 2011 at 10:30 am | Permalink

    Giving the reasons why they’re violating the Constitution, or explaining how they’re violating the Constitution doesn’t provide evidence for your idea that they’re not violating the Constitution.

    And your comments about universal health care and welfare assume that these programs “should” exist. The question isn’t whether government is “one of the few organizations large enough to handle such large projects.” When it comes to freedom, the question is “should we be taking money from some people and redistributing it to others in the form of universal health care and welfare?”

    Your comment assumes, without arguing, that libertarianism (which is what we write about here) is wrong, that these things should be done, and that big government is the only group that can do it.

  3. Dark Phoenix
    Posted May 5, 2011 at 12:41 am | Permalink

    Maybe I’m just blind, but I only see two options: either the government regulates things, or it’s left to the free market to decide. I’d say in the case of universal health care, the latter has failed miserably.