In considering the pork laden spending bill wending its way through Congress, and the arguments for and against its passage, I have come to the conclusion that the U.S. Government is unconstitutional. I came to this conclusion based on two propositions. First, the Constitution is a contract between the people, the individual states and the federal government. Second, the Constitution is the supreme law of the land. (Article VI) trumping both rulings of the courts and the doctrine of legal precedent.
The current mislabeled “economic stimulus package” is only the latest example of how far we, as a nation, have moved from the principles of government set forth in our founding documents.
The first words in the first article of the Constitution say, “All legislative Powers herein granted shall be vested in a Congress of the United States”. However, most of the laws that impinge on our individual liberties did not originate in the Congress. For the most part, they originated from the bench of activist courts or one of the myriad of government bureaucracies that sprang up during the twentieth century.
Furthermore, the Judicial and Legislative Branches are not alone in abusing their powers to override the Constitution. For years, the Executive Branch, in complicity with special interest groups and the courts, has been using its vast bureaucracies to implement laws it could never get passed through the Legislature. These new laws are implemented through the “rule-making” powers of the various Executive Departments and Executive Orders.
During his first week in office, President Obama signed a series of executive orders, most of them to counter those signed by previous Presidents, especially George Bush. Executive orders are legitimate insofar as they technically apply only to those departments under the control of the Executive Branch. The problem is, their effects reach into every nick and corner of our society, not just to those people and companies directly working in the Executive Branch. As such, they are de facto laws.
It could be argued the rules promulgated by the various Executive Departments and bureaus are constitutional because their rule making powers where given to them by Congress. The truth is, Congress delegated these legislative powers to the bureaucracies for political reasons. Many of the rules established by bureaucratic decree, would be political suicide for members of Congress should they attempt to implement them directly through legislation.
Furthermore, the Constitution does not give Congress the authority to delegate its powers to another branch of government. The only possible exception is found in Article II, Section 2, “but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”
This brings us to the departments themselves, most of which are unconstitutional. The Department of Education, for example, has no basis in the Constitution. Education is not one of the enumerated powers delegated to the Congress. Neither is the Department of Energy, or the Department of Health and Human Services. The same thing could be said for many of the smaller departments of government and the quasi-government departments. The National Endowment for the Arts is another good example.
Regarding the Arts, the Constitution is very specific as to the proper role of government. Article 1, Section 8 assigns to the Congress the power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Throughout history, financial support for the arts has been provided by “patrons of the arts”. In a capitalist society, good art will prosper while bad art, like bad manufactured products will fall by the wayside. Under the Constitution, neither should be subsidized with taxpayer money.
It is obvious that all three braches of government operate outside the constraints of the Constitution. That being the case, it cannot be said that the government as it is presently run is a constitutional government. In addition, when government abandons the Constitution it no longer can make claim to being “a government of laws, not of men” since the Constitution is the foundation of all other laws.
If we are not governed by law, the only option is to be governed by force of arms. That is the direction we are heading unless we somehow reform the government to follow the Constitution. This is by no means an original observation. It was expressed by Thomas Jeffers almost two hundred years ago. Jefferson did not have the bureaucracies to contend with that we have today. In his day, the biggest threat to the Constitution was the edicts of rouge judges with lifetime appointments. However, the dangers to our liberties are the same. In a letter written July 2, 1822 to William Barry, Jefferson issued a warning that applies as much today as it did then.
“We already see the power, installed for life, responsible to no authority (for impeachment is not even a scare-crow), advancing with a noiseless and steady pace to the great object of consolidation. The foundations are already deeply laid by their decisions, for the annihilation of constitutional State rights, and the removal of every check, every counterpoise to the ingulphing power of which themselves are to make a sovereign part. If ever this vast country is brought under a single government, it will be one of the most extensive corruption, indifferent and incapable of a wholesome care over so wide a spread of surface. This will not be borne, and you will have to choose between reformation and revolution. If I know the spirit of this country, the one or the other is inevitable.”
This dire warning to William Barry could just as well be written to any one of us alive today. We would do well to take into account his advice in the next sentence.
“Before the canker is become inveterate, before its venom has reached so much of the body politic as to get beyond control, remedy should be applied.”