ZGram - 11/26/2004 - "Sobran: How Tyranny Came to America" _
Part V -
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Mon Nov 22 07:00:19 EST 2004
Zgram - Where Truth is Destiny: Now more than ever!
November 22, 2004
Good Morning from the Zundelsite:
[START]
How Tyranny Came to America - Part V
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.
=====
[END]
* New 73 minute DVD just released which details CAFE's Battle for
Freedom and Justice for Ernst Zundel.
http://www.zundelsite.org/zundel_persecuted/video/index.html
* Sample sketch of more than 100 drawings made by Ernst Zundel in
prison. Take a look at
http://www.zundelsite.org/gallery/donations/index.html
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