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]

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