This popped up on my radar: “The Constitution Has Already Been Terminated”, by John and Nisha Whitehead of The Rutherford Institute. I don’t agree with all of the authors’ stark characterizations of the ways in which Americans have lost their fundamental rights. Nor do I agree with their view that the Constitution has been “terminated”. But they have captured the momentum of events, and the Constitution is in dire straits — no doubt about it.
But I firmly disagree with this:
Unfortunately, we have done this to ourselves.
We allowed ourselves to be seduced by the false siren song of politicians promising safety in exchange for relinquished freedom. We placed our trust in political saviors and failed to ask questions to hold our representatives accountable to abiding by the Constitution. We looked the other way and made excuses while the government amassed an amazing amount of power over us, and backed up that power-grab with a terrifying amount of military might and weaponry, and got the courts to sanction their actions every step of the way. We chose to let partisan politics divide us and turn us into easy targets for the government’s oppression.
What really happened is that majorities of voters — often slim majorities — elected power-hungry politicians to office. Those politicians, in turn, empowered power-hungry bureaucracies and appointed anti-constitutional judges. The bureaucracies lived on and arrogated more and power to themselves, regardless of who was in office. Anti-constitutional judges lived on and were joined and replaced by enough anti-constitutional judges to enforce and expand anti-constitutionalism.
Realistically, it would be almost impossible for voters to overcome such obstacles and overthrow of anti-constitutionalism. (And it must be admitted that a healthy fraction of voters don’t want to do it, and another healthy fraction of them is clueless.) What has been done by presidents, Congresses, and courts would be very hard to undo. Too many interests are vested in the regulatory-welfare state that has usurped the Framers’ noble vision. Vote-selling (promises of “free stuff”) and log-rolling are more powerful than words on paper. Even a Supreme Court majority of strict constitutionalists probably would decline to roll back the New Deal and most of what has come in its wake. In any event, the Supreme Court can’t initiate cases, and the pernicious doctrine of stare decisis hasn’t yet been put to the torch.
If you want to point fingers, point them at the Framers of the Constitution. The Articles of Confederation gave real veto power to individual States. In establishing a national government of “limited and enumerated powers” the Framers underestimated the will to power that animates office-holders — elected and non-elected.
The Constitution’s wonderful design — horizontal and vertical separation of powers — which worked rather well until the late 1800s, cracked under the strain of populism, as the central government began to impose national economic regulation at the behest of muckrakers and do-gooders. The Framers’ design then broke under the burden of the Great Depression, as the Supreme Court of the 1930s (and since) has enabled the national government to impose its will in matters far beyond its constitutional remit.
The Framers’ fundamental error can be found in Madison’s Federalist No. 51. Madison was correct in this:
It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure.
But Madison then made the error of assuming that, under a central government, liberty is guarded by a diversity of interests:
[One method] of providing against this evil [is] … by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable…. [This] method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.
In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government. This view of the subject must particularly recommend a proper federal system to all the sincere and considerate friends of republican government, since it shows that in exact proportion as the territory of the Union may be formed into more circumscribed Confederacies, or States oppressive combinations of a majority will be facilitated: the best security, under the republican forms, for the rights of every class of citizens, will be diminished: and consequently the stability and independence of some member of the government, the only other security, must be proportionately increased.
Madison then went on to contradict what he had said in Federalist No. 46 about the States being a bulwark of liberty:
It can be little doubted that if the State of Rhode Island was separated from the Confederacy and left to itself, the insecurity of rights under the popular form of government within such narrow limits would be displayed by such reiterated oppressions of factious majorities that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it. In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good; whilst there being thus less danger to a minor from the will of a major party, there must be less pretext, also, to provide for the security of the former, by introducing into the government a will not dependent on the latter, or, in other words, a will independent of the society itself. It is no less certain than it is important, notwithstanding the contrary opinions which have been entertained, that the larger the society, provided it lie within a practical sphere, the more duly capable it will be of self-government. And happily for the REPUBLICAN CAUSE, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the FEDERAL PRINCIPLE.
Madison assumed (or asserted) that in creating a new national government with powers greatly exceeding those of the Confederation a majority of States would not tyrannize the minority and that a collection minorities with overlapping interests would not concert to tyrannize the majority. Madison was so anxious to see the Constitution ratified that he oversold himself and the States’ ratifying conventions on the ability of the national government to hold itself in check.
Thus the Constitution is lamentably silent on nullification and secession, which would be real checks on the power of the national government.