A Constitution If We Can Keep It

The Supreme Court never ventured into the issues of redistribution of wealth and more basic issues of political and economic justice in society.  …  It didn’t break free from the essential constraints that were placed by the Founding Fathers in the Constitution, at least as it’s been interpreted.  … the Constitution is a charter of negative liberties, says what the states can’t do to you, says what federal government can’t do to you, but doesn’t say what the state and federal governments must do on your behalf.   Barack Obama in a 2001 Chicago Public Radio interview.

At least in this part of the quote, Mr. Obama was entirely correct.  As readers of WWTFT have seen throughout the week, the Founders did their best to protect the people from the tyranny of the federal government.  They tried to strike a delicate balance between a confederation too weak to command the respect of powerful European powers, or even to fund itself, and a government with so much power that the rights of the people and their freedom would be in jeopardy.  The result was remarkably successful for many decades.  While, as one Founder observed, no document made by man could be expected to be perfect, the Constitution is an amazingly succinct and elegant bit of work, never equaled before or since.

The foundation of our system of government is based upon general principles, rather than endless lists of laws attempting to define every behavior.  What are some of these principles?

1.  The Constitution is the supreme law of the land.  The concept of judicial review was soon established (Marbury vs. Madison) in support of this principle.
2. The power of the federal government only consists of that which is expressly delegated to it by the States and people.  Power is not assumed.  One reason why the framers did not initially include a Bill of Rights was because they thought it was unnecessary and even dangerous to do so.  After all, if the Constitution did not permit an action, then by expressly prohibiting it, perhaps it could be inferred that ONLY those rights listed in such a Bill were the province of the people.
3. Natural rights aren’t granted by the government.  They are inherent in the people.  The government derives its power from people, not the people from the government.
4. As Barack Obama stated, the Constitution doesn’t make guarantees.  What it does do, is explicitly stipulate the responsibilities of the government.  Today it seems like the government wants to do everything but what it is responsible for.
5. Montesquieu’s concept of the separation of power, rather than legislative supremacy, was built into the very fabric of the government laid out by the Constitution.  No branch of government was to be more powerful than the other two.  The checks and balances stipulated by the Constitution were then for the purpose of maintaining a constant tension between them.

The Constitution of The United States is not a “living document” nor is it a “dead document,” neither is it perfect.  It is a set of general principles upon which our country is founded, and which included a mechanism for changing itself to fit the times.  Those who advocate for a “living constitution” are either deluded or out to destroy it.  While the Founders recognized that the Constitution might require amending from time to time, they did not want this process to be undertaken lightly.  A society cannot function where the rule of law is in doubt, constantly changing to suit the whims of the day.  There were those who felt so strongly about this, that they insisted on a Bill of Rights to make sure that future interpretations would not usurp the power of the people.  To counter the arguments of those who thought that the Bill of Rights would imply that the government delegates rights, they added the ninth and tenth amendments.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

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.

However, as Marcia pointed out earlier this week, The Constitution Cannot Save Us.  The system has some essential prerequisites, one of these is a good balance between the three branches.  They are all supposed to keep each other in check.  Unfortunately, corruption in Congress, and apathy among a people corrupted by entitlements, have resulted in the balance of power swinging wildly to the Executive Branch.  A strong argument may be made that when Congress enacted the Budget and Accounting Act of 1921, they in essence, amended the Constitution by enacting a law.  This law transferred significant budgetary authority to the Executive Branch.

SEC. 201. The President shall transmit to Congress on the first day of each regular session, the Budget, which shall set forth in summary and in detail:
(a) Estimates of the expenditures and appropriations necessary in his judgment for the support of the Government for the ensuing fiscal year; except that the estimates for such year for the Legislative Branch of the Government and the Supreme Court of the United Spates shall be transmitted to the President on or before October 15th of each year, and shall be included by him in the Budget without revision; …

The Constitution is pretty clear about which branch of government should hold the purse strings and originate all expenditures ( Article 1, Section 9).

However, one need not go back so far to find other examples of the degradation of Congressional power.  President Obama has clearly stated his willingness to selectively enforce the nation’s laws.  In a recent speech to the Congressional Hispanic Caucus Institute, speaking about his frustration with Congress’ unwillingness to pass the Dream Act he said:

You know as well as anyone that…how we enforce those laws is also important.

He’s demonstrated his belief through unilateral changes to immigration law enforcement.  His administration announced that the government will not initiate deportations against illegal aliens unless they have committed serious crimes.  Obama explained that the policy will “prioritize criminals who endanger our communities, not students trying to achieve the American dream.”

In a July 2011 speech to La Raza, Obama admitted that he found the prospect of bypassing Congress to be “very tempting.”  In reality he has succumbed to that temptation multiple times by exercising executive fiat and ignoring the rulings of the federal courts on everything from oil drilling to ObamaCare.

With each passing year, our government bastardizes it’s founding principles to a greater degree.  Hoards of unelected bureaucrats who answer to no one but the executive, implement regulations which have the force of law.  The rulings of the courts are ignored, and the Executive Branch assumes more and more power as Congress devolves, led by hoards of despicably corrupt politicians who’s highest goal is reelection.

The checks and balances in the Constitution were put there to prevent tyranny.  We should remember what Hamilton said in Federalist 30, “… however moderate or unambitious we may be, we cannot count upon the moderation, or hope to extinguish the ambition of others.”

Ambition, however, takes many forms. Even more dangerous than the accumulation of power for personal gain is ambition in thrall to ideology. The intent to “fundamentally transforming  the United States of America”  expressed by candidate Obama is clear.  We  decide if we are going to let him finish the job.