A WEEKLY COMMENTARY
Year Twenty-Nine ... Number Thirty-Eight ... October 1, 1982
WHAT HAPPENED TO OUR CONSTITUTION?
At the proper time in this Year of our Lord 1982, Ronald Reagan duly honored and observed a tradition that had been established by a previous President. He issued a proclamation declaring that September 15th was the 195th birthday of that great document, the Constitution of the United States of America. And he called upon Americans to rightly honor and observe the day as Constitution Day. Whereupon, we can be assured that many Americans honored the day in their own particular ways. But, we can be just as sure that no officer of the United States, either elected or appointed, actually observed the letter and the spirit of that document which they had sworn to uphold and protect as the Law of the Land and the source of our civil liberties. We have the feeling that few of our federal officers have even read it. Some who have read it have declared it to be a relic of the horse and buggy days, unfit to be regarded as law in this technocratic era. Others have said "Damn the Constitution, full speed ahead toward Social Democracy." Still others have sought that it be replaced by a new Constitution. And still others would smother it with unnecessary amendments.
We were pleasantly surprised by the way Joseph Sobran handled the subject. Sobran is a syndicated columnist with the Los Angeles Times, a daily newspaper often referred to as the West Coast Washington Post. That's a part of what made his column so unusual on this particular occasion. On the opinions page of our local five-days-a-weeker, under the heading "Not the Way the Constitution Was Written," were the words, and we quote:
"It is a favorite principle of mine that before you set out to amend the Constitution you should read it once or twice. You might even have a gander at The Federalist. The pending amendment to limit taxes and require a balanced budget is said to be a carefully weighted measure by no less an authority than Milton Friedman. Contrary to some charges, it is not at all a slap-dash attempt to apply the techniques of Procrustes to the handiwork of Publius. Even so, there is a melancholy air of second-bestness about it. One senses that the amendment tries to do by crude quantitative methods what the original Constitution did by subtle, qualitative, structural methods.
"I say 'did' because I am not at all sure we live under the same Constitution. After studying The Federalist papers, my conclusion is that we have turned the old system completely around. This is to be sure, a non-scholarly view, but I think it meets the test of common sense. In that spirit I offer my findings. The Federalist was of course a series of articles written mostly by Alexander Hamilton and James Madison under the penname 'Publius', to urge ratification and to promote understanding of the Constitution. Its basic argument is that the 13 states now (as of 1789) form a nation, and need a national government with appropriate powers: army, navy, postal system, power to conclude treaties, and so forth. Publius made his argument carefully specific. He knows he faces strong anti-federalist sentiment among people who fear a strong central government, and he wants to calm them down. He does not argue for a national government of unlimited power, but one with strong powers for carefully defined purposes -- and no others. Federal jurisdiction, he says in the 39th paper, 'extends to certain enumerated objects only, and leaves to the several states a residuary and inviolable sovereignty over all other objects.' In the 45th he repeats the point that the federal powers are to be 'few and defined,' whereas state powers will remain 'numerous and indefinite.'
"The 10th Amendment was intended to confirm this point: It says that the powers not delegated to the federal government are reserved to the states and the people. Whatever the federal government is not empowered to do, it is forbidden to do. This Amendment ... represents the whole philosophy of the Constitution in a nutshell. We have forgotten that philosophy. Federal powers have been so vastly expanded as to defy any enumeration, specification or definition. One pretext for this has been the 'general welfare' clause of Article I. Publius, in the 41st paper, discusses this clause. He is contemptuously incredulous that anyone could ever take it to imply unlimited federal power, and he decisively refutes any such interpretation. Unfortunately, his argument, though irrefutable, has been ignored. The worst anti-federalist fears have come true.
"By the way, where was the Supreme Court all this time? Publius expected the Court to stand guard against 'encroachments' by the federal government, as he says in the 78th paper... So Publius' vision is of a strong but limited federal government, in which any attempt to enlarge its powers beyond those enumerated in the body of the Constitution would be checked by the Court (as well as by the vigilance of the people).
"This certainly does not describe the system we live under now. The proposed amendment, presently bottled up in the House Judiciary Committee, is an attempt to limit the federal government not by defining its scope, as the framers of the Constitution tried to do, but simply by retarding the pace of its growth. Is this the best the descendants of Publius can do?" (End of article by Joseph Sobran of the Los Angeles Times Syndicate).
The argument Sobran uses against the proposed budget balancing amendment could also be applied to a batch of other proposed Constitutional Amendments that are loitering in Congressional Committees or are being considered by State Legislatures. There are amendments to curb abortion, one to stop the forced busing of school children for racist purposes, another to return prayer to government (public) schools. There's a proposed amendment to abolish reverse racism (Affirmative Action). There is the long-pending Liberty Amendment. And to top them all is a call for a Constitutional Convention which might add or delete amendments or even throw out our present Constitution and introduce a new, socialist Constitution that has been hovering in the background for several years. But, if our elected representatives were conversant with the terms of our present Constitution, they would learn that amendments such as these are totally unnecessary; that there are legislative cures for every one of these evils. Most of the proposed and pending amendments are for the purpose of halting the unConstitutional and illegal "lawmaking" proclivities of the Supreme Court or its lesser circuit and district judges. Or, in case of extremes, there is the Constitutional provision for impeachment. Impeachment of judges has been virtually ignored; but so have so many other duties and obligations imposed upon the U.S. Congress by the Constitution, which in the final analysis is the only supreme law of the land.
Where the Federal Judiciary is not directly involved in matters that cause people or their representatives to call for some Constitutional Amendment, the second cause usually has to do with illegal and unConstitutional actions by some part of the entrenched Federal Bureaucracy. The Constitution established a federal government with just three branches: Legislative, Executive and Judicial. Our Founding Fathers understood that concentrations of political power are fatal to liberty. They knew that if they formed a government in which it was possible ever to concentrate the legislative, executive and judicial functions in one branch, such a concentration of power could lead to tyranny and dictatorship. But they did not expect that, under bureaucratic agencies of the executive branch, all of these powers could be merged, so that a bureaucratic agency may act as its own prosecutor, judge, jury and executor of punishment in the case of hapless individuals or companies that might run afoul of their so-called administrative law.
How did this happen? Dan Smoot has explained that "Congress makes broad grants of power to the administrative agencies, enabling them to make whatever rules and regulations they may deem necessary to carry out the purposes of the laws they administer and enforce. Their administrative rules and regulations have the force of law; and the administrators can change this "law" any time they wish, without consulting anyone. All they have to do is promulgate a new rule or regulation and publish it in the Federal Register. Thirty days after publication, it becomes a binding 'law'." (From "The Business End of Government," by Dan Smoot, Western Islands publisher, Belmont, Massachusetts, 02178).
In order to make these so-called administrative laws even more binding, there has been established in the United States a Regional Government system whereby these bureaucratic agencies can operate out of any one of the ten Federal Regional Capitals and apply these rules and regulations at their regional levels. And here again, the original fault was with the Congress itself, which didn't bother to lay down specific and limited rules and regulations, but passed "loose" laws that could be interpreted by these bureaucratic commissars as they desired, and without recourse either to the President or the Congress. In such events, if a case ever gets into a federal court (it seldom does) the federal judge will almost always back up the bureaucratic ruling. Like a case Lowell Mason, a former Federal Trade Commissioner, told about a deputy fire marshall in Ohio some years ago, who held his own inquisitorial trial of the man, wouldn't even allow the man's lawyer to be present, and sentenced the man to jail. An appeal went all the way to the Supreme Court, which upheld the sentence "because the trial was not a criminal trial, but was an administrative investigation of incidents damaging to the economy"!
That ruling is important because, as has been pointed out by investigators, since the establishment of the Regional Government System in the United States there has begun to evolve the same kind of jurisprudence that exists in the Communist-controlled countries, especially during the period when Communists are solidifying their control. At that stage in particular Communist Commissars are tolerant with criminals who commit crimes of violence or moral depravity; but they brutally punish economic and political offenses. As Dan Smoot (op. cit.) noted: "It is not common criminals who are sent to the slave camps in Siberia, but persons accused of disobeying the economic and political commands of the Communist State." The process has been so slow that few have recognized the trend, but there in our own country, as those who control our government fashion our economy into the likeness of Communism (or Socialism, if you prefer the carrot word), businessmen and others who violate the commands of the regulatory agencies are considered more dangerous than criminals. "Our courts and other branches of the government are becoming so permissive about crime and so concerned about the rights of criminals that the right of society to be protected is sometimes ignored; but businessmen accused of economic offenses are punished without due process of law." This, of course, is in line with the Communist command to do away with the bourgeois, or the middle man; so that finally there is a small group of The Society of the Elect at the top, and a great mass of obedient slaves at the bottom, with no-one in between.
In defending his Trilateral-CFR-controlled Administration in the face of the social, moral, economic and political crises which beset us just one month before a crucial national election, President Reagan likes to point out that our present difficulties all began to develop and grow to their present proportions because of the many years of continuous Democratic control of Congress. Actually, our crucial situation can be traced back much further for its beginnings. It might be said that our difficulties as a Nation really began with a change in an attitude toward our form of government, both on the part of the people and the federal congress. We can spot the beginning when people began to accept the false notion that ours is not a Constitutional, Representative Republic, but a Democracy. The eminent Constitutional authority Harry F. Atwood noticed how this was being taught in the government (public) schools, and he wrote as early as 1921: "There is much talk of democracy in our schools, and yet there is not a democratic thing in the Constitution, nor the faintest hint of a suggestion that anything under the Constitution would ever be done in a democratic way, even in the Constitution itself, or its adoption, or its amendments, or its plan of administration. And we still require our public officials to take an oath to uphold, protect and defend the Constitution, and that is the only thing they are sworn to do. The Constitution provided for a representative government, and the founders called it a Republic. It guarantees to each of the States a republican form of government. Those who are talking democracy ... should turn the Federalist, and ask themselves what Madison meant by the following language: "Hence it is that democracies have ever been spectacles of turbulence and contention, have ever been found incompatible wiht personal security or the rights of property, and have in general been as short in their lives as they have been violent in their deaths."
This trend toward democracy, which led to the ratification of the 17th Amendment among other evils, also led to a statement made in 1953 which, unfortunately seems to have come true 29 years later. Arthur S. Miller, of the Law School of Emory University, made this statement: "The advent of a 'new society' has created the need to re-evaluate traditional formulations of American Constitutional law and theory ... The United States can be thought of as a combination of a Social Service or Welfare State, which we have become during the past two decades, and a Garrison State, which we have in some measure approximated since the end of World War II. An approximate label for this combination in the 'Security State', a name derived from the apparent character of Americans today, which reflects the demands of the individual for economic and psychic security subsumed under the notion of the social-service or welfare principle of government and the demands of people generally for national security or self-preservation." (Published by the now defunct Center for the Study of Democratic Institutions in November, 1953).
The other trend, the Congressional attitude, which has led to our present difficulties, has been Congress' habit of shirking the duties imposed upon it by the Constitution, and relegating those duties to agencies over which they have little or no control, such as turning the control of money over to the Federal Reserve Corporation, the distribution of mail to a "Service", the collection of taxes to an Internal Revenue "Service", and the delegation of full powers to the many regulatory agencies of the federal administration, now governed almost exclusively by non-elected administrators (Commissars). This unelected and controlling "Society of the Elect" knows that the most effective way peaceful totalitarianism can be achieved in the United States is through complete control of the common everyday acts of all the people. This is the aim of the Bureaucratic Dictatorship which they seek to install. No President or "buyable" Senator will stop it, but with next month's election of Representatives there's a chance because not all of them can be bought or bullied by the Trilats and Labor Goons. Forget party labels and idle campaign promises. Just try to be sure your next Representative will try to live up to every jot and tittle of the Constitution he must swear to uphold, protect and defend. Then watch him, warn him if he goes wrong, praise him if he votes right; and pray, for him and for us all. For, as Franklin insisted, "The longer I live, the more convincing proof I see of this truth, that God governs in the affairs of men."
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