What can we do?
This is the question so many ordinary citizens are asking these days as they see our Constitution being shredded and trashed. What, indeed? Our society has devolved to the nadir where far too many people believe that if they want something done then the federal government can and should do it. The idea of the federal government being constrained by the Constitution is a foreign concept to them thanks to 50 years of inadequate and sometimes intentionally misleading establishment education. Sadly, it’s a foreign concept to the current president and his administration, the federal bureaucracy, federal courts and the U.S. Supreme Court and the Congress. They snicker and laugh at those of us who wave the hallowed document in their faces and yell ‘Whoa!’ We are hayseeds, tossed aside as anachronistic throwbacks to a simpler time. Don’t we know that the Constitution is a ‘living’ document that ‘evolves’ to meet the needs of the current generation? Well, truth-be-told it evolves only by the amendment process which has happened only 27 times since 1788. While Supreme Court rulings are important things, they do not amend the Constitution, formally or informally. The Supreme Court allegedly strains to properly interpret the Constitution and apply its tenets to specific cases before it. At the point the Court crosses the line from interpretation to amendment it is incumbent upon the President, Congress, the States or the People to reign it back in across the line. Such was the case with the recent Kelo decision where the Court magically changed the meaning of public to private. Congress subsequently passed a federal law to reverse the Court’s ruling in the federal land use arena. But what were five supposedly intelligent Supreme Court justices thinking? They violated the supreme federal law of the land. That I called for their impeachment and removal from the Court was viewed as silliness by many. They are charged with upholding the supreme law of the land and turn around and knowingly violate it! If that doesn’t constitute high crimes and misdemeanors, what does? If we don’t truly believe in being a nation of laws rather than men then why feign having a Constitution in the first place? If we are not going to enforce our laws why have them?
Beyond the antics of the Court, though; is the bigger issue of the Congress and President conspiring (yes, conspiring) to pass sweeping legislation and perhaps irrevocably alter the fabric of our society in ways that are not permitted by our Constitution and would never have been tolerated in saner times. Their explanation? The People want these things and they want the federal government to do them. And they are happy to oblige because it imbues the ruling regime with enormous power; which is the goal of professional politicians, whether right or left, conservative or liberal, Republican or Democrat. We are witnessing the rise of raw democracy which is straight majority rule which is ultimately mob rule—tyranny by any other name. It is the tyranny of the majority over the minority. As Thomas Jefferson remarked, “A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other forty-nine.” For this reason our federal government was established as a representative republic within a constitutional framework. Representative republic since not every citizen could conceivably participate in debate and vote on every issue before the federal government. Thus, we would elect representatives to act in that capacity on our behalf. Constitutional framework so that the federal government could only do those things which the States, having established the federal government for their collective benefit; specifically enumerate and permit. Those things and no more save a constitutional amendment. It is this constitutional framework which ostensibly protects the political minority from shenanigans of the political majority in power. The federal government is not permitted, by virtue of the States speaking through the Constitution in Article I, Section 8; to do simply anything that is decides to do, even if the People profess a desire for such. The People can effect a constitutional amendment through the Congress or the States to empower the federal government in a new desired area, or this power and authority to act falls upon the States in their separate state legislatures by virtue of the 10th Amendment. Thus the idea of the States as laboratories of change. One needs to understand the perspective that the States created the federal government to serve their collective needs, not vice versa. The federal government is lesser than and subservient to the States. The States are not creations or subdivisions of the federal government. They do not serve it. They are sovereign entities with their own constitutions and bodies of law which existed before the federal constitution and federal laws (in the case of the original thirteen). The President actually serves the States primarily, not the People at large. This is the reason for the Electoral College method of electing the President. U.S. Senators were originally selected by the State legislatures and paid by their respective States since that is who they represented. This was later changed by constitutional amendment. The People’s House, the House of Representatives is the federal body which was designed to provide representation for the People.
This is all well and good when the players, majority and minority alike agree to act honorably and respect the Constitution as the supreme law of the land. Unfortunately when one side gains a majority and decides to abandon obedience to constitutional constraints without real opposition from other complicit branches of government the situation rapidly runs tragically amok. The rights of the minority are trampled and new federal institutions gain a toe-hold which become virtually impossible to unhinge as the bloated bureaucracies underpinning them grow without bounds. Just look to Social Security, Medicare or the federal Minimum Wage. All are unconstitutional in the strict sense, yet have become so entrenched within our national psyche that just to mention reforming them is taboo, much less eliminating them. The prospect of a new federal health care system stretches the limit of constitutional credulity.
The challenge is that once the camel gets its nose under the tent it becomes virtually impossible to keep the rest of the beast out. After the first and second patently unconstitutional programs become the norm the People come to expect and tolerate more and more. The thrill of breaking the law soon wears off and the mind quickly adapts to the new set-point. Why not, everybody’s doing it? In my mind once the federal government violates one tenet of the Constitution with impunity, the document in whole has been rendered null-and-void. You cannot pick and choose which parts to obey and which to ignore. It’s an all-or-none proposition, kind of like the nonsensical idea of being a little bit pregnant. We are now adrift on the high seas in a life raft with no rudder. I believe that we left the Constitution in the early years of the 20th Century. We have been in free-fall since. Unfortunately all three branches of the federal government are guilty in this unholy alliance and enable the others by their lack of action, egged on by the ever-present bureaucracy. I believe that most of what the federal government does and spends today is in direct violation of the Constitution. If the Founders had meant for the federal government to have unfettered power they would not have written the enumerated powers in Article I, Section 8 or added the 10th Amendment for emphasis. I believe that they would be appalled and outraged at the sad state of affairs today. They would be incensed that We the People have forfeited so much of the liberty which they paid so dearly to obtain for us.
So, back to the original question; what can we do?
One school says to better educate the People and try to send more responsible politicians to Washington. I would argue that we have lost the education initiative and if it could be regained might take 50 years or more. Frankly, we don’t have that much time. Bad things have already become entrenched and the pace of growth of new over-arching programs is accelerating. We have been trying to send better politicians to Washington for over 200 years and the situation is only getting worse. While Presidents, Congressmen and Senators come and go, the entrenched federal bureaucracy remains lumbering on, resisting all change and reform and devouring well-meaning politicians like so much icing on the cake. The federal monster has taken on a life of its own. When the People fear their federal government (just say I.R.S. in a crowded room) more than the federal government (those people hired and paid by us to serve us—public servant?) fears the People, things are terribly amiss. Now they are talking about taxing the very air that we all exhale (carbon dioxide) and putting GPS devices in our cars to track our movements in order to tax our mileage—right! Are you kidding me?!
On the other end of the spectrum are the wackos advocating armed insurrection against the federal government. These are the militia movement types. I categorically rebuke that solution at this point in time. Yes, we fought a Revolutionary War as renegades and took up arms against each other during the Civil War. Both at great loss of life and both for admirable causes. At the time both were tragically necessary. I cannot absolutely rule out that at some future time such things could happen again in this country. People and human nature never change. But this is not the time to discuss such avenues. The situation is not that bleak and other less extreme options have not been exhausted. Just don’t let them erode or repeal our Second Amendment rights!
Another road is that of civil disobedience. Not riots or violent, disruptive events, but rather large groups of level-headed citizens refusing to obey or participate in what they deem to be obviously unconstitutional behavior, programs or laws. Such things as withholding income tax payments (expect that the People never demanded that the federal government repeal employer income tax withholding after the end of WWII). It’s rather difficult to withhold payments when you never receive the money in the first place, but businesses could refuse to withhold and send in the payments. Perhaps it would be refusing to participate in a federal health care system either as a provider, employer or patient. I am not advocating any of these activities and it would take such massive education and participation to be effective that they might not be realistically feasible at all; but they are theoretically possible. It would have to be something big enough to get the politicians attention and painful enough to force constitutionally conforming behavior in them. Cutting off their money is the biggie since money is the mother’s milk of politics. It is a major source of political power.
Some have proposed challenging the egregious federal over-reaching in the courts. The trouble with this choice is that the courts have become part of the problem. Let’s face it, judges are political appointees and have come to reflect the statist drift of the federal government over the years. The courts, including the Supreme Court have made it possible for the Congress and President to work hand-in-glove in carving out more and more power for the federal government at the expense of the People and the States. Activist judges now legislate from the bench rather than merely rule on the question of law in the case before them. This is clearly unconstitutional. Cases move slowly through the court system and far too much significance is placed on prior court rulings than on the actual text of the Constitution. Talk about the blind leading the blind!
The route I would advocate is that of a resurgence of State power over the federal government. Let us remember, we are the United STATES of America. The States created the federal government. It is a law of nature that that which is created cannot be greater than that which created it. The President serves the States and according to the 10th Amendment, all government power except for a handful of very specific items clearly enumerated in Article I, Section 8 are reserved to the States and the People. Just because the People want the federal government to do something does not mean that it legally can do that thing and certainly does not mean that it should or even could that thing. Just look at what a stellar job the feds have done with Medicare and Social Security. They are both patently bankrupt. Remember, a government that has the power to give you everything you want would also have the power to take away from you everything you have, particularly your money and your freedom and liberty. For most things needed from a government (and those should be few) people should look first to their local and state governments. The government closest to the problem and to the People is usually the one best suited to solve the problem or provide the service. Does anyone doubt that your city government can do a better job running your city bus service than the federal government could possibly do? And the best solution might be putting out contracts with private bus companies. You will have more control over that decision with your city council than with the Congress of the United States. If you don’t like the decision you will probably have much more influence with your city council representative than your Congressman. You might even run and unseat your city council representative.
So exactly what power could the States (provided we were able to educate the people and get enough state legislatures to work together for this cause) exert over the federal government? How do average citizens compel their states to act? I certainly do not foresee or advocate the calling of a Constitutional Convention, a route fraught with all sorts of pitfalls. We want to put the runaway federal genie back into the constitutional bottle, not open Pandora’s Box. The current Constitution is more than adequate, we should just follow it. It is really a very sad day when the government officials responsible for defending our borders and our Constitution and enforcing the laws of the land will not even obey the most sacred, fundamental and supreme law of our land themselves. When I read the Constitution I am struck by the fact that there aren’t any enforcement methods or penalties for disobedience written into it. I must imagine that the writers could not remotely conceive of public servants so much as thinking of disobeying any of its dictums, much less flagrantly disobeying them. They probably could not fathom such behavior. To them it would be obvious treason and probably dealt with swiftly, publicly and with overwhelming severity. I imagine they saw it as almost a sacred document to be revered and probably even somewhat feared. More a pillar of marble than one of silly-putty that today’s politicians and judges make of it. It now falls to us, the People and the States to somehow enforce the supreme law of the land upon the wayward and recalcitrant servants and guardians of that very law for straying from it. God help us. So, what can the states really do? Well, here are some thoughts:
• Secession
• Constitutional Amendments
• Refuse to accept federal money: Highway, medical, food stamps, civil projects,
etc.
• Refuse to pay federal fees, tariffs, taxes, etc.
• Evict federal offices (Courts, IRS, etc.) from state
• Withhold national guard from federal service
• Control state borders
• Reclaim federal lands as state property
• Refuse to participate in federal initiatives such as federal health care, cap &
trade, etc.
• Do not permit the enforcement of federal executive branch regulations on people,
private businesses or state/local government entities.
• Do not permit any federal inspections of anything within the state.
• Demand property tax for military bases, national parks, etc.
“…That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security… .”
May God have mercy upon us all.
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