Our Upside-Down Constitutionalism

The suspect is in the witness box.  He takes the oath to tell "the truth, the whole truth, and nothing but the truth."  The prosecuting attorney hits him with a pointed question: "On the night of the 25th, did you brutally murder your mother in cold blood?"  And the response comes back: "I plead the Fifth!"

To ordinary Americans - and not just murderers - the Constitution guards the rights that we've come to think of as American.  An American has a nearly absolute right of free speech; other countries, even "free Western" ones, have legal limits on how insulting or offensive you can be.  An American can refuse to talk to the police without his lawyer present and can refuse to give incriminating evidence even then; most other countries can keep you in the pressure cooker until you squeal.  As our Supreme Court made clear last year, Americans even have an absolute personal right to firearms; no other country has that guarantee in its founding document.

So it's not unnatural that we - yes, even here at Scragged - often think of the Constitution and the Bill of Rights as the source of our liberties.

But the Constitution isn't at all the source of our liberties, and it was never meant to be.  By thinking of it that way, we've submitted to massive overgrowth of government that may well destroy all our liberties over time.

Author of Liberties

Where did our liberties come from originally?  They weren't created by the Bill of Rights; they far predated the Revolution and our Founders themselves.  Consider the text of the Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed...  [emphasis added]

Notice what the Founders were saying.  Our rights are not granted by government of any kind.  They were granted by God; government's job is to protect the rights that already existed.

For convenience in managing a society, it's helpful to make a list of the most important fundamental rights lest anyone get confused; that's what the Bill of Rights is.  The Founders had no intention of treating the Bill of Rights as an exhaustive list, though, as the Tenth Amendment makes clear:

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.

Carefully ponder the implications, for they are foundational.  The Constitution does not preserve certain specific rights and leave all other power with government.  It does precisely the opposite: giving only particular enumerated powers to the Federal government, and leaving everything else with the states or the people.

When a lawyer stands before the Supreme Court and argues that the Constitution guarantees a particular right, that's all very well, but his argument totally misses the point.  The relevant question is not whether the Constitution specifically states something as a right.

The important issue is whether the Constitution specifically gives the Federal government the authority to do whatever it's trying to do.  If the Constitution doesn't say the government can do what it wants to do, it can't do it.

Don't believe me?  Listen to James Madison, the Father of the Constitution himself, writing in Federalist 45:

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

Huh?  That certainly doesn't describe our government today.  There is hardly an aspect of our daily lives into which  Federal power does not intrude.  Yet here is the very author of our Constitution saying, under his Constitution, that isn't supposed to happen.

Madison hammers home his point in another paragraph:

The number of individuals employed under the Constitution of the United States will be much smaller than the number employed under the particular States.

Hah!  For all the petty bureaucrats employed by the fifty states, the number of any of them is dwarfed by the hordes of Federal employees on every hand.

Once again, we see plainly that the Federal government as it stands today is not operating within the confines of the Constitution as explained by its writers, and that the America as envisioned by the Founders bears little resemblance to the one we live in.

Turn The World Around

At some point in the past, a fraud was perpetrated upon the American people.  The Bill of Rights is a great and noble document.  It should rightly be studied and honored by all Americans, but it should not be considered the Big List of Liberties.

Maybe it's a list of the most important ones, but a list of all the liberties intended for us by our Founders would be never-ending - from the right to smoke in your private home, to the right not to wear a seatbelt in your private buggy, to the right to purchase medical care or not as you prefer.

As Americans, we should not have to dig 'round in the Constitution to find a clause specifically requiring the government to leave us alone.  It should be the government that is forced to dig through the Constitution to find a specific place where, as Madison put it, a power was "defined" as belonging to the Feds.  Otherwise, the answer should be a resounding NO to new laws, bureaucracies, or authority of any sort.

National defense, import tariffs, fair voting standards, an end to slavery - all these and more are found in the Constitution and its amendments.  Maybe if our government concentrated on what it is supposed to be doing, instead of what it's not supposed to be doing, it might do a better job of what it does.