Tuesday, March 22, 2011


Protect - Don't Change - The Constitution

by James Craig Green

Colorado's Liberty Ink Journal began last year with a stated goal to "restore the republic."

One suggested approach includes amendments to the U.S. Constitution. Another includes returning to earlier versions of the Constitution. A better approach is to enforce the existing Constitution, which by its own Article VI is the supreme law of the land. The first step to accomplish this is to understand what the Constitution says; especially how it has - and has not - changed in its 224-year history.

Many Americans believe the Constitution has been changed by acts of Congress, Presidential executive orders and Supreme Court decisions ("Subordinate Acts"), but it has not.

Neither the Constitution's powers of Congress (Article I, Section 8), Article V (amendments), VI (supreme law of the land), nor the entire Bill of Rights (first 10 amendments) has ever been changed. Legal changes were made to Articles I through IV by Amendments 11, 12, 13, 14, 16, 17, 20 and 25 - only eight times in two centuries and none since 1992, with few changes to the Constitution's principles.

The U.S. Constitution was the most brilliant document upon which any national government was ever built. It protected individual rights to an unprecedented degree, severely limited government and, in its elegant Tenth Amendment, reserved powers not listed to the States and people. It established three independent branches of government (legislative, executive and judicial) to provide checks and balances against each other.

Multiple frauds have been perpetrated by all three branches of government to usurp power and avoid the constitutional chains that bind them. This created the illusion of legal change, but too many of these Subordinate Acts were contrary to the Constitution. For example, the Federal Reserve was created by an act of Congress which could be repealed without affecting the Constitution.

Although Supreme Court decisions have never changed the Constitution, they do change popular opinions about what the Constitution means, illustrated by the following examples:

In Marbury v. Madison (1803), the Supreme Court upheld the Constitution by saying ...a law repugnant to the Constitution is void, and ...courts, as well as other departments, are bound by that instrument. But, the Court also asserted: It is emphatically the province and duty of the Judicial Department to say what the law is. Although the Court's self-proclaimed power to void unconstitutional laws contributes to the separation of powers, it doesn't mean extra-constitutional decisions are law. Nor does it explain why the Constitution requires other federal and state officers to take oaths supporting the Constitution, requiring their independent judgments (see Article VI).

Too many Americans believe Supreme Court decisions are the supreme law of the land, but they are not. In Charles River Bridge v. Warren Bridge (1848), the Constitution's contracts clause (Article I, Section 10) was attacked by the Court, ruling that every contract is made subordinate to government power: ...while the rights of private property are sacredly guarded, we must not forget that the community also have rights, and that the happiness and wellbeing of every citizen depends on their faithful preservation. This paved the way for other decisions against the Constitution's protection of property rights and contracts.

The New Deal Court in Helvering v. Davis (1937) ruled the 1935 Social Security Act necessary: Needs that were narrow or parochial a century ago may be interwoven in our day with the wellbeing of the Nation and even said it did not violate the Tenth Amendment: The scheme of benefits created by the provisions of Title II is not in contravention of the limitations of the Tenth Amendment. Today, the Constitution still says nothing about the federal government getting into the retirement business, or education, healthcare or any number of things for which large, bureaucratic, wealth-consuming agencies now exist.

During World War II in Wickard v. Filburn (1942), the Court said a farmer growing crops for his own livestock affected interstate commerce, and could be regulated by Congress under the commerce clause (Article I, Section 8): Home-grown wheat in this sense competes with wheat in commerce. The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon. This decision led to other legal opinions - Subordinate Acts - contrary to the Tenth Amendment.

Sometimes Court decisions repeat old precedents, but the press treats them like new ones. In the infamous Kelo v. New London (2005) case, the Court ruled that the Fifth Amendment's "public use" limiting government condemnation of private property may include public purposes, but it was nothing new: Because over a century of our case law interpreting that provision dictates an affirmative answer to that question, we may not grant petitioners the relief that they seek. Old precedents offer modern courts an easy way to ignore past mistakes. Public backlash to Kelo resulted in more than 40 states changing their laws to limit its effect, which was encouraged by the Court: ...nothing in our opinion precludes any State from placing further restrictions on... the takings power.

I don't advocate throwing out good (constitutional) law with the bad, or the wholesale destruction of legal interpretations and precedents. But, the Supreme Court's clarification and implementation of the Constitution's principles should not be confused with the wholesale violation of oaths of office to uphold and defend it taken by all federal and state judicial officers, Congress and the President.

All three branches of government benefit from ignoring or re-interpreting the Constitution. Congress created the Federal Reserve and now enjoys virtually unlimited funding. The President no longer asks Congress to declare war to send soldiers to fight in foreign lands for a decade. Courts rarely, if ever, have to decide if their past decisions were unconstitutional.

I have no easy solution to government-gone-wild. Perhaps it's avoidance of economic constraints will resolve itself, but not without severe damage to the people and economy of this nation. The Republic's restoration must come from the people, but not those whose careers depend on maintaining a lucrative, incestuous status quo. Who among you will hold the federal government to its most sacred but unfulfilled promise - uphold and defend the Constitution?

Please read Article I, Section 8 of the Constitution for the authorized powers of Congress. Then, read Articles V and VI to understand the amendment process and supreme law of the land. Finally, read the Bill of Rights, especially the Ninth and Tenth Amendments, multiple times until they become part of you.

The Constitution doesn't need to be changed or restored. It only needs to be upheld and defended by a sizeable minority of Americans who are serious about putting the federal government back in its proper place. You must literally take the Constitution back from lawyers, judges, politicians and bureaucrats, or it may be lost forever. The current Constitution may be the best Republic-restoring tool we have.

James Craig Green is an engineer, veteran and businessman from Golden, Colorado who took an oath to uphold and defend the U.S. Constitution on February 9, 1969

No comments:

Post a Comment