In, "A Matter of Interpretation: Federal Courts and the Law" Justice Antonin Scalia suggests our Constitution is dying. He shows that through irresponsible legislation and even more irresponsible judicial activism, the Constitution and Bill of Rights are no longer the sound foundations for a democracy. Rather, they have been whittled away to irrelevant and meaningless documents of little more than historical interest.
On the other hand, self-proclaimed scholars see the Constitution as a "living document;" a document which changes and grows with the needs, wants and desires of the country. This metamorphosis occurs through the judicial branch, and primarily the Supreme Court. Of course, as Justice Scalia eloquently pointed out, there are no standards to govern or limit this "growth." In fact, the people have no oversight at all. Federal judges are not elected, they answer to no one, and they are employed for life (unless, of course, they commit overt criminal acts). They can do whatever they want from the bench, and the people have no recourse.
While scholars debate the scope of the Constitution, one conclusion is unavoidable: over the last half century, the power and size of the federal government has mushroomed astronomically. This, in and of itself, would not necessarily be bad except that it has come at the expense of individual Americans' freedom. And that is where the problem lies.
Some suggest we are freer today than ever in our country's history, and freer than any other people on earth. This, of course, depends upon how "freedom" is defined.
To be sure, we are "free" from the worry of planning our own retirement because the government has forced us to participate in the social security program (even if it is going bankrupt). We are "free" from the responsibilities of defending our families: we need only pick up the telephone, punch 911, and a police officer eventually arrives to do it for us (or write down what happened if he is too late). We are "free" from the burden of educating our children because we need only drop them off at public schools (never mind the fact their minds are being filled with politically correct mush).
We are "free" of the moral obligation of helping our less-fortunate neighbors because our government does it with money it takes from us in the form of taxes. We are "free" from having to decide for ourselves what is right and wrong: the government has legislated it for us. We are even "free" from the unpleasant consequences of our own sexual improprieties. We simply need go to the doctor and have our potential offspring and/or any newly contracted venereal diseases eliminated.
Of course, our forefathers did not enjoy these "freedoms." Instead, being men (and women) of true principle and character, they readily accepted the responsibility of ensuring their own safety and well-being, as well as that of their families, neighbors and communities. They recognized the timeless truth that personal freedom goes hand-in-hand with personal responsibility. And this is the bedrock upon which they based Constitution.
Against this background, it is therefore interesting to consider how the Framers of the Constitution would react if, on December 16, 1791, the day after the Bill of Rights was ratified, they were suddenly faced with all the federal laws which are on the books today.
While our Founding Fathers abhorred the idea of a state religion (especially if it was the Church of England), they were nonetheless fiercely religious. At the time of the Revolution, it was common practice in the colonies for worshipers to arrive at church early Sunday morning, take an hour or so off for lunch, then attend services again until evening. Moreover, the pastors and ministers who preached to them constantly railed against the Crown. These religious leaders were a major means of communication for the colonies, as well as for rallying the people to the cause of the Revolution.
Can there be any doubt how these men and women would have reacted if, on December 16, 1791, they were told they could no longer pray in public schools, give invocations at public gatherings, or display the Ten Commandments in court? How would they have reacted to the news their church would be treated as a business, and therefore subject to taxation, if their pastor simply strayed into politics during a sermon?
How about the other provisions within this critically important Amendment? Would the men who defied the Crown, and then defeated the world's then-strongest military power (with some help from France), be likely to ask a local big wig for permission to demonstrate in public, or gather together to denounce an injustice? Would they accept judicial doublespeak whereby a judge held they had no right of free speech if that speech was of a "commercial" nature; would they accept any limitations on their free speech rights if they were on public property, regardless whether their speech was political, commercial or unpopular?
The "state's right" view of the Second Amendment is a frequent topic of discussion in The Liberty Pole. This view holds that, any language in the Second Amendment to the contrary notwithstanding, the amendment was actually intended by the Framers to confer only a collective right to maintain militias upon the states, and not a personal right to keep and bear arms by individuals.
Of course, we know the "state's right" view is without serious scholarly or historical support. It was invented in the last four or five decades to suit a desired political end.
On the other hand, let us consider if our Founding Fathers really did not intend to guarantee an individual right. What if they only intended that states maintain well regulated militias?
If the "state's right" view is correct, then it must also be true that the Framers of the Constitution would have quietly accepted all of the more than 20,000 gun control laws currently on the books. This means our Founding Fathers would have been comfortable with bans on military-style weapons, handgun bans, firearm registration, ammunition registration, purchase limitations, licensure, permit requirements, and the like.
Considering the American colonists were largely armed with the same state-of-the-art Brown Bess muskets carried by the British when they faced off against one another, can we seriously doubt the Second Amendment was intended to protect ownership of military-style weapons? Pity the fool who would attempt to tell President Washington, President Jefferson, Samuel Adams, or even just a common farmer-soldier he did not have a right to own or carry a firearm. It is not even possible to imagine President Washington suggesting Americans should not have access to "military-style weapons." Yet, we frequently hear our current President utter such nonsense.
And with all the noise and fear-mongering against militias today, it is easy to forget that the "shot heard around the world" was fired by a militia. Indeed, the eight Americans killed in Lexington on April 19, 1775, were local militiamen. Later that same day, it was local militiamen and Minute Men who hammered the British as they attempted to seize the American's weapons in Concord. In the months after the battle, the militias and Minute Men formed the nucleus of the new American army.
Based on the events of April 19, 1775, we do not have to wonder how the Founders would have reacted were they suddenly confronted with laws proscribing "paramilitary" training, and private ownership of firearms. We know exactly how they reacted to such laws. For them, self-defense was not merely a right, it was an obligation, and they did not shirk from it.
The Fourth Amendment was, in large part, a response to the humiliation to which the colonists were subjected at the hands of King George III and his agents. The Americans were never secure in their persons, houses, papers or effects. A person innocently minding his own business could be stopped, his person and house searched, and he could be hauled off to jail on vague or unspecified charges.
Today we would call such abuses "Gestapo tactics," and these are what the Fourth Amendment was intended to prevent. Yet, today, Americans are subject to virtually identical abuses in the form of "no-knock warrants" and "roving roadblocks."
No-knock warrants are tantamount to government-sponsored terrorism: they allow government agents to smash down the door to a person's home, at any hour of the day or night, without warning, based solely on the word of informants. Not surprisingly, no-knock warrants are recipes for disaster. They lead to intimidation of law-abiding citizens, wrongful destruction of private property, fear, terror, and, not infrequently, death.
For example, during the wee hours of a morning in 1992, 31 law enforcement officers dressed as ninja warriors and equipped with automatic weapons and flak jackets smashed in the door to Donald Scott's home in Malibu, California, ostensibly searching for drugs. When he heard his wife scream, Mr. Scott came out of his bedroom holding a pistol, and was gunned down by the officers. No drugs were ever found.
Needless to day, the Founders never would have tolerated such an overt governmental abuse.
Similarly, our Founding Fathers never would have permitted road blocks whereby police may randomly pull over cars, order their drivers and all passengers out, or search automobiles without any probable cause whatsoever. Such random searches are precisely what the Fourth Amendment was intended to prevent. Yet, the Supreme Court permits such wanton abuses, all in the name of the failed "war on drugs."
Here is another question worth pondering: How would someone such as, say, President Washington have reacted if late one evening he was visited by two concerned social workers from the Child Protective Services who were investigating an anonymous and obviously incorrect tip that he sexually abused his step-children. Imagine further that the social workers were accompanied by several armed police officers, and that, despite his shock and horror at the accusations, and despite his steadfast denials, the government's agents then took his step-children into "protective custody." Not a very pleasant scenario, but one which happens repeatedly today.One wonders how Pres. Washington would have reacted to such a situation.
Being men of stronger character then we are today, the Framers of the Constitution placed a much greater value on property than we do. Yet, those with the most to lose put the most on the line during the Revolution. John Hancock was the wealthiest person in the New England colonies, if not the entire 13 colonies. Most of the other signers of the Declaration of Independence were similarly men of means. Many were doctors or lawyers. Most of them paid dearly for signing the Declaration of Independence. Some were killed for it.
It is therefore not difficult to understand why they placed so high a value on property. Property ownership is the ultimate sign of a free man. A free man may spend the fruits of his labor as he pleases; whereas the fruits of a slave's labor are enjoyed by someone who did not earn it.
As a result, it is no mystery the Fifth Amendment expressly protects the ownership of property. They placed it on a par with that which they held most dear: life and liberty, so they gave it the same protection as that which shielded life and liberty; namely, due process.
It takes little imagination to determine how the Founding Fathers would have reacted to the imposition of the abomination known as "asset forfeiture" laws. Such laws, which have been largely blessed by the courts, permit government agents to simply steal a person's property on the mere suspicion of criminal activity. The property's rightful owner has no due process rights. Instead, the government engages in the legal fiction that the property itself is a party to the lawsuit, and, as property, is entitled to minimal due process. To add insult to injury, if the owner is later acquitted, or even if charges are never filed, the cost of recovering that property often far exceeds the property's value. Guess who keeps the property.
But that is not even the worst of it. Through use of "drug courier profiles," government agents may legally shake down "suspicious-looking" people and impound all cash in their possession based solely on the speculation the victim probably obtained it through illegal means. No evidence is necessary, mind you, just a vague suspicion based upon a person's appearance. In reality, this translates into a ready-made and court-approved means of abusing citizens who happen to be minority members, look like drug dealers, or who simply say or do something law enforcement officers do not like.
When compared to the obscenity of asset forfeiture, most of the grievances listed in the Declaration of Independence seem rather mild. No doubt, our country would be several years older had King George III imposed such asset forfeiture laws upon the colonists in the early 1770s!
Similarly, there is also little doubt the men who fought and won the Revolution would not tolerate the theft of their land when that theft was accomplished by a governmental declaration that such land was an "environmentally sensitive wetland" that could no longer be productively used by its owner.
The Framers of the Constitution also abhorred the possibility of being tried repeatedly for the same offense such that a conviction was ultimately inevitable. For this reason, they included the prohibition against double jeopardy.
Today, this basic constitutional protection is little more than an annoyance to the government. To allow repeated trials when necessary to satiate public opinion, the Supreme Court simply dreamed up the "dual sovereignty" rule. This creative bit of legal prestidigitation allows us to pretend a person is not being tried twice for the same offense if the state tries him the first time, and the federal government tries him for the same act a second time. This is precisely what the Framers sought to prevent when the enacted the Fifth Amendment.
Our Forefathers were understandably fearful of being confronted by secret witnesses at trial. Without having the opportunity to research a witness's background, and without having the witness present at trial, the witness's veracity could not be tested. Our Forefathers therefore recognized the most effective way to get at the truth in a criminal action is to allow the defendant to cross-examine the prosecution's witnesses.
Yet, despite this fundamental and clearly written right, courts now permit the government to put on secret witnesses, whose identities are withheld from the defendant. Courts excuse this breach of basic civil rights as a necessary balancing of the rights of the defendant with those of the witness, who is, after all, testifying on behalf of the people.
In short, the judicially created exception has nullified the Amendment. The government may do exactly what is prohibited by the Sixth Amendment; it may put up secret witnesses to testify against criminal defendants.
The brave men and women who made this country must surely be turning over in their graves.
The Framers of the Constitution detested the imposition of fines which far outweighed the severity of the violation. The purpose and potential for such draconian punishments are obvious, so the Framers codified the basic concepts of fairness and justice by precluding excessive fines.
Imagine how the Framers would therefore have reacted to a ruling from the Supreme Court which permitted the government to seize $50,000 in gems due to the failure to pay a minor $335 import fee. Actually, this does not take any imagination. We know how they reacted.
The Framers recognized that governments always and naturally tend to expand their power at the expense of their subjects. For this reason, the Framers not only enacted a Bill of Rights which delineated specific rights which could be asserted against the government, they also stated the mere fact some rights were specifically enumerated did not mean the people were limited to only those rights. Rather, the Bill of Rights was expressly intended to be a partial list of rights.
With the exception of the right to privacy, which the Supreme Court created to assuage public opinion, the Court has summarily dismissed the Ninth Amendment as meaningless surplusage. It has permitted the federal government to grow at the expense of the governed, and it has allowed the government to infringe on all the rights set forth in the Bill of Rights.
As with the Ninth Amendment, the Tenth has been turned on its head by the Supreme Court. This amendment simply states that all powers not expressly given to the federal government by the Constitution, and all powers not prohibited to the states or the people, remain with the people. Restated, this Amendment simply means the federal government has only those powers specifically given to it in the Constitution, and no others.
In practice, the Supreme Court has interpreted this Amendment to have the opposite meaning. The Court has allowed the government to expand into any area it chooses, so long as that area was not specifically allocated to the states or the people, and even then it often permitted the government to expand anyway.
For example, most federal agencies represent an improper expansion of federal power. There is no provision anywhere in the Constitution for the Drug Enforcement Agency, the Bureau of Alcohol, Tobacco & Firearms, the National Endowment for the Arts, Department of Labor, the Department of Commerce or the Department of Education, to name just a few. Each represents a gross expansion of the federal government's powers over those set forth in the Constitution and the Bill of Rights.
Nowhere is the government given the power to regulate tobacco, alcohol, education, commerce within the states, employment, or the language a landlord can use to advertise an apartment for rent.
Would the Framers have tolerated such intrusions?
The Founders Were Better Men Than We Are.We have let them down.
We allowed our government to get out of control. We countenanced and tolerated all manner of abuse. We allowed politicians and others to divide us on racial and ethnic lines. We allowed ourselves to be swindled at the ballot box by charlatans. We traded the responsibilities of freedom for transitory material comforts and "government handouts" (paid for with our tax money). In short, we made the government our surrogate mommy, and in so doing, we gave up our pride, our honor, our independence and our freedom.
We have no one to blame but ourselves. We deserve the government we have.