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Our Constitution Must Be the Battleground

The United States Constitution—praised as “the most wonderful work ever struck off at a given time by the brain and purpose of man” by Lord Gladstone—should be the battleground of American politics. If that does not happen, our Republic is doomed to self-ruination like all other Empires. They all collapsed, among other things, by exalting raw power over constitutionally safeguarded liberty, and the armored knight over the moral philosopher.

The Constitution’s summum bonum is individual liberty—the opportunity to develop faculties and pursue ambitions free from domestic predation or foreign aggression. The Declaration of Independence elaborates that every individual is endowed with a natural right to life, liberty, and the pursuit of happiness, i.e., wisdom and virtue. In contrast, governments, communities, or groups have no natural rights. Indeed, the government’s purpose is to secure the natural rights of individuals.

Under the Constitution, individual liberty is celebrated for its own sake, while government or community decrees or norms are presumptively suspect. Individual liberty is the locomotive and the community the caboose in our constitutional universe. Accordingly, government should stay its hand unless an exacting threshold of actual or imminent material injury to individuals would otherwise ensue, for example, murder, robbery, torture, or kidnapping.

No government is endowed with sufficient saintliness or wisdom to direct individuals how to find meaning or fulfillment between ashes to ashes and dust to dust. Political gridlock is ordinarily undisturbing—it safeguards individual liberty.  

change_me

James Madison sermonized in Federalist 55: “Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.” Groups or communities are characteristically self-serving, and tribal. They are fueled by hormonal instincts and ulterior motives, not by the cerebral faculties or nobility. Alexis de Tocqueville observed in Democracy in America: “[O]ne…finds in the human heart a depraved taste for equality, which impels the weak to want to bring the strong down to their level, and which reduces men to preferring equality in servitude to inequality in freedom.”

The Constitution employs separation of powers and checks and balances to achieve an Aristotelian mean between rule by Platonic guardians and mobocracy. They include separating the legislative, executive, and judicial functions, a bicameral legislature, different rules and representation formulas for the House of Representatives and Senate, an Electoral College that favors sparsely populated states in choosing the president, supermajorities for treaty ratification, constitutional amendments, and overriding presidential vetoes, and an independent Supreme Court empowered to void government excesses.

In praising the Bill of Rights, Mr. Madison observed: “[I]ndependent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights.” Collectively, the Constitution’s handcuffs on majority rule operate as a structural bill of rights to complement the substantive Bill of Rights in protecting the American people from tyranny.

No law, regulation, policy or government practice should be embraced without a showing that (1) it is authorized by the Constitution; (2) the branch of government responsible for exercising the authority has done so; and, (3) the government has shouldered its burden of documenting with concrete evidence that compromising the individual right to be left alone is justified by a clear, present, and alarming danger to domestic tranquility or national security. Speculation is not good enough to satisfy the third prong. Neither are remote or ephemeral harms.       

Probably 90 percent or more of our multi-trillion-dollar warfare state, surveillance state, bail-out state, and welfare state would be eliminated over time if the Constitution were made the battleground of American politics. Among other things, federal taxes and spending would tumble; the national debt would shrink; crony capitalism would die; the economy would flourish; privacy would be honored; and, our nine known unconstitutional, gratuitous presidential wars would cease.

Invincible self-defense would become our national security strategy. The nation’s individual liberty index—the proxy of national greatness—would climb by orders of magnitude.

After at least seven generations of wholesale disregard of the Constitution, the journey to restore regular constitutional order to our politics will be long and fiercely contested—especially by the cosseted multi-trillion-dollar military-industrial-counterterrorism complex. But that is no reason to delay.

On that score, President John Kennedy was wont to relate an anecdote about French Marshall Hubert Lyautey in Morocco. His gardener balked at planting a tree because it wouldn’t mature for a century. The Marshall retorted, “In that case, there is no time to lose. Plant it this afternoon.”

Bruce Fein was associate deputy attorney general and general counsel of the Federal Communications Commission under President Reagan and counsel to the Joint Congressional Committee on Covert Arms Sales to Iran. He is a partner in the law firm of Fein & DelValle PLLC.

40 Comments (Open | Close)

40 Comments To "Our Constitution Must Be the Battleground"

#1 Comment By JonF On May 30, 2018 @ 6:24 am

Re: After at least seven generations of wholesale disregard of the Constitution,

Change that to “After at least seven generations of most people not agreeing with me on what the Constitution means…”. We did not “disregard” the Constitution, we simply did not interpret it as the author wishes.

#2 Comment By E. J. Worthing On May 30, 2018 @ 6:54 am

All government is big government, because all governments establish property rights. Property rights expand people’s freedom, but they also limit peoples freedom. The gates of a gated community represent liberty only to the people inside of it.

Libertarians do not want small government. They want a government that favors their liberty at the expense of others’.

#3 Comment By Andrew On May 30, 2018 @ 7:47 am

Ah, the libertarian fantasy that self-government is a sufficient means by which to order a society.

The problem is, eventually you run out of other people’s dignity.

#4 Comment By Griff On May 30, 2018 @ 8:57 am

I once thought this way, but am less inclined to do so now. What good is liberty if there is no opportunity to exercise it? Give a blue collar worker the constitution and assurance of liberty, and he’d gladly trade them in for a better wage. The constitution is but a piece of paper. Let’s not sanctify it.

#5 Comment By Professor Nerd On May 30, 2018 @ 9:24 am

The Constitution’s “summum bonum is individual liberty.”
Sort of. It also includes the 3/5 clause and fugitive slave clause.
That’s not a “gotcha,” that’s just being real. Those clauses helped cause a Civil War.
The Constitution is a good guide but not mosaic law. It was written by self-interested people.

#6 Comment By Les Govment On May 30, 2018 @ 10:14 am

“Some 90 percent or more of our multi-trillion-dollar warfare state, surveillance state, bail-out state, and welfare state could be eliminated over time.”

That could happen and it should happen, and it’s something that we can hope for. But many hearts and minds will have to be persuaded to make constitutionally-limited government a reality again.

— Les Govment [1]
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#7 Comment By Youknowho On May 30, 2018 @ 10:23 am

By the way, when you talk about cutting welfare, do you mean my Social Security and Madicare?

Because I will fight you to the death for my benefits. I NEED them.

#8 Comment By Tom Bivins On May 30, 2018 @ 11:00 am

Right on! We must remember we are a Republic.

#9 Comment By Les Govment On May 30, 2018 @ 11:09 am

E.J. Worthing (5-30-18 at 6:54 am) has a misunderstanding of the mainstream libertarian view of property rights as well as individual rights. He also essentially slandered libertarians with this ignorant statement:

“Libertarians do not want small government. They want a government that favors their liberty at the expense of others’.”

No, Mr. Worthing, we don’t want our liberty at the expense of others’ liberty; we want liberty for EVERYONE. And no one wants smaller government than libertarians (except a fringe movement of what could be called right-wing anarchists).

I know what genuine libertarianism is because I’ve been one for four decades. Anti-libertarians have repeatedly demonstrated that they are not really qualified to define libertarianism.

— Les Govment [1]
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#10 Comment By EliteCommInc. On May 30, 2018 @ 12:12 pm

“We did not “disregard” the Constitution, we simply did not interpret it as the author wishes.”

ohhh good grief: ‘jim crow’, red lining, gerrymandering, regime change, the PA, and list that would stretch from sea to sea of policies and legislation that undermine the the frame by which as a nation operate.

The article makes some important claims that would value to test out in practice. It was certainly not a document intended to provide “happiness”.
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“The Constitution is a good guide but not mosaic law. It was written by self-interested people.”

No problem writing a format by which self -interest is applicable to all self interested parties as authorized by membership — citizenship. That makes perfect sense.

Hence the formation of sovereign states —

I am not a libertarian nor am I fond of libertarian ambiguity and bland “unworkable” theory thinking, but I am a self interested citizen of the US.

#11 Comment By EliteCommInc. On May 30, 2018 @ 12:16 pm

“Anti-libertarians have repeatedly demonstrated that they are not really qualified to define libertarianism.”

It is by their own definitions that I question the feasibility or the reliability of libertarian advances on liberty.

#12 Comment By scineram On May 30, 2018 @ 12:17 pm

Libertarianism is a joke, rejected by electorates all around the world.

#13 Comment By TR On May 30, 2018 @ 12:24 pm

John F. Kennedy? Can’t you get a decent anecdote from a Libertarian?

#14 Comment By Erik On May 30, 2018 @ 12:43 pm

I would love for the world to operate the way that the author desires.

I think the author would likely be unhappy with what it would take to enable it.

Things such as a return to the commons from so much privatization. Things such as much more progressive taxation that continues to reward individual effort without enclosing all wealth in the hands of a few for all of time. Things such as a debt jubilee.

If the author wished to get where he wants to go, let him help work on these enabling ideas.

#15 Comment By Will Harrington On May 30, 2018 @ 12:55 pm

Jon F

The constitution is written in remarkably simple language that, even over two centuries later, a moderately educated English speaker can understand. Its meaning is clear. Most “interpretation” is unnecessary and exists to make the meaning of the constitution ambiguous. Some, such as the extra-constitutional separation of Church, while enshrined by tradition, violate the actual meaning and purpose of the original. You can interpret anything however you want. That doesn’t make interpretation truthful.

#16 Comment By MM On May 30, 2018 @ 1:13 pm

Youknowho: “Because I will fight you to the death for my benefits. I NEED them.”

You don’t even know what welfare is, by your own admission. Medicare and Social Security are entitlements, and are not restricted to those who need them.

They should be, but they aren’t. What a colossal waste of MY tax dollars.

#17 Comment By MM On May 30, 2018 @ 1:18 pm

JonF: “We did not ‘disregard’ the Constitution, we simply did not interpret it as the author wishes.”

When you read into the Constitution whatever you want it to mean, that is disregarding the original intent of said Constitution.

Case in point: The Constitution’s general welfare clause has been interpreted so broadly since 1936 that it is now cited for the express purpose of justifying any tax for any purpose.

But it’s never been amended to specifically define the limits of “general welfare”…

#18 Comment By grumpy realist On May 30, 2018 @ 1:24 pm

Les Govment–your supposed “liberty for EVERYONE” is simply the liberty of people to eat food with rat feces in it and to drink water with lead contamination.

We’ve seen what you so-called libertarians do when it comes to protecting the average human from those psychopathic entities called corporations.

(A fat lot of good an ability to sue does you when it’s your child that’s been mentally stunted by mercury in the coal emissions and lead in the drinking water.)

The fallacy of libertarianism, which it has never gotten over, is that it assumes everyone has infinite time to test everything–all food, all housing, all air that one breathes–and infinite ability to sue anyone.

You claim that you, as a pure-bred libertarian, “know what genuine libertarianism is.” I’m sure that if I poke around, I’ll find quite a few people (the anarcho-libertarians) who have drastically opposite views to yours, who are just as convinced that THEIR view of libertarianism is the right one, and that yours in wrong. And they will claim that they have been active in libertarian circles for just as long as you have.

So why are you right and they wrong?

#19 Comment By cdugga On May 30, 2018 @ 1:37 pm

Going after the multi-trillion dollar MIC does not necessitate throwing out all the other babies with the dirty bathwater of never ending war with its concomitant deficit spending. Saying we could fix everything about our country’s problems by simply ignoring all the the things our people have wanted their democracy to do, appears to be a disingenuous attempt to demonize all the functions of that “administrative state” through association with the most damning of the institutions responsible for the biggest part of our debt, despair and demise. One thing that we might be sure of, is that any attempt to deconstruct the administrative state would deconstruct much of what most people still want it to do, while leaving the MIC and its associated fossil fuel industry completely intact.

#20 Comment By Youknowho On May 30, 2018 @ 2:28 pm

Dream on of your Libertarian Paradise, while I come up with some dose of reality.

[2]

I keep reminding people. We have regulation not because we cannot make our own decisions, but because there are too many predators out there. Like Purdue Pharmaceuticals – legal drug pushers.

#21 Comment By Ken Zaretzke On May 30, 2018 @ 2:57 pm

Here’s a vivid example of constitutional overreach, albeit cluelessly portrayed by a liberal writer. [3]

Prosecutors should not be able to do what the legislature has not done or has declined to do, especially in the criminal law. In the midterm election, Republican candidates can drain the Democrats of Sandernistas support by attacking systemically rogue prosecutors who run roughshod over the separation of powers and individual liberty.

#22 Comment By MM On May 30, 2018 @ 2:58 pm

YKW: “We have regulation not because we cannot make our own decisions, but because there are too many predators out there.”

That doesn’t justify the federal, state, and local governments taking or laying claim to 40% of the entire pie.

Call it conservative, libertarian, or just independent thinking, but:

[4]

Other than 9/11, a solid majority of the public have consistently stated that the government is too big and does too much, going back 25 years.

Why don’t we have national referendums on major issues and spending proposals, like they do in Europe? Answer: Can’t let the people decide these things…

#23 Comment By JonF On May 30, 2018 @ 3:31 pm

Re: hen you read into the Constitution whatever you want it to mean, that is disregarding the original intent of said Constitution.

Some parts of the Constitution are very specific: when it says the president’s term is four years, it means it– not three years or five years.
However the Constitution contains a fair amount of vague language– because the Founders themselves were not of one mind and they had to come up with unclear compromise language that would satisfy everyone, while not really spelling out any details. What punishments are “cruel and unusual”? What are the “unenumerated rights” of the people? What are the designated powers retained by the states? What is included in the “general welfare” that Congress may legislate on? We are free to determine those things ourselves– in fact we have no choice but to do so. You have the right of course to read your own political preferences into the vague parts of the Constitution, but don’t pretend you have an inside track to know the One True meaning of those passages: you are no more right about it than anyone else.

#24 Comment By JonF On May 30, 2018 @ 3:35 pm

Re: Its meaning is clear.

see above. Parts of the Constitution are clear. Other parts are not, and our arguments are almost always about those areas.
If you want to argue in favor of your political preferences, by all means do so: but you have to do the hard work of persuading people. Claiming, “I am the One True Oracle of the Founding Fathers” is both lazy and dishonest. No, you need to make the case that your ideas will lead to results that are desirable and which people should vote for. We are not a monarchy; there is no royal road to legislation.

#25 Comment By MM On May 30, 2018 @ 5:59 pm

JonF:

So why is there an amendment process?

Just answer that one, vagueness notwithstanding…

#26 Comment By Youknowho On May 30, 2018 @ 6:58 pm

By the way, once the Constitution is fixed the way you want it, what will you do with cases like this (to which I am contributing)?

[5]

This is the only option for this poor kid and her parents. There is no other way to pay for the surgery this kid needs.

Because socialized medicine EVIL!!! Because FREEDOM!

At least the kid has a somewhat famous writer aunt (not rich by any stretch of the imagination) who can call on her fans for help…

#27 Comment By MM On May 30, 2018 @ 7:08 pm

JonF: “You have the right of course to read your own political preferences into the vague parts of the Constitution.”

Such a straw man argument. With respect to the General Welfare Clause, because it has no defined meaning, then there are no limits to government taxation and spending, according to your vague argument.

Wow, I’ve heard of the Living Constitution angle, which is just another way of reading what you like into, and what you don’t like out of, the text of the Constitution. But the Meaningless Constitution is a novel concept.

This is just a drop in the bucket, only $5 billion in federal pork, but let’s drop the flowery rubbish and get down to brass tacks:

[6]

How is this sort of thing remotely consistent with any reasonable interpretation of the General Welfare Clause? Anybody?

I’ve got Thomas Jefferson standing by with the rebuttal…

#28 Comment By chipshot On May 30, 2018 @ 7:13 pm

Why are we even referencing a document that is 200 years old, one that is so steeped in vagueries as evidenced by the continual arguing around its meaning. At best its an oracle, a crystal ball that allows each of us to see our own political way forward.

its like a teenager listening to parents arguing at the dinner table. it solves nothing.

Here’s an idea. How bout we deal with problems as they are today without getting lost in dusty parchment and language. Oh the sacrilege. We have lots of other social experiments to look at. 50 states. 180 other countries. All are trying to build the best societies. All are built of people like us. All are trying hard. The rest of the world laughs at us because we only look inward, like an angry teenager. How about Let’s just look at where the most people are the most content, and go from there?

#29 Comment By E. J. Worthing On May 30, 2018 @ 7:50 pm

@Les Govment:

I read your “Moral Libertarianism Defined.” Others who identify themselves as libertarians may take issue with some of the items on your list.

I would take issue with item 6, where you write, “Government coins money, which is taxable. Government does not produce homes, cars, etc.; therefore, it has no moral right to tax property or to confiscate legitimately-owned property.”

Government does not produce land, iron, oil, or gold. But neither do individuals. Individuals and various organizations work to improve land and to get mineral resources out of the ground. But they do not create these resources. Since these resources are scarce, “I got there first!” carries some weight but is not morally decisive. Also, a lot of land, gold, and oil have at some point changed hands through fraud or wrongful force.

So it’s often, perhaps always, impossible to trace the acquisition of land or mineral resources from a rightful initial acquisition through a series of legitimate transfers to its present owner. If the present owners of land and mineral resources have morally valid property rights, they have these rights because of legitimate law. If the law says these resources are taxable, they are.

#30 Comment By Winston On May 30, 2018 @ 9:57 pm

If you look at the Census, it is game over. US will soon heading for post-white era (check out workforce), in a country blinded by reality by segregation and continuing policies that have denied decent education to the minorities and also jobs denied due to discrimination.
Soon it will be clear how much self harm US did!

#31 Comment By Rick On May 30, 2018 @ 9:58 pm

Excellent analysis of the constitutional principle of freedom based on individual rights.

However, after reading the fist four comments, I am stunned by the ignorance of those posters. TAC needs to add a reply button.
— Rick [Freedom_First (at) verizon (dot) net]

#32 Comment By Joe the Plutocrat On May 30, 2018 @ 11:02 pm

to paraphrase history. what have we got? a Republic or a Monarchy? BOTH, a Plutocracy. if they (oligarchs) can keep it. Nothing to see here folks. go comment about Rosanne…

#33 Comment By Liam On May 31, 2018 @ 8:34 am

“The Constitution is a good guide but not mosaic law. It was written by self-interested people.”

They were not only self-interested, but opportunistic in turn when it came to interpreting the text. None less than James Madison himself did a few rounds on the interpretation carousel.

It should also be noted that the legislators of the Constitution were not the drafters, but the *ratifiers* – who ranged all over the place in their own interpretative perspectives.

#34 Comment By Going My Way On May 31, 2018 @ 11:54 am

The Constitution may be flawed but it has attributes not found in other countries. Freedom of speech is so very important. It is the prize that beguiles all demigods who seek to discipline our speech for their own ends. The state government of Western Australia passed anti-hate speech legislation that they used on a citizen at the direct urging of the government of Israel. The accused spent three years in jail. His rantings were no worse than Mel Gibson’s in his Beverly Hills arrest. Gibson suffered economic sanctions but not jail for his hate outburst (drunkenness – yes). Had he been home in Australia? Goodbye Mel – see you next century. Never throw the baby out with the bathwater. Improve the libel laws? Just ask – why do people want to shut you up?

#35 Comment By Don Walker On May 31, 2018 @ 3:07 pm

I wonder if Fein would include the exploitation of labor in his definition of “domestic predation?”

#36 Comment By John Paul On May 31, 2018 @ 11:00 pm

Perhaps Bruce Fein would care to comment on the Israel lobby’s attack on the first amendment rights of Americans.”Americans should think about the fact that Israel is the only country on earth that it is impermissible to criticize. Anyone who criticizes Israeli policy, especially toward the Palestinians, or remarks on Israel’s influence, is branded an “anti-semite.” Even mild critics who are trying to steer Israel away from making mistakes, such as former President Jimmy Carter, are branded “anti-semites.”

How would the constitution prevent American politicians in thrall to the Israel lobby from nullifying the first Amendment rights of Americans?

#37 Comment By Les Govment On May 31, 2018 @ 11:50 pm

This is in response to E.J. Worthing’s post on 5-30-18 at 7:50 pm. (I hope this is not too late to be moderated.)

To E.J.:

I appreciate the civil tone of your post, and also appreciate that you read my manifesto on my Google+ profile.

I agree with you that some libertarians would take issue with some of the points in my manifesto. That’s not much of a concern to me though, because libertarians are not really monolithic. Just to name two issues, libertarians are split on both gay marriage and abortion. Most real libertarians (actually, the vast majority) believe in the NAP (non-aggression principle), property rights, market-place freedom, and maximized liberty for individuals (as described in point #3 in my manifesto). Libertarians also support the Bill of Rights.

Concerning property, I believe that natural resources fall into a different category of property than what I stress in point #6. The state of Alaska, for example, charges mining fees (which can reasonably be called a form of taxation) for oil drilling. It’s my understanding that those fees go into the Alaska Permanent Fund which pays out money to the residents of Alaska. While I do take issue with how high the mining fees are, it does seem fitting to me that the people of Alaska benefit from the natural resources of the state that are being mined by private-sector corporations.

So, in my view, taxing property like houses, cars, etc. is different than the state charging mining fees. (When I lived in Connecticut, there was a property tax on cars, believe it or not.)

— Les Govment [7]
.

#38 Comment By Ken T On June 1, 2018 @ 10:04 am

we don’t want our liberty at the expense of others’ liberty; we want liberty for EVERYONE

The problem of course is – what happens when my exercise of MY liberty interferes with your exercise of YOURS? What then? What is your response to that? What solution do you propose? This is the point at which libertarians always run away from the argument. Because without government, without a system of laws and regulations, and the means to enforce them, what is left? Pistols at 20 paces? 9 rounds in the ring? Medieval jousting? Or do you simply assume that OF COURSE your rights take precedence over mine?

#39 Comment By Ray Woodcock On June 2, 2018 @ 2:53 am

I read the article and a number of comments. Comments on this sort of article are inevitably frustrating because they often combine truth and error. Error as seen from my perspective, to be sure, but also from the perspectives even of others who share many of the same views.

I’m not sure what purpose is served, ultimately, by promoting frustrations that lead to no positive outcome.

I wish TAC had a writer or panel operating an ongoing discussion — as distinct from debate, especially of the sort where people get mad, feel insulted, and to some extent understandably become inflammatory. A relatively calm discussion, taking its time, exploring issues, and considering reader input — not so much to preach the “right” answer as to arrive at relatively fair and well-grounded statements of the various concerns impinging upon any simplistic solution.

Specifically, in the context of this particular article, it seems like it should be possible to convert Fein’s expressions of personal belief into a more broadly informed deliberation promoting trust in, and mutual respect for, the fellow citizens with whom we must coexist.

The adage is, You will know them by their fruits. These fruits are not good.

#40 Comment By EliteCommInc. On June 2, 2018 @ 8:16 am

“While I do take issue with how high the mining fees are, it does seem fitting to me that the people of Alaska benefit from the natural resources of the state that are being mined by private-sector corporations.”

Then it is justified that all drilling of natural resources be as public domain and the only real profit for any private aspect is for drilling and delivery. Every other penny distributed out among the states; population.

After all, said private entity did not make the oil.
That oil is public domain.