My Comments At Valley Forge

The following is roughly the text of my comments at the Valley Forge Tea Party this morning. I was asked to speak on the theme: A Constitution In Crisis.

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The flyer that was circulated prior to this event makes the observation that the Constitution is being violated by the very public officials who are sworn to uphold it. It goes on to pose three questions: 1st, what are some of these abuses or violations? 2nd, how should we, as citizens, respond if we are “persecuted” for following the Constitution? And 3rd, how can we restore the Constitution to its proper place as law of the land?

I don’t believe the answers are hard to come by, but acting on those answers will be difficult. First, though, there is another question to answer; why should we care? The world has changed radically in the two-and-a-quarter centuries since the Constitution was designed. Everything is different now – or so we’re told. Why should our public servants in the 21st century be limited by a musty old document written with a quill pen? Why should we expect a two-hundred-and-twenty year old law to have any meaningful application to the political questions of our day?

There’s no doubt many, if not most, Americans really do question the importance of the Constitution. The reason, I believe, is that we’ve become too busy, too complacent – dare I say too apathetic – to be bothered with the abstract concepts of government and economics. We don’t want to think about it. We would rather handle our votes and our influence as citizens the same way we handle our tax returns. We want an expert to tell us what to do, or in this case how to think. This laziness is the reason Americans have been so easily sold on the concept of “problem-solving, issues-driven” politics. That wonderful sounding phrase is a euphemism for unlimited, centralized legislative authority – the antithesis of our Constitutional form of government.

But really, what’s wrong with that? Why should we care? Isn’t solving problems a legitimate purpose of legislation?

The answer, fellow Americans, is no. Under this benign, seemingly reasonable proposition lie assumptions that are deadly to our American values of liberty, justice and equality. If the purpose of the law is simply to solve problems, then who is to decide what problems need to be solved? The foundational assumption at the center of “issues-driven, problem-solving” politics is that you, as an individual, are neither competent to nor capable of solving your own problems or working with those around you to solve problems which affect us all; and that the lawmaker, merely by virtue of his position, is somehow miraculously endowed with all the wisdom, incentive and ability that the rest of you lack. That assumption, my friends, is nonsense; it is also incompatible with freedom.

The only legitimate purpose of the law is to establish justice. Frederic Bastiat, the great 19th century economist, puts it thus:

“Life, liberty and property do not exist because men have made laws. On the contrary, it was the fact that life, liberty and property existed beforehand that caused men to make laws in the first place… [Law] is the collective organization of the individual right to lawful defense… It is the substitution of a common force for individual forces. And this common force is to do only what the individual forces have a natural and lawful right to do: to protect persons, liberties, and properties; to maintain the right of each, and to cause justice to reign over all.”

But why can’t the law establish justice and solve other problems at the same time? Quite simply, because law is not charity or philanthropy, it is brute force; it does not counsel or advise, it coerces. To extend this force beyond the limits of justice is to commit injustice; to destroy the legitimate goal of law in the pursuit of an illegitimate goal. Moreover, contrary to the “problem-solver’s” assumptions, the lawmaker (a) is as selfish as the rest of us, (b) has his own problems and (c) doesn’t have the foggiest idea about yours or mine. Consequently, when the law is allowed to go beyond the limits of justice, the temptation is generally irresistible to solve problems in a way that will benefit the lawmaker, not society. Every government that has ever existed on the face of the earth has shown this tendency.

OK, enough theory. What does the Constitution have to do with all this? Well, the Constitution is unique in the sense that, unlike statutory law, it doesn’t limit the actions of private citizens. It puts you, as an American citizen, under no legal obligation. The legal force of the Constitution is directed toward government, not you. The purpose of the Constitution was to say what your federal government may, and may not, do. It was intended as a limiting framework for the operation of the United States government. It does this in three ways.

First, the Constitution says what the federal government may do. The founders’ clearly stated intent was that if the constitution didn’t specifically delegate a power to the federal government, then the federal government did not have that power. Secondly, the Constitution prohibits or further restricts the exercise of some powers that might otherwise be implied. And thirdly, it divides these powers in such a way as to minimize the incentive for their abuse by any one branch of government.

The Constitution matters, ladies and gentlemen, because unlimited government always destroys individual freedom, and government is not easily limited. Remember, law is force. It can only be kept within proper limits by an opposing force. The founders understood this. We’re gathered at Valley Forge - why is Valley Forge significant? Because our forefathers fought a long, bloody and destructive war to restore the law to its proper functions. They didn’t want us to go through that horror again. So they sought to establish a form of government that would pit the force of government against itself through a system of checks and balances; one that would use the tendency of each branch of government to consolidate its own power to prevent the abuse of that power.

And it has worked. There is a reason America has been the most prosperous, and one of the longest lived, popular governments in the history of the world. Its failure to work today is not due to being outdated – human nature hasn’t changed – but rather to the fact that Americans don’t understand how their government is supposed to work – or how any good government should work, for that matter.

So now, to answer the three questions we started with:1st - What are some examples of the Constitution being violated today?

Kim asked me last week about the AIG bonus tax bill that passed the house. Was that unconstitutional? I think so. It didn’t merely go beyond constitutional limits; it would have violated at least two clear prohibitory clauses of Article 1, sec. 9. As a punitive tax targeting specific individuals, it was the equivalent of a bill of attainder, and as a retroactive tax on compensation already paid and received, it was an ex post facto law. Any lawmaker who cared knew that. Those who would plead ignorance didn’t care.

Another example would be the McCain/Feingold so-called “campaign finance reform laws.” The only constitutional authority the federal government has over the electoral process applies to the times, places and manner of holding elections. They have no delegated authority to regulate fundraising or political advertising. Moreover, the 1st Amendment specifically prohibits such interference where private citizens are concerned.

McCain/Feingold is an interesting example because many legislators who voted for it admitted that they thought it was unconstitutional – and voted for it anyway. President Bush admitted that it was probably unconstitutional – and signed it anyway! Their justification was that constitutionality is a question for the Supreme Court. Actually, it’s a question for all of us, particularly those of us who take an oath to uphold and defend it. This is a quote from Justice Kennedy, in an unrelated case: “The usual presumption is that Members of Congress, in accord with their oath of office, considered the constitutional issue and determined the … statute to be a lawful one; and the Judiciary, in light of that determination, proceeds to its own independent judgment on the constitutional question when required to do so in a proper case.” In other words, the Court assumes that if Congress passes a law, they believe it to be constitutional. To legislate with abandon and leave questions of constitutionality to the Court is a violation of the lawmaker’s oath of office.

The Federal Reserve System is unconstitutional, and so is the issuance of legal tender paper money. That may seem like a bold statement, but the intent of the founders on this point is not a subject of doubt.

Other specific examples could include the National Animal Identification System; the myriad of federal laws restricting the free exercise of religion; federal regulations that prevent airlines from arming their pilots; bail-outs of irresponsible firms from hedge funds to auto-makers. To be honest, I’d be hard-pressed to name any bill that has passed Congress in the last several years that hasn’t been unconstitutional in some way. We aren’t just seeing violations of the Constitution on the level of individual laws; entire aspects of society that are entirely outside of the federal government’s jurisdiction are now regulated minutely by federal law. Things like healthcare, job creation, and agriculture – the proper role of government, both morally and constitutionally speaking, is simply to protect the free enterprise system as it applies to those areas of the economy. It has no constitutional authority to regulate the actions of private individuals in those areas unless they are directly engaging in interstate commerce.

2nd - How do we respond when citizens are “persecuted” for following the Constitution? Remember, the Constitution obligates your public servants, not you. Our responsibility as private citizens isn’t so much to follow the Constitution ourselves, rather to see to it that they do. This brings us to the last question:

3rd - How can we restore the Constitution to its proper place as law of the land?

First, we need to know the constitution. Start by reading it. The entire document was hand-written on two sheets of parchment – it isn’t long. Learning the Constitution is an absolutely essential first step, and it will make you better qualified to run this country than most of your leaders, because they haven’t read it.

Secondly, pay attention to what your leaders are doing. Do NOT, do not assume that the leaders of your party care about your values – they do not. Put pressure on them. Let them know that you stand opposed to all expansions of government, regardless of whether they tend toward the “right” or the “left” of our meaningless political spectrum. Remember those checks and balances? They only work if voters are paying attention. They aren’t working now because while you’re celebrating the Phillies’ World Series title all the branches of government are cooperating to steal you blind.

My brother and I met with Delaware County Sheriff Joe McGinn a few weeks ago. We confronted him about an apparently illegal arrest and search his deputies had been involved in. To his credit, he had a reasonable explanation for the incident. But he seemed puzzled by our concern when I told him we didn’t know the suspect who had been arrested. He told us that in his entire law enforcement career, it was the first time he had been challenged by a citizen who wasn’t personally connected to the case in question.

Shame on us. Joe McGinn is a good guy. I really believe that. But how can we expect him to stand up to the pressure from within government if we as voters don’t provide the counter-pressure which is our responsibility? Why should he limit his authority according to the constitution when he doesn’t expect it to make the slightest impact on his reelection? We need to pay attention and hold elected officials accountable.

And finally, each one of us needs to exercise self government. Society needs government. Unrestrained human nature isn’t pretty. If we as individuals desire to be free, to remain free, we must govern ourselves; because if we don’t, the vacuum will be filled by others, and the end result will be a totalitarian government. God knows there are enough of those in this world.