A Challenge To 21st Century "Liberalism"

***Chapter One--Conservative Debate Handbook***

A Simplified Overview Of Constitutional Law



Synopsis
Influence of personal experience on perception of Government; unique early American experience; no mystique to Government; no Federal Government but for Constitution; perceived "Need" does not unilaterally expand nor change allocation of political power; Rule of Law versus Law of Jungle.

This, as the Introduction earlier, is intended as a useful overview for the would be defender of the American tradition, without being limited in applicability to a single issue or even a single class of issues. This, as the Introduction, is offered to help organize the thinking of the political advocate. It is not intended as a substitute for research on an immediate subject. It should suggest areas where the would be debater ought to look in his or her research.

While the discussion will have primarily an American venue, the method of analysis should have more general applicability. We deal here with the origins and restraints on the exercise of political power, and those are topics of world wide relevance. And in dealing with the historic functions and restraints on American Government, with concepts of a social or political compact here, we will surely suggest concepts analogous to those with common or parallel heritages. (For obvious example, this discussion would be quite relevant to a British subject desiring to dispute his Government's confiscatory tax policy since 1910, in light of the solemn covenants of Magna Carta.)

To understand the attitude, and hence intent of the Founding Fathers, it is necessary to understand how their perspective on the origin and function of Government differed from that of others. In the old world, Government enjoyed a mystique. People were born into systems that had been old before their great grandparents were conceived. To be sure, all systems could be traced to some form of social compact: Perhaps to an historic surrender to a conquering force; perhaps to a voluntary adherence to a rising Prince or War Lord by those seeking protection; perhaps through the evolution of a tribal people whose origins went back to a time before history was written, and the ancient acceptance in that tribe of a method for determining direction. But few if any ever thought in those terms. Government was simply a phenomenon that was!

The American experience was almost unique in that within the lifetimes of those then living, a dynamic process, which had been going on for six generations, was still very much alive and well. People would arrive in small groups, as families or as individuals; and if they did not like the ways (political, social or what have you) of those where they landed, would move on to find those more to their liking, or to found new settlements with the like-minded. Instead of deifying Government or Society; they understood that they were built by men--men like them--very nearly from the ground up. It was almost second nature, because they were daily building political societies from the ground up.

Having thus none of the illusion that political power came from God; they had no problem in evaluating a major change in political direction. When, after the successful conclusion to the French and Indian Wars (part of the World War known as the Seven Years War in Europe), the British Government began for the first time to effectively intrude on the daily affairs of these original Americans; they reacted; they began to analyze in depth--not as an intellectual game, but as a way to come to grips with a changing reality--the proper role of Government, and the rational bases of political power. And being a fundamentally Conservative people, not given to wishful thinking or cloudborne illusions, they grounded that analysis firmly on their own experience; recognizing and systematizing the analogous experiences of others throughout history.

The Declaration of Independence was a clear enunciation both of the American concept of Government--as an institution created by men; a compact of men, whose legitimate function was to secure the God given rights of Man--and of the growingly intrusive actions of the British Government which motivated a separation. The recital of those specific grievances, which forms the bulk of the document, is followed by the actual legal Declaration of the sovereign independence of the original 13 States.

What the Declaration clearly was NOT is a call for Egalitarian Government; nor was it a suggestion of equality in ability or circumstance. None of the signers believed in any such nonsense. The phrase "all men are created equal," in the context in which it is offered, can only be interpreted as referring to the fact that the existing Government had no divine right to rule. Jefferson was talking about the origins and nature of Government as a concept, before listing the specific grievances: The specific charges against the contemporary British Government for acting outside the concept of legitimate Government, as the Fathers saw it. (The phrase says also, as the late great Dean of the Notre Dame Law School, Clarence Manion, was fond of thundering from the platform, that man was created. But that is outside the scope of this Chapter.)

The legal document--ie. the last paragraph where the States actually declare their Independence--is premised upon what has been referred to as the "Compact" theory of Government. The essence of this theory is set forth in this language, offered immediately after Jefferson had defined unalienable rights, including "Life, Liberty and the pursuit of Happiness," as coming directly from the Creator:

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government....

Here was no attack on one particular form of Government. The long recital of specific grievances which follows was not an attack on Monarchy, either as a general type or with regard to the specific British model. Indeed, many of the grievances registered against the Crown were for allowing Parliament--the elected branch--to take actions deemed unjust. The Declaration was a reflection of a belief that Government, in whatever form, acts illegally when it violates the compact that led to its creation: The compact based upon that "consent of the governed." This concept is often attributed to John Locke a century earlier; but it was intrinsic to the Magna Carta, the compact between King John and the Barons signed in 1215, which recognized both hereditary property rights, free of excessive burdens, and the freedom of Commerce. It recognized, also, a right--indeed delineated a formal procedure--for the Barons to rise against the Crown, if that compact were ever violated.

Those who gathered eleven years after the Declaration to draft the Constitution understood all of the above; indeed, were steeped in the above. Prior to the Constitution, under the loose association of States provided in the Articles Of Confederation, it was spelled out that all Sovereignty remained with the separate States--each of which was as independent of the others as the State of England was from the State of Prussia.

[The difference between State and Nation (as legal terms) is that a State exercises political functions within and over a specific geographic territory, while a Nation may never have reduced a specific area to its unique domain--as witness many of the distinct Indian tribes (or Nations) in North America, or by analogy, the intended meaning of the appellation "Mary Queen of Scots," which recognized that while Scotland had indeed a specific geography, the Monarchy claimed authority over a wider Nation, many of whose subjects were serving as mercenaries in other States.]

The men who drafted the Constitution, intending indeed to create an effective Federal Government, absolutely understood that they were establishing an entity which would have only those functions, powers and attributes which they gave it. The Federal Government has no existence outside that Constitution. It did not exist before the Constitution. And if the Constitution were abrogated, it would cease to exist as a legal entity. It has no sovereign powers, functions or attributes outside the Constitution. Hence, if it acts outside that Constitution, it acts illegally and is entitled to no more respect than a band of brigands passing by. It may assert an Unconstitutional power in our lives; but when it does, it resorts to the law of the jungle, the law of brute force, the very antithesis to the "Rule of Law."

We intend to explore some very specific issues, in light of the Constitution, in other Chapters. Here we make only some very basic points:

Since there was no Federal power but for the Constitution, the framers were very specific in their grants of power. Thus they did not grant Congress the authority to regulate Commerce, but "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes," and quite separately, "to fix the Standard of Weights and Measures." They did not provide merely the right "to coin Money, regulate the Value thereof, and of foreign Coin." They considered it essential to provide separately "to provide for the Punishment of counterfeiting the Securities and current Coin of the United States." They conveyed separate rights "to establish Post Offices and post Roads"; separate rights to collect taxes to "provide for the common Defence of the United States," and "to declare War, ...make rules concerning Captures on Land and Water; To raise and support Armies, ...To provide and maintain a Navy"; and still quite separately "To make Rules for the Government and Regulation of the land and naval Forces," etc., etc..

They knew that if they did not grant it, it wasn't there. But there is nothing in the entire document which suggests any intention to use words unnecessarily, or with anything but precision. Nothing! Nothing!

There are two clauses in Article I, Section 8, where most of the Legislative powers of the Federal Government are set forth, which have been misapplied to distort the obvious intention of the framers. Those are the first paragraph and the last. The first reads:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all duties, Imposts and Excises shall be uniform throughout the United States;

It should be noted that every power granted to the Federal Government in the Constitution is functional--ie. allocated to a specified function. The general Police power of Government--the power to act when needed for the public safety--remained with the States. Nothing in the paragraph cited changes or enlarges any of the other functions specified. It merely adds to them the function of raising money to pay for those other functions. In the paragraphs which follow, how providing for that "common Defence" is to be functionally accomplished is very specifically set forth--even down to a limitation as to the Army, but not the Navy, that "no appropriation of Money to that Use shall be for a longer Term than two Years."

By obvious analogy, it is apparent--even as the Jeffersonians prevailed on this issue before the electorate--that the term to "provide for the general Welfare," is a limitation not an enlargement on the specific powers that follow. "General" is the opposite to particular. In the context it limits the possibility of using any of the domestic powers (those specific functions set forth in the paragraphs that follow the language quoted) in the particular interest of any faction. [The Fathers were very conscious of the corrupting influence of factions, and most of the checks and balances and limitations on the Government were intended to keep it out of the hands of self-serving factions--See the Federalist Papers.] Thus to spend money for the "general Welfare" would exclude putting better post offices in one State than another, adopting commercial regulations which favored one type of enterprise over another, or the efforts or needs of one class of citizen over those of any other, etc..

Furthermore, lest anyone think that the power to tax opened the door to schemes for the redistribution of wealth--the unspecified, but everywhere present aspect of so many Federal domestic programs today--you need look no further than Section 9 of the same Article, which provides that "No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration." The power to directly tax a percentage of an individual's Income was only made possible by the Sixteenth Amendment--a Century and a quarter later. But that only enlarged the power to tax. It did not create a new function; that of elevating the circumstances of a particular faction. America was still in touch with her roots in 1913; that could never have been agreed to!

The final paragraph of Article I, Section 8 reads:

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by the Constitution in the Government of the United States, or in any Department or Officer thereof.

But such recognition of the need for some implied powers to carry out the functions delegated to the Federal Government by the Constitution, cannot by any interpretation of the English language be understood to grant new functions. The implied powers justify a Naval airforce, Nuclear Submarines, a new automated Post Office; new procedures to deal with counterfeiting. By no stretch of the meaning of words, do they justify a Federal role in private employment, State school systems, civilian health, or in dealing with "poverty."

To understand how completely alien the modern Federally directed "Welfare State" was to the intentions of the Fathers, one need look no further than the social institutions of the 1780s, and the perceived areas of responsibility. Jefferson tells us that in the early history of an Independent Virginia, the problems of the poor and disabled were dealt with under a State-wide system, but not one entrusted to the civil authority; not one administered by any County Agency:

The poor, unable to support themselves, are maintained by an assessment on the titheable persons in their parish. This assessment is levied and administered by twelve persons in each parish, called vestrymen, originally chosen by the housekeepers of the parish, but afterwards filling vacancies in their own body by their own choice. These are usually the most discreet farmers, so distributed through the parish, that every part of it may be under the immediate eye of some one of them. They are well acquainted with the details and economy of private life, and they find sufficient inducements to execute their charge well, in their philanthropy, in the approbation of their neighbors, and the distinction which that gives them.

The poor who have neither property, friends, nor strength to labor, are boarded in the houses of good farmers, to whom a stipulated sum is annually paid. To those who are able to help themselves a little, or have friends from whom they derive some succours, inadequate however to their full maintenance, supplementary aids are given, which enable them to live comfortably in their own houses, or in the houses of their friends. Vagabonds, without visible property or vocation, are placed in workhouses, where they are well clothed, fed, lodged and made to labour.

Nearly the same method of providing for the poor prevails through all our States; and from Savannah to Portsmouth you will seldom meet a beggar. In the larger towns indeed they sometimes present themselves. They are usually foreigners, who have never obtained a settlement in any parish. I never yet saw a native American begging in the streets or highways. [Query XIV-- Laws, Notes On The State Of Virginia, 1782]

Nobody could make that statement today! Sixty years after our Federal Government took over care for the poor, you can see native Americans begging on almost every block in the business districts of most of our major cities.

Yet as stupid as the Federal "Welfare" approach to poverty has been, as a pragmatic excursion in human dynamics (see our essay on the subject), the still greater evil is that it is wholly without Constitutional basis. And in this age where even the suggestion of a simple non-denominational prayer in a public school brings forth frenzied cries of a sacred "Wall separating Church & State"; Jefferson provides clear evidence that the "Liberals" have shattered that "Wall" beyond human recognition.

In Nations without written Constitutions, the rulers' perception of "Need" has often been construed to extend power. Such was certainly the dogma also of Communist Russia and Nazi Germany. Such is certainly not the doctrine of the Founding Fathers. They vouchsafed to us a written Constitution, that we might understand what the Federal Government could do and what it could not do. That document remains the sole legal basis for any Federal action. The Government in Washington may compel our acceptance of a new dispensation by naked force--the law of the jungle--as it dealt with a religious minority at Waco; as it reimposed a Marxist Government in Haiti (there is no Constitutional mandate to monitor other land's elections or enforce a result). But that is not the "Rule of Law," about which we hear and read so much, often with so little understanding.

A final note: When a young Conservative first begins to read the great charters of American liberty in context, as complete--not fragmented--documents, and to perceive the context of their times, it is natural to feel a tremendous rush of outrage; outrage at the betrayal of a trust, the betrayal of a birthright. Thus some get drawn off into movements on the fringe, before they ever catch their breath and realize that we are all most effective if we can somehow learn to fight with a smile rather than a curse--with persuasion rather than violence. (As Reagan, rather than some others.) If present trends continue, there may well come a time when the emphasis will again have to be more on the Declaration than the Constitution. But that is not our function here. Here, as in the Introduction, and in the Chapters which follow, we suggest only the arguments of reason.

No one can guarantee that, however effective we may make ourselves in the great debate, it will be enough. But try we must. As Jefferson wrote in the Declaration:

All experience hath shown, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.





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No American journalist in the 20th Century wrote with greater clarity or precision, none with more compelling rhetoric or cadence, than James Jackson Kilpatrick, Editor of the Richmond (Virginia) News Leader in the 1950s and early '60s. In 1957, he wrote The Sovereign States to challenge increasing Federal encroachment into State and local affairs. The book was not only philosophically and Constitutionally sound; it exhibited, in sparkling prose, some of the best American Conservative writing of the 20th Century. Now, fifty years later, it is available again, and on line:

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