The Cure For What Ails America, Part I

In 2009, I wrote a restatement of The Declaration Of Independence, in contemporary English and listing the offenses against its spirit of the current state of America, with the recent rush in the long trend of abandonment of constitutional principle. And that was even before the audacious passage of the federal healthcare law that has been called Obamacare. But, the federalist system set up by America’s Founders, offers a possible way out of the unconstitutional and resulting social quagmire that we find ourselves in, short of an outright declaration of independence. In part II, I’ll talk about what that could look like.

In the first place, people would be taxed by the states. Nations are restructured all of the time all over the world. This takes it back to something consistent with the ideals The United States of America was founded on. In fact, it was founded by sovereign colonies/states that threw off the governance of a distant power for their own individual governance. The federal government was accorded limited powers that were enumerated in The Constitution. In the deliberations before the establishment of The Constitution, some were concerned that with the establishment of a single nation for the sake of shared commerce, currency, defense and diplomacy, that the central government would become too voracious for power. They were right to be concerned of course. Today the federal government interferes with and corrupts almost everything. Private commerce is corrupted and prosperity restrained. And, we are now in the deepest canyon of unfathomable debt and operating deficit in the history of the world. Creditors and credit-rating agencies are warning the nation with history’s largest GDP, that they are in precarious condition. There was particular concern in light of the proposed words that are now referred to as "The Supremacy Clause:" 

“This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.”

If you want to see how this clause is popularly misconstrued, take a look at the discussion of “The Supremacy Clause” in that trusty Internet mirror of pop-culture error, Wikipedia; a nice account of the line you will find in most all popular media. That pop-culture account is that all laws of The United States overrule any other contradictory laws and that, as it continues to say, all judges of any state’s court are bound to those laws passed by The United States government. As it is popularly summarized: “Federal law trumps state law.” But, the problem is in the first phrase in the highlighted words: “This Constitution, and the Laws of the United States which shall be made in pursuance thereof...” The discussion is of laws made “in pursuance” of The Constitution. Now of course, this phrase of the literate person in a formal document TWO HUNDRED AND THIRTY-FIVE YEARS AGO, is not instantly clear to users of American street-vernacular English today. But if you consult a contemporary dictionary, you will find one definition of “pursuant to” as consistent with the pop-culture idiom asserted in any federal acolyte forum like Wikipedia and other popular-culture outlets. Probably the closest synonym would be “following.” Which these interpret as merely “afterward.” But, another definition renders “pursuant to” as “in accordance with,” which in some contexts “following” is also used to mean. And the argument of myself and historians who are not a priori pledged to a federal majesty, is that most of the laws that the federal government is passing are precisely NOT in accord with The Constitution. They are outside its constitutionally enumerated powers and responsibilities. So, let’s look closer at that history:

The concern mentioned above of a power consuming federal government was central in the discussion preceding ratification of The Constitution. To assure that the federal government was restrained to the general utility of its enumerated powers, The Constitution was ratified with the addendum called The Bill of Rights, which detailed ten inviolable rights of the people and culminated in the 9th and 10th Amendments:

  • Ninth Amendment – Protection of rights not specifically enumerated in the Constitution. “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
  • Tenth Amendment – Powers of States and people. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Having long ago broken through the fence of its enumerated powers, the federal government has been rampaging with unconstitutional laws for my entire life. But in the past two years, the movement has been so steep and large that it provoked a backlash. States are expressing dissent, either voting their rejection or pursuing them in court. And there has been a rush by people to actually study the words of The Constitution, like never in my life: “Hey, this isn’t right!”

The dramatic intrusion of the healthcare law last year, is the most obvious example. Many states have voted their opposition and more than half have filed a constitutional case in court. I think they should just refuse to cooperate rather than wait for a Supreme Court edict. But the case has been publicly made and will be made in the courts, that if a federal government can dictate not only that an individual must purchase a product, but that it must purchase one of the specifications dictated in a federal statute, then there is nothing remaining for which it does not have license, and the notions of limited government, enumerated federal powers, and the explicit pronouncement of those last two Amendments of The Bill Of Rights and the retention of powers by the states and the people, stand totally eviscerated. The federal government should not be dictating commerce of any kind, beyond assuring regularity, honesty, and safety of interstate commerce.

The states and the people should not even signal that they wait on their hands for delivery of a royal decree from The Supreme Court. I believe that all of this trampling of constitutional restraint and liberty are made possible by the development of mass-communications. Dramatic steps were the introduction of public radio and then television with its artificial framing of reality. This force worked in concert with academic social engineering ideas and a media disposition that progressed from reporting to the high calling of courier and advocate for federal royalty. Especially with these facilitators, this eventuality is hardly a surprise. Even before these forces were a dream in anyone’s mind, Thomas Jefferson warned in these among other words:

The natural progress of things is for liberty to yield and government to gain ground.

I am not a friend to a very energetic government. It is always oppressive.

The god who gave us life, gave us liberty at the same time: the hand of force may destroy, but cannot disjoin them. What country can preserve its liberties if its rulers are not warned from time to time that their people preserve the spirit of resistance?

Jefferson also wrote that states "have the unquestionable right to judge of [the Constitution's] infraction; and that a nullification, by [the states], of all unauthorized acts done under color of [the Constitution], is the rightful remedy."

James Madison wrote that states were “duty bound to resist” when the federal government violated the Constitution. So the way to restore constitutional balance and the liberty that enabled the most prosperous society in human history is not to plead your case through passage of state referenda or in the federal courts. What is needed to defend liberty is the barest morsel of the courage America’s founders showed just to resist and refuse to comply. How we should do that, what we would be rid of, and what we could expect, in Part II.

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