A Constitution Beyond Interpretation

In a flight of fancy we are discussing an America that has taken a slightly different path. What if the Founders included a basic list of definitions as an appendix to the Constitution; definitions that eliminated any possibility that the true meaning of the Constitution would ever be subject to interpretation? That would give us a Constitution that would remain intact unless altered by the rigorous and prescribed method of amendment that the founders intended. This would have insured that the Constitution would forever remain the rigid armature of the Republic while retaining the ability to remain dynamic in response to an ever changing world.

Those definitions would have made a world of difference. If we research through the Federalist Papers, the founders had enunciated their ideas quite clearly and their intentions are well known even today. Unfortunately, legalists have chosen to ignore that treasure trove of information simply because those intentions were never actually written into the Constitution. The Constitutional scholars have spent nearly as much time navigating between each word of the Constitution to justify alternative law as they have learning the law itself. Just as a worm would weave in and out of the garden soil, these lawyers have laced the Constitution with holes of nothing but semantics; skirting the truth to inflict their own mark upon society.

Roscoe Pound devised his theory of sociological jurisprudence and legal realism at the turn of the 20th Century. Sociological jurisprudence is the school of thought that allows the interpretation of legal language and therefore laws, in contemporary terms. Through sociological jurisprudence, one could alter the law without actually having to go through the legal wrangling of convincing lawmakers to rewrite it. A perfect example of the modern use of sociological jurisprudence is the Constitutional authority to “Regulate” commerce. To regulate, at the time the Constitution was drafted, simply meant to make regular or to make uniform. It was meant to enhance commerce between the states through a uniform standard of currency and through trade laws that would make commerce between any of the states fair and equitable. As time passed, the word “regulate” slowly had additional meanings applied to it including “to license, oversee or control through regulation”. Since the word “regulate” had assumed multiple meanings and there was no clear definition in the actual Constitution, the entire commerce clause was left open to interpretation using any one of those definitions.

Of course we know that today the United States Congress has made a mockery of free trade through their liberal interpretation of the “Commerce clause”. The regulation that Congress prefers is of course, the use of governmental regulations to control, tax and license interstate commerce. FDR used this clause liberally to affect government control of nearly everything during the Depression, including the growth of farm products for personal consumption. Not because that produce was marketed across state lines but because produce grown for personal consumption “may” have an affect on the interstate value of produce if too many people began growing their own food. It was a clear stretch of the imagination and something that would not have been possible without the legal tinkering of one Roscoe Pound.

Pound’s other assault of “Legal Realism” postulated that since man was flawed, that any law written by man was potentially flawed as well. For the first time, the Constitution was under scrutiny; not because of the word of the law and not by using the volumes of information contained in the Federalist papers that spoke not only about the Founders intent but of their character as well. Now the Constitution could be examined based on the sheer speculation that the law possibility contained motives of greed and avarice; that the founders had laced their own interests into the original law and that made modern interpretation a guild-edged priority. For his legal genius, Roscoe Pound was decorated; not by the United States, but by Nazi Germany for giving them the tools they needed to get around some very sticky laws of their own. The real danger in these theories is that the interpretation is left to those in power. Since power is corrupting, these little gems could be used by those in power to justify nearly any action; especially if a crisis warranted the declaration of a state of emergency.

FDR had ascended to the Presidency during the Great Depression in 1933. There is no doubt that this was a time of crisis, even national emergency. Jonathan Alter is a columnist and Senior Editor for Newsweek Magazine. In “The Defining Moment”, his recent song of tribute to his hero, Franklin Roosevelt, Jonathan Alter claims to have made an historical find. He states that in 1932, members of FDR's inner circle had urged the new president to deputize the American Legion. The only purpose Alter could arrive at was for the creation of some form of private army. In prepared remarks to be delivered to a meeting of the American Legion which was also broadcast as his first radio address after his inauguration, FDR was to tell the assembled veterans, "As new commander-in-chief under the oath to which you are still bound, I reserve to myself the right to command you in any phase of the situation which now confronts us." In fact, during his inaugural speech, FDR said quite clearly that he was ready to “assume extraordinary powers if Congress failed to act against the emergency”. This shocking revelation was met with thunderous applaud by the assembled crowd.

Alter's interpretation is entirely plausible for any number of reasons, including FDR's determination to use the World War I-era Trading with the Enemy Act as the legal justification for assuming emergency powers. A memo written at the Democratic Convention by Hugh Johnson, the future head of the NRA (National Recovery Administration) suggested that the entire Congress and Supreme Court be sent into temporary exile while a dictator set the country straight. Liberal Journalist and FDR advisor Walter Lippmann cautioned FDR about the state of the nation and urged him to assume "dictatorial powers." Fortunately for us, Roosevelt recognized that once those steps were taken, the American Constitutional government could never again, emerge intact.

Alter would have praised FDR regardless of what he had found but this time he was on the right side of the issue. Alter’s praise was for the man that resisted the call to assume such awesome powers. Not that it wasn’t tempting for Roosevelt, it was. Having seen the amount of power Roosevelt harvested using the legalist tactic of sociological jurisprudence, he came close enough as it was. Incidentally, I find it ironic that FDR was the descendent of another noted person in history. I don’t mean Theodore Roosevelt; that would be too easy. I mean another relative of great ambition, Benedict Arnold.

Seeing the fragility of the Constitution when it is allowed to be subject to such broad and yes, subjective interpretation, perhaps it is time that the definitions that are so obviously absent in this document are finally added so that we can read it in the context that the founders intended. The Federal government would be responsible for the defense of the United States against foreign aggression. We would not be engaged in “nation building” nor would we enter into wars that were not in direct defense of American territory, resources or vital interests. It would insure that trade between the States was free of corruption and that business between the States is conducted with a uniform currency and a uniform code of laws to insure ethical business practices. It would arbitrate disputes between the States and enforce the Constitutional laws that all States agreed to when they entered the Union. The Federal government, as now, would enter into treaties with foreign powers provided the treaties are ratified as prescribed in the Constitution.

Since the States retained all rights of self governance excluding the enumerated powers granted to the Federal government; there would be no Federal agencies for education, health and human services, labor, environmental protection, social security, agriculture, international development, on and on and on. The complete list can be found here and I strongly suggest you take a look at it since you probably have no idea half of these even existed: http://www.usa.gov/Agencies/Federal/All_Agencies/index.shtml

Fear not, the elderly would not perish in the streets, the lakes and streams would not become acidic and disease would not race through the streets. With Progressives, Socialists and extreme Liberals handcuffed by a strong Constitution, the States, being free of oppressive Federal mandates would begin to flourish. The agencies that wastefully consume so much of this nation’s wealth would be gone, freeing that money for economic expansion. Local economies would finally possess the means to provide the services that their residents feel strongly enough to approve through their electoral might. Good ideas never remain hidden or stagnant and as the States test those ideas, the best ones would rise and be sought by the residents of other States. Instead of a one size fits all Federal mandate, States would adopt programs at their own discretion that are tailored to their special needs. Best of all, the people of each State would retain direct control over their destinies instead of being saddled with national burdens imposed by the overwhelming number of number of Congressional representatives from California, Illinois, New York and Florida.

Paul

Progressives and the Courts

In a recent exchange on Twitter, the discussion had turned to Congressional Progressives and I didn’t get the feeling that there is a true appreciation of how dangerous these people really are. There are really only two things standing between Progressives and the realization of their goals. No, it is not the Tea Party movement but they have added a critical component and it is not Congressional Conservatives and Moderates because they are two few in number. The real roadblocks are the United States Constitution and exposure. For the Progressive agenda to move forward the United States Constitution must either be redefined or completely altered and even more important, the true nature of their agenda must remain secret to the voting public.

Most of America’s people live their lives comfortably in the middle of the political spectrum. They recognize the need for essential services but are fiscally conservative. They do not see America as an aggressor but they recognize that the only real deterrent to the aggression of other nations is a military that is adequately armed and trained for war. They willingly reach out to help anyone in a time of need but do not appreciate a government entitlement machine that makes those in need recipients for life. They welcome lawful émigrés to this nation but demand that our borders and our country are protected from those that would enter illegally for the purpose of exploiting America’s generous nature. Most of all, they are not isolationists at heart but want to see some common sense applied to trade agreements and the import tax structure that will preserve our industries and economic well being. Any blatant attempt to violate these basic ideals was historically met with angry retribution at the polls.

Thomas Jefferson warned us about the evils of print news when he said that “A man who reads nothing is better informed than a man who reads nothing but newspapers.” In Jefferson’s day, print news was actually worse than today’s media. It was mostly personal opinion and would openly praise their friends while publically roasting their enemies with little concern for the truth. As newspapers became corporations (and as the law began to deal with those that would print outright falsehoods) the press became more responsible and over time, had begun to establish trust with the public.

There had been no real shift in the basic ideals of the American electorate but starting with the Progressive era in the early 1900’s, there was another major shift in the reporting of news. Papers in major cities began to editorialize again rather than report and they intentionally infused the news with the opinion of the author rather than detail the events of the day. Since there were very few alternative news sources, they were quite successful at shaping the opinions of their readers without much criticism or notice.

The Progressive wordsmiths seeking to shape public opinion through their papers enjoyed, or rather exploited, the faith they had established with their readers during the decades of work by dedicated reporters that were interested in truth over ideology. Now it was different. Progressives sought to change America and before that could happen, they had to either change American opinion or obfuscate the true purpose of Progressivism in a jumble of doublespeak. Isn’t it ironic that now that the press has come full circle Mr. Jefferson looks more like a prophet than someone who was merely commenting on the common practices of corrupt news men during his lifetime?

Now that the news was being crafted to support the agenda of Progressives, the human aspect was being calmed, if not controlled. Those that did not believe the positive press given to the Progressive movement would be demoralized with the unending stories about the excesses of the wealthy and the abuses they waged against the poor defenseless workers. The relentless assault in the press dulled the senses of readers until they were not even sure what the truth was anymore. Fortunately, we now have a multitude of new sources for information. The internet and cable television have shattered the monopoly held by the graduates of liberal schools of journalism and the people have overwhelmingly responded by seeking those sources over traditional media by a factor of two and three to one.

Progressives are the one group in America that truly believes that the ends justify the means. They began the underhanded work of using the courts to redefine the Constitution early in the 20th century while people were still under the ether of the liberal press. Roscoe Pound was a noted legal scholar and educator. In 1908, he was part of the founding editorial staff of the first comparative law journal in the U.S., the “Annual Bulletin” of the Comparative Law Bureau of the American Bar Association. He was also the founder of the movement for "sociological jurisprudence", an influential critic of the U.S. Supreme Court's "liberty of contract" (freedom of contract) line of cases and one of the early leaders of the movement for American Legal Realism.

Sociological jurisprudence was a new idea in law at the turn of the 20th century and would provide the means whereby the courts could assume the role of not simply trying a case based on current law but could instead be used to bring divergent interests into alignment with each other. The long and the short of it is that it is a sociological tool whereby the courts could “translate” law as society changed rather than rely on the written word of law. That one move would give Progressives unbridled power to alter the Constitution through judicial interpretation rather than through the Amendment process intended by the founders.

Of course to make sociological jurisprudence work they needed to nullify the intent of the founding fathers. That would be done through the theory of Legal Realism. Legal Realism states that all people are flawed and therefore, the laws written by man must contain some measure of those flaws. The founding fathers, it was argued, were not trying to construct a nation for all men but to protect their own limited interests. It was therefore right and proper to “adjust” those laws by interpretation using the lens of the modern era to affect a more just society and those interpretations would include the United States Constitution. That was the only way the Progressives could craft legislation that directly violates the Tenth Amendment, allowing the Federal Government the ability to seize powers that previously belonged solely to the States and the people.

Healthcare is a perfect example. The Constitution does not grant the Federal Government the authority to direct, control or regulate healthcare but the government has been using sociological jurisprudence to broaden the power granted to Congress to “provide for the general welfare” under Article I, section 8 of the Constitution since the time of Theodore Roosevelt. The original meaning of this phrase, as clearly enunciated in the Federalist Papers, was to provide for the general welfare of the Union as an entity or a collection of States. It did not give Congress the authority to provide anything directly for the citizens of this nation except for an America free from Federal interference so that they could pursue “life, liberty and happiness” as each saw fit. Progressives had tainted the courts so that the “general” in that phrase was reinterpreted to mean all of the citizenry and not simply the nation and that is now being used as the justification for this onerous healthcare reform act.

Unfortunately, Progressives are not all about doing things for the “general welfare” out of some undying sense of social justice. The roots of Progressivism are based in a firm belief that there are people in this world that are highly advanced and that these “elite” must accept the responsibility for those that are incapable of making proper choices for themselves. The early Progressives looked to Europe for guidance took many cues from Karl Marx, Friedrich Nietzsche and other radical philosophers. They were firm believers in eugenics and the theory that superior qualities could be bred to create a ruling class of elites and that out of necessity, governmental powers would eventually be limited to that ruling class. Some even proposed the elimination of people that fell below an acceptable minimum of intelligence or drive. George Bernard Shaw felt that a life that was of no use to society could not be much use to that unfortunate person either. He suggested that chemists devise a humane gas that would kill instantly and painlessly and that we should even play classical music as we marched people of limited use to their demise.

Curiously, one of the Progressives that helped flesh out the idea for a universal healthcare system, Ezekiel Emmanuel, brother of Obama’s chief of staff, Rahm Emmanuel. Ezekiel had written about the need to ration care based upon the ability of the patient to contribute to society. While that is a far cry from Shaw’s call for gas chambers, it still results in an early demise for those that cannot effectively add value to the collective and tells me that the Progressive’s view of human life is far less sacred than that of the founding fathers.

The only thing that preserves our Constitution; our protection against this politically inbred army of self proclaimed elites is the constitutionally mandated separation of powers. That separation guarantees that major changes in our government are only possible if an overwhelming majority of the people support those changes. It is noteworthy to mention that every Progressive President to date has sought to sidestep the separation of powers required in the Constitution and expand the power of the Presidency through agencies, bureaucracies and now, Czars. If they succeed, that will mark the beginning of the end of the Republic.

Paul