THE BIG PICTURE: The U.S. Constitution

by William R Alford - Aug. 8, 2003

Originally intended to debate the Constitutionat Accuracy In Academia's June 2003 Conservative University, the Cato Institute's Roger Pilon, Ph.D. and Conservative Caucus Chairman Howard Phillips had more upon which to agree than not. The erosion of the Constitution's founding principles was a common theme in both presentations. The Framer's original intent and the series of historical events that led away from them were reviewed for a thoughtfully listening student audience.

Howard Phillips opened his remarks with an Electoral College quiz:

How many Electors are in the Electoral College? 435 [corresponding to the number of Representatives in the House] + 3 for DC = 438.
Name two or more Presidents elected in the 20^th century with less than 50% of the popular vote? Wilson, Truman '48, JFK (even counting the 'stolen' votes in Texas and Illinois [out of patriotism his opponent Richard Nixon chose not to challenge the election results]) Nixon '68, Clinton [2 times], G W Bush.
Which two Presidents were elected without a majority in the Electoral College? Thomas Jefferson [in a contest with Aaron Burr in which the Congress broke the tie], and John Quincy Adams [in a contest with Henry Clay wherein the 'Corrupt Bargain' was struck - Clay subsequently being named Secretary of State].
Who is the only man who became President without a single Electoral College vote? Gerald Ford.
How are the Electors chosen? The Constitution stipulates that the State Legislatures decide how this is done. Most have deferred to a popular vote.
What are the qualifications to be an Elector? Any person who is an adult US citizen and does not demonstrably stand to personally benefit from the outcome [such as a party official or candidate].
When is a President officially elected? The first Monday after the second Wednesday in December.
What date is the election result officially announced? January 6 [January 7 if the 6^th falls on a Sunday].

Phillips then proceeded to warn of initiatives being developed by the Continuity of Government Commission [COGC] in case of a catastrophic loss [such as a terrorist attack] amongst the federal leadership. Among the Commission?s recommendations include a Constitutional amendment granting members of Congress discretionary powers to devise methods of replacing their lost colleagues.

Another proposal would leave it to the State governors to appoint replacements. In "The Constitution of the United States," Phillips asked, "[w]ould California Republicans welcome the prospect of Governor Gray Davis filling 53 vacancies in California's Congressional delegation? For that matter, would New York Democrats welcome the possibility of GOP Governor George Pataki filling as many as 29 New York Congressional seats?"

Phillips is a contributing writer to the Coalition to Preserve an Elected Congress, which maintains that the existing provisions in the U.S. Constitution are sufficient to deal with any such emergency. Amending it or otherwise contravening the fundamental principles upon which it is based are dangerous notions that must be vigorously resisted. He urged the audience to study the materials on the Coalition?s website, sign the petition posted therein and to contact their elected representatives about this issue.

He took the opportunity to inform the gathering about this initiative early, noting that the Left has a distinct advantage with respect to 'rallying the troops' over a pressing issue; they have the TV and radio networks, academic platforms, etc. Conservatives on the other hand always need more time to 'beat the tom-toms' to secure effective grassroots mobilization.

Phillips reviewed the evolution of the now-defunct European Common Market into its present form as the European Union as a relatively benign international trade entity becoming a supra-legal authority. Now an individual country's laws governing abortion, sodomy gun control etc. are subject to EU approval. He then warned of a first step in that direction here in the form of the proposed Free Trade Area of the Americas [FTAA] that could lead toward a Western Hemispheric version of the EU.

Phillips went on to remind the audience that all government authority is vested in the U.S. Constitution and listed a number of powers that over the years have been assumed outside of this framework:

The President bypasses Congress by creating legislation via executive orders.
The judiciary, civil service and regulatory agencies also assume legislative powers through court rulings and regulations respectively.
Legislative powers are unlawfully delegated to foreign entities such as the World Bank and the International Monetary Fund.
The Federal Reserve taxes U.S. citizens without legislative deliberation by regulating the money supply. The very existence of the Fed is not permitted under the Constitution.
Lifetime tenure for the federal judiciary has been granted without being allowed by the Constitution.

Phillips then discussed the notion of privacy that was introduced in Roe v. Wade 410 U.S. 113 (1973). The Fourteenth Amendment?s Due Process clause was cited in the assenting opinion as providing such a right. Phillips maintained that the right to an abortion based upon the mother's privacy and the fetus' non-personhood is addressed neither there nor anywhere else in the Constitution. He suggested the unborn child being declared a legal person by legislative means - then Roe could simply be bypassed without formally being overturned.

Contrary to assertions that the U.S. Constitution is an obsolete relic of a bygone age - it is still valid today, asserted Phillips. The French Constitution lists rights; if they are not listed 'you don't have them.' Ours on the other hand is based upon Natural Law, which specifies that we are born with certain rights which cannot legitimately be infringed whether they are named or not.

"The implication that we are no longer living under the Constitution is a correct one," began Cato's Center for Constitutional Studies Director Dr. Roger Pilon. When the United States was founded, governmental powers were few and strictly defined. No one can say that is true today, he continued.

The foundation for the Constitution is the Declaration of Independence, which is itself based upon a Natural Rights version of the Natural Law tradition. Dr. Pilon explained that the Founding Fathers set out to devise a system geared toward a moral course of human interaction. This morality is based upon objective truth and equal rights. They recognized that values in terms of personal preferences can vary, but the rights with which all are born cannot.

In such a society, observed Dr. Pilon, we obliged to live and let live ? respecting each other?s right to be secure in his/her person, property and to pursue happiness as one sees fit [as referenced in the Declaration of Independence]. Our republic was founded upon the principle that the people are the ultimate source of governmental power. By means of delegated authority, limited institutions and enumerated [specified] powers, the government is constrained to act only in the citizenry?s interest.

Given that we are all born with certain rights, there was concern amongst the Constitution?s Framers over listing any specifically [as was eventually done in the Bill of Rights (the first ten Amendments)]. Addressing this issue, the ninth and tenth Amendments stipulate that the government was to have only specifically granted powers, while the people retain all of their Natural rights, whether or not they are named.

Dr. Pilon went on to explain that our Constitutional form of government survived fairly well until the Progressive Era [of the late nineteenth and early twentieth century]. At that time, the climate of political ideas shifted from considering government a necessary evil to being an 'engine of social good.' Progressives and their successors were resolved to emulate what the hard sciences had done for humanity by achieving, as Dr. Pilon described, 'better living through Big Government.'

[The stock market crash in Oct. 1929 and the subsequent Depression provided the opportunity for such social engineering to be implemented on a grand scale. It was then alleged (and is still widely believed) that 'unbridled capitalism' was to blame. Contemporary analysis reveals that government interventions such as the Federal Reserve's monetary policies and tariffs here and abroad were the more likely culprits. The tax increases, price controls and selective subsidies that characterized Franklin Delano Roosevelt's New Deal intensified what should have been a temporary recession into becoming a full-fledged Depression. The worst year was 1937. A detailed analysis of this subject can be found in "Four Myths About America's Great Depression."]

As FDR's New Deal programs were introduced during the '30s, the Supreme Court found itself under attack for having the temerity of repeatedly citing the Constitution when ruling against a number of intrusive social programs [particularly the National Recovery Act (NRA) and the Agricultural Adjustment Act (AAA)]. In frustration, the President proposed to add a sufficient number of Supreme Court Justices to achieve a favorable majority ['packing' the Court]. The Court reacted by thenceforward being disposed to allow similar legislation to pass [the 'switch in time that saved nine'].

That being done, noted Dr. Pilon, the Constitutional limits on federal power eroded considerably. The General Welfare clause found in the Preamble and the Interstate Commerce clause in Article I, section 8 had been cited in earlier Court cases justifying federal intervention. This process accelerated as implementation of the New Deal progressed. Any economic activity - personal, local, interstate, international - were increasingly subject to federal regulation if the thinnest effect upon 'general welfare' and/or 'interstate commerce' could be demonstrated.

The rationale for this was based upon the emergence of a legal concept Dr. Pilon called 'bifurcating rights.' To some creative jurists and legislators, Americans have 'fundamental' rights, such as voting and free speech and 'non-fundamental' rights such as those concerning property. As control of the products of ones efforts [wages, assets, land etc.] was deemed to be non-essential to personal freedom, it was thus legally 'fair game' ? and an explosion of regulation ensued.

Civil cases were [and still are] also used as vehicles for the courts to insinuate themselves into the legislative process. Judges exploited the opportunity to 'provide fruits where the legislatures failed.' The phenomenon [known as 'legislating from the bench'] progressively flourished during this period.

Dr. Pilon noted a slight reversal to this process only recently. After nearly sixty years, the Supreme Court directly attacked the Commerce Clause being stretched to fit any perceived 'social need'. The Rehnquist Court determined in United States v. Lopez 514 U.S. 549 (1995) that the Gun-Free School Zones Act of 1990 18 U.S.C. 922(q) had incorrectly invoked the Commerce Clause to intrude upon Constitutionally protected police powers reserved to the States.

For their part, some conservatives have been guilty of abandoning traditional support of States rights in the pursuit of certain agendas, according to Dr. Pilon. In Troxel v. Granville 99 U.S. 138 (2000), the Supreme Court overturned a Washington State ruling that stipulated that it had power to involve itself in decisions as to who [in this case grandparents] will be allowed to visit children. In doing so, Dr. Pilon asserted that the Court had encroached upon matters that are Constitutionally left to the States.

Both men addressed the implications surrounding a notorious recent Supreme Court case, Lawrence et al v. Texas 02 U.S. 102 (2003). This case creates a right not even alluded to in the Constitution [to engage in consensual homosexual intercourse] and as such, according to Phillips, is a de facto Amendment. In his majority opinion, Justice Kennedy cited several cases decided in the European Court of Human Rights as being amongst valid precedents upon which to rule in an American court.

Philips asserted that the ultimate foundation of the American legal system is Biblical Law. Consequently, a State has the right to establish what behavior is moral or not and to act accordingly. Pilon explained that his Cato Institute filed an Amicus Curiae brief in this case against the Texas law because Americans should have the right to pursue happiness in whatever way they see fit, no matter how abhorrent to others.