Sunday, July 19, 2009

Amending the Constitution Under the Radar?

Currently there are 319 executive and independent agencies at the federal level, and every year 70,000 pages of new and proposed regulations are added to the federal register. There are over 4,000 federal statutory crimes, and somewhere between 10,000 and 300,000 regulations with criminal sanctions attached.

Does that sound like a government of limited power with maximum freedom for the individual? Because that was the vision of our Founding Fathers according to Robert A. Levy and William Mellor, authors of The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom which argues that twelve Supreme Court case decisions, since the New Deal have eroded our freedoms and expanded government, thus have altered the course of American history.

“The powers delegated by the proposed Constitution to the federal government are few and defined,” wrote James Madison in Federalist Paper No. 45. And Alexander Hamilton wrote in Federalist Paper No. 78, "Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them." In other words the judiciary is the weakest branch of government.

If the power is not granted to the federal government by the Constitution it does not have power to act. The Constitution is "animated by a presumption of liberty"[1] and that should be the starting point for any judicial inquiry, however this is not the case anymore.

Instead the Supreme Court, by way of back door, has condoned and enabled the unchecked growth of federal authority outside the amendment process. Unelected justices with lifetime tenure have effectively amended the Constitution without input from or accountability to we the people. The words remain the same but their meaning has profoundly changed, vastly expanding federal powers. This has changed the presumption of liberty to a presumption in favor of government authority on the part of the courts.

Although an excellent book, keep in mind this is the opinion of two men regarding the the Supreme Court's failure to interpret the constitution in a reasonable manner. The "Living Constitution Theory" which espouses that the Constitution should be interpreted in the context of modern challenges and conditions and evolving standards of decency is criticized for "judicial policy-making". "

"Where the Constitution's text is unambiguous, that text controls. But where provisions are unclear, it is entirely proper for courts to consider the broader values underlying the Constitution, like democracy, equality or privacy, in deciding what's constitutional and what's not."
12 Supreme Court cases and associated issues:

Helvering v Davis (1937) declared Social Security was not a contributory insurance program.(Issue:Promoting the general welfare)

Wickard v. Filburn (1942) (Issue: Regulating Interstate Commerce)

Home Building & Loan v. Blaisdell (1933) declared government can unilaterally void parts of private contracts despite Article I Section 10's explicit language to the contrary (Issue: Rescinding Private Contracts)

Whitman v. American Trucking Lawmaking by Administrative Agencies

McConnell v. Federal Election Commission (2003) (Issue: Campaign Finance Reform and Free Speech)

United States v. Miller (1939) (Issue: Gun Owner's Rights)

Korematsu v. U.S. (1944): U.S. declared program of internment for Japanese Americans was constitutional (Issue: Civil Liberties Versus National Security)

Bennis v. Michigan (1996) declared government can use civil forfeiture to take property without compensation that is involved in a crime even if the owner of the property has no involvement in that crime. (Issue: Asset Forfeiture Without Due Process)

Kelo v. City of New London declared governments can seize private property in order to give it to other private hands (Issue: Eminent Domain for Private Use)

Penn Central v . New York (1978) (Issue: Taking Property by Regulation)

U.S. v. Carolene Products (1938) (Issue: Earning an Honest Living)

Grutter v. Bolinger (2003) (Issue:Equal Protection and Racial Preferences)

[1] Restoring the Lost Constitution: The Presumption of Liberty by Randy Barnett



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