How Tyranny Came to
One of the great
goals of education is to initiate the young into the conversation of their
ancestors; to enable them to understand the language of that conversation,
in all its subtlety, and maybe even, in their maturity, to add to it some
wisdom of their own.
The modern American educational system no longer teaches us the political
language of our ancestors. In fact our schooling helps widen the gulf of
time between our ancestors and ourselves, because much of what we are
taught in the name of civics, political science, or American history is
really modern liberal propaganda. Sometimes this is deliberate. Worse yet,
sometimes it isn’t. Our ancestral voices have come to sound alien to us,
and therefore our own moral and political language is impoverished. It’s
as if the people of England could no longer understand Shakespeare, or
Germans couldn’t comprehend Mozart and Beethoven.
So to most Americans, even those who feel oppressed by what they call big
government, it must sound strange to hear it said, in the past
tense, that tyranny “came” to America. After all, we have a
constitution, don’t we? We’ve abolished slavery and segregation. We
won two world wars and the Cold War. We still congratulate ourselves
before every ballgame on being the Land of the Free. And we aren’t ruled
by some fanatic with a funny mustache who likes big parades with thousands
of soldiers goose-stepping past huge pictures of himself.
For all that, we no longer fully have what our ancestors, who framed and
ratified our Constitution, thought of as freedom — a careful division of
power that prevents power from becoming concentrated and unlimited. The
word they usually used for concentrated power was consolidated —
a rough synonym for fascist. And the words they used for any
excessive powers claimed or exercised by the state were usurped and
tyrannical. They would consider the modern “liberal” state
tyrannical in principle; they would see in it not the opposite of the
fascist, communist, and socialist states, but their sister.
If Washington and Jefferson, Madison, and Hamilton could come back, the
first thing they’d notice would be that the federal government now
routinely assumes thousands of powers never assigned to it — powers
never granted, never delegated, never enumerated. These
were the words they used, and it’s a good idea for us to learn their
language. They would say that we no longer live under the Constitution
they wrote. And the Americans of a much later era — the period from
Cleveland to Coolidge, for example — would say we no longer live even
under the Constitution they inherited and amended.
I call the present system “Post–Constitutional America.” As I
sometimes put it, the U.S. Constitution poses no serious threat to our
form of government.
What’s worse is that our constitutional illiteracy cuts us off from our
own national heritage. And so our politics degenerates into increasingly
bitter and unprincipled quarrels about who is going to bear the burdens of
war and welfare.
I don’t want to sound like an oracle on this subject. As a typical
victim of modern public education and a disinformed citizen of this
media-ridden country, I took a long time — an embarrassingly long time
— to learn what I’m passing on. It was like studying geometry in old
age, and discovering how simple the basic principles of space really are.
It was the old story: In order to learn, first I had to unlearn. Most of
what I’d been taught and told about the Constitution was misguided or
even false. And I’d never been told some of the most elementary things,
which would have saved me a tremendous amount of confusion.
The Constitution does two things. First, it delegates certain enumerated
powers to the federal government. Second, it separates those powers among
the three branches. Most people understand the secondary principle of the
separation of powers. But they don’t grasp the primary idea of delegated
and enumerated powers.
Consider this. We have recently had a big national debate over national
health care. Advocates and opponents argued long and loud over whether it
could work, what was fair, how to pay for it, and so forth. But almost
nobody raised the basic issue: Where does the federal government get the
power to legislate in this area? The answer is: Nowhere. The Constitution
lists 18 specific legislative powers of Congress, and not a one of them
covers national health care.
As a matter of fact, none of the delegated powers of Congress — and delegated is
always the key word — covers Social Security, or Medicaid, or Medicare,
or federal aid to education, or most of what are now miscalled “civil
rights,” or countless public works projects, or equally countless
regulations of business, large and small, or the space program, or farm
subsidies, or research grants, or subsidies to the arts and humanities, or
... well, you name it, chances are it’s unconstitutional. Even the most
cynical opponents of the Constitution would be dumbfounded to learn that
the federal government now tells us where we can smoke. We are less free,
more heavily taxed, and worse governed than our ancestors under British
rule. Sometimes this government makes me wonder: Was George III really all
Let’s be clear about one thing. Constitutional and unconstitutional aren’t
just simple terms of approval and disapproval. A bad law may be perfectly
constitutional. A wise and humane law may be unconstitutional. But what is
almost certainly bad is a constant disposition to thwart or disregard the
It’s not just a matter of what is sometimes called the “original
intent” of the authors of the Constitution. What really matters is the
common, explicit, unchallenged understanding of the Constitution, on all
sides, over several generations. There was no mystery about it.
The logic of the Constitution was so elegantly simple that a foreign
observer could explain it to his countrymen in two sentences. Alexis de
Tocqueville wrote that “the attributes of the federal government were
carefully defined [in the Constitution], and all that was not included
among them was declared to remain to the governments of the individual
states. Thus the government of the states remained the rule, and that of
the federal government the exception.”
The Declaration of Independence, which underlies the Constitution, holds
that the rights of the people come from God, and that the powers of the
government come from the people. Let me repeat that: According to the
Declaration of Independence, the rights of the people come from God, and
the powers of the government come from the people. Unless you grasp this
basic order of things, you’ll have a hard time understanding the
The Constitution was the instrument by which the American people granted,
or delegated, certain specific powers to the federal government. Any power
not delegated was withheld, or “reserved.” As we’ll see later, these
principles are expressed particularly in the Ninth and Tenth Amendments,
two crucial but neglected provisions of the Constitution.
Let me say it yet again: The rights of the people come from God. The
powers of government come from the people. The American people delegated
the specific powers they wanted the federal government to have through the
Constitution. And any additional powers they wanted to grant were supposed
to be added by amendment.
It’s largely because we’ve forgotten these simple principles that the
country is in so much trouble. The powers of the federal government have
multiplied madly, with only the vaguest justifications and on the most
slippery pretexts. Its chief business now is not defending our rights but
taking and redistributing our wealth. It has even created its own economy,
the tax economy, which is parasitical on the basic and productive
voluntary economy. Even much of what passes for “national defense” is
a kind of hidden entitlement program, as was illustrated when President
George Bush warned some states during the 1992 campaign that Bill Clinton
would destroy jobs by closing down military bases. Well, if those bases
aren’t necessary for our defense, they should be closed down.
Now of course nobody in American politics, not even the most fanatical
liberal, will admit openly that he doesn’t care what the Constitution
says and isn’t going to let it interfere with his agenda. Everyone
professes to respect it — even the Supreme Court. That’s the problem.
The U.S. Constitution serves the same function as the British royal
family: it offers a comforting symbol of tradition and continuity, thereby
masking a radical change in the actual system of power.
So the people who mean to do without the Constitution have come up with a
slogan to keep up appearances: they say the Constitution is a “living
document,” which sounds like a compliment. They say it has “evolved”
in response to “changing circumstances,” etc. They sneer at the idea
that such a mystic document could still have the same meanings it had two
centuries ago, or even, I guess, sixty years ago, just before the
evolutionary process started accelerating with fantastic velocity. These
people, who tend with suspicious consistency to be liberals, have
discovered that the Constitution, whatever it may have meant in the past,
now means — again, with suspicious consistency — whatever suits their
Do liberals want big federal entitlement programs? Lo, the Interstate
Commerce Clause turns out to mean that the big federal programs are
constitutional! Do liberals oppose capital punishment? Lo, the ban on
“cruel and unusual punishment” turns out to mean that capital
punishment is unconstitutional! Do liberals want abortion on demand? Lo,
the Ninth and Fourteenth Amendments, plus their emanations and penumbras,
turn out to mean that abortion is nothing less than a woman’s
Can all this be blind evolution? If liberals were more religious, they
might suspect the hand of Providence behind it! This marvelous “living
document” never seems to impede the liberal agenda in any way. On the
contrary: it always seems to demand, by a wonderful coincidence, just what
liberals are prescribing on other grounds.
Take abortion. Set aside your own views and feelings about it. Is it
really possible that, as the Supreme Court in effect said, all the
abortion laws of all 50 states — no matter how restrictive, no matter
how permissive — had always been unconstitutional? Not only that, but no
previous Court, no justice on any Court in all our history — not
Marshall, not Story, not Taney, not Holmes, not Hughes, not Frankfurter,
not even Warren — had ever been recorded as doubting the
constitutionality of those laws. Everyone had always taken it for granted
that the states had every right to enact them.
Are we supposed to believe, in all seriousness, that the Court’s ruling
in Roe v. Wade was a response to the text of the
Constitution, the discernment of a meaning that had eluded all its
predecessors, rather than an enactment of the current liberal agenda? Come
And notice that the parts of this “living document” don’t develop
equally or consistently. The Court has expanded the meaning of some of
liberalism’s pet rights, such as freedom of speech, to absurd lengths;
but it has neglected or even contracted other rights, such as property
rights, which liberalism is hostile to.
In order to appreciate what has happened, you have to stand back from all
the details and look at the outline. What follows is a thumbnail history
of the Constitution.
In the beginning the states were independent and sovereign. That is why
they were called “states”: a state was not yet thought of as a mere
subdivision of a larger unit, as is the case now. The universal
understanding was that in ratifying the Constitution, the 13 states
yielded a very little of their sovereignty, but kept most of it.
Those who were reluctant to ratify generally didn’t object to the powers
the Constitution delegated to the federal government. But they were
suspicious: they wanted assurance that if those few powers were granted,
other powers, never granted, wouldn’t be seized too. In The
Federalist, Hamilton and Madison argued at some length that
under the proposed distribution of power the federal government would
never be able to “usurp,” as they put it, those other powers. Madison
wrote soothingly in Federalist No. 45 that the powers of the federal
government would be “few and defined,” relating mostly to war and
foreign policy, while those remaining with the states would be “numerous
and indefinite,” and would have to do with the everyday domestic life of
the country. The word usurpation occurs numberless times in
the ratification debates, reflecting the chief anxiety the champions of
the Constitution had to allay. And as a final assurance, the Tenth
Amendment stipulated that the powers not “delegated” to the federal
government were “reserved” to the separate states and to the people.
But this wasn’t enough to satisfy everyone. Well-grounded fears
persisted. And during the first half of the nineteenth century, nearly
every president, in his inaugural message, felt it appropriate to renew
the promise that the powers of the federal government would not be
exceeded, nor the reserved powers of the states transgressed. The federal
government was to remain truly federal, with only a few specified powers,
rather than “consolidated,” with unlimited powers.
The Civil War, or the War Between the States if you like, resulted from
the suspicion that the North meant to use the power of the Union to
destroy the sovereignty of the Southern states. Whether or not that
suspicion was justified, the war itself produced that very result. The
South was subjugated and occupied like a conquered country. Its
institutions were profoundly remade by the federal government; the United
States of America was taking on the character of an extensive, and highly
centralized, empire. Similar processes were under way in Europe, as small
states were consolidated into large ones, setting the stage for the
tyrannies and gigantic wars of the twentieth century.
Even so, the three constitutional amendment ratified after the war contain
a significant clause: “Congress shall have power to enforce this article
by appropriate legislation.” Why is this significant? Because it shows
that even the conquerors still understood that a new power of Congress
required a constitutional amendment. It couldn’t just be taken by
majority vote, as it would be today. If the Congress then had wanted a
national health plan, it would have begun by asking the people for an
amendment to the Constitution authorizing it to legislate in the area of
health care. The immediate purpose of the Fourteenth Amendment was to
provide a constitutional basis for a proposed civil rights act.
But the Supreme Court soon found other uses for the Fourteenth Amendment.
It began striking down state laws as unconstitutional. This was an
important new twist in American constitutional law. Hamilton, in arguing
for judicial review in Federalist No. 78, had envisioned the Court as a
check on Congress, resisting the illicit consolidation or centralization
of power. And our civics books still describe the function of checks and
balances in terms of the three branches of the federal government mutually
controlling each other. But in fact, the Court was now countermanding the
state legislatures, where the principle of checks and balances had no
meaning, since those state legislatures had no reciprocal control on the
Court. This development eventually set the stage for the convulsive
Supreme Court rulings of the late twentieth century, from Brown v.
Board of Education to Roe v. Wade.
The big thing to recognize here is that the Court had become the very
opposite of the institution Hamilton and others had had in mind. Instead
of blocking the centralization of power in the federal government, the
Court was assisting it.
The original point of the federal system was that the federal government
would have very little to say about the internal affairs of the states.
But the result of the Civil War was that the federal government had a
great deal to say about those affairs — in Northern as well as Southern
Note that this trend toward centralization was occurring largely under
Republican presidents. The Democrat Grover Cleveland was one of the last
great spokesmen for federalism. He once vetoed a modest $10,000 federal
grant for drought relief on grounds that there was no constitutional power
to do it. If that sounds archaic, remember that the federal principle
remained strong long enough that during the 1950s, the federal highway
program had to be called a “defense” measure in order to win approval,
and federal loans to college students in the 1960s were absurdly called
“defense” loans for the same reason. The Tenth Amendment is a refined
taste, but it has always had a few devotees.
But federalism suffered some serious wounds during the presidency of
Woodrow Wilson. First came the income tax, its constitutionality
established by the Sixteenth Amendment; this meant that every U.S. citizen
was now, for the first time, directly accountable to the federal
government. Then the Seventeenth Amendment required that senators be
elected by popular vote rather than chosen by state legislators; this
meant that the states no longer had their own representation in Congress,
so that they now lost their remaining control over the federal government.
The Eighteenth Amendment, establishing Prohibition, gave the federal
government even greater powers over the country’s internal affairs. All
these amendments were ominous signs that federalism was losing its
traditional place in the hearts, and perhaps the minds, of Americans.
But again, notice that these expansions of federal power were at least
achieved by amending the Constitution, as the Constitution itself
requires. The Constitution doesn’t claim to be a “living document.”
It is written on paper, not rubber.
In fact the radicals of the early twentieth century despaired of achieving
socialism or communism as long as the Constitution remained. They regarded
it as the critical obstacle to their plans, and thought a revolution would
be necessary to remove it. As The New Republic wrote:
“To have a socialist society we must have a new Constitution.”
That’s laying it on the line!
Unfortunately, the next generation of collectivists would be less candid
in their contempt for the federal system. Once they learned to feign
devotion to the Constitution they secretly regarded as obsolete, the
laborious formality of amendment would no longer be necessary. They could
merely pretend that the Constitution was on their side. After Franklin
Roosevelt restaffed the Supreme Court with his compliant cronies, the
federal government would be free to make up its own powers as it went
along, thanks to the notion that the Constitution was a malleable
“living document,” whose central meaning could be changed, and even
reversed, by ingenious interpretation.
Roosevelt’s New Deal brought fascist-style central planning to America
— what some call the “mixed economy” but Hilaire Belloc called the Servile
State — and his highhanded approach to governance soon led
to conflict with the Court, which found several of his chief measures
unconstitutional. Early in his second term, as you know, Roosevelt
retaliated by trying to “pack” the Court by increasing the number of
seats. This power play alienated even many of his allies, but it turned
out not to be necessary. After 1937 the Court began seeing things
Roosevelt’s way. It voted as he wished; several members obligingly
retired; and soon he had appointed a majority of the justices. The country
virtually got a new Constitution.
Roosevelt’s Court soon decided that the Tenth Amendment was a
“truism,” of no real force. This meant that almost any federal act was
ipso facto constitutional, and the powers “reserved” to the states and
the people were just leftovers the federal government didn’t want, like
the meal left for the jackals by the satisfied lion. There was almost no
limit, now, on what the federal government could do. In effect, the powers
of the federal government no longer had to come from the people by
constitutional delegation: they could be created by simple political
Roosevelt also set the baneful precedent of using entitlement programs,
such as Social Security, to buy some people’s votes with other
people’s money. It was both a fatal corruption of democracy and the
realization of the Servile State in America. The class of voting parasites
has been swelling ever since.
So the New Deal didn’t just expand the power of the federal government;
that had been done before. The New Deal did much deeper mischief: it
struck at the whole principle of constitutional resistance to federal
expansion. Congress didn’t need any constitutional amendment to increase
its powers; it could increase its own powers ad hoc, at any time, by
simple majority vote.
All this, of course, would have seemed monstrous to our ancestors. Even
Alexander Hamilton, who favored a relatively strong central government in
his time, never dreamed of a government so powerful.
The Court suffered a bloody defeat at Roosevelt’s hands, and since his
time it has never found a major act of Congress unconstitutional. This has
allowed the power of the federal government to grow without restraint. At
the federal level, “checks and balances” has ceased to include
This is a startling fact, flying as it does in the face of the familiar
conservative complaints about the Court’s “activism.” When it comes
to Congress, the Court has been absolutely passive. As if to compensate
for its habit of capitulation to Congress, the Court’s post–World War
II “activism” has been directed entirely against the states, whose
laws it has struck down in areas that used to be considered their settled
and exclusive provinces. Time after time, it has found
“unconstitutional” laws whose legitimacy had stood unquestioned
throughout the history of the Republic.
Notice how total the reversal of the Court’s role has been. It began
with the duty, according to Hamilton, of striking down new seizures of
power by Congress. Now it finds constitutional virtually everything
Congress chooses to do. The federal government has assumed myriads of new
powers nowhere mentioned or implied in the Constitution, yet the Court has
never seriously impeded this expansion, or rather explosion, of novel
claims of power. What it finds unconstitutional are the traditional powers
of the states.
The postwar Court has done pioneering work in one notable area: the
separation of church and state. I said “pioneering,” not praiseworthy.
The Court has consistently imposed an understanding of the First Amendment
that is not only exaggerated but unprecedented — most notoriously in its
1962 ruling that prayer in public schools amounts to an “establishment
of religion.” This interpretation of the Establishment Clause has always
been to the disadvantage of Christianity and of any law with roots in
Christian morality. And it’s impossible to doubt that the justices who
voted for this interpretation were voting their predilections.
Maybe that’s the point. I’ve never heard it put quite this way, but
the Court’s boldest rulings showed something less innocent than a series
of honest mistakes. Studying these cases and others of the Court’s
liberal heyday, one never gets the sense that the majority was suppressing
its own preferences; it was clearly enacting them. Those rulings can be
described as wishful thinking run amok, and touched with more than a
little arrogance. All in all, the Court displayed the opposite of the
restrained and impartial temperament one expects even of a traffic-court
judge, let alone a Supreme Court.
It’s ironic to recall Hamilton’s assurance that the Supreme Court
would be “the least dangerous” of the three branches of the federal
government. But Hamilton did give us a shrewd warning about what would
happen if the Court were ever corrupted: in Federalist No. 78 he wrote
that “liberty can have nothing to fear from the judiciary alone, but
would have everything to fear from its union with either of the other
[branches].” Since Franklin Roosevelt, as I’ve said, the judiciary has
in effect formed a union with the other two branches to aggrandize the
power of the federal government at the expense of the states and the
This, in outline, is the constitutional history of the United States. You
won’t find it in the textbooks, which are required to be optimistic, to
present degeneration as development, and to treat the successive
pronouncements of the Supreme Court as so many oracular revelations of
constitutional meaning. A leading liberal scholar, Leonard Levy, has gone
so far as to say that what matters is not what the Constitution says, but
what the Court has said about the Constitution in more than 400 volumes of
This can only mean that the commentary has displaced the original text,
and that “We the People” have been supplanted by “We the Lawyers.”
We the People can’t read and understand our own Constitution. We have to
have it explained to us by the professionals. Moreover, if the Court
enjoys oracular status, it can’t really be criticized, because it can do
no wrong. We may dislike its results, but future rulings will have to be
derived from them as precedents, rather than from the text and logic of
the Constitution. And notice that the “conservative” justices
appointed by Republican presidents have by and large upheld not the
original Constitution, but the most liberal interpretations of the Court
itself — notably on the subject of abortion, which I’ll return to in a
To sum up this little constitutional history. The history of the
Constitution is the story of its inversion. The original understanding of
the Constitution has been reversed. The Constitution creates a presumption
against any power not plainly delegated to the federal government and a
corresponding presumption in favor of the rights and powers of the states
and the people. But we now have a sloppy presumption in favor of federal
power. Most people assume the federal government can do anything it
isn’t plainly forbidden to do.
The Ninth and Tenth Amendments were adopted to make the principle of the
Constitution as clear as possible. Hamilton, you know, argued against
adding a Bill of Rights, on grounds that it would be redundant and
confusing. He thought it would seem to imply that the federal government
had more powers than it had been given. Why say, he asked, that the
freedom of the press shall not be infringed, when the federal government
would have no power by which it could be infringed? And you can even make
the case that he was exactly right. He understood, at any rate, that our
freedom is safer if we think of the Constitution as a list of powers
rather than as a list of rights.
Be that as it may, the Bill of Rights was adopted, but it was designed to
meet his objection. The Ninth Amendment says: “The enumeration in the
Constitution of certain rights shall not be construed to deny or disparage
others retained by the people.” The Tenth says: “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
Now what these two provisions mean is pretty simple. The Ninth means that
the list of the people’s rights in the Constitution is not meant to be
complete — that they still have many other rights, like the right to
travel or to marry, which may deserve just as much respect as the right
not to have soldiers quartered in one’s home in peacetime. The Tenth, on
the other hand, means that the list of powers “delegated” to the
federal government is complete — and that any other powers the
government assumed would be, in the Framers’ habitual word,
As I said earlier, the Founders believed that our rights come from God,
and the government’s powers come from us. So the Constitution can’t
list all our rights, but it can and does list all the federal
You can think of the Constitution as a sort of antitrust act for
government, with the Ninth and Tenth Amendments at its core. It’s
remarkable that the same liberals who think business monopolies are
sinister think monopolies of political power are progressive. When they
can’t pass their programs because of the constitutional safeguards, they
complain about “gridlock” — a cliché that shows they miss the whole
point of the enumeration and separation of powers.
Well, I don’t have to tell you that this way of thinking is absolutely
alien to that of today’s politicians and pundits. Can you imagine Al
Gore, Dan Rostenkowski, or Tom Brokaw having a conversation about
political principles with any of the Founding Fathers? If you can, you
must have a vivid fantasy life.
And the result of the loss of our original political idiom has been, as I
say, to invert the original presumptions. The average American, whether he
has had high-school civics or a degree in political science, is apt to
assume that the Constitution somehow empowers the government to do nearly
anything, while implicitly limiting our rights by listing them. Not that
anyone would say it this way. But it’s as if the Bill of Rights had said
that the enumeration of the federal government’s powers in the
Constitution is not meant to deny or disparage any other powers it may
choose to claim, while the rights not given to the people in the
Constitution are reserved to the federal government to give or withhold,
and the states may be progressively stripped of their original powers.
What it comes to is that we don’t really have an operative Constitution
anymore. The federal government defines its own powers day by day. It’s
limited not by the list of its powers in the Constitution, but by whatever
it can get away with politically. Just as the president can now send
troops abroad to fight without a declaration of war, Congress can pass a
national health care program without a constitutional delegation of power.
The only restraint left is political opposition.
If you suspect I’m overstating the change from our original principles,
I give you the late Justice Hugo Black. In a 1965 case called Griswold
v. Connecticut, the Court struck down a law forbidding the
sale of contraceptives on grounds that it violated a right of
“privacy.” (This supposed right, of course, became the basis for the
Court’s even more radical 1973 ruling in Roe v. Wade, but
that’s another story.) Justice Black dissented in the Griswold case
on the following ground: “I like my privacy as well as the next
[man],” he wrote, “but I am nevertheless compelled to admit that
government has a right to invade it unless prohibited by some specific
constitutional provision.” What a hopelessly muddled — and really
sinister — misconception of the relation between the individual and the
state: government has a right to invade our privacy, unless prohibited by
the Constitution. You don’t have to share the Court’s twisted view of
the right of privacy in order to be shocked that one of its members takes
this view of the “right” of government to invade privacy.
It gets crazier. In 1993 the Court handed down one of the most bizarre
decisions of all time. For two decades, enemies of legal abortion had been
supporting Republican candidates in the hope of filling the Court with
appointees who would review Roe v. Wade. In Planned
Parenthood v. Casey, the Court finally did so. But even with
eight Republican appointees on the Court, the result was not what the
conservatives had hoped for. The Court reaffirmed Roe.
Its reasoning was amazing. A plurality opinion — a majority of the
five-justice majority in the case — admitted that the Court’s previous
ruling in Roe might be logically and historically
vulnerable. But it held that the paramount consideration was that the
Court be consistent, and not appear to be yielding to public pressure,
lest it lose the respect of the public. Therefore the Court allowed Roe to
Among many things that might be said about this ruling, the most basic is
this: The Court in effect declared itself a third party to the
controversy, and then, setting aside the merits of the two principals’
claims, ruled in its own interest! It was as if the referee in a
prizefight had declared himself the winner. Cynics had always suspected
that the Court did not forget its self-interest in its decisions, but they
never expected to hear it say so.
The three justices who signed that opinion evidently didn’t realize what
they were saying. A distinguished veteran Court-watcher (who approved of Roe, by
the way) told me he had never seen anything like it. The Court was
actually telling us that it put its own welfare ahead of the merits of the
arguments before it. In its confusion, it was blurting out the truth.
But by then very few Americans could even remember the original
constitutional plan. The original plan was as Madison and Tocqueville
described it: State government was to be the rule, federal government the
exception. The states’ powers were to be “numerous and indefinite,”
federal powers “few and defined.” This is a matter not only of
history, but of iron logic: the Constitution doesn’t make sense when
read any other way. As Madison asked, why bother listing particular
federal powers unless unlisted powers are withheld?
The unchecked federal government has not only overflowed its banks; it has
even created its own economy. Thanks to its exercise of myriad unwarranted
powers, it can claim tens of millions of dependents, at least part of
whose income is due to the abuse of the taxing and spending powers for
their benefit: government employees, retirees, farmers, contractors,
teachers, artists, even soldiers. Large numbers of these people are paid
much more than their market value because the taxpayer is forced to
subsidize them. By the same token, most taxpayers would instantly be
better off if the federal government simply ceased to exist — or if it
suddenly returned to its constitutional functions.
Can we restore the Constitution and recover our freedom? I have no doubt
that we can. Like all great reforms, it will take an intelligent,
determined effort by many people. I don’t want to sow false optimism.
But the time is ripe for a constitutional counterrevolution. Discontent
with the ruling system, as the 1992 Perot vote showed, is deep and
widespread among several classes of people: Christians, conservatives, gun
owners, taxpayers, and simple believers in honest government all have
their reasons. The rulers lack legitimacy and don’t believe in their own
power strongly enough to defend it.
The beauty of it is that the people don’t have to invent a new system of
government in order to get rid of this one. They only have to restore the
one described in the Constitution — the system our government already
professes to be upholding. Taken seriously, the Constitution would pose a
serious threat to our form of government.
And for just that reason, the ruling parties will be finished as soon as
the American people rediscover and awaken their dormant Constitution.
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