I originally meant to present the following talk at a Constitution Day celebration. Unfortunately, I came down with COVID-19, and was unable to attend. But several people have asked me what I had planned to say. So here it is:
We’re here today to celebrate the Constitution. Which is a remarkable document, for sure.
But we only have the Constitution because we first had the Declaration of Independence — which is actually the more important document.
The Declaration asks and answers two fundamental questions that need to be answered before you go about setting up a government:
- Why do we have government at all?
- From where does government get its just powers?
The answers it gives define the very idea of America, distinguishing it from every other country on earth:
- Why do we have government at all? Because people have rights, and form governments to protect those rights.
- From where does government get its just powers? Government derives its just powers from the consent of the governed.
These aren’t the only possible answers to those questions. But they’re the quintessentially American answers.
There are a couple of important things to note about these answers.
The first thing to note is that protecting people’s rights is very different from protecting people. In most cases, protecting people requires taking away their rights.
When Chris Sununu said that ‘public health trumps everything’, and when Anthony Fauci said that people need to ‘put aside all of these issues of concern about liberties’, this is exactly what they were saying:
We can’t protect you unless we take away your rights.
You can protect people, or you can protect their rights. You can’t do both. And we forget that at our peril.
The second thing to note is that majority rule is very different from consent.
We all know what consent is. But if you’re not crystal clear on that, ask yourself: How big a majority in your town, or state, or country, would be required to take one of your kidneys if you didn’t want to give it up?
(The framers of the Constitution also knew the difference, as we can see by looking at Article V, which declares that
no State, without its consent, shall be deprived of its equal Suffrage in the Senate.
Even if all the other states wanted to do that, the state in question can say no. That’s how consent works.)
If majority rule is regarded as the source of power — as opposed to a mechanism for making decisions — then there are no rights. There are only permissions granted by the majority.
All of which is to say that majority rule — which allows 51 percent to force something on the other 49 percent — is very nearly the opposite of consent. Again, we forget this at our peril.
In any case, a government that protects rights and relies on consent — whatever form it takes — is an American government.
A government that does something else is… well, something else.
And unfortunately, the government created by the Constitution is… something else. It advances agendas instead of protecting rights. And it substitutes majority rule for consent.
But although it implemented the wrong kind of government, the Constitution still attempted to implement a limited government, and that’s worth something.
Unfortunately, it’s mutated into a relatively unlimited government.
And it’s worth thinking about how that happened, and whether anything can be done about it.
How did it happen? In 1803, in the Supreme Court’s ruling in Marbury v. Madison, Chief Justice John Marshall declared:
It is emphatically the province and duty of the judicial department to say what the law is.
Or as Chief Justice Charles Evans Hughes put it later:
We are under a Constitution, but the Constitution is what the judges say it is.
That’s a radical departure from Article 1, Section 1 of the Constitution, which says:
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
Marshall’s declaration effectively replaced the written Constitution with an oral Constitution. And it relegated Congress to the role of providing suggestions to the Court.
The most important consequence of this switch is that it’s no longer possible, even in theory, to know what ‘the Constitution’ says about something just by reading the written document. You have to go to court, and ask the judges what they say it says. Which in many cases, will ignore, or even contradict, the text of the document.
It’s not an exaggeration to say that what Marshall did was replace the rule of law with the rule of men — specifically, with the rule of judges.
If this happened in another country, we’d call it a coup d’etat. But it was accomplished here without firing a shot.
If you’re reading this, you’ve probably found yourself wondering how Congress can pass laws abridging the freedom of speech, infringing on the right to keep and bear arms, allowing warrantless searches by government officials, redistributing money and property without just compensation, micromanaging entire industries, and so on.
All of these are forbidden by the written Constitution. But they are allowed — even compelled — by the oral Constitution.
So that’s how it happened. What, if anything, can be done about it?
It should be clear that Constitutional amendments can’t work, since the judiciary reserves the right to say what those amendments mean. And if you’re familiar with the history of the 14th Amendment, you know that this includes saying that they mean nothing at all.
So we might ask: How did John Marshall do it?
He simply announced: ‘From now on, the courts make the laws.’
And no one disputed it, until it was too late.
Even Thomas Jefferson needed 16 years to realize what had happened. In 1819, he wrote to a friend:
The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.
The legislature — whether Congress, or a state legislature — could do the same, announcing: ‘No, you don’t make the laws. We do.’
Interestingly, in 2016, a little-known one-term state representative in New Hampshire introduced HB1115, which said:
The citizens of this state shall be bound only by the laws passed by the New Hampshire General Court or the United States Congress. Legislative powers of the New Hampshire General Court and the United States Congress shall not be delegated to unelected officials.
And that’s all it would take. The legislature would make the laws. The executive would execute them. The judiciary would adjudicate individual cases.
In particular, if some judges found that applying a law as written produced results that weren’t intended, it would be up to the legislature — and not the judges themselves — to repair the law in question.
That’s basic separation of powers.
Which would take us, not all the way back to the principles of the Declaration, but at least to the original (albeit flawed) design of the Constitution.
Which would be, as they say, a ‘good first step’.
So I look forward to a day when we can get together like this to celebrate the restoration of the written Constitution. Because there is very little to celebrate about the oral Constitution.
But before that can happen, someone has to pick this fight with the judiciary. Is it going to be the Democrats? Not likely. They love using the courts to circumvent the legislature. So if it’s going to happen, the GOP is going to have to do it.
And while we’re on the topic of important documents that are routinely ignored, note that the GOP has been promising to pick this very fight since 1854, in its party platform, which always contains some version of the following statement:
We believe our constitutional system — limited government, separation of powers, and the rights of the people — must be preserved uncompromised for future generations.
Maybe it’s time to start taking that seriously.
So, that bill I mentioned… Does anyone remember who the sponsor of the bill was?
Alone among his colleagues, he understood the problem, and was willing to do what’s necessary to fix it.
It was Frank Edelblut — and it’s why he’s the only person who might run for governor who’s actually fit to hold the job.