Nearly half a century later, Associate Supreme Court Justice Joseph Story, considered one of the great legal thinkers of the nineteenth century, delivered the same warning in August 1834 at the American Institute of Instruction. Among other things, Story explained: “The great mass of human calamities, in all ages, has been the result of bad government, or ill adjusted government; of a capricious exercise of power, a fluctuating public policy, a degrading tyranny, or a desolating ambition.”2 The fundamental objects of all free governments, Story declared, are “the protection and preservation of personal rights, the private property, and the public liberties of the whole people. Without accomplishing these ends, the government may, indeed, be called free, but it is a mere mockery, and a vain, fantastic shadow.”3 Story continued, “Life, liberty, and property stand upon equal grounds in the just estimate of freemen; and one becomes almost worthless without the security of the others. How, then, are these rights to be established and preserved? The answer is, by constitutions of government, wisely framed and vigilantly enforced; by laws and institutions, deliberately examined and steadfastly administered.”4
Story explained, as Franklin had cautioned, that a constitution, by itself, cannot secure a republic. Nor can reliance on rulers and statesmen alone. The citizenry must be alert and resolute and ensure that those who hold high office uphold the rules of governance. “It is equally indispensable for every American citizen, to enable him to exercise his own rights, to protect his own interests, and to secure the public liberties and just operations of public authority. A republic, by the very constitution of its government, requires, on the part of the people, more vigilance and constant exertion than all others. The American republic, above all others, demands from every citizen unceasing vigilance and exertion; since we have deliberately dispensed with every guard against danger or ruin, except the intelligence and virtue of the people themselves. It is founded on the basis, that the people have wisdom enough to frame their own system of government, and public spirit enough to preserve it; that they cannot be cheated out of their liberties; and that they will not submit to have them taken from them by force. We have silently assumed the fundamental truth, that, as it never can be the interest of the majority of the people to prostrate their own political equality and happiness, so they never can be seduced by flattery or corruption, by the intrigues of faction, or the arts of ambition, to adopt any measures, which shall subvert them. If this confidence in ourselves is justified . . . let us never forget, that it can be justified only by a watchfulness and zeal proportionate to our confidence. Let us never forget, that we must prove ourselves wiser, and better, and purer, than any other nation ever yet has been, if we are to count upon success. Every other republic has fallen by the discords and treachery of its own citizens.”5
For these purposes and toward these ends, it must first be understood that the Framers established a governmental system that was at once federal, representative, and constitutional. It incorporated the tradition of state sovereignty, upon which the earlier Articles of Confederation had been almost exclusively based, with the necessity of national governance to encourage commerce and trade and guarantee the nation’s security and defense. However, and importantly, the authority of the new federal government was to be limited to that which was enumerated, and divided in terms of government responsibilities both within itself and vis-à-vis the several states. Hence, numerous checks and balances were built into and around the federal system.
Moreover, the new federal government was to be a means by which the civil society would be protected and improved, not an end unto itself with the power to bully, control, and ultimately devour the civil society. The primary goal, therefore, was to prevent the centralization of power in the new federal government and to deny a relatively few institutions and public officials the kind of unlimited authority that both corrupts and destroys. Consequently, the Constitution’s structure was consistent with the entire rationale behind the American Revolution, as set forth in the Declaration of Independence and infinite speeches and writings during the period. Indeed, it relied in many ways on the thinking of some of the most prominent philosophers of the Enlightenment, especially Charles de Montesquieu, from whom the Framers borrowed their most indispensable idea—separation of powers.
As I explained in Ameritopia, Montesquieu was a French philosopher who lived from 1689 to 1755. He was the most influential of the French Enlightenment philosophers during the American constitutional period. His seminal work, The Spirit of the Laws, had a profound effect on the Framers during the constitutional period. For example, Montesquieu observed that “[t]here are three kinds of government. REPUBLICAN, MONARCHICAL, and DESPOTIC. . . . I assume three definitions, or rather, three facts: one, republican government is that in which the people as a body, or only a part of the people, have sovereign power; monarchical government is that in which one alone governs, but by fixed and established laws; whereas, in despotic government, one alone, without law and without rule, draws everything along by his will and caprices.”6 (Italics in original)
Montesquieu makes the crucial point that unlike other forms of governance, “in a popular [or republican] state there must be an additional spring, which is VIRTUE.” “When that virtue ceases, ambition enters those hearts that can admit it, and avarice enters them all. . . . The republic is a cast-off husk, and its strength is no more than the power of a few citizens and the license of all.”7
Montesquieu was well aware of history’s fondness for tyranny, most frequently manifested in the form of concentrated, centralized power in the hands of a few individuals or institutions. He insisted that the best antidote is a fixed, established constitution in which the functions and powers of government are divided among distinct branches. Montesquieu declared: “Political liberty in a citizen is that tranquility of spirit which comes from the opinion each one has of his security, and in order for him to have this liberty the government must be such that one citizen cannot fear another citizen. When legislative power is united with executive power in a single person or in a simple body of magistracy, there is no liberty, because one can fear that the same monarch or senate that makes tyrannical laws will execute them tyrannically. Nor is there liberty if the power of judging is not separate from legislative power and from executive power. If it were joined to legislative power, the power over the life and liberty of the citizens would be arbitrary, for the judge would be the legislator. If it were joined to executive power, the judge could have the force of an oppressor. All would be lost if the same man or the same body of principal men, either of nobles, or of the people, exercised these three powers: that of making the laws, that of executing public resolutions, and that of judging the crimes or the disputes of individuals.”8 These words had a profound influence on the Framers.
In Federalist 47, James Madison, in defense of the proposed Constitution and in response to the Antifederalists—who did not believe the lines between and among the three branches of the new federal government were bold enough—insisted that the Framers had been faithful to Montesquieu’s maxim on separation of powers. Madison cites Montesquieu by name no fewer than four times in this essay alone, and further underscores that “[t]he oracle who is always consulted and cited on this subject is the celebrated Montesquieu.”9 Madison refuted the naysayers insisting that under the proposed Constitution “[t]he magistrate in whom the whole executive power resides [the president] cannot of himself make a law, though he can put a negative on every law; nor administer justice in person, though he has the appointment of those who do administer it. The judges can exercise no executive prerogative, though they are shoots from the executive stock; nor any legislative function, though they may be advised with by the legislative councils. The entire legislature can perform no judiciary act, though by the joint act of two of its branches the judges may be removed from their offices, and though one of its branches is possessed of the judicial power in the last resort. The entire legislature, again, can exercise no exec
utive prerogative, though one of its branches constitutes the supreme executive magistracy, and another, on the impeachment of a third, can try and condemn all the subordinate officers in the executive department.”10
The Framers were also heavily influenced by English philosopher John Locke, who lived from 1632 to 1704, and especially by his book The Second Treatise of Government. Locke argued, among other things, for the overarching import of elected legislative bodies, for they directly represent the people. Therefore, he insisted, legislatures must not delegate the power of lawmaking to any other entity. Locke wrote: “The legislative cannot transfer the power of making laws to any other hands: for it being but a delegated power from the people, they who have it cannot pass it over to others.”11 Locke continued, “The power of the legislative, being derived from the people by a positive voluntary grant and institutions, can be no other than what the positive grant conveyed, which being only to make laws, and not to make legislators, the legislative can have no power to transfer their authority of making laws and place it in other hands.”12
The Framers fervently believed they had constructed sufficient divisions of power and distinctive enough roles for each of the federal branches, with certain unavoidable, practicable, but delimited overlapping, providing the citizenry, then and in the future, with a form of republican government consistent with enlightened self-rule. But, again, the people, in the end, would necessarily be required to stand point in the vanguard against would-be overlords and the predictable insatiability of their power lust.
Today, however, the people have not been sufficiently aroused. In fact, despite the overwhelming evidence of the federal government’s ubiquity and omnipresence, and its engorgement on all manner of affairs through an ever-expanding and coercive centralized administrative apparatus, too many among the rising generation seem not in the least alarmed by the statists’ abandonment of the essential elements of separation of powers.
A healthy civil society and vibrant republic ultimately cannot survive without a properly functioning constitutional system. Consequently, statists relentlessly attack and manipulate the system with endless top-down interventions in human behavior, deceptive and outright false promises tied to government programs and entitlements, and coercive if not oppressive governmental actions, all intended to reshape not only society but the individual. Individual sovereignty—that is, the unalienable individual rights of life, liberty, and the pursuit of happiness—is denounced as a quaint and outdated notion of a bygone era, as are the traditions, customs, and institutions that have developed over time and through generational experience. They must give way to notions of modernity and progressivism, hatched by self-anointed and deluded masterminds who claim to act for “the greater good” and “the public interest,” requiring the endless reshuffling and rearranging of society.
In 1848, Karl Marx and Friedrich Engels, writing in The Communist Manifesto, declared: “In bourgeois society . . . the past dominates the present; in Communist society, the present dominates the past.”13 This view is shared by contemporary statists, including the current occupants of the White House. On May 14, 2008, the future First Lady of the United States, Michelle Obama, while campaigning for her husband, Barack Obama, proclaimed: “We are going to have to change our conversation; we’re going to have to change our traditions, our history. We’re going to have to move into a different place as a nation.”14 On October 30, 2008, when the polls showed him the likely winner of the upcoming presidential election, Barack Obama shouted during a campaign stop days before the vote: “We are five days away from fundamentally transforming the United States of America.”15
Statism and its utopian ends require the subversion of the constitutional order, for the Constitution limits the power of the statists and leaves to the people their own aspirations and pursuits. Unfortunately, as I explained in Ameritopia, the nation has already been fundamentally transformed. And as I pointed out in Liberty and Tyranny, it is now difficult to describe the nature of the American government. “It is not strictly a constitutional republic, because the Constitution has been and continues to be easily altered by a judicial oligarchy that mostly enforces, if not expands, the Statist’s agenda. It is not strictly a representative republic, because so many edicts are produced by a maze of administrative departments that are unknown to the public and detached from its sentiment. It is not strictly a federal republic, because the states that gave the central government life now live at its behest. What, then, is it? It is a society steadily transitioning toward statism.”16
The product of this degradation, and its effect on a people, is best described by French thinker and philosopher Alexis de Tocqueville. Writing in Democracy in America, Tocqueville stated, in part, that this soft tyranny “covers the surface of society with a network of small complicated rules, minute and uniform, through which the most original minds and most energetic characters cannot penetrate, to rise above the crowd. The will of man is not shattered, but softened, bent, and guided; men are seldom forced by it to act, but they are constantly restrained from acting. Such a power does not destroy, but it prevents existence; it does not tyrannize, but it compresses, enervates, extinguishes, and stupefies a people, till each nation is reduced to nothing better than a flock of timid and industrious animals, of which the government is the shepherd.”17 As a result, the virtuousness of the people, essential to the survivability of a republic, is trounced or expunged from the body politic.
The preceding chapters in this book, although necessarily truncated given the practical limits of book writing, bear out Tocqueville’s observation. The evidence is unequivocal and overwhelming that much of what the federal government does is without constitutional foundation. In fact, much has been achieved through political and legal deceit and deformation. And, for the most part, the people, particularly younger people, tolerate this, acquiesce to it, if not encourage it.
In The Liberty Amendments I noted that “Congress . . . often delegates unconstitutionally lawmaking power to a gigantic yet ever-growing administrative state that, in turn, unleashes on society myriad regulations and rules at such a rapid rate the people cannot possibly know of them . . . and, if by chance, they do, they cannot possibly comprehend them.”18 Moreover, “[h]aving delegated broad lawmaking power to executive branch departments and agencies of its own creation . . . Congress now watches as the president inflates the congressional delegations even further and proclaims repeatedly the authority to rule by executive fiat in defiance of, or over the top of, the same Congress that sanctioned a domineering executive branch in the first place.”19
The unconstitutional transfer of lawmaking power from Congress to the executive branch and the seizure by the executive branch from Congress of additional lawmaking power have led to disastrous effects.
To demonstrate the problem, consider that each year the executive branch is engaged in frenzied regulatory activity with virtually no oversight by Congress or input from the public. In 2014 alone, the executive branch issued 3,541 regulations,20 comprising 79,066 pages of the Federal Register, the yearly compilation of federal regulations.21 And these thousands of pages of regulations are piled on top of tens of thousands of pages of regulations from prior years. Federal Register page numbers for successive years starting in 2005 are as follows:
2005
73,870
2006
74,937
2007
72,090
2008
79,435
2009
68,598
2010
81,405
2011
81,247
2012
78,961
2013
79,311
2014
79,066
That is a total of 768,920 pages of federal regulations in the past ten years.22
In addition, the number of actual regulations issued by the executive branch during this period is astounding:
2005
3,943
>
2006
3,718
2007
3,595
2008
3,830
2009
3,503
2010
3,573
2011
3,807
2012
3,708
2013
3,659
2014
3,541
That is 36,87723 regulations, many of which carry heavy fines and penalties, including prison terms upon conviction.
By comparison, Congress, which is supposed to be the federal lawmaking body, has passed the following number of bills in the past ten years:
2005
161
2006
321
2007
188
2008
285
2009
125
2010
217
2011
81
2012
127
2013
72
2014
129
The purpose here is not to encourage more congressional legislating and meddling in private life, nor to suggest that statistics alone determine the extent of a regulation’s reach, as a single overarching regulation can potentially have more economic and societal impact that one hundred regulations. However, these numbers clearly expose the extent to which the basic precept that guides constitutional government has been gutted by both usurpers and abdicators. But this has been the statists’ design for more than a century. Indeed, in his 1908 treatise, Constitutional Government in the United States, President Woodrow Wilson, a leading advocate for centralized, postconstitutional government, argued that “the President is at liberty, both in law and conscience, to be as big a man as he can. His capacity will set the limit; and if Congress be overborne by him, it will be no fault of the makers of the Constitution,— it will be from no lack of constitutional powers on its part, but only because the President has the nation behind him, and Congress has not.”24 Obviously, Wilson wrote of the Constitution not as it is but as he wanted it to be—stripped of its limits on central power. Wilson’s political dogma is on neon display with Barack Obama’s conduct as president. Obama has repeatedly defied the limits of his constitutional authority, aggregating powers unto himself in ways past presidents have not. During more than six years as president, Obama has nullified laws, created laws, delayed the implementation of laws, and issued exemptions from and waivers to laws, much of which has been accomplished through executive branch rule making.
Plunder and Deceit: Big Government's Exploitation of Young People and the Future Page 13