Apr 14, 2014

Will the Constitution Stand?

Placer County Tea Party

Rocklin, California

April 16, 2014


You’ve asked me to expand on remarks that I made on the House floor a few months ago, outlining what I believe is the overarching question of our generation.  It is a question that I believe transcends everything else we are dealing with in our country today and is integrally related to them.  That question is, “Will the American Constitution stand?”

When Lincoln made his way to Washington, the second night he stopped at Independence Hall in Philadelphia where he laid out his entire political philosophy with these words.  He said,

“…all the political sentiments I entertain have been drawn, so far as I have been able to draw them, from the sentiments which originated in and were given to the world from this hall.  I have never had a feeling, politically, that did not spring from the sentiments embodied in the Declaration of Independence.”

That’s what made the American Revolution revolutionary.  It was the novel principle that there is a certain class of rights that exist in the natural order of things.  These are rights you would have if you were alone in the world.  They make no demands on others, and are self-evident.  You have the right to enjoy the fruit of your own labor.  You have the right to defend yourself from predators.  You have the right to your own opinion and to express that opinion freely.  You have the right to raise your children according to your own values.  You have the right to be secure in your own home.  Life.  Liberty.  The Pursuit of Happiness.

Because these rights predate government and exist apart from government, they therefore cannot come from government.  Rather, we create governments to protect these rights.

It was this uniquely American view of the nature of human rights that created a voluntary society.  Jefferson summed it up best in his first inaugural address.  After cataloging the bountiful blessings the nation enjoyed, he asked, “With all these blessings, what more is necessary to make us a happy and a prosperous people? Still one thing more, fellow-citizens—a wise and frugal Government, which shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned. This is the sum of good government, and this is necessary to close the circle of our felicities.”

This was a fundamental departure from the compulsory societies of Europe.

In these compulsory societies, the sovereign sets the direction of society, allocates the resources, assigns the rights and makes the decisions of how society is to move to achieve them. 

The voluntary society is one directed by the individual decisions of free citizens as they chart their own paths through life.  The government guards the conditions necessary for them to do so: it restrains people from injuring one another; it provides the stable currency, it protects the sanctity of contracts and the security of property that makes human exchange possible; it shields the commons and provides for the common defense; and it superintends the basic infrastructure upon which human civilization depends. 

Within this very simple, defined and limited framework, individuals make their own decisions over how to allocate their time and resources and how to live their lives.  The sum total of their individual choices made dozens of times a day is what defines the path of that voluntary society, of which government is an obedient servant.

At a very practical level, this means we decide for ourselves where we wish to live, what we wish to eat, what light bulbs we prefer, how high we’ll set our thermostats, how we’ll get to work and how much water we’ll have in our toilet bowls.  And we vote every day with every dollar we spend on what those priorities will be.        

The compulsory society compels individuals to act in a manner that subordinates their individual hopes and aspirations to the collective designs of the state – all for the greater good, of course.   And that requires great heaping gobs of government, because it’s not easy to force people to act against their own interests, their own moral principles and their own best judgment.  That takes force – a lot of force – and a lot of bureaucrats to micromanage every facet of daily life.

We are told that such a compulsory society merely “reclaims” American values.   Let there be no mistake, the advocates of the compulsory society are not reclaiming American values – they are fundamentally rejecting them and replacing them with values alien and antithetical to those which built our nation.

The American people have received a very clear sampling of what a compulsory society looks like during these past few years – and particularly in the past few months. 

Last May, the President addressed students at Ohio State University.  He extolled the benign virtues of an all-powerful government and told the students to ignore those who warn of its dangers. 

Just a week later, Americans awoke to learn that for the last several years, their government has employed one of its most powerful and feared agencies to harass ordinary Americans because of their political beliefs, with the clear intention of intimidating them into withdrawing from exercising their right to participate in the public policy debate. 

Nearly 500 conservative groups involving tens of thousands of individual Americans were subjected to invasive review and intimidation when they attempted to file for 501(c) status – the same status routinely granted for such advocacy groups as “Move-on-dot-org,” the ACLU, and the League of Conservation Voters. 

The IRS demanded the names of every participant at every meeting these groups held over a period of years, transcripts of every speech given at those meetings, what positions they had taken on issues, the names of their volunteers and donors – and in some cases their families and associates – and copies of privileged communications they had with elected officials.  In some cases, the person filing the request was then subjected to a personal income tax audit.

After nearly a year of congressional inquiries, the IRS, far from backing off from this behavior, is now seeking to institutionalize it through formal regulations that prevent individuals from pooling their resources to express their common views.

A week after the IRS scandal broke, Americans awakened to news that the Justice Department had surreptitiously seized the telephone records of some 20 reporters covering Washington for the Associated Press in an obvious attempt to discourage whistleblowers from talking to reporters. 

Then Fox News Reporter James Rosen and his family were stalked by authorities as he tried to get to the bottom of the Benghazi scandal.  Indeed, during this period, the government was far more interested in the comings and goings of Rosen’s elderly mother than it was in the activities of the Tsarniev brothers, dispite urgent and explicit warnings from the Russian government.

In order to search and wiretap the homes of Rosen and his family, the Attorney General of the United States had filed a spurious claim with a federal court that Rosen was conspiring to violate the Espionage Act – the same act under which the Julius and Ethel Rosenberg were executed in 1953.

The message to reporters asking inconvenient questions of the administration could not possibly have been more powerful or terrifying.

A few weeks later, Americans awoke to news that the federal government had swept up the phone and internet records of hundreds of millions of Americans in the name of state security.

These are precisely the kind of indiscriminate searches conducted by British authorities that John Adams said gave birth to the fight for American Independence. 

The Founders specifically wrote the Fourth Amendment to assure that this NEVER happened in America.  In America, in order for the government to invade your privacy or to go through your personal records or property, it must first present some evidence that justifies its suspicion against you and then specify what records or things it is looking for.

These are all fundamental violations of the natural rights of Americans that the bill of rights pledges the government to protect.

Gradually at first, routinely now, the executive branch has repeatedly asserted the legal authority to nullify any law or any portions of a law that he deems objectionable or inconvenient.  

We began to see this with directives to agencies not to enforce immigration laws, and has now become epidemic as Obamacare has rolled out.

Now, the executive branch is asserting the authority to impose new laws through the regulatory bureaucracies that the elected Congress has specifically refused to enact.  This includes the so-called Dreamers Act and the minimum wage.

All told, 3,200 final regulations were enacted by the executive branch last year – compared to only 300 laws passed by Congress, which has the sole constitutional authority to legislate.

In Libya and more recently in Syria, the President has asserted the authority to bypass Congress on the ultimate question of declaring war – the single most significant act a government can take and one clearly and unambiguously reserved to Congress and Congress alone. 

Indeed, James Madison, the father of the American Constitution, said that its single most important feature was the provision that gave Congress and not the president, the authority to go to war. 

This is the next step in the blurring of civil and military jurisdictions; a blurring of the concepts of war and peace that is producing a frightening breakdown in the constitutional safeguards of our liberty. 

Just this morning it was revealed that the U.S. Navy NCIS is now keeping a centralized data base of the records of every civilian arrest, citation and even police field notes from interviews – more than 500 million records in total.  This week, we learned that the NSA has been recording every phone conversation in at least one foreign country and has the same capability here at home.  And the week before, we learned that the CIA has monitored the investigations of the Congress itself.

In response to the NSA and IRS scandals earlier this year, the President’s spokesman said, that quote -- “the law is irrelevant.” He called these matters “a distraction.”  What does that say about a society that once prided itself on being a nation of laws and not of men?

The first article of the Constitution establishes Congress.  It is almost half of the entire document.  The second article establishes the President and gives him the principle duty to (quote) “take care that the laws be faithfully executed.”

The faithful execution of law passed by Congress is what we call the Rule of Law – the American notion that the law is established by the elected representatives of the people and even-handedly administered by the executive.

That means the president may not pick and choose which laws to enforce and which to ignore, or who must obey the laws and who need not.

Article Three establishes a judiciary and accords every American the right of due process – and all the protections of English common law. 

Yet last week, Congress received testimony from a constitutional scholar who warned that Americans are now ten times more likely to be tried in a regulatory tribunal than by a federal court.

These executive agencies now write the law, enforce the law and then adjudicate that law.  The three powers of government that the Founders so meticulously divided are now united again in one all-powerful organ.

Look at the laws that are passed under the Constitution.  They have an elaborate, well-armed enforcement mechanism.  Break one of these laws, and ultimately a police officer will appear at your doorstep with a gun.

Yet the Constitution itself has no such mechanism. 

Why is that?  It is because the Constitution was designed to be self-enforcing.  Mother’s rule doesn’t need enforcement – it enforces itself through similar checks and balances as those contained in the Constitution.

But in order for those checks and balances to work, the powers of government must be evenly balanced, those who exercise those powers must be devoted to the Constitution and to the institutions they serve, and – most importantly – the people must INSIST on it.

Congress has two checks on the executive.  One is impeachment – but our Constitution reserves that for high crimes and misdemeanors.  It has been raised three times in our history and never once sustained.  And it is a power not to be taken lightly – for one branch to remove the head of another can only be taken for egregious acts so offensive that a national consensus has formed for its use.  Experience tells us this is a very rare event that is not within practical reach.

The other is obvious: the power of the purse.  The origination clause gives to the House of Representatives the sole power to propose taxes, and implicit in this is the sole power to propose appropriations.  The Senate’s role is to approve the appropriation or to propose amendments back to the House.

And yet, this power, too, has broken down.  Last fall, as the fiscal year approached, the House originated not one – not two – but three appropriations bills to fund the government – but exercising the power of the purse, it declined to fund the roll-out of Obamacare.

The Senate not only did not approve the appropriations, it refused to propose amendments back to the House or even to enter into negotiations to resolve the differences between the House and the Senate.

This is a fundamental breakdown within the legislative branch.  The two Houses were specifically designed to have different perspectives and therefore to disagree.  That is why, once the House has exercised its best judgment on given issue and the Senate has exercised its best judgment, a conference process then resolves their differences.  But this can be thwarted if those responsible for those institutions refuse to act.

The government shut down.  The House was blamed, and that second check on the executive – the power of the purse – is no longer available as a practical matter.

Ironically, the President is now doing unconstitutionally what the House had attempted to do constitutionally last year.

The only remaining check rests with the judiciary, but that third branch rarely enters into disputes between the first and second branches.

So what to do?

The oath sworn of every official and every member of our armed forces, is NOT to “preserve, protect and defend the United States of America.”  It is not to preserve, protect and defend the United States Government.

It is to “preserve, protect and defend the Constitution of the United States.”  The American Founders understood something that this generation is forgetting: that if we ever lose the Constitution, we have already lost the country.

It should be obvious that much of the structure of the American Constitution that has preserved our liberty for 225 years, that has contained the unwarranted expansion of governmental power and that has preserved the natural and individual rights of every citizen, has been allowed to decay. 

The form is still there – the institutions continue to function – but they no longer serve their principle role to protect the rule of law and the liberty of the people. 

In the U.S. Capitol, we are surrounded by the symbols of the Roman Republic.  They should be a warning to us.  The Roman Senate continued to exist 400 years after the fall of the Republic – but its nature and purpose had been emptied.  

Surveying the wreckage of the Roman Republic, the great historian Edward Gibbon wrote, “the principles of a free constitution are irrevocably lost, when the legislative power is dominated by the executive.” 

That is precisely what is happening. 

The institutions of our American Republic continue to operate, but the structures within them are rapidly degrading.  In this condition, our Constitution is becoming like a rotting porch: we can still discern its form and purpose, but the structure that gave it strength and support is hollowing out through years of abuse and neglect until one day it will simply collapse.

How ironic it would be if the liberties of this nation, heroically defended by sacrifices of nine generations of Americans on far off battlefields, might someday be carelessly thrown away here at home.

What is to be done when the Constitution ceases to be self-enforcing.  That is the question our generation must resolve.

Ours wouldn’t be the first civilization to succumb to the siren song of a benevolent and all-powerful government.  But without a single exception every civilization that has fallen for that lie has awakened one morning to realize that the benevolence is gone and the all-powerful government is still there.

Ever since we lost Ronald Reagan we have been slowly and inexorably losing the debate over the size and role of government – whether we would remain a voluntary society or become a compulsory one.

That may now be changing as Americans begin to consider the implications of these developments.

Indeed, in January, the Gallup Poll reported that a record 66 percent of the American people – two out of every three Americans – now believes the federal government is – quote – “too big and too powerful.”

That is what it comes down to.  The American people.  After all, the only document in the national archives that is not the government’s document is the Constitution itself.  Its ownership is made crystal clear in the first three words and the biggest three words on that parchment.

Ronald Reagan put it this way: “The Constitution is not the government’s document telling the people what we can and cannot do – it is the people’s document telling our government those things that WE will allow it to do.”

Ultimately, the only way to restore and enforce the Constitution is through the votes we cast in every election.  It is our responsibility as citizens to hold accountable every elected official for their fidelity to the Constitution.  And if we are unwilling or unable to do so, we will have lost it for all time.

This is not the first time our nation has drifted from its Constitutional principles.  But the farther we drift from them, the stronger they begin to pull us back.  I believe that is now happening, and every one of us has a duty as citizens to see that happens.

One thing has never failed us is times such as these.  It is the American people, awakening from their slumber, rising up and demanding through the votes they cast that their elected officials either honor and obey the Constitution or get the hell out of our government.

It is what we do when we vote.  It is that single act upon which the survival of our Constitution and our Republic ultimately depends. 

And that vote comes about after a great national debate.  I don’t mean the debate in Congress.  That’s just a reflection of a much larger debate going on among the American people.  That’s the debate that goes on every day across family dinner tables, over back yard fences, and over coffee at Starbucks.  It is upon the outcome of that debate that the future of our nation will be decided.

So I urge you to immerse yourself in that debate in every forum you can find.

In January of 1838, a 29-year old state legislator named Abraham Lincoln gave a speech in Springfield.     In it, he posed this question:

“At what point shall we expect the approach of danger?  By what means shall we fortify against it?  Shall we expect some transatlantic military giant, to step the Ocean, and crush us at a blow?  Never! All the armies of Europe, Asia and Africa combined, with all the treasure of the earth (our own excepted) in their military chest; with a Buonaparte for a commander, could not by force, take a drink from the Ohio, or make a track on the Blue Ridge, in a trial of a thousand years.

“At what point then is the approach of danger to be expected?  I answer, if it ever reach us, it must spring up amongst us. It cannot come from abroad.  If destruction be our lot, we must ourselves be its author and finisher.  As a nation of freemen, we must live through all time, or die by suicide.”

A generation later, as the inaugural train made its first stop in Indianapolis on its way to Washington, he spoke these words to the crowd that gathered:

"Of the American people it may be said, when they rise united in defense of their union and its liberties, the gates of hell shall not prevail against them.  I appeal to you to constantly bear in mind that not with the President, not with the office-seekers, but with you is the question: 'Shall the liberties of this country be preserved to the latest generations." 

The American founders often referred to a “Liberty Tree.”  Our generation didn’t plant that tree – we didn’t grow that tree – we were simply handed it by the generations of Americans who came before us.  We accepted it and all its blessings – with the solemn obligation to care for it, to protect it, to nurture it – so that it can continue to bear the fruits of liberty for the generations who follow ours.

As we leave here today, let us highly resolve not to rest until we have delivered to our sons and daughters a Liberty Tree that is just as healthy, a Constitution that is just as strong; and a nation that is just as free as those that our fathers and mothers gave to us.

As Daniel Webster said so long ago: “Hold fast, my friends, to the Constitution and to the Republic for which it stands -- for miracles do not cluster, and what has happened once in 6,000 years may not happen again.  Hold fast to the Constitution, for if the American Republic should ever fail, there will be chaos throughout the world.”

Tom McClintock
Tom`s Blog