Read Liberty and Tyranny Online
Authors: Mark R. Levin
Liberty and Tyranny (4 page)
A theocracy is not established if certain public schools allow their students to pray at the beginning of the day, or participate in Christmas or Easter assemblies; or if certain school districts transport parochial students to their religious schools as part of the district’s bus route; or certain communities choose to construct a manger scene on the grounds of their town hall or display the Ten Commandments above their courthouse steps. The individual is not required to change his religious affiliation or even accept God’s existence. He is not required to worship against his beliefs or even worship at all. Some might be uncomfortable or offended by these events, but individuals are uncomfortable all the time over all kinds of government activities. Some might oppose the use of their tax dollars to support these events. So what? Individuals oppose the manner in which government uses their tax dollars all the time. That does not make the uses unconstitutional. While all religions may not have similar access to these public places, they are largely free to conduct themselves as they wish, uninhibited by the community, as long as they do not engage in criminal or immoral practices. Yet even these
passive
expressions of religious liberty, which represent a community’s dominant religion or religious denomination, must, according to the Secularist and the Court, be abandoned.
The American courts sit today as supreme secular councils, which, like Islam’s supreme religious councils, dictate all manner of approved behavior respecting religion. Whereas the supreme religious councils enforce Islamic law, the supreme secular councils have seized for themselves the mission of segregating God and religion from public life and have immersed themselves in religious matters. Neither of the councils tolerates conflicting or diverse viewpoints, insisting that their rulings are the final word for all society.
The question must be asked and answered: Is it possible for the Conservative to be a Secularist? There are conservatives who self-identify as secularists, whether or not they believe in God or take a religion, and it is not for others to deny them their personal beliefs. However, it must be observed that the Declaration is at opposite with the Secularist. Therefore, the Conservative would be no less challenged than any other to make coherent that which is irreconcilable.
Moreover, for the Conservative, as it was for Burke and the Founders, faith is not a threat to civil society but rather vital to its survival. It encourages the individual to personally adhere to a dogma that promotes restraint, duty, and moral behavior, which not only benefit the individual but the multitudes and society generally. As George Washington wrote in his Farewell Address, “Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable results…. And let us with caution indulge the supposition that morality can be maintained without religion.”
11
Attempts to stigmatize as “religious zealots” or marginalize as “social extremists” those individuals who resist the Statist’s secular impositions—for they are the coercion behind America’s moral and cultural decline—is to condemn conservatism, the Founders, and the civil society. How can it be said, as it often is, that moral order is second to liberty when one cannot survive without the other? A people cannot remain free and civilized without moral purposes, constraints, and duties. What would be left but relativism manifesting itself in anarchy, followed by tyranny and brute force? For the Conservative, “social issues” relating to life and lifestyle, tested by human experience through the centuries, are not merely personal habits and beliefs but also merit encouragement throughout the society.
In his 1964 speech accepting the Republican nomination for president, Senator Barry Goldwater declared that “those who elevate the state and downgrade the citizen must see ultimately a world in which earthly power can be substituted for Divine Will, and this Nation was founded upon the rejection of that notion and upon the acceptance of God as the author of freedom.”
12
While in his later years Goldwater denounced certain proselytes, in this, his most important speech, his call to God’s will and the founding—linking one to the other—could not have been more unequivocal.
O
N THE
C
ONSTITUTION
L
ANGUAGE CONSISTS OF WORDS,
The Conservative is an
originalist
, for he believes that much like a contract, the Constitution sets forth certain terms and conditions for governing that hold the same meaning today as they did yesterday and should tomorrow. It connects one generation to the next by restraining the present generation from societal experimentation and government excess. There really is no other standard by which the Constitution can be interpreted without abandoning its underlying principles altogether.
If the Constitution’s meaning can be erased or rewritten, and the Framers’ intentions ignored, it ceases to be a constitution but is instead a concoction of political expedients that serve the contemporary policy agendas of the few who are entrusted with public authority to preserve it.
As James Madison, the “father” of the Constitution, explained:
I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shapes and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense. And that the language of our Constitution is already undergoing interpretations unknown to its founders, will I believe appear to all unbiased Enquirers into the history of its origin and adoption.
1
To say that the Constitution is a “living and breathing document” is to give license to arbitrary and lawless activism. It is a mantra that gained purchase in the early twentieth century and is paraded around by the Statist as if to legitimate that which is illegitimate.
2
Thomas Jefferson, in an 1803 letter to Senator Wilson Cary Nicholas of Virginia respecting the Louisiana Purchase, explained:
Our peculiar security is in possession of a written Constitution. Let us not make it a blank paper by construction. I say the same as to the opinion of those who consider the grant of the treaty-making power as boundless. If it is, then we have no Constitution. If it has bounds, they can be no others than the definitions of the powers which that instrument gives. It specifies & delineates the operations permitted to the federal government, and gives all the powers necessary to carry these into execution. Whatever of these enumerated objects is proper for a law, Congress may make the law; whatever is proper to be executed by way of a treaty, the President & Senate may enter into the treaty; whatever is to be done by a judicial sentence, the judges may pass the sentence.
3
The Constitution is the bedrock on which a living, evolving nation was built. It is—and must be—a timeless yet durable foundation that individuals can count on in a changing world. It is not perfect but the Framers made it more perfectible through the amendment process.
The Conservative seeks to divine the Constitution’s meaning from its words and their historical context, including a variety of original sources—records of public debates, diaries, correspondence, notes, etc. While reasonable people may, in good faith, draw different conclusions from the application of this interpretative standard, it is the only standard that gives fidelity to the Constitution.
And where the Constitution is silent, states and individuals need not be. The Constitution and, more particularly, the framework of the government it establishes are not intended to address every issue or answer every perceived grievance. This is not a defect but a strength, because the government was intended to be a limited one.
4
The Statist is not interested in what the Framers said or intended. He is interested only in what
he
says and
he
intends. Consider the judiciary, which has seized for itself the most dominant role in interpreting the Constitution. When asked by a law clerk to explain his judicial philosophy, the late Associate Supreme Court justice Thurgood Marshall responded, “You do what you think is
right
and let the law catch up.”
5
The late Associate justice Arthur Goldberg’s answer was no better. A law clerk recounts Goldberg telling him that his approach was to determine “what is the
just
result.”
6
Still others are persuaded by the Statist’s semantic distortions, arguing that the judge’s job is to spread
democracy
7
or
liberty
.
8
The Conservative may ask the following questions: If words and their meaning can be manipulated or ignored to advance the Statist’s political and policy preferences, what then binds allegiance to the Statist’s words? Why should today’s law bind future generations if yesterday’s law does not bind this generation? Why should judicial precedent bind the nation if the Constitution itself does not? Why should any judicial determination based on a judge’s notion of what is “right” or “just” bind the individual if the individual believes the notion is wrong and unjust? Does not lawlessness beget lawlessness? Or is not the Statist really saying that the law is what he says it is, and that is the beginning and end of it? And if judges determine for society what is right and just, and if their purpose is to spread democracy or liberty, how can it be said that the judiciary is coequal with the executive or legislative branch?
The Statist considers the judiciary his clearest path to amassing authority, for through it he can proclaim what the law is without effective challenge or concern with the fleeting outcome of an election cycle. Moreover, the federal judiciary is populated with about one thousand lawyers—and the Supreme Court a mere nine—making statist infiltration easy. Even when holding high office in the executive or legislative branches, the Statist today looks for ways to enhance judicial authority at the expense of his own branch, for in doing so he seeks to immunize his agenda from a possible change in public attitudes. And the Statist on the Court tolerates representative government only to the extent that its decisions reinforce his ends. Otherwise, he overrules it.
There was a time when Franklin Roosevelt, the Statist’s favorite president, was an Originalist who respected the Constitution’s wise formulations and purpose. In 1930, as governor of New York, he delivered a speech condemning “the doctrine of regulation by ‘master minds,’ in whose judgment and will all the people may gladly and quietly acquiesce…. Were it possible to find ‘master minds’ so unselfish, so willing to decide unhesitatingly against their own personal interests or private prejudices, men almost god-like in their ability to hold the scales of Justice with an even hand, such a government might be to the interest of the country, but there are none such on our political horizon, and we cannot expect a complete reversal of all the teachings of history.”
9
He added, “Now, to bring about government by oligarchy masquerading as democracy, it is fundamentally essential that practically all authority and control be centralized in our National Government.”
10
But, alas, Roosevelt went on to become the very “master mind” he had denounced earlier in his political career. In his 1944 State of the Union address to Congress, Roosevelt declared, “This Republic had its beginning, and grew to its present strength, under the protection of certain inalienable rights—among them the right of free speech, free press, free worship, trial by jury, freedom from unreasonable searches and seizures. They were our rights to life and liberty.”
11
But for Roosevelt, these rights were no longer enough. He went on to propose a “Second Bill of Rights” based on “security and prosperity.”
12
The
right
to a useful and remunerative job in the industries or shops or farms or mines of the Nation; to earn enough to provide adequate food and clothing and recreation; of every farmer to raise and sell his products at a return which will give him and his family a decent living; of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home or abroad; of every family to a decent home; to adequate medical care and the opportunity to achieve and enjoy good health; to adequate protection from the economic fears of old age, sickness, accident, and unemployment; to a good education.
13
This is tyranny’s disguise. These are not rights. They are the Statist’s false promises of utopianism, which the Statist uses to justify all trespasses on the individual’s private property. Liberty and private property go hand in hand. By dominating one the Statist dominates both, for if the individual cannot keep or dispose of the value he creates by his own intellectual and/or physical labor, he exists to serve the state. The “Second Bill of Rights” and its legal and policy progeny require the individual to surrender control of his fate to the government.
And there is a movement afoot among the professoriate to compel exactly that result—not through the ballot box, but by constitutional deviation.
Georgetown University law professor Robin West argues that “[w]e need…a progressive jurisprudence—a jurisprudence that embraces rather than resists, and then reinterprets, our liberal commitment to the ‘rule of law,’ the content of our individual rights, and the dream of formal equality. More inclusive interpretations—more generous reimaginings—could then undergird, and in a principled way, particular constitutional arguments. Rather than relentlessly buck, deconstruct and vilify the seeming ‘naturalness’ of legal arguments based on moral premises, we ought to be providing such premises, and natural and general arguments of our own. But first we need to re-imagine.”
14
She has also promoted the view that the Fourteenth Amendment’s equal protection clause delegitimizes social and economic inequality.
15
Yale law professor Bruce Ackerman says his “aim is to redeem the lost promise of the Fourteenth Amendment’s vision of national citizenship through the enactment of framework statutes and the judicial development of the meaning of ‘privileges’ and ‘immunities’ of American citizenship.”
16
Here is what the relevant part of the Fourteenth Amendment actually says:
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
17
No literate person can comprehend the Fourteenth Amendment to mean what the Statists in academia claim it to mean. The Fourteenth Amendment was intended to grant African-Americans the same rights that exist for all Americans, not to install the wholly foreign regimen of economic and social egalitarianism.
18
The Statist willfully distorts not only the Framers’ intent in adopting the Constitution, but the actions of subsequent Congresses and state legislatures in amending the Constitution.
And these are the academic communities from which future judges are groomed and plucked.
By now it should be clear that the debate over constitutional interpretation is a false one. The Statist is not interpreting but manipulating. As Ackerman has said, “The progressive vision of frameworks centers on the economy—[it] needs to be constitutionalized in frameworks to make real the notion of a common citizenship.”
19
Hence, the Statist’s agenda would be constitutionally mandated, leaving the representative branches and, ultimately, the people, no way to escape it.
Former Harvard University law professor and current Obama administration official Cass Sunstein, a leading advocate of delinking liberty and property rights—and President Barack Obama’s likely future nominee to the Supreme Court—considers Roosevelt’s “Second Bill of Rights” to be among his greatest speeches. It is, therefore, important that some attention be paid to Sunstein.
Sunstein believes that economic value and private property are not natural occurrences in human interaction but rather the outgrowth of government and law. Therefore, he and other legal “realists” assert that government authority should be used to better exploit and redistribute wealth. As Sunstein explains: