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The government is taking away basic freedoms granted under the Constitution. This helpful guide gives a clear vision of what your rights are and how you can protect them.
In order to truly understand the freedoms we have as people of the United States, we must fully comprehend our Constitution and the reasons why our Founding Fathers devised it. If we don’t, we’ll never fully grasp the danger that lurks today of losing those freedoms to an ever-growing government and its lack of...
The government is taking away basic freedoms granted under the Constitution. This helpful guide gives a clear vision of what your rights are and how you can protect them.
In order to truly understand the freedoms we have as people of the United States, we must fully comprehend our Constitution and the reasons why our Founding Fathers devised it. If we don’t, we’ll never fully grasp the danger that lurks today of losing those freedoms to an ever-growing government and its lack of accountability. As a nationally recognized expert on the U.S. Constitution, Judge Andrew P. Napolitano states in simple Q&A format the meanings behindour Constitution and exposes areas that are in jeopardy of unequivocal compromise. He addresses hard-hitting questions such as, What are the limits to government power in a free society? Are your rights guaranteed? What forces have collaborated to destroy personal freedom? and many more. Seeing, studying, and examining these issues will illuminate the unconstitutional realities of the government’s role today.
Constitutional Basics: Laying the Foundation
The Constitution of the United States is the most examined and debated document in our country's history. It was written as a classic American compromise after months of debate at the Constitutional Convention in Philadelphia, which met during the summer of 1787. Essentially, the document constructs, establishes, and imposes limitations on the federal government by which each of the states gave some of their independent sovereign power away and created a new central government.
How was the federal government born?
The first effort for creating a federal government was the Articles of Confederation. Basically it created an umbrella government, subject to the wishes of the various states, any one of which could disregard a law that the central government enacted. Because of fears that Great Britain, the country from which our colonies broke away, would someday attempt to take back the states—fears which, of course, came true in 1812—many political leaders felt the Articles of Confederation did not provide the type of central government strong enough to unite the former colonies into one sovereign capable of dealing with all foreign governments with one voice, and strong enough to protect its people.
The Constitution is unique because it indisputably establishes the primacy of the individual over the state. It guarantees liberties and guarantees that the central government will not impair them. Basically, the Constitution is the result of a compromise between federalists personified by Alexander Hamilton, who wanted a very strong central government, and anti-federalists personified by Thomas Jefferson, who wanted strict limitations on the new government's powers and guarantees of liberty. Thus, out of that conflict of ideas, the federal government was born.
Why do we have a president and how is that position different from that of a European prime minister?
The Constitution provides for a strong chief executive—not a king—but an executive who is not subject to either of the two branches. What do I mean by this? In the modern European system, the head of the government is the prime minister. The prime minister is also the head of the political party that dominates the legislative branch. The prime minister of most modern European countries is not elected in a popular vote. His party's representatives are elected to parliament, and if they have a majority in parliament, they choose him as the leader of their party to become the leader of the government. The prime minister's name does not appear on a national ballot as a candidate for that office.
Here in the US, of course, the president, though voted for popularly, actually is chosen by electors from the states where the voters chose him. The people vote in each state directly for electors, and the electors promise they will cast their state's electoral votes for the winner of that state's popular vote. The person who wins the national popular vote becomes president. Nevertheless, the Constitution gives us a strong chief executive, not one whose powers derive from the legislature, but one whose powers derive from the Constitution. If a British prime minister loses a vote of confidence, that is, if Parliament rejects one of his proposals, he can be swept from office and forced to stand for reelection; not so with the American president. Not only may he lose a vote in the Congress and still keep his job, but he doesn't even have to be in the same party as that which dominates Congress, and frequently that has been the case.
What does the legislature do?
The Congress was created by the Constitution to represent the states and the people. Originally, senators were not popularly elected, but rather elected by state legislatures for six-year terms. Thus, the senators didn't represent the people in a state; they represented the state itself, its government, its sovereignty, in the United States Senate. In 1913, the Constitution was amended to provide for direct popular election of senators.
Members of the House of Representatives have always been popularly elected. The House has always been considered "the people's house," and its representatives seek reelection every two years.
Thus, in the two popular branches of government, we see a classic American compromise. In the Senate are representatives of the sovereign states. In the House of Representatives are representatives of the people. In the presidency is a person who must have broad popular support but could actually be elected without it.
What is the judiciary?
The most peculiar and least understood branch of the American government is the judiciary. The judicial branch of the government consists of life-tenured judges appointed by the president and confirmed by the Senate. These judges, of course, never have to seek election and can only be removed from office upon impeachment, after conviction of a felony.
The purpose of the judicial branch, as created by the Constitution, was to hear trials and apply federal laws to the unique cases before them. In the very famous case of Marbury v. Madison, however, in 1803, the Supreme Court decided that its purpose would be grander than that. The Court claimed for itself the power to invalidate acts of the Congress that were inconsistent with the Constitution. At the time, such power was considered a radical notion.
William Marbury had been appointed as a federal magistrate by outgoing President John Adams, a Federalist. His appointment was confirmed by the Senate, but the secretary of state in the Adams administration neglected to give Marbury his formal commission. After Thomas Jefferson, an Anti-Federalist, became president, his secretary of state, James Madison, refused to deliver Marbury his commission. So Marbury sued Madison in the Supreme Court seeking an order to compel Madison to deliver the commission to Marbury. The Supreme Court rejected Marbury's claim, not because he was not entitled to it (he was), but because the Congressional statute under which he sued, which gave the Supreme Court original jurisdiction over this type of lawsuit, was unconstitutional. This was so, the Court ruled, because the Constitution dictates the areas over which the Supreme Court has original jurisdiction, and the Congress cannot alter that. The party that immediately benefited by the outcome of Marbury v. Madison was the Anti-Federalists, who were in power at the time, and the result—that Mr. Marbury did not become a magistrate—was then popular. But of course this power would dog presidents and congresses even up to the present day.
The power is called "judicial review," and it is now universally accepted that not only the Supreme Court, but all federal judges, can review and void acts of Congress or acts of the president that the federal judge is able to demonstrate are inconsistent with the Constitution. For example, if the president were to declare that he did not need to seek reelection and he was entitled to retain his job for life, and a lawsuit were filed challenging that declaration, it would be easy for a federal judge to invalidate the declaration because it is inconsistent with the Constitution, which sets the president's term at four years. If Congress were to enact a law that made it unlawful to criticize members of the Congress, it would be easy for a federal judge to invalidate that law as inconsistent with the First Amendment to the Constitution, which guarantees freedom of speech.
Judicial review is indeed controversial, but it is now nearly universally accepted. Sometimes we call the exercise of judicial review "judicial activism" when we disagree with what the Court does; sometimes we call it "judicial heroism" when we agree with the judicial outcome.
What is the Bill of Rights?
The amendments to the Constitution are divided into two categories. The first ten of them are known as the Bill of Rights.
The Bill of Rights was promised to Thomas Jefferson and the Anti-Federalists as a condition for their support of the Constitution. The great fear of the Anti-Federalists—those who, if around today, would fear big government—was that the central government would take personal liberty away from individuals and power away from the states. When the authors of the Constitution guaranteed the Anti-Federalists that the document would contain a Bill of Rights which would spell out the rights and liberties that the Constitution would guarantee and would retain powers for the states, it was an easier sell in those states concerned about personal freedom and limited government.
When we use the term the Bill of Rights, we are referring only to the first ten amendments to the Constitution. If you read those ten amendments, you will see that they consist of guaranteeing specific individual rights that the federal government cannot take away, and powers that the states will always keep.
After we fought the Civil War and added the Thirteenth, Fourteenth, and Fifteenth Amendments, the courts began interpreting those, especially the Fourteenth, as meaning that not only can the federal government not interfere with liberties guaranteed in the Bill of Rights, but also, none of the state governments can interfere with them either.
What is State Sovereignty?
The starting point of the Constitution is that the thirteen states that formed the federal government were sovereign and independent states free to go their own way. There was a Continental Congress, of course, in 1776. It had little or no power other than to direct then General George Washington as he waged war against the British. The real political power that existed in 1776 was in the governorship and the legislature of each of the thirteen states.
When those political leaders of those thirteen states agreed that the Articles of Confederation were too weak to allow the country to be perceived as a sovereign unit by foreign countries, each of the states gave away some of their power to form the new central government.
Even though the Constitution begins with "We the people," it was really "We the states" that formed the Constitution. The Constitution itself indicates that it would not come into existence until two-thirds of the thirteen states agreed to accept it. So when one thinks of the federal government of the United States of America, one should think of a government with limitations imposed on it by the Constitution and with powers given to it by the various states. This, of course, presumes—historically this is the case—the thirteen original states preceded the existence of the federal government and actually, literally gave away some of their powers so as to form a central government. As an example, before 1789, many states issued their own currency and had their own armies. This obviously is something they cannot do under the Constitution because they gave those powers away to the central, federal government.
What is the Separation of Powers?
The Constitution itself divides power among a president who enforces the laws, a Congress which writes the laws, and a judiciary which interprets the laws. It also, of course, limits the powers of the three branches of government so that they deal with problems that are truly federal in nature. Unfortunately, these limitations have rarely been honored, and throughout the many years of our existence, fanatics and busybodies, do-gooders and collectivists in the congresses have found infamous and duplicitous ways—power-hungry judges in the courts have bent over backward to allow congresses and presidents—to exercise power never contemplated by the Constitution.
Article 1, Section 8 specifically lists only eighteen areas of human behavior over which Congress may legislate, and thus the president may enforce and the courts may interpret. Those areas involve coining money, regulating interstate and foreign commerce, establishing rules of naturalization, establishing post offices and courts, and supporting an army and navy. The power to regulate all other areas of human behavior that the Natural Law (see next section) allows governments to regulate was retained by the states. Despite the strict enumeration of congressional powers, the Congress has exercised powers never granted, enumerated, or delegated to it and has regulated, with the courts' approval, everything from automobile speed limits to the amount of sugar in ketchup, from the size of toilet bowls to the wages of janitors, from the fat content of cheese to the number of lobsters you can catch and the amount of wheat you can grow, from the number of painkillers your physician can prescribe to the amount of income you can keep.
Jefferson and Madison would not be happy with what's become of this vitally important historical document.CHAPTER 2
Natural Rights vs. Positivism: Balancing State Government with Federal Government
What is Natural Law?
For thousands of years philosophers, scholars, judges, lawyers, and ordinary folks have debated and argued over different theories suggesting the sources of human freedom. Though there are many schools of thought addressing these origins, most contemporary legal scholars in the Western world stand behind two principal theories about the origins of freedom: one school, the Natural Law theorists, argues that freedom comes by virtue of being human—from our own nature. The other school, the Positivists, argues that freedom comes from the government.
Natural Law theory teaches that the law extends from human nature, which is created by God. Thus, the Natural Law theory states that because all human beings desire freedom from artificial restraint and because all human beings yearn to be free, our freedoms stem from our nature—from our very humanity—and ultimately from God. St. Thomas Aquinas, the principal modern interpreter of Natural Law, directly contends that because God is perfectly free and humans are created in His image and likeness, our freedoms come from God. The Founders held this same basic view.
What is Positivism?
Positivism is more or less the opposite of the Natural Law. Under Positivism, the law is whatever the government in power says it is. Positivism requires that all laws be written down and that there are no theoretical or artificial restraints on the ability of a popularly elected government to enact whatever laws it wishes. Carte blanche all the way.
The advantage of Positivism is that, quite literally, the majority always rules and always gets its way, since there are no minority rights to be protected. Thus, if, under a Positivism theory, a state legislature or the Congress were to enact legislation prohibiting public criticism of abortion, or a state governor were to prevent Christians and Jews from worshiping, so long as the legislature was legally elected and so long as the legislature followed its own rules in enacting the legislation and so long as the legislation proscribed criticism of abortion and authorized the governor's behavior, the prohibition on speech and the interference with the free exercise of religion would be the law of the land, and no court could interfere with it. If rights come from government, they can be repealed by government.
Critics of Positivism have argued that it leads to the tyranny of the majority. These critics remind us that Hitler and his Nazi government were popularly elected and, once in power, under the theory of Positivism, passed all sorts of horrific laws, all of which were lawfully enacted. Because there was no Natural Law to protect the minority, these awful laws became the law of the land.
Excerpted from The Freedom Answer Book by Andrew P. Napolitano. Copyright © 2012 Judge Andrew P. Napolitano. Excerpted by permission of Thomas Nelson.
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Posted January 9, 2015
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