by Joseph Sobran
Constitutional Counter Revolution
Well, I don’t have to tell you that this way of thinking is absolutely alien to that of today’s politicians and pundits. Can you imagine Al Gore, Dan Rostenkowski, or Tom Brokaw having a conversation about political principles with any of the Founding Fathers? If you can, you must have a vivid fantasy life.
And the result of the loss of our original political idiom has been, as I say, to invert the original presumptions. The average American, whether he has had high-school civics or a degree in political science, is apt to assume that the Constitution somehow empowers the government to do nearly anything, while implicitly limiting our rights by listing them. Not that anyone would say it this way. But it’s as if the Bill of Rights had said that the enumeration of the federal government’s powers in the Constitution is not meant to deny or disparage any other powers it may choose to claim, while the rights not given to the people in the Constitution are reserved to the federal government to give or withhold, and the states may be progressively stripped of their original powers.
What it comes to is that we don’t really have an operative Constitution anymore. The federal government defines its own powers day by day. It’s limited not by the list of its powers in the Constitution, but by whatever it can get away with politically. Just as the president can now send troops abroad to fight without a declaration of war, Congress can pass a national health care program without a constitutional delegation of power. The only restraint left is political opposition.
If you suspect I’m overstating the change from our original principles, I give you the late Justice Hugo Black. In a 1965 case called Griswold v.
It gets crazier. In 1993 the Court handed down one of the most bizarre decisions of all time. For two decades, enemies of legal abortion had been supporting Republican candidates in the hope of filling the Court with appointees who would review Roe v. Wade. In Planned Parenthood v. Casey, the Court finally did so. But even with eight Republican appointees on the Court, the result was not what the conservatives had hoped for. The Court reaffirmed Roe.
Its reasoning was amazing. A plurality opinion — a majority of the five-justice majority in the case — admitted that the Court’s previous ruling in Roe might be logically and historically vulnerable. But it held that the paramount consideration was that the Court be consistent, and not appear to be yielding to public pressure, lest it lose the respect of the public. Therefore the Court allowed Roe to stand.
Among many things that might be said about this ruling, the most basic is this: The Court in effect declared itself a third party to the controversy, and then, setting aside the merits of the two principals’ claims, ruled in its own interest! It was as if the referee in a prizefight had declared himself the winner. Cynics had always suspected that the Court did not forget its self-interest in its decisions, but they never expected to hear it say so.
The three justices who signed that opinion evidently didn’t realize what they were saying. A distinguished veteran Court-watcher (who approved of Roe, by the way) told me he had never seen anything like it. The Court was actually telling us that it put its own welfare ahead of the merits of the arguments before it. In its confusion, it was blurting out the truth.
But by then very few Americans could even remember the original constitutional plan. The original plan was as
The unchecked federal government has not only overflowed its banks; it has even created its own economy. Thanks to its exercise of myriad unwarranted powers, it can claim tens of millions of dependents, at least part of whose income is due to the abuse of the taxing and spending powers for their benefit: government employees, retirees, farmers, contractors, teachers, artists, even soldiers. Large numbers of these people are paid much more than their market value because the taxpayer is forced to subsidize them. By the same token, most taxpayers would instantly be better off if the federal government simply ceased to exist — or if it suddenly returned to its constitutional functions.
Can we restore the Constitution and recover our freedom? I have no doubt that we can. Like all great reforms, it will take an intelligent, determined effort by many people. I don’t want to sow false optimism.
But the time is ripe for a constitutional counterrevolution. Discontent with the ruling system, as the 1992 Perot vote showed, is deep and widespread among several classes of people: Christians, conservatives, gun owners, taxpayers, and simple believers in honest government all have their reasons. The rulers lack legitimacy and don’t believe in their own power strongly enough to defend it.
The beauty of it is that the people don’t have to invent a new system of government in order to get rid of this one. They only have to restore the one described in the Constitution — the system our government already professes to be upholding. Taken seriously, the Constitution would pose a serious threat to our form of government.
And for just that reason, the ruling parties will be finished as soon as the American people rediscover and awaken their dormant Constitution.