Commentators and journalists sometimes describe the current U.S. Supreme Court as “conservative.”  But that’s not true if your definition of a conservative justice is a traditional or “originalist” jurist—that is, one who applies the Constitution as the American people understood it when they adopted it.

Consider, for example, the Court’s latest First Amendment case.  The Court utterly disregarded the true meaning of that amendment, and instead applied a rule almost entirely unrelated to it.

The case was Snyder v. Phelps.  The father of a deceased U.S. Marine brought a suit under state common law against some members of the notorious Westboro Baptist Church.  As you may have learned from news sources, the Westboro Baptist Church is a tiny congregation with extreme anti-homosexual views.  The members regularly picket the funerals of soldiers, displaying signs that attack the military, the United States, and the innocent deceased.

Church members did so in this case, parading hateful signs on public property near the funeral.  They also launched unfounded personal attacks against the deceased both at the funeral and over the Internet. The serviceman’s father was so devastated emotionally that he sued them for damages, relying on claims for intentional infliction of emotional distress and for several other common law torts (civil wrongs).  The jury found that the father had been deliberately injured, and awarded him damages.

The church members demanded that the verdict be set aside.  They argued that the First Amendment Free Speech Clause protected them from liability.

Now whatever you think about Westboro Baptist or the father’s lawsuit, the fact is that the First Amendment, properly understood, was simply irrelevant to the case.  The issue should have been a slam dunk for the Court.

The text of the Free Speech Clause reads, “Congress shall make no law . . . abridging the freedom of speech.”  That is, the Amendment restricts actions of Congress.  Unlike other parts of the Bill of Rights, it applies only to the federal legislature, not to other branches of government.  It does not affect the common law, a system of case-by-case precedent built up by judges and juries over the years—a system expressly recognized as legitimate in other parts of the Constitution and Bill of Rights.

Moreover, the First Amendment says absolutely nothing about the states—and, in fact, during the 19th century the Court correctly held that the federal Bill of Rights controls only the federal government.  (States are bound by their own constitutions’ bills of rights.) True, some scholars argue that the later-adopted Fourteenth Amendment applied the First Amendment to the states, although others argue the contrary.  But the Supreme Court has never persuasively explained why it thinks the Fourteenth Amendment imposed the First on the states.  And even it did, that would bind only their legislatures, the state analogues of “Congress.”  It would not affect the common law.

There’s more: Although you would never know it to read Supreme Court First Amendment decisions, the Founders actually meant something by the phrases “freedom of speech” and “freedom of the press.” Those phrases had specific content.  What they meant is explained more fully in my book, The Original Constitution.  But what is important here is that they did not prevent civil lawsuits by innocents for harm inflicted by irresponsible people. Among those saying so during the debates over whether to ratify the Constitution was James Wilson, one of the greatest of the Founders.  (Wilson was a Framer, a leading Ratifier, and a distinguished lawyer whom George Washington later appointed to the Supreme Court.)

And as if that were not enough, during those debates the document’s supporters represented that tort and contact cases generally remained outside the federal sphere and were reserved exclusively to the states.

Yet in the teeth of text, law, and history, the Court held that the First Amendment prevented the serviceman’s father from collecting a dime.

How could this be?

During the Twentieth Century, “progressive” justices, ignoring text, law, and history, invented new First Amendment rules out of thin air.  In the 1960s and ‘70s, over the strenuous objections of moderate justices (there were no conservatives then on the bench), progressives largely re-wrote the defamation law that states had applied for two centuries.  In the course of their activity, they virtually destroyed the cause of action family members previously could use against those who maliciously “blackened the memory” of the deceased.  That may be why the family in this case resorted to claims such as intentional infliction of emotional distress.

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If we had any consistently originalist justices on the Court today, they would have voted to overrule the 1960s/70s decisions as a form of usurpation.  In other words, they would have applied the Constitution as the people adopted it.  Instead, in Snyder v. Phelps all the justices applied the 1960s/70s decisions.  There was only one dissenter, Justice Alito, but he merely disagreed as to how to apply them.

Last year when the Left was outraged because the Court struck down some restrictions on corporate participation in politics, I pointed out that the Court was just following the rules that “progressive” activists had invented throughout the Twentieth Century.

That’s what the justices did in the Snyder case, also. Far from the Court being conservative, the fact is that today there is not a single sitting Supreme Court justice who is a consistent originalist—not one.

In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitution’s original meaning have been published or cited by many top law journals. (See www.umt.edu/law/faculty/natelson.htm.) Most recently, he co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution (Tenth Amendment Center). After a quarter of a century as Professor of Law at the University of Montana, he recently retired to work full time at Colorado’s Independence Institute.

Most articles that seek to demonize the Tenth Amendment movement are so rife with logical and intellectual fallacies that even responding to them is a waste of time. However, in the case of Dan Casey, blogger for the Roanoke Times, an exception must be made.

For starters, Casey is writing in my (and Thomas Jefferson’s) home state of Virginia, and his piece, “The Whole Tenth Amendment Business is Dumb and Crazy” actually links to the Virginia Tenth Amendment Center, which I helped to found.

But, more importantly, in his article, Casey attempts to smear the brilliant men who wrote the U.S. Constitution by claiming the document doesn’t mean what they explicitly said it meant.

As James Madison might have said, there is a host of proofs that Dan Casey is dead wrong.

Like so many others before him, Casey leads his attack with a flaccid attempt to discredit the “Tenthers” (as he pejoratively calls them) by linking constitutionalism with support for slavery.

Of course, this completely obscures actions by Tenthers of an earlier era, who used the 10th Amendment as the prime justification for the “States Rights” argument that itself was a smokescreen for the real cause of the Civil War — the South’s insistence on preserving slavery.

Behold straw man number one: The Tenth Amendment is code for racism. Casey is either ignorant of the fact that many Northern states used the Tenth Amendment as a justification for undermining slavery long before 1861, through their refusal to enforce the Fugitive Slave Acts, or he has chosen to ignore that inconvenient part of history. 

Either way, it doesn’t matter. Historical accuracy is not Casey’s goal. He merely intends to color his readers’ perception of Tenthers by linking them, however spuriously, with Southern slaveholders. To acknowledge the truth about the history of states’ rights in the North might disrupt his narrative of unquestioning obsequiousness to centralized power.

Casey continues:

But apart from aligning themselves with slaveholders, there’s another more fundamental flaw in the whole modern Tenther argument. In a nutshell, it’s this: Their interpretation is based on a single sentence in the Constitution, rather than on the document as a whole.

In fact, the larger document directly contradicts the Tenthers’ argument.  That’s right — words the founding fathers quite deliberately wrote into the Constitution clearly and effectively rebut the Tenthers’ faulty reasoning.

It’s hard to imagine where Casey got this impression, considering that James Madison himself described the document he helped to write by saying

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite.

Thomas Jefferson also knew the Tenth Amendment was more than just “a single sentence.” He called it the Constitution’s foundation: 

I consider the foundation of the Constitution as laid on this ground: All powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states or to the people.

It really cannot be any clearer than that. The self-serving opinions of Dan Casey and myriad federal judges notwithstanding, if the people and the states didn’t explicitly surrender a power in the Constitution, then they still retain it. Whether or not they choose to exercise it is another story.

But if federal power is limited to what is enumerated in the Constitution, Casey asks, why do we need a Bill of Rights at all?

The problem for the Tenthers here is that the First Amendment has nothing to do with what Congress can do. It’s all about what Congress can’t do.

And this is where the Tenthers’ entire argument falls apart. Because under Tenther-logic, unless the Constitution permitted the feds to establish religion, or abridge freedom of speech and so on, then the feds would automatically be prohibited from doing it.

Obviously, the founding fathers themselves did not believe that, or they never would have felt the need to write the First Amendment in the first place.

Here Casey has a point, although not the one he thinks. He is right, the feds are automatically prohibited from doing any of the things he lists, just as they are prohibited from requiring every American to buy health insurance, based on the fact that those powers are not delegated under Article 1 Section 8.  

But, more importantly, many of the founders themselves argued against the Bill of Rights for the same reason as Casey: It should not be necessary. 

Alexander Hamilton said

…bills of rights… are not only unnecessary in the proposed constitution, but would even be dangerous. …For why declare that things shall not be done which there is no power to do? 

If there is any argument to be made against the Tenth Amendment, it is Hamilton, not Casey, who has made it.

The Bill of Rights should never have been needed. Every one of the first 10 Amendments is essentially legally redundant based on the text of the Constitution itself.

But, over time, activist judges and complicit politicians have turned the entire document on its head, until the only rights left to the people are those explicitly granted, while the only powers not yet claimed by government are those explicitly prohibited.

Yet Casey calls Tenthers, who only want the Constitution’s clear language enforced, ”intellectual boobs who can’t be bothered to think for themselves.” Apparently, thinking for oneself means ignoring the purpose of our founding documents, and gratefully acquiescing to federal tyranny.

Those of us who demand liberty are feared and ridiculed by weak minded men like Dan Casey who consider themselves intelligent, but are really nothing more than errand boys for the State.

As Samuel Adams once said

If you love wealth more than liberty, the tranquility of servitude better than the animating contest of freedom, depart from us in peace. We ask not your counsel nor your arms. Crouch down and lick the hand that feeds you. May your chains rest lightly upon you and may posterity forget that you were our countrymen.

With the 219th anniversary of the adoption of the document known as Bill of Rights only hours away, every American who has graduated from high school should be able to explain the original intent of the Amendments in ten minutes or less. Unfortunately, this is not the case. The last thing the statists want is a constitutionally educated populace. Thus, government and the education system it controls continue to distort and hide the true intent of the Amendments.

For many years the statists have been attempting to convince the people of these United States that the document known as the Bill of Rights is the source of their rights and government was granted the power to determine the extent of those rights. Fortunately, there is a quick and simple way to disprove this assertion and show the true intent of the Amendments.

When the Bill of Rights was submitted to the States for ratification it contained a preamble declaring the purpose of the proposed amendments. The preamble contained three paragraphs, but most modern editions of the Bill of Rights, especially those printed by government, only include the third paragraph. This omission is intentional because a reading of the preamble shows that the first paragraph discloses the true intent of the proposed amendments.

“The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its (the federal government’s) powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.”

The sole purpose of the proposed amendments, as stated in the preamble, was to prevent the federal government from “misconstruing or abusing its powers.” To accomplish this, “further declaratory and restrictive clauses” were being proposed. The amendments, if adopted, would not grant the people any rights or grant the federal government the power to determine the extent of the people’s rights; they would place additional restraints on the powers of the federal government. Each restraint is either a qualified restraint or an out right denial of power.

Based on the wording of the preamble, the amendments would place constitutional prohibitions on the powers of the federal government to prevent that government from “misconstruing or abusing its powers” concerning the rights of the people.

Another way to illustrate this point was to re-write the Amendments and insert restrictive language into each Amendment except the Tenth. This re-write is structured to preserve the original intent of the Founders as expressed in the preamble to the Bill of Rights

Article I…………………… Congress is expressly denied the power to enact any law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Article II…………………… Because a well regulated Militia is necessary to the security of a free State, the federal government is expressly denied the power to infringe on the right of the people to keep and bear Arms.

Article III…………………… The federal government is expressly denied the power to quarter any Soldier in any house, in time of peace, without the consent of the Owner, nor in time of war, except in a manner to be prescribed by law. (This Amendment contains an exception to the restraint and authorizes Congress to enact legislation to qualify the exception.)

Article IV…………………… The federal government is expressly denied the power to infringe on the right of the people to be secure in their persons, houses, papers, and effects from unreasonable searches and seizures, and the federal government is expressly denied the power to issue Warrants, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Article V…………………… The federal government is expressly denied the power to hold any person to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall the federal government subject any person to a prosecution for the same offence to be twice put in jeopardy of life or limb; nor shall the federal government compel any person in any criminal case to be a witness against himself, nor shall the federal government deprive any person of life, liberty, or property, without due process of law; nor shall the federal government take private property for public use, without just compensation.

Article VI…………………… In all criminal prosecutions, the federal government is expressly denied the power to negate the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law; nor shall the federal government deny the right to be informed of the nature and cause of the accusation; or the right to be confronted with the witnesses against him; or the right to have compulsory process for obtaining Witnesses in his favor, or the right to have the Assistance of Counsel for his defence.

Article VII…………………… In Suits at common law, where the value in controversy shall exceed twenty dollars, the federal government is expressly denied the power to negate the right to a trial by jury, and no fact tried by a jury shall be otherwise re-examined in any federal Court, than according to the rules of the common law.

Article VIII…………………… The federal government is expressly denied the power to impose excessive bail, excessive fines, or cruel and unusual punishments.

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Article IX…………………… The enumeration in the Constitution of certain rights, shall not be construed to grant the federal government the power to deny or disparage others retained by the people.

Article X…………………… The powers not delegated to the federal government by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Since each Amendment is either a qualified restraint on the exercise of power or an out right denial of power or a combination thereof, the insertion of restrictive phrases like “the federal government is expressly denied the power” is consistent with the original intent of the Amendments.

As shown by this re-write of the Bill of Rights, none of the Amendments define or limit the extent of the individual rights of the people. The Amendments do, however, define and enumerate the extent of the restraints placed on the powers of the federal government concerning the rights of the people and the powers reserved to the States.

Contrary to popular belief, the Amendments commonly known as the Bill of Rights are simply enumerated restraints on the powers of the federal government and an extension of the system of limited government established by the Constitution.

Bob Greenslade [send him email] has been writing for www.thepriceofliberty.org since 2003.

Yes, you read that right. The Constitution applies to terrorists. It also applies to stay-at-home moms, illegal immigrants, truck drivers, anti-government radicals, and Mahmoud Ahmadinejad.

Put differently, the Constitution does not apply only to citizens of the United States. It seems that protectionist collectivists treat this document like a two-year-old treats his favorite toy – unwilling to share, and incorrectly believing that it is his and his alone. This fallacy has become so propagated throughout the country’s general political mindset that a barbaric jingoism has resulted, leading people to automatically support the denial of constitutional protections of freedom for anybody who is a “terrorist.”

But who is a terrorist?

The picture that first comes to mind is the “insurgent” fighting against our military in Iraq, Afghanistan, and the other countries of the Middle East in which our military is increasingly becoming engaged. Some examples of such “terrorists” might be: the vengeful man whose innocent brother was killed by an unmanned drone over the border of Pakistan; the adrenaline-fueled teenager taking on the militarized Goliath occupying his hometown; the man in the wrong place at the wrong time, picked up by a bounty hunter and sold to the American government with a fictional story created about his involvement in terrorist activities; and the list could continue, portraying stories far different than the standard “radical jihadist” that dominates our media’s narrative.

Things hit closer to home when the suspected terrorists have white skin. Take, for example, the Missouri Information Analysis Center report which labeled as terrorists supporters of Ron Paul, Chuck Baldwin, Bob Barr, and anybody sporting paraphernalia associated with the Constitution Party, Campaign for Liberty, or the Libertarian Party.

The absurdity continues – the government has also considered defenders of the Constitution, home-schoolers, peaceful protestors, and a host of patriotic organizations and individuals as terrorists. Do these “domestic rightwing terrorists” not merit constitutional safeguards of their liberty?

In other words, with a “terrorist” being any individual – U.S. citizen or not – upon whom the government arbitrarily imposes that label, why would anybody not consider the Constitution as applying to that individual? Some may take issue with this generality and instead specify the argument as only being relevant to non-citizens. But do these folks even understand what the Constitution is?

The Constitution is a document that created the federal government, and in so doing, specified powers granted to and denied that entity. It does not apply to a person or group of people, but rather to the government itself. In saying above that the Constitution applies to terrorists, truck drivers, etc., the idea is conveyed that the Constitution applies to all people who have any dealings with the federal government.

The cotton picker in Uzbekistan couldn’t care less about the U.S. Constitution, and taken literally, it does not really apply to him. But say this person vacationed in Pittsburgh, or say he visited the local American embassy. Having any interaction with agents of the federal government makes the Constitution relevant to him, since that governing document applies to the federal government and those who comprise it. Whether the person be a cotton picker, an “insurgent,” or anybody else, the federal government is bound by the constraints of the Constitution, and in attempting to administer legal punishment to another person, must give due process and protect other basic human rights – rights which the Declaration of Independence makes clear are given by the Creator to every individual.

Were this not the case, the government could extinguish the life of any non-citizen it wanted, at any time, for any reason – or for no reason at all. For if the guarantees enshrined in the Constitution apply only to U.S. citizens, what prevents the government from denying these rights to any non-citizen? The constitutional restraints are not specific to an individual who happens to be a citizen, thus (allegedly) preventing the federal government from denying them their rights, but rather are shackles of self-restraint placed around the appendages of the government itself, regardless of who the government deals with. Under the Constitution, all are recognized as enjoying basic rights such as life, liberty, and the pursuit of happiness; the government must follow an established process if it wishes to deny these rights to any individual, whatever his or her nationality.

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This is not the America I grew up in, nor the one I want to pass on to my children. How about you?

cross-posted from LewRockwell.com

Connor Boyack [send him mail] is a web developer, political economist, and budding philanthropist trying to change the world one byte at a time. He lives in Utah with his wife and son. Read his blog.

Copyright © 2010 by LewRockwell.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.

This is from Ludwig von Mises’s economic masterpiece, Human Action, written sixty years ago in 1949:

The problems involved in direct government interference with consumption. . . concern the fundamental issues of human life and social organization. If it is true that government derives its authority from God and is entrusted by Providence to act as the guardian of the ignorant and stupid populace, then it is certainly its task to regiment every aspect of the subject’s conduct. The God-sent ruler knows better what is good for his wards than they do themselves. It is his duty to guard them against the harm they would inflict upon themselves if left alone.

Self-styled “realistic” people fail to recognize the immense importance of the principles implied. They contend that they do not want to deal with the matter from what, they say, is a philosophic and academic point of view. Their approach is, they argue, exclusively guided by practical considerations. . . .

However, the case is not so simple as that. Opium and morphine are certainly dangerous, habit-forming drugs. But once the principle is admitted that it is the duty of government to protect the individual against his own foolishness, no serious objections can be advanced against further encroachments. A good case could be made out in favor of the prohibition of alcohol and nicotine. And why limit the government’s benevolent providence to the protection of the individual’s body only? Is not the harm a man can inflict on his mind and soul even more disastrous than any bodily evils? Why not prevent him from reading bad books and seeing bad plays, from looking at bad paintings and statues and from hearing bad music? The mischief done by bad ideologies, surely, is much more pernicious, both for the individual and for the whole society, than that done by narcotic drugs.

These fears are not merely imaginary specters terrifying secluded doctrinaires. It is a fact that no paternal government, whether ancient or modern, ever shrank from regimenting its subjects’ minds, beliefs, and opinions. If one abolishes man’s freedom to determine his own consumption, one takes all freedoms away. The naïve advocates of government interference with consumption delude themselves when they neglect what they disdainfully call the philosophical aspect of the problem. They unwittingly support the case of censorship, inquisition, religious intolerance, and the persecution of dissenters.

Radicalism on the drug issue is often seen in terms of the politics of the 1960s and since, but twenty years before Woodstock, one of the most serious and significant thinkers ever to ponder the importance of human liberty said all this, going far beyond what most critics of drug policy would say today.

But is Mises correct? Does he overstate his case? Is the abolition of the right to consume whatever someone wants really taking all his freedom away? And does drug prohibition really send us on the path to censorship and religious persecution?

In America, our liberties our ostensibly protected by the U.S. Constitution and particularly the Bill of Rights. How much has the drug war compromised our Constitutional rights? Let us consider a countdown, starting with the Tenth Amendment and moving to First.

The Tenth Amendment says “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” This effectively means that if the Constitution does not grant the power to the federal government over something, then it is for the states and people to decide. Some people here would say this is the most important amendment. If the federal government obeyed it, the entire drug war as we know it would be impossible.

In 1909, Hamilton Wright, U.S. official to the Shanghai Opium Commission, complained that the Constitution was “constantly getting in the way” of his drug war ambitions. Indeed, in domestic politics, there is no Constitutional authorization for a federal drug war whatever. Without a grant of power, the U.S. government is supposed to butt out.

In 1914, Woodrow Wilson signed the Harrison Narcotic Act into law. There was no constitutional basis for this, but at least by the time alcohol prohibition came around, it was recognized that the federal government would need constitutional authority to ban liquor. They passed the 18th Amendment and repealed the disaster of alcohol prohibition with the 21st amendment.

By 1937, however, there was no more such deference to Constitutional procedure. That year, Franklin Roosevelt signed the Marijuana Tax Act into law, effectively banning marijuana at the federal level. All the major federal drug laws since then had no Constitutional basis, and all of them seemed to come with general expansions of federal power. Just as Wilson’s ban on heroin and regulation of cocaine came during the activist Progressive Era and marijuana prohibition was part of FDR’s New Deal, the next major wave of federal drug law came in the 1960s, during the Great Society, and culminated in the 1970 Controlled Substances Act just as Nixon was continuing LBJ’s policies of guns and butter.

This relates to the medical marijuana debates since the 1990s. When states began allowing medicinal pot, Bill Clinton and George W. Bush both cracked down on their dispensaries, and many advocates of states’ rights decried this violation of federalism. A case went to the Supreme Court on 10th Amendment grounds and all the liberals on the court, all favoring a federal government with few limits on its power, upheld Bush’s raids. Three conservatives dissented, including Clarence Thomas, arguing that the federal government had no authority through the commerce clause to interfere with California’s medical marijuana policy.

If Obama indeed stops the medical marijuana raids, it will probably not be because, as his spokesman says, he believes “that federal resources should not be used to circumvent state laws.” On general questions of policy, including the drug war, Obama and most liberals favor federal supremacy. If California goes through with legalizing marijuana outright, will Obama really do nothing about it? Will the administration actually find ways to crack down on medical marijuana while claiming the operations it’s targeting are not for medical use — as it has done before? Is it possible that Obama, not believing in the constitutional principles at stake, will accelerate other aspects of the drug war?

The Tenth Amendment alone invalidates the federal drug war, and so too does the next one down.

The Ninth Amendment says “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

This means that just because a personal right is not specifically mentioned does not mean the federal government can infringe upon it. Certainly the rights to use and sell drugs are being attacked in this very way.

And in moral terms, this is what the drug war means. It is the denial of self-ownership. Someone who can’t decide what to put in himself does not own himself. The logic of the drug war is that the government owns you.

We look at all the rights trampled in the name of the drug war and we see how all rights are connected. People are denied the right to self-medicate and take the treatment they desire. Not just in regard to illegal drugs either, but those that are regulated.

The Food and Drug Administration is tied at the hip to the Drug Enforcement Administration. The pharmaceutical interests who control federal prescription drug policy have a stake in maintaining a control on what drugs people can do. The FDA, by keeping life-saving drugs off the market, has forced tens and tens of thousand Americans to die prematurely. Mary Ruwart puts the number in the millions.

What would amuse me if it were not tragic is that so many liberals defend the FDA even as they question the drug war. But if you have a right to do drugs to get high, you surely also have a right to do any drug that you think might save your life. Medical freedom in its true sense is totally impossible without drug freedom.

Because of the drug war, the right to travel is impeded, and the right to have and transfer money. Laws against money laundering — itself a victimless crime — have sprung up almost entirely because of the drug war. And anyone who believes that the right to practice free enterprise is important and guaranteed by the Ninth Amendment must necessarily oppose the drug war, which violates free market principles in a million ways.

Next on our list is the Eighth Amendment, which guarantees that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Well surely any punishment is cruel for a victimless crime. Conservatives might say this is a liberal reading of the Amendment. But at the time the Bill of Rights was adopted, prisons as we know them hardly existed, and the notion of imprisoning someone for ten years for growing hemp, on which the Constitution was drafted, would have been seen as quite cruel and quite unusual. In the 1970s and 1980s, Congress passed mandatory minimum laws which reduce the discretion of judges in handing out sentences — almost all such federally determined sentences are for drugs or guns.

The average sentence in federal prison for drug trafficking is longer than for sexual abuse. The burgeoning prison state is one of the most horrifying features of modern American history, with the drug war playing a huge part. About one in four or five Americans prisoners are there for non-violent drug offenses — acts that were totally legal in the nineteenth century. Before Reagan stepped up the drug war, there were half a million Americans in prison or jail, and another 1.5 million on parole or probation. There are now more than two million behind bars and seven million total in the correctional system. Prisons grew by 500 percent from 1982 to 2000 in my state of California.

One out of four or five prisoners are there for drugs alone. And for their non-crime, they are sentenced to a personal totalitarianism: Gang violence, an alarming frequency of prison rape, beatings and sometimes death. Americans by the hundreds of thousands who have never raised a finger against anyone are in constant fear of being abused and turned into slaves by their cellmates. How any American can think this is in any way consistent with civilized society boggles the mind.

Bail is often ridiculously high for drug war victims — $1 million or more. The advent of asset forfeiture — whereby the government confiscates your property and essentially accuses it of being guilty of a civil offense — has become an effective way to circumvent the “excessive fines” clause.

What about the Seventh Amendment? It reads: “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.”

I mentioned civil asset forfeiture. It is important to recognize that there is no criminal hearing for the vast majority of forfeiture victims. The property is seized through civil litigation. But since the property itself, and not the owner, is on trial, the Bill of Rights offers no protection. There’s no right to a trial. If a person wants to reclaim his confiscated property, he must ask for a trial. If the court rules that the property be returned, the government can ask for another one, or merely make return of the property contingent upon the victim paying tens of thousands of dollars in fines.

You might be a charter pilot who has his plane taken as part of a drug investigation, and be unable to pay the six grand to get your plane back after being bankrupted by the legal system. This happened to Billy Munnerlyn in the early 1990s. You could be the wrong color or have the wrong amount of cash on you and lose it all to confiscators who get to keep a cut of what they steal.

One point of the Seventh Amendment was to protect the rights of Americans to sue government officials for wrongdoing, and have a fair trial — not the type of mock trial the Founders saw used by the British Crown to let their officials off easy. The drug war has turned this entire idea on its head. Now the government can just take your property without charging you and all you can do is hope that it lets you make your case in a fixed sham proceeding that you are innocent.

The Sixth Amendment reads, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”

For standard crimes like murder, theft, rape and the like, it is perhaps possible to have trials reasonably available to every suspect. But there are simply too many drug offenders for this and no victims to serve as reliable witnesses. So the standard of evidence has been lowered to the point where the mere existence of enough cash and a cop’s say-so is enough to convict.

What’s more, defense attorneys are often burdened with a hundred clients at once, so they must prioritize and leave those who are fated to only a year in prison to lesser hearings. Some judges have even refused to assign public defenders in drug cases.

A dangerous alternative to the trial system is the “drug court,” wrongly touted by some reformers, including the Obama administration. In Obama and Biden’s “Blueprint for Change” they propose to “Expand Use of Drug Courts” to “give first-time, non-violent offenders a chance to serve their sentence, where appropriate, in the type of drug rehabilitation programs that have proven to work better than a prison term in changing bad behavior.”

But as Morris Hoffman, a state trial judge in Denver and an adjunct professor of law at the University of Colorado, warned at the USA Today blog in October last year:

[It's] not just that drug courts don’t work, or don’t work well. They have the perverse effect of sending more drug defendants to prison, because their poor treatment results get swamped by an increase in the number of drug arrests. By virtue of a phenomenon social scientists call “net-widening,” the very existence of drug courts stimulates drug arrests.

Police are no longer arresting criminals, they are trolling for patients. Denver’s drug arrests almost tripled in the two years after we began our drug court. At the end of those two years, we were sending almost twice the number of drug defendants to prison than we did before drug court.

Attempting to win the drug war, even in a more progressive sense, is thus no substitute for abandoning it altogether. The only change I can believe we’ll see under Obama is more erosion of the Sixth Amendment.

We’re just getting started. The Fifth Amendment states: “No person shall be. . . subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Mandatory drug testing can be seen as self-incrimination, as soon as the results are used in criminal prosecution. Civil asset forfeiture has allowed for the deprivation of life and liberty without due process, and also for the effective phenomenon of double jeopardy, as people are punished both in the civil and criminal systems.

The Psychotropic Substances Act of 1978 expanded the use of forfeiture to include any property connected to the drug crime in any manner. An early 1990s study estimated that 80% of people who lost their property to civil asset forfeiture were never charged with a crime.

We often hear of money being confiscated for drug residue, which can be found on over 90% of the cash in circulation. We hear of people losing their homes, cars, boats and businesses because of the presence of marijuana seeds. The drive to get loot, some of which police get to personally keep, has even led to some deaths, as was the case with Donald Scott, a California rancher gunned down because bureaucrats wanted to seize his land on which they claimed they found some seeds. Michael Bradbury, the Ventura County DA, said that the police raid was “motivated at least in part, by a desire to seize and forfeit the ranch for the government… [The] search warrant became Donald Scott’s death warrant.”

I shouldn’t even have to discuss how the Fourth Amendment has been compromised.

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Where to begin? Warrants have become a mere bureaucratic technicality, rubberstamped or often neglected altogether in the pursuit of drug offenders. No-knock raids have become a commonplace in modern American life. 92-year-old women are murdered and have drugs planted on them. Men who shoot no-knock invaders are sentenced to death, and if they’re lucky, have their sentences reduced to life — this happened to Cory Maye in Mississippi. Children are shot in the back. Family pets are killed by laughing officers as they break into homes searching for drugs.

With a real crime, it is often possible to have an “Oath or affirmation” backing the warrant, which can actually “describe the persons or things to be seized.” In a murder case, a warrant can describe a bloody knife. Drug war warrants are typically too vague to pass constitutional muster. Mere suspicion that some law is being broken is often enough.

The courts have ruled that if the government tries to arrest you when you’re in public, and you escape into your home, they can now search the home without a warrant. As for automobiles, drug war roadblocks have erased the Fourth Amendment concerning cars, which are now treated as the property of the state.

The Supreme Court recently ruled that police may prevent people from entering their own homes while the police apply for a warrant. These abuses are often glorified on television as the necessary implements to catch vicious criminals, but they originated with, and are principally used for, the war on drugs.

Americans tend to look at the Third Amendment as an anachronism. “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.” Surely this hasn’t been touched by prohibition, has it?

Even by a very narrow reading, I believe it has. In one instance, in 1997, 40 members of the Army National Guard moved into the Las Palmas Housing Project in Puerto Rico to search for drugs. Years later, there were hundreds there.

More broadly, the entire spirit of the Third Amendment has been trounced. The point of the amendment was to prevent the abuses seen with the British Quartering Act, to protect Americans from having to quarter soldiers — to support them, even financially — except at wartime when and through legal means. But all around us, we have seen the police militarized in the name of the drug war.

Some conservatives objected when Bush modified the insurrection act and amassed more presidential power to call up the National Guard on his own say-so. But this trend began before 9/11. In a hearing on the drug war in 1994, then Congressman Chuck Schumer said, “The National Guard is a powerful, ready-made fighting force. Redefining its role in the post Cold War era presents exciting possibilities in the war against crime.”

Also troubling have been the attempts to weaken Posse Comitatus, which since Reconstruction has forbade the use of the military in civilian law enforcement. But before the war on terrorism, there was the drug-war loophole. In the 1980s, Posse Comitatus was amended to allow for military-police cooperation in drug interdiction. Whereas the military was understood to be inappropriate for the enforcement of federal civil rights during Reconstruction, it was supposedly okay for the drug war. This precedent culminated in the largest massacre of American civilians by their own government since Wounded Knee.

Why was the military involved in Waco sixteen years ago? Because the government decided to treat their upcoming publicity-stunt raid as a drug measure. They claimed the Branch Davidians had a meth lab. That’s how they got the warrant and military involved. That’s how they got the military weapons. It was only later that the excuse shifted to child abuse or illegal gun ownership.

Which brings us to the Second Amendment. One of the terrible tragedies of our time is that more people do not understand the connection between the drug war and gun rights.

As soon as violating people’s rights to find drugs became excusable, the crusade against private gun ownership got a big boost. Both concern the ownership of inanimate objects. As wars on possession crimes, both government crusades rely on the same kinds of dirty tactics, the punishment of minor offenders with disproportionately long sentences as a deterrent, the erosion of due process, privacy and the rights of the accused.

The relationship between the drug war and violent crime has been documented. The spike in violent crime following prohibition has traditionally led to more severe enforcement of gun laws. Both gun control and the drug war lead to violent black markets, and thus more state power in a spiraling vicious cycle of mutual reinforcement.

It was, after all, the bootlegging gangs that emerged out of alcohol prohibition that served as the inspiration for the first major federal gun law: The National Firearms Act of 1934. A year after the Marijuana Tax Act of 1937, the Federal Firearms Act of 1938 passed on a similarly used an abusive interpretation of the Commerce Clause.

Moreover, just as with terrorism, the two issues became linked in law enforcement. Federal law mandates additional penalties if drug dealers are caught in mere possession of a firearm. Nobody wants to stick up for the rights of drug dealers to keep and bear arms. But so long as they are violating no one’s rights, they should be left in peace. There are many legitimate reasons, from a moral perspective, that a dealer would want to defend himself.

Many non-violent drug convicts are automatically denied the right to bear arms. This is a serious and grave attack on the human rights of drug convicts who have already paid a debt to society that they didn’t even owe.

The lesson is clear: If you want your right to self-defense protected, you must oppose drug prohibition.

Last but not least is the First Amendment, which states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

For years, politicians have wanted to censor us, using the drug war as an excuse. Probably the most notable example was Senators Feinstein and Hatch’s proposed Methamphetamine Anti-Proliferation Act, which in its original language would have outlawed speech that advocated drug use or production and cracked down on websites that merely linked to sites that sold drug paraphernalia. Then there is the more general chilling effect of students being harassed in public schools for outwardly advocating drug use or legalization.

Here in New Hampshire, Ian Freeman has been threatened with criminal penalties for the act of advocating drug possession.

As for religious liberty, American Indians have long used hallucinogens as religious rites, and have risked penalties under federal law for the peaceful exercise of religion. This brings us to a fundamental incompatibility between the First Amendment and the drug war.

Under the American Indian Religious Freedom Restoration Act of 1994, American Indians can use peyote because it is part of their religion. But if something is peaceful, anyone should be allowed to do it, whether it is recognized by the government as religious or not. For peyote users to be jailed because they do not believe in its spiritual dimension is a de facto official government endorsement and granted privilege for some religious groups. If it can conceivably be allowed for the religious, it must constitutionally be allowed to everyone. Yet for peyote users to be jailed despite their religion is a violation of their religious liberty. The only way to reconcile religious liberty with federal drug law is to abolish it altogether.

Thus we see that Ludwig von Mises was hardly off the mark. The entire Bill of Rights has been shredded in the drug war. In Constitutional terms, “If one abolishes man’s freedom to determine his own consumption,” one does indeed “take all freedoms away.” With even the precious First Amendment battered, Mises was right that the drug warriors “unwittingly support the case of censorship, inquisition, religious intolerance, and the persecution of dissenters.”

The alternative, say the drug warriors, would be worse. They persist in their claims that we are utopians and unrealistic. But it is their vision of a drug-free America that is unrealistic. America’s prisons are constantly monitored and prisoners have very little of what we would call civil liberty, yet drugs flow throughout the system. America itself could become one big drug prison and their vision would be no closer to being obtained.

Anthony Gregory is Editor-in-Chief at Campaign for Liberty, a research analyst at the Independent Institute, a columnist at LewRockwell.com, a policy adviser for the Future of Freedom Foundation, a freedom activist, and a musician. See his webpage for more articles and personal information.

Copyright © 2009 Anthony Gregory. Licensed under creative commons. A longer version of this piece appeared on LewRockwell.com

by Harry Browne

This article was originally published on December 12, 2002. For more Harry Browne archives, visit www.harrybrowne.org

Dec. 15 should be a national holiday.

No, it’s not Earth Day, or Martin Luther King Day, or Flag Day, or Beat-Up-Some-Third-World-Country Day.

It’s Bill of Rights Day.

If there were to be only one holiday in America, that should be it. Contrary to all the blather we hear about the unique goodness of the American people or our religious heritage or anything else, the one thing that set this country apart from all others was the Bill of Rights.

This was the first country in history to have a national government that was truly limited. No, the limits weren’t always observed, but for a century they held the federal government more in check than any government in history. At the end of the 19th century, federal, state and local taxes still took only 8 percent of the national income (it’s 48 percent today).

Children know nothing of their heritage

Unfortunately, our children grow up with no concept of limited government. All they learn in school is that the government is the wondrous savior that brought us out of the Great Depression, made the world safe for democracy, holds human greed in check, and stops rapacious corporations from polluting the environment.

They don’t understand that the one unique factor government possesses is force, and that only a strict Constitution can keep that force from getting out of hand. When they study the Constitution, they pore over tedious sections explaining the makeup of the Senate and the House, how judges are selected, and how federal laws are enacted. Needless to say, they aren’t taught the concept and virtue of limited government.

The meaning of the Constitution

And so they don’t understand that the Bill of Rights is the heart of the Constitution – the section that gives meaning to it by holding the government in check. Those 10 amendments say:

• The government can’t restrict what you say, what you write, what you protest, or what you believe.
• The government has no authority to limit in any way your ability to defend yourself.
• The military can’t force you to allow soldiers to stay in your home.
• No one has the right to search your person or your property without a warrant signed by a judge affirming that there is good reason to believe your belongings are involved in a crime.
• No policeman or prosecutor can force you to say anything, you can’t be tried again for a crime for which you’ve been acquitted, no one can take your property without due process of law, and the government can’t use your property without paying for it.
• You can’t be held in jail without being brought to trial or without knowing the charges against you, you can’t be deprived of an attorney, and you have a right to confront anyone who gives evidence against you.
• You have a right to be tried by a jury of your peers.
• You can’t be subject to excessive bail requirements, be tortured or receive cruel punishment.
• The listing of these rights doesn’t mean you have forfeited any other rights, unless those rights are specifically abrogated within the Constitution.
• Most important of all, the federal government has no authority to do anything that isn’t specifically mentioned in Article 1, Section 8 of the Constitution, which spells out the areas in which Congress is allowed to legislate.

The Constitution isn’t written in Chinese, Swahili or Sanskrit. It’s in plain English. And the first question a president should ask any potential Supreme Court judge is, “Can you read?”

If the judges could read and pay attention to what they read:

• We wouldn’t have national medical programs – and health care would be far less expensive, far more efficient, and far more user-friendly.
• The federal government would have no role in education, and our children would at least have a chance to learn something significant in school.
• None of your money would be sent to foreign dictators.
• The president would have no authority to make war without a specific declaration of war by Congress – and thus there would have been no U.S. invasions of Iraq, Panama, Grenada, Serbia or Afghanistan – and tens of millions of foreigners might not hate us so much.
• There would be no need for an income tax, because the cost of the federal government would be – at most – a third of what it is now.
• And many more benefits would flow to us.

Bring back America

The Bill of Rights isn’t some legalistic fine print. It was written to make our lives freer, more prosperous, and happier. By forsaking it, America has become no better than any other country in the world.

Today every conceivable subject is fair game for legislation to enforce the personal whims of people like Bill Clinton, George Bush and those 535 drunken sailors in Washington.

No, we won’t have a national celebration this Bill of Rights Day. But we can privately contemplate what we’ve lost – and vow to restore the America that was meant to be.

Harry Browne (RIP 1933-2006), the author of Why Government Doesn’t Work and many other books, was the Libertarian Party presidential candidate in 1996 and 2000, a co-founder of DownsizeDC, and the Director of Public Policy for the American Liberty Foundation.  See his website.

Editor’s Note: Bill of Rights Day is December 15th. But as Kevin Gutzman points out in this article, it’s not a day of celebration.  Instead, it should be a day of mourning for the death of decentralized self-government.

In 2008, the Supreme Court of the United States decided Kennedy v. Louisiana. In that decision, the Court created a new categorical right to rape a child without receiving the death penalty.

Although the majority made mention of the Eighth Amendment’s prohibition of “cruel and unusual punishment,” no one really believed that this new right had any basis in the Constitution. The Court majority claimed that its decision reflected a new societal consensus, despite the fact that six states and, as it turned out, Congress recently had adopted legislation providing capital punishment for certain child rapists. The dissenting justices said that the actual basis of the Kennedy decision was “the Court’s ‘own judgment’ regarding ‘the acceptability of the death penalty,’” but the majority opinion made clear that the Court simply differed with the people’s representatives on the question how significant rape of a child is.

In other words, the justices substituted their legislative will for that of elected legislators. Alas, there was nothing unusual about this. Kennedy v. Louisiana illustrates what has come of the Bill of Rights in our day.

The Bill of Rights should be mourned, not celebrated. It is defunct. Intended as the bulwark of the right of decentralized self-government, it now serves mainly as an excuse for the opposite: a roving judicial veto of state policies that federal judges dislike.

So, if the people of virtually every state ban flag burning or regulate abortion, provide capital punishment or support prayer in school, that does not settle the matter. Unlike 200 or 100 years ago, today the federal judiciary is apt to step in to stop state legislatures from adopting policies like this.

The people never consented to have the federal judges behave this way.

The purpose of the first ten amendments was laid out clearly by their Preamble. “Preamble?” You might ask. “What preamble?” Although the main body of the Constitution is never published without its Preamble, one could study American history for a lifetime without ever encountering the Preamble to the Bill of Rights.

That Preamble says that Congress is recommending amendments to the states because a number of states in ratifying the Constitution “expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added.” Since the people were afraid of the new Federal Government, that is, the Bill of Rights was being added to hedge in the powers of the Federal Government more carefully.

So, for example, the Tenth Amendment stated what Thomas Jefferson called the underlying principle of the entire Constitution: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the states respectively, or to the people.” In other words, the Constitution gave the Federal Government a few enumerated powers, and those were all.

That is why the First Amendment begins by saying that, “Congress shall make no law.” Congress, not government generally. The point was to leave such questions in the hands of elected state legislators.

America’s Revolution was fought and won in the name of self-government via elections to state legislatures. King George III and Parliament insisted that those legislatures could legislate only when and as far-off officials essentially unaccountable to American colonists said they could. The Americans rejected that idea. In fact, rejecting that idea was what made Britain’s North American colonists into Americans.

No surprise, then, that six years after the Revolution ended, in the First Congress, the people insisted that the principle of local self-government — of federalism — be made explicit through the Tenth Amendment and the other nine. They wanted explicit statements that the distant new Congress could not violate Americans’ most cherished rights — rights the king and Parliament had repeatedly infringed.

This was an uncontroversial understanding of things in the Constitution’s first century and more. The Supreme Court unanimously said in 1833 and thereafter that the Bill of Rights was a limitation solely on the Federal Government.

But the 20th century saw a great change. The Progressives of the early part of the century opposed constitutional limitations on government power generally, and the New Deal of the 1930s stood for the elimination of the Tenth Amendment from constitutional law. Congress’s power is essentially unlimited today, and federal courts have come to supervise virtually all state policies — essentially on the basis of federal judges’ policy preferences.

No one today even pretends that the Bill of Rights serves its intended purpose of restraining the Federal Government. Quite the opposite. And the death of decentralized, election-based government is entirely lamentable.

Kevin R. C. Gutzman, J.D., Ph.D., Associate Professor of History at Western Connecticut State University, is the author of Virginia’s American Revolution: From Dominion to Republic, 1776–1840 and The Politically Incorrect Guide to the Constitution. He is also the co-author, with Thomas E. Woods, Jr., of Who Killed the Constitution? The Federal Government vs. American Liberty from World War I to Barack Obama. His upcoming book, James Madison and the Making of America, will be published by St. Martin’s early in 2011.

Originally published on May 9, 2003 at HarryBrowne.org

Senator Rick Santorum recently caused a brouhaha when, during an Associated Press interview, he defended laws against sodomy – saying that permitting sodomy is as good as saying polygamy, incest, and adultery should be permitted.

This provoked a firestorm – and that caused a far more troubling Santorum statement to be overlooked. He said:

It all comes from, I would argue, this right to privacy that doesn’t exist in my opinion in the United States Constitution . . .

Is there a right to privacy in the Constitution?

Well, I searched my copy of the Constitution of the United States and I couldn’t find the word privacy anywhere in the document. Does this mean the Senator is right?

I also searched the Constitution and I couldn’t find the word marriage either. Does that mean I don’t have a right to be married – that a so-called “right to marriage” was invented by some bleeding-heart liberal judge somewhere?

The Constitution also doesn’t include the right to buy products from foreigners, or to have children, or to read a book, or even to eat food to survive.

How could the Constitution have overlooked such basic human rights?

Because the Constitution isn’t about what people can do; it’s about what government can do.

The Constitution was created to spell out the limited rights or powers given to the federal government. And it was clearly understood that the government had no powers that weren’t authorized in the Constitution.

The Bill of Rights

The original Constitution contained no Bill of Rights, because the authors believed it wasn’t necessary – since the Constitution clearly enumerated the few powers the federal government was given.

However, some of the Founding Fathers thought there could be misunderstandings. So a Bill of Rights was composed – and some states ratified the Constitution only on condition that those amendments would be added to the Constitution.

Whereas the main part of the Constitution spells out the few things that government may do or must do, the ten amendments of the Bill of Rights spell out what government may not do. For example:

• The government can’t search or seize your property without due process of law,
• It can’t keep you in jail indefinitely without a trial,
• It can’t enact laws abridging the freedom of speech or religion, or infringing on the right to keep and bear arms.
• And various other prohibitions on government activity are spelled out.

The ninth and tenth amendments were included to make absolutely sure there was no misunderstanding about the limited powers the Constitution grants to the federal government.

Amendment IX:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Now, where’s the right to privacy?

It is clearly in those two amendments.

The government has no power to tell people what to do except in areas specifically authorized in the Constitution.

That means it has no right to tell people whether or not they can engage in homosexual acts; no right to invade our privacy; no right to manage our health-care system; no right to tell us what a marriage is; no right to run our lives; no right to do anything that wasn’t specifically authorized in the Constitution.

(Notice also that nowhere in the Constitution does it say that government may violate the Bill of Rights if the target of its wrath is a non-citizen. Government isn’t authorized to jail non-citizens indefinitely or deny them due process of law. There’s a good reason for that, but that’s another subject.)

Constitutional Ignorance

The irony in the Santorum diatribe is that if you were to ask him whether he believes the Constitution is a literal document – as opposed to one that can be reinvented by judges and politicians – I’m sure he’d say he’s squarely on the side of the Constitution as a literal document.

And yet he doesn’t even know what’s in it. And he wants to reinvent it as a document that gives the government the power to regulate your personal life and invade your privacy.

This is pitiful. Politicians swear an oath to uphold and defend the Constitution, and they don’t even understand what it is.

But then, most of them were educated in government schools, just like the rest of us. So why should we expect them to understand the importance of limiting governmental power?

When the Constitution is discussed in schools, the focus is generally on the constitutional procedures for appointing judges, electing politicians, terms of office, and other mundane matters.

There really are only two areas of the Constitution that every American should understand and understand well:

Article 1, Section 8 – which enumerates the areas in which Congress has the power to legislate. You’ll notice that no power is given there for Congress to pass laws regulating health care or education or charities or agriculture or any of thousands of other areas in which politicians now tell us how we must act.

The Bill of Rights – which makes it plain that the government has no authority to do anything that isn’t specified in Article 1, Section 8.

Perhaps the greatest mistake made in American history was in allowing government to educate our children. We can’t expect government employees to teach our children that the one unique aspect of our heritage – the one element that set America apart from the rest of the world – was ~.

Once government moved in on education in the 1800s, it was all downhill from there. In 1913, the income tax amendment was passed – giving the federal government virtually unlimited resources to trespass in any area of our lives that politicians took a fancy to.

Our two greatest needs, if we are to regain the liberty the Founding Fathers bequeathed to us, are to:

• Get government completely out of education.
• Repeal the income tax, which will automatically deny the politicians the resources with which to violate the Constitution.

Only when those goals are achieved will America once again be the land of liberty – providing light and hope and inspiration to the entire world.

Harry Browne (RIP 1933-2006), the author of Why Government Doesn’t Work and many other books, was the Libertarian Party presidential candidate in 1996 and 2000, a co-founder of DownsizeDC, and the Director of Public Policy for the American Liberty Foundation. See his website.

Kevin Gutzman, best-selling author and expert on American Constitutional history, discusses the 14th Amendment and the Incorporation Doctrine, how the doctrine has given us government by judiciary instead of government by representation, the Due Process clause, Substantive Protections vs. Due Procedure, the original intent of the 14th Amendment, how the courts changed that meaning over the ensuing five decades, the Bill of Rights as a limitation on the power of Congress, how the incorporation doctrine has turned the principles of federalism on its head, representative government vs. government by “experts,” Privileges or Immunities and The Slaughter-House Cases, rights of State citizenship, how James Madison warned that those in government would tend to use and expand power, some of the greatest violations of the Constitution under the doctrine of incorporation, why federalism and decentralization is a better system to secure liberty, and more.

Mentioned in this Show

KevinGutzman.com

The Politically Incorrect Guide to the Constitution

Who Killed the Constitution

Virginia’s American Revolution

Slaughter-House Cases

Lawrence v Texas

Editor’s Note: Samuel Adams, American Patriot and Revolutionary Leader, was born on September 27, 1722. In celebration of his birth, we present the following letter, sent by him to Elbridge Gerry, on August 22, 1789.

I wrote to you hastily two days ago, and as hastily ventured an Opinion concerning the Right of Congress to control a Light-house erected on Land belonging to this sovereign and independent State for its own Use and at its own Expense.

I say sovereign and independent, because I think the State retains all the Rights of Sovereignty which it has not expressly parted with to the Congress of the United States–a federal Power instituted solely for the Support of the federal Union.

The Sovereignty of the State extends over every part of its Territory. The federal Constitution expresses the same Idea in Sec. 8, Art. 1.

A Power is therein given to Congress “to exercise like Authority,” that is to exercise exclusive Legislation in all Cases whatsoever, “over all places purchased by the Consent of the Legislature in which the same shall be, for the Erection of Forts, Magazines, and other needful Buildings,” among which Light-houses may be included.

Is it not the plain Conclusion from this Clause in the Compact, that Congress have not the Right to exercise exclusive Legislation in all Cases whatsoever, nor even to purchase or control any part of the Territory within a State for the Erection of needful Buildings unless it has the Consent of its Legislature.

If there are any such Buildings already erected, which operate to the General Welfare of the U S, and Congress by Virtue of the Power vested in them have taken from a State for the general Use, the necessary Means of supporting such Buildings it appears to be reasonable & just that the U S should maintain them; but I think that it follows not from hence, that Congress have a right to exercise any Authority over those buildings even to make Appointments of officers for the immediate Care of them or furnishing them with necessary Supplies. I wish to have your Opinion if you can find Leisure.

I hope Congress, before they adjourn, will take into very serious Consideration the necessary Amendments of the Constitution. Those whom I call the best–the most judicious & disinterested Federalists, who wish for the perpetual Union, Liberty & Happiness of the States & their respective Citizens, many of them if not all are anxiously expecting them.

They wish to see a Line drawn as clearly as may be, between the federal Powers vested in Congress and the distinct Sovereignty of the several States upon which the private & personal Rights of the Citizens depend.

Without such Distinction there will be Danger of the Constitution issuing imperceptibly and gradually into a consolidated Government over all the States; which, although it may be wished for by some was reprobated in the Idea by the highest Advocates for the Constitution as it stood without Amendments.

I am fully persuaded that the population of the U S living in different Climates, of different Education and Manners, and possesed of different Habits & feelings under one consolidated Government can not long remain free, or indeed remain under any kind of Government but despotism.

You will not forget our old Friend Devens, and if you please mention him to Mr R H Lee.

Adieu my dear Friend and believe me to be sincerely yours,

P. S. The joint regards of Mrs A & myself to Mrs Gerry.