L. Neil Smith's
Number 106, January 29, 2001
A Super Bowl of Hypocrisy

Constitutional Drift

by James J Odle

Special to TLE

"The Constitution of the United States poses no serious threat to our form of government. It just has nothing to do with it anymore."
—Columnist Joe Sobran, Bob Mohan Show, KFYI Radio, 1992

It is tempting to agree with Mr. Sobran. In fact, I feel a great deal of sympathy with his position. He is close to the truth, but not quite.

As I see it, the Constitution—metaphorically speaking—lies mortally wounded on a hospital gurney, under an oxygen tent, with an IV stuck in it's arm and every once in a while, the critical care staff has to come along and apply the electro shock paddles to its chest!

No, the Constitution is not dead. A sort of Constitutional 'template' has been laid upon the land. What we have today is the 'form' but not the 'substance' of a Constitutional government.

After all, what is the whole purpose of the Constitution—together with the Bill of Rights? Let us remember our basic high school civics now. The whole point is to protect each of us—as individuals— from the tyranny of a strong central government as well as the possible oppression involved with majority rule. And it supposed to accomplish this by constraining the range of options and thus the range of lawful activities available to public officials— particularly, federal public officials. The Constitution is even supposed to protect us from our politicians' and fellow citizens' good intentions—particularly when they take the form of demented, dimwitted socialist/welfare/warfare government programs. After 150 years of public school indoctrination, no one seems to remember this —or care. Put it another way, the purpose is to inconvenience public officials as much as possible in order to secure our liberty. Problem is, I don't see much inconveniencing going on out there.

Thomas Jefferson once suggested that we should not put our trust in men but that we should "bind them down from mischief with the chains of the Constitution." The trouble is, those chains have come unbound. Leviathan has slipped its leash.

Thus, this nation has drifted far from the founding principles upon which it was based. Consequently, we have to put up with all kinds of lunacy. Such as:

  • Presidents who have sent our servicemen—our fellow Americans— hither and yon, to all kinds of Third World toilets all because one egomaniacal President after another has believed that he was the 'Leader of the Free World';

  • The common belief that the job of the President is to be 'our national leader';

  • The assertion that the Constitution contains no right of privacy;

  • Judge Robert Bork proclaiming that the Ninth Amendment is nothing but a blot upon the Constitution;

  • A judiciary as well as Congress behaving as if the Constitution bestows upon us our rights;

  • Elected officials behaving as though—with election to public office—they received some sort of generalized Power of Attorney to go out and do whatever they pleased (or whatever the Supreme Court allows them to get away with);

  • Presidents making laws via Executive Order as if they were kings or czars;

  • The judge in the trial of the Arizona Viper Militia declaring that the Second Amendment is 'unavailable' to the defense;

  • Arizona Attorney-General Janet Napalotono justifying infliction of the death penalty upon some German murderers before the World Court;

  • The continual assault on our rights, in the name of the Holy War on Drugs, using RICCO statutes and asset forfeiture laws.

Today is Inauguration Day and another living example of the Peter Principle in action has been promoted beyond his level of competence. While our nation will not be, ahh, 'Gored'—we will be 'Bush'-whacked. All because neither candidate—nor Congress—can get their minds around the idea that the Constitution limits their power.

Since I have questioned what the proper role of the President in our lives is, I now ask, "Has anybody—anybody at all—read the President's job description lately?!"

Now for those of you who don't know what I am talking about, job descriptions are commonly found in the Human Resources Departments of major corporations and government bureaucracies. They are quite similar to the job opening announcements that you might find on the company bulletin board. A job description defines a position's place in the company hierarchy as well as duties, reporting requirements, minimum training and experience not to mention the personal qualities that a candidate must have to successfully fill the position.

Well my friends, in America our Presidential job description can be found in a document that is more than 200 years old. It is the document that every politician swears to uphold and defend against all enemies foreign and domestic—usually without the necessity of actually reading it first. It is the document that is ignored shortly thereafter. It is the document that, at the end, contains the signatures of John Hancock and Benjamin Franklin and many of the other Founding Fathers. Yes my friends, that document.

From reading Article 2 of the United States Constitution, we can develop the following job description:

Job: President of the United States

Position in Chain of Command: Chief Executive Officer of the Executive Branch of Government and Commander-In-Chief of the Armed forces

Responsible to: The American People

Minimum qualifications: Clause 5: No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

Minimum education: None

Term of Office: from 4 to 10 years but can only serve 2 consecutive terms (see Amendment 22)

Powers of the President: Section. 2. Clause 1: The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

Clause 2: He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

Clause 3: The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Duties and Responsibilities: He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States. Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

Now, do you see anything here that says that it is the President's job to be the 'Leader of the Free World?' From reading the above it can be determined that the only people to whom the President is supposed to provide leadership to are his subordinates within the Executive Branch and the military. He is supposed to make recommendations to Congress. Do you see anything here that authorizes the President to circumvent Congress and make new law by issuing Executive Orders as Roosevelt did when he banned Americans from owning gold, or when Clinton began to implement the terms of treaties that have yet to be ratified by the Senate?

For those who belief that the President's job is to be our 'national leader,' I must ask you to hold out an arm. Now take a look. Do you see any fur? Any fur there at all? No? Feathers? Any feathers there? No? What about fins? Do you see any fins? No? When you were putting on your shoes this morning, did you notice any paws? No? Then you are like me. We don't swim in schools, fly in flocks, nor do we run with the pack!! We are neither herd beasts nor pack animals!! Permitting politicians to think of themselves as 'our leaders' is sheep thinking at its worst! When our pioneering forefathers were busy carving a civilization out of the west and Washington DC was two months away by horseback, do you think they stood around saying that they were in dire need of a little presidential leadership? I don't think so!

Let us cut through the crap, shall we? The primary job of the President is to enforce the laws that are enacted by Congress. Each has the further responsibility to confine their concerns and activities to those powers that have been expressly delegated to them and nothing else! This is the purpose of enumerating powers. It is not the president's job to be the national nanny. He is not supposed to be spending his time worrying about whether or not we have a retirement plan or are eating regularly or being educated. He is not supposed to be concerned with what goes on in every Third World toilet on the planet—unless said toilet presents a clear and immediate danger to this nation. A circumstance that would not obtain if we weren't stationing troops in more than a hundred nations throughout the world or fighting the War on Drugs.

I have even heard G. Gordon Liddy, an ex-lawyer and normally a bright guy suggest that the federal government had the power to take 'those decisions that effect everyone—not just each of us as individuals.' This is an erroneous attitude as, Constitutionally speaking—the Feds only have those powers that have been expressly delegated to them. If there are other issues that need to be addressed then they become the responsibility of the states or else we, in the private sector can form corporations or other private associations to deal with them.

As I have explained that we haven't had a president who has confined his actions within the constraints of the Constitution, the same can be said for virtually every member of Congress. The only member who takes the Constitution seriously that I am aware of is Congressman Ron Paul. Congressman Paul has stated that there are two arguments that are completely ineffective in stopping a given piece of legislation: (1) that the legislation, in question, is unconstitutional; (2) that the legislation is immoral. This is indicative of the regard with which our 'public servants' hold their Oath of Office as well as the Constitution.

Few Americans see any problem with the present setup. In fact, many believe that the Constitution is obsolete—that it was intended for an agrarian society—that the Founding Fathers could not have imagined our complex industrial society. (Please note—government only makes life more complicated.) Thus they subscribe to the silly Orwellian notion that the Constitution is some sort 'living document' —that its terms and conditions are thus amendable by judicial, executive and legislative fiat without so much as a by your leave to us, the American people—their employer. This is the same as not having a Constitution at all. The Constitution is occasionally justified as being a valid contract between 'We the People' and they 'the government.' Whoever heard of a contract whose terms and conditions were in a perpetual state of flux or could be unilaterally changed by one party to the contract? Of course, this presupposes that the Constitution is a valid contract in the first place. Lysander Spooner had a few choice words on this topic. (See the essay "No Treason—The Constitution of No Authority" that is contained in The Lysander Spooner Reader).

You see—it's a question of attitude really. To be more specific, it's a question of the piss-poor attitude that public officials hold toward our rights, our lives and our property.

Where's the Beef?

All right, so what is the problem? After all, that Constitution thing was written two hundred-odd years ago by a bunch of racist European white guys who could not have imagined our modern society. We have it good! We have a roof over our heads, three squares a day, can pursue almost any occupation we wish, say anything we please or go anywhere we want. So what's the problem? I mean, why should we care whether or not our public institutions and politicians respect the Constitution? After all, our 'leaders' care—(they really care!)—about our welfare. (Who cares if they care! They do very little for us that we can't do for ourselves—with a little imagination. Also, they screw-up and drive-up the price of everything they touch.) Constantly on the defensive. Those of us who take our individual rights seriously are constantly on the defensive in that we feel compelled to join and lend financial support to organizations such as Gun Owners of America, the Fully Informed Jury Association, the Life Extension Foundation, NORML or the CATO Institute because our rights are constantly under attack! Being on the defensive all the time is tiresome!

It's a matter of principle. Let's take a hypothetical situation. See yourself in the role of being an employer—because that's what you are. Now suppose you were to pick up the daily newspaper, look into the want ads section and discover that one of your employees—without your knowledge or permission—had put your house up for sale. You would be out-raged wouldn't you? Of course you would.

This then is the attitude that all of us should have whenever we hear politicians bargaining over new gun control laws (those are our individual rights that they are bargaining with!) or when we learn that the First Amendment has all but disappeared (because of the political correctness speech codes) on our university campuses or when we learn that the legal profession goes back into jolly-old England to find justification for the Asset Forfeiture laws with which they circumvent our Fourth and Fifth Amendment rights. (What's next? Is the legal profession going to go back to the Code of Hammurabi or the Law of Moses the next time they want to do something forbidden by the Constitution?)

It's a matter of principle that we should be outraged whenever we learn of someone's or even our own individual rights being treated like crap. If it can happen to someone else, it can happen to us.

Something to think about. Given the lack of real respect for the Constitution by our presidents as well as the New World Order tendencies each has displayed what is to stop a president from signing a treaty that would require the US to deny its citizens the right to a free press, to bear arms, practice the religion of their choice, etc. Answer. None!! The Supreme Court has ruled that treaties take precedence in the Constitution (I don't remember the citation off hand). But, the real question is, what would give the president the authority to sign such a treaty in the first place? Do you think I'm unduly concerned? Just remember, the US is probably the only country left where you have a Constitutional right to keep and bear arms or the right of free speech. Don't be fooled by International Agreements that use words like 'Human Rights' in the title. They are usually advancing a communistic agenda. Also, the right of free speech is severely curtailed even in such advanced countries as England and Canada. Also, our own government has been under considerable international pressure to strip us of our guns (particularly from Japan).

Unconstitutional government depresses our standard of living. It takes a ridiculous amount of money to station troops in more than one hundred nations around the world where they don't belong, bail out every Third Word toilet on the planet as well as finance an ever-growing police/welfare/warfare state. In order to finance all it's unconstitutional—and thus unlawful—activities, every day the federal government borrows more than 50% of the money available in the money markets. In turn, this drives up the interest rates on our credit cards and home mortgages. As for taxes, the cost of all levels of government exceeds 50% of our income (when you consider the taxes added into the cost of every product we buy). In short, we are living on less than 50% of our monthly income. It's no wander that we are now the most heavily indebted people in the world. This insatiable lust for our financial assets soaks up capital that would be better spent investing in new products and industries and employing people in real—private sector—jobs. Here, in the United States.

For those of us who are homeowners—have we looked at our houses lately? What is a house anyway? Well, you have a plot of land, a little cement, a few bricks, wood, tile, porcelain, electrical and plumbing accoutrements as well as some shrubbery. Here's the question. Why does it take—on average—thirty years of our lives and a quarter to a third of our monthly income to pay for a plot of land, a few bricks, some wood, etc? Why is there such strain on the family unit these days? Could it possibly, possibly be an indirect consequence of our high rate of taxation as well as the high rate of government borrowing? (Also, might not the practice of taking out thirty-year mortgages date from the time when the income tax and the Federal Reserve System were inflicted on us?)

A police state isn't cheap, you know.

Also, we are living longer these days. The basic financial and moral unsoundness of Social Security/Medicare/Medicaid are at the forefront of our national concerns. With these taxes at roughly 15% of every paycheck (including the employer contribution) think of how much better off we would be if those funds were diverted into the private sector where we would earn a real return and the money would be under our control. With us being in the Captain's Chair of our own lives, once again, we could have a retirement similar to the citizens of Galveston, Texas. They opted out of social security in 1982 and on average; their retirement is approximately $9000 whereas the average social security recipient receives less than $1000 a month. (I wish I had a citation for this.)

Also, these programs are unconstitutional.

Unconstitutional government endangers our lives. Throughout this century we have been led into war by one power-crazed president after another. Three have committed war crimes. (Roosevelt instigated a blockade against Japan. Bush, Sr. led us into a war against Iraq. Clinton has dropped bombs on Kosovo and an aspirin factory. Not one of these countries had attacked the US prior to our harassing them.) It has been said that the president can do these things because he is the 'Commander-in-Chief.' However, it is Congress that, Constitutionally speaking, has the power to declare war. The fact that the president is the 'Commander-in-Chief' simply means that he directs the conduct of the war and manages the military during times of peace. It doesn't mean that the lives of our servicemen are his to do with as he pleases or that he is free to go forth and kill anyone, anytime, anywhere without congressional approval. We don't have kings, czars or pharaohs in this country. How many American have lost their lives in foreign wars this century? How many have been injured? How many families shattered because of out-of-control presidents? Do the research and add up the numbers. I'm sure it is in the millions. (I highly recommend the anthology The Failure of America's Foreign Wars, Ed. By Richard M. Ebeling and Jacob Hornberger. Also, a new book purports to have documentary evidence that the highest levels of our government had foreknowledge of the attack on Pearl Harbor. The book is: Day of Deceit: The Truth About FDR and Pearl Harbor, by Robert Stinnett.)

This century's wars have been justified as necessary to enhance human freedom or democracy. In this regard, this century's wars have all been failures. That's the theme of The Failure of America's Foreign Wars. Also, consider the following from the author of the Constitution:

The Most Dreaded Enemy of Liberty
Of all the enemies to public liberty war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few. In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors, and emoluments is multiplied; and all the means of seducing the minds, are added to those of subduing the force, of the people. ... [There is also an] inequality of fortunes, and the opportunities of fraud, growing out of a state of war, and ... degeneracy of manners and of morals. ... No nation could preserve its freedom in the midst of continual warfare. ...

[It should be well understood] that the powers proposed to be surrendered [by the Third Congress] to the Executive were those which the Constitution has most jealously appropriated to the Legislature. ...

The Constitution expressly and exclusively vests in the Legislature the power of declaring a state of war ... the power of raising armies ... the power of creating offices. ...

A delegation of such powers [to the President] would have struck, not only at the fabric of our Constitution, but at the foundation of all well organized and well checked governments.

The separation of the power of declaring war from that of conducting it, is wisely contrived to exclude the danger of its being declared for the sake of its being conducted.

The separation of the power of raising armies from the power of commanding them, is intended to prevent the raising of armies for the sake of commanding them.

The separation of the power of creating offices from that of filling them, is an essential guard against the temptation to create offices for the sake of gratifying favorites or multiplying dependents.

James Madison was the fourth president of the United States. This is from Letters and Other Writings of James Madison.

A few domestic examples of government abuse of our Constitutional rights. It can't happen here, right? We're Americans and we live in the freest country on the planet. Well, my friends, join me in the real world because the Bill of Rights is hanging by a thread.

1. If we travel to some Third World drug-producing toilet, and return, and if we fit a US Customs drug courier profile we could be detained for up to three days and suffer a body cavity search without ever being charged with a crime, all because we came from a country the government doesn't approve of.

2. Also, if we travel with a large amount of money in our wallets, that money could be seized because we 'might' be couriers for the drug dealers or could be attempting to evade taxes. (Please note: anybody can fit one of these very elastic drug dealers/courier profiles.) For example, on February 27, 1991 Willie Jones of Nashville was taking a trip to Houston and he attempted to pay for his plane ride with cash. Spotting the wad of bills in his wallet, the ticket clerk reported him to the DEA, which promptly arrested the money. Mr. Jones was never arrested nor accused of any criminal wrongdoing; yet he still had to sue the DEA to get back his own property (it took two years). Said Mr. Jones of the incident; "I didn't know it was against the law for a 42-year old black man to have money in his pocket." (Reported in Lost Rights: The Destruction of American Liberty, by James Bovard, p.11, paperback edition)

3. Many Branch Davidians, Kevin Harris, Vicki Weaver and who knows how many other peaceful Americans are now dead or are in prison because our government ignores the Second Amendment. (We also have a fundamentally human right to defend ourselves and to possess the means to do so.)

4. Have you heard of Jared and Darleen Spahn? They're victims of judicial jury tampering. There they were, having a peaceful little yard sale when two US Marshals approached and asked them to produce Darleen's brother. When they were told that the brother was not about, these ill-tempered marshals attacked them and they attempted to defend themselves by blocking the punches. This attack was conducted in front of witnesses. After the incident was over, the Spahns sought redress by attempting to sue the government. The government responded by arresting them for resisting arrest. (I guess when government agents are beating up on us, we are supposed to simply take it.) When the case came to trial, Judge Robert Broomfield told the jury that they had to follow the law as he gave it to them. Doing as they were instructed, they voted to convict and the lives of the Spahns were ruined. (Lawyers aren't cheap.) The jury exists to defend the defendant from the government when the government is out-of-line. (I know that they don't teach this in law school.) They aren't there to follow judicial instructions like a herd of sheep, else what would we need them for?

5. Our basic right to privacy is under attack via FENCEN (spys on our financial transactions) and CARNIVORE (spys on our E-mails).

6. Why are we—as individuals—filling out income tax returns? Doesn't anyone in government understand that a legal obligation that we as individuals files income tax returns under penalties of perjury is in direct conflict with the Fourth and Fifth Amendments? Sixteenth Amendment or no Sixteenth Amendment. The fact the we file such returns is indicative of the amount of corruption in our government and the legal system.

These then are a few example of the poor state of Constitutional Law in America.

I believe that it was Thomas Jefferson who said something to the effect that if the principles of limited Constitutional government do not live and breathe in the hearts and minds of the American people, then no paper document would secure their liberty.

He was right, of course.

We will have real, limited, Constitutional government only if we insist on one.

Think about it and if those who are concerned about the state of freedom in this country then they should educate themselves. Begin with the following:

Books by James Bovard, "Feeling Your Pain": The Explosion and Abuse of Government Power in the Clinton-Gore Years; Freedom in Chains: The Rise of the State and the Demise of the Citizen; Lost Rights: The Destruction of American Liberty

A Book by Godfrey D. Lehman, We The Jury ... The Impact Of Jurors On Our Basic Freedoms.

Joe Sobran's speech "How Tyranny came to America" at: http://www.sobran.com/tyranny.shtml

I also highly recommend the other books mentioned in the article.

James J. Odle is a splendid fellow who, unlike the vast majority of so-called 'public servants' has a real job in the private sector performing real work which a real employer voluntarily pays him to perform. He is also a Life Member of Gun Owners of America, FIJA and the Libertarian Party.

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