The Dying Constitution

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There has been much caterwauling about the death of the Constitution recently in wake of the recent ”’Lawrence v Texas”’ Supreme Court decision. The question I have is: “Where in blue blazes have you people been?” The Constitution has been dying for over one hundred years.

If the criteria for the death of the Constitution is Supreme Court decisions that are inconsistent with the Original Intent and meaning of the Constitution with those held by our Founding Fathers, then this is nothing new. The Sherman Anti-Trust Act was just the first of many stakes driven through the heart of the Constitution.


Based upon a false characterization of the operations of a free-market economy, the Sherman Act was a fraud from the start. It should have been ruled unconstitutional on the basis of the Article 1, Section 8, Clause 3 of the Constitution, otherwise known as the Commerce Clause, the very basis upon which the Sherman Act was upheld. This goes back to Original Intent.

The Intent of the Framers of the Constitution was to provide the means to prevent trade and tariff wars among the various states, not a means to regulate businesses that operate over state lines. It was to prevent economic protectionism between the states. When the Supreme Court twisted this to mean that Congress could regulate any business transaction between states, and then within the states themselves, it usurped the very power that was supposed to be reserved to the states in Amendment X.

The true intent of the Sherman Act was to restrict competition instead of promote it. The special interests of the day that were unsuccessful in competing against larger, more efficient firms, sought congressional solutions to their inability to compete. That the trusts were in fact providing goods for consumers at ever lower prices was irrelevant.

To quote Congressman William Mason from debates on the Act: “Trusts have made products cheaper, have reduced prices; but if the price of oil, for instance, were reduced to one cent a barrel, it would not right the wrong done to the people of this country by the ‘trusts’ which have destroyed legitimate competition and driven honest men from legitimate business enterprises.”

This is clearly an admission that benefits to consumers takes second place to the business interests that Mason represents. What he is admitting here is that it is better to protect inept businessmen at the expense of the consumer, rather than let the free market take its course and provide goods at a reduced cost to the consumer.

Sen. Edwards who played a key role in the debate echoes the same sentiment: “Although for the time being the sugar trust has perhaps reduced the price of sugar, and the oil trust certainly has reduced the price of oil immensely, that does not alter the wrong of the principle of any trust.”

What violation of principle? That of lower prices? The fact was that laissez faire capitalism was providing ever increasing amounts of goods at ever lower prices and some businessmen were being driven out of business.

The rise in living standards in this period is unequaled. As reported by the Cato Institute: “Real GNP increased by approximately 24 percent from 1880 to 1890. Meanwhile, the allegedly monopolized industries for which a measure of real output is available grew on average by 175 percent. The more rapidly expanding industries in real terms included steel (258 percent), zinc (156 percent), coal (153 percent), steel rails (142 percent), petroleum (79 percent), and sugar (75 percent).”

It was large numbers of small farmers and small businessmen that pressured their legislators to pass this legislation. And since they were in greater numbers, this is exactly what happened. Again, from the Cato Institute: “The Sherman Act won legislators votes and campaign contributions from farmers and small businessmen who thought antitrust regulation would protect them from their more efficient competitors, and the tariff bill was supported by all U.S. manufacturers, large and small.”

The oft repeated complaint that “Big business” controls the legislative process is turned on its head here. It is the inept little guys, like the unions, ganging upon on the big producers who raise the standard of living for everyone, that demand the special favors.

But the real issue is the legality of the act. Political expediency, and growing socialist sentiment, paved the way for an unconstitutional act that began a usurpation of power by the federal government that has grown to nightmare proportions today. The only real monopoly is the monopoly of government power because it is supported by the force of arms. Everybody else is a piker by comparison.

This deterioration of Constitutional law set the stage for the quick slide of rights the next century. The erosion in protecting the Rights of the Individual, the purpose of the Constitution and the Bill of Rights in favor of special interest legislation, provided the legal and cultural justification of what was to follow. As the Cato Institute noted:

“A legal philosophy that emphasizes government’s role in protecting private property and individual liberties would urge the courts to strike down such legislation as unconstitutional. Antitrust is, above all else, an abrogation of freedom of contract.”

The next assault on the Constitution was the creation of the Federal Reserve Bank. There is no power given Congress to create a central bank. The creation of such an entity could only do more damage than good, as President Woodrow Wilson would acknowledge only three years after passage of the Act that created the system:

“I have unwittingly ruined my country. A great industrial nation is controlled by its system of credit. Our system of credit is concentrated. The growth of the nation, therefore, and all our activities are in the hands of a few men. We have come to be one of the worst ruled, one of the most completely controlled and dominated Governments in the civilized world – no longer a Government by free opinion, no longer a Government by conviction and the vote of the majority, but the Government by the opinion and duress of small groups of dominated men.”

The same year sees the institution of the income tax. What is interesting about this amendment is that the wording is in direct opposition to the Constitution itself.

First Article I, Section 9, Clause 4:

“No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken.”

Amendment XVI

“The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census of enumeration.”

In other words, the Congress had the audacity to refute the very language of the Constitution using word for word that self same language. Forbidding just such a tax, levied upon each individual as an individual, which is the meaning of “capitation” and “direct tax,” instead of equally upon all according to apportionment and census, was precisely what Article I, Section 9, Clause 4 was designed to guaranteed. This was a bald faced abdication of the Constitution.

Such shenanigans make a sheer mockery of the Constitution. Remember the Boston Tea Party? Do you think that those men who threw the tea into the harbor, which probably would be considered a terrorist act in today’s climate, would docilely accept the present insane income tax structure? The idea is ludicrous.

Income taxes violate so many other facets of the Constitution that it isn’t funny. Equal protection is violated because the law isn’t applied equally to everyone. Some people pay more, some pay less, even at the same income levels. Some people actually get a negative income tax, the earned income tax credit, another violation of equal protection.

The IRS has the capability to enforce its provisions prior to any judicial determinations, which is a denial of due process. Considering that over one third of the questions put to the IRS are answered incorrectly by the IRS itself, the income tax laws are vague and ambiguous. This too is a denial of due process, the process is too confusing to be clearly understood.

All of the foregoing pales in comparison the destruction of the Constitution that the New Deal and the rest of the socialist programs that have been instituted since these breaches of our founding document. Despite the objection that these laws, items and programs have been found Constitutional at various times by the courts doesn’t mean they truly are Constitutional, just convenient. All of these programs pit one group against another, for the benefit of one group to the expense of another.

Social Security for example violates the equal protection clause. It is different for different individuals and if one’s income is great enough, doesn’t apply at all. It violates Article I, Section 9, Clause 4 because it too is a direct tax, a capitation tax. The absurdities abound.

Same can be said for Medicare, Medicaid and all the rest of the plethora of social programs. None of these programs pass Constitutional muster, but we accept them as foregone conclusions anymore.

Finally let’s return to the body of the Constitution:

Article I, Section 8, Clause 11

“To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.”

How many wars has this nation fought of late, including the most recent one, where the Congress has not bothered with a declaration of war? In fact, when was the last time the Congress actually declared war? How many violations of the Constitution do we tolerate as long as we feel it is politically expedient?

This brings us to the uproar over recent Supreme Court decisions. In light of this history these controversial decisions are in keeping with the direction of the Court for the last century or more. There is as much logic and precedence for Griswold or Roe or Lawrence as there is for any of the above. They are no more damaging to the Constitution than the amendment legalizing plunder, also known as the income tax.

Arguably they are less so than this string of economic violations of jurisprudence. The slow destruction of laissez faire capitalism has cost more lives in lower living standards than all the unborn who never will miss the lives they never had. One has to ask why the uproar over the one arena but not the other. It is simply a matter of what your priorities are.

The answer is in the effectiveness of the socialist program in this nation, and the desire to impose religious values on the nation as a whole. The pandemonium over the these decisions is religiously based and have nothing to do with the health of the Constitution. The fact that there isn’t an equal objection to the economic violations to the Constitution as to the supposed moral ones, is proof of it.

The real danger is that the people as a whole are so uneducated as to be completely unaware of what is happening here. Even those who think they oppose socialism are actually supporting it, without even knowing what they are doing.

The Republican Governor of Alabama who recently justified raising taxes upon the wealthy on purely biblical terms is a prime example. Governor Bob Riley said, “Jesus says one of our missions is to take care of the least among us, we’ve got to take care of the poor.” This is a conservative Republican? How is this different from the Democrats? The answer is none at all.

This precisely why Republicans don’t have more credibility than they do. In the final analysis they offer no alternative to liberal socialist policies. Next thing you know Governor Riley will be advocating a rise in the minimum wage. Every where you turn it is more of the same. The only line of demarcation between liberals and conservatives is on social issues, which is why the uproar over social issue violations of Constitutional precedence and not economic. It is all about religion and religious values, not Constitutional ones.

It is only with the realization of how badly the Constitution has been undermined that the reality of the danger can be understood. But it only has value in the context of the overall violation of the Constitution and not on the basis of narrow, special interests. One either supports the Constitution, or one doesn’t. It isn’t possible to only support it in part. Advocating for special interests, whether economic or religious will destroy it just the same.

The Communist Manifesto made clear a number of conditions that would indicate the success of socialist progression from Capitalism to the socialist state. These give an indication of how successful the socialist program is proceeding. It is instructive to review this list. These are the elements this nation has fully embraced.

*2. A heavy progressive or graduated income tax.

*5. Centralization of credit in the banks of the state, by means of a national bank with state capital and an exclusive monopoly. (the Fed)

*10. Free education for all children in public schools. Abolition of children’s factory labor in its present form. Combination of education with industrial production, etc.

Only three out of 10, not too bad. Considering the current state of public education this may be more advantageous than Marx thought. Our current educational system is fully dedicated to politically correct social programming rather than actual education.

On the other hand socialists have made inroads in ways Marx couldn’t have envisioned, which the above article details. And the environmental movement is a unique application of another aspect of the Manifesto.

*7. Extension of factories and instruments of production owned by the state; the bringing into cultivation of waste lands, and the improvement of the soil generally in accordance with a common plan.

If one looks at issues like “wetland” environmental laws this last facet is more than pertinent. Private property rights have been under general attack for decades.

The fact is the huge budget deficits needed to service the burgeoning socialist agenda and the many pork barrel projects that service local special interests are more than sufficient to advance the program of socialism. Thus Marx is still having the last laugh.

Before religious social programmers cry and moan about the death of the Constitution because their beloved moral issues are compromised they need to eschew the mortality inherent in the violation of economic precedence first, which far predates the demise of social issues law. Otherwise it is just more of the same hypocrisy that enables the murder of the Constitution in the first place.


”’Don Newman, a free-lance writer living in Honolulu, can be reached via email at:”’