Timothy N. Baldwin, JD.
June 14, 2013
President Obama made a statement in early June 2013 that permeates the attitudes of many politicians and shows why the federal government has become so large and effectively out of the people’s control. In response to a journalist’s question regarding the federal government’s using surveillance on United States citizens, Obama said,
If people can’t trust not only the executive branch but also don’t trust Congress and don’t trust federal judges to make sure that we’re abiding by the Constitution with due process and rule of law, then we’re going to have some problems here. (See source).
Obama’s philosophy diametrically opposes what is required for a republican form of government to maintain liberty and constitutional integrity. A history lesson may be needed to prove the point today considering the number of people who voted for Obama, but in short, the Bill of Rights and the federal form of the United States Constitution reflect the reality that government is not to be blindly trusted, and people that do so are ripe for slavery.
Although disgusting, Obama’s statement is not surprising. As I wrote in “Diffusion of Responsibility and the Constitution Soaked in Urine,” one of the inherent flaws of a republican form of government is the diffusion-of-responsibility phenomena. This essentially means that the branches of government and persons composing those branches have incentive not to uphold the Constitution because they can conveniently pass responsibility to the other branches or members of government. In most cases, getting reelected has nothing to do with upholding the integrity of the Constitution. So, as the formula proves, the larger and more complex the society is, the more the diffusion of responsibility flaw prevails in that system, causing the tighter and tighter downward spiral into either tyranny or anarchy.
On March 14, 2013, Senator Feinstein (D-CA) expressed the diffusion-of-responsibility flaw clearly during the Senate Judiciary Committee hearing on her gun control bills. Senator Ted Cruz (R-TX) asked her if she thought her gun control bill was consistent with the Second Amendment. Feinstein responded in part, “Congress is in the business of making law. The Supreme Court interprets the law. If they strike down the law; they strike down the law.” In different words, Congress need not worry about whether laws are constitutional; that is the Supreme Court’s job. Thus, while Congress (and their bureaucracies) passes thousands of laws each year and the Supreme Court hears less than 100 (see source), the rate of laws left unconstitutional are overwhelmingly against the Constitution and the people’s rights and in favor of autocratic power.
America’s founders knew of this inherent flaw in republican governments and wrote about it—the Federalist Papers being the most notable source. Alexander Hamilton said this in Federalist Paper 22,
In republics, persons elevated from the mass of the community, by the suffrages of their fellow-citizens, to stations of great pre-eminence and power, may find compensations for betraying their trust, which…may appear to exceed the proportion of interest they have in the common stock, and to overbalance the obligations of duty.
To check Congress or the President’s decision not to uphold the Constitution, the Judiciary, of course, is or should be a protection against such trust- and oath-breakers. Hamilton said, “[l]aws are a dead letter without courts to expound and define their true meaning and operation…Their true import, as far as respects individuals, must, like all other laws, be ascertained by judicial determinations.” But this is not the only level of protection between the people and the federal government as Feinstein and Obama suggest. Nor does this even consider the people’s inherent power to alter or abolish their government as they deem fit.
In discussing the reasons for and against ratifying the Constitution proposed by the delegates in 1787, the Anti-Federalists argued that the federal government would not be sufficiently controlled by the people. James Madison marks this argument in Federalist Paper 46 and rebuts,
The adversaries of the Constitution seem to have lost sight of the people altogether ; and to have viewed these different establishments [of state and federal governments]…as uncontrolled by any common superior [the people] in their efforts to usurp the authorities of each other.
Madison corrects his perceived error of the Anti-Federalist view of the Constitution noting that the people oversee the actions of both state and federal governments. He said,
[The opponents of the Constitution] must be told that the ultimate authority…resides in the people alone, and that it will not depend merely on the comparative ambition or address of the different governments.
Put differently, whether the state or federal government encroach its limits in the new constitutional structure will ultimately depend on the people and not only the respective, separate governments. But there is more to a constitution’s existence than what most Americans admit today. As expressed by our Founders, what the Constitution created in 1787 may not last forever, not because of oath-breakers but because of time, changes, judicial decisions, and the nature of words themselves.
James Madison recognized that the Constitution may develop over time, through court decisions, to a form the people, or segments of the people, fundamentally do not accept or prefer. Madison described the unlikely event that words on paper will protect liberty over a long period of time in Federalist Paper 37. He said,
All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications…
[I]t must happen that however accurately objects may be discriminated in themselves, and however accurately the discrimination may be considered, the definition of them may be rendered inaccurate by the inaccuracy of the terms in which it is delivered. And this unavoidable inaccuracy must be greater or less, according to the complexity and novelty of the objects defined
James Madison also shows that the States’ interests may become too opposed to be governed under the same constitution. He said,
Other combinations, resulting from a difference of local position and policy, must have created additional difficulties. As every State may be divided into different districts, and its citizens into different classes, which give birth to contending interests and local jealousies, so the different parts of the United States are distinguished from each other by a variety of circumstances, which produce a like effect on a larger scale.
It was only under the assumption that the federal government’s powers would be “few and defined” (James Madison, Federalist Paper 45) that the Founders believed the diverse interests of the States would allow them to be governed under one federal constitution. This assumption can hardly be the case today, and thus, the federal government acts like a State in the traditionally-understood meaning with the power to regulate the health, safety and well-being of the people. See, James Madison, Federalist Paper 45 (“The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”) Madison admitted in Federalist Paper 38 that only time can really show where a constitution or political association may need altering or abolishing. He said,
[It is] an unreasonable conjecture, that the errors which may be contained in the plan of the convention are such as have resulted rather from the defect of antecedent experience on this complicated and difficult subject, than from a want of accuracy or care in the investigation of it; and, consequently such as will not be ascertained until an actual trial shall have pointed them out.
Madison admitted that where time shows the constitution to be inadequate to limit the federal government, two realities inevitably result: either (1) usurpation of power by the government because of the constitution’s inability to control the government, or (2) dissolution of the constitution by the people because of its inability to meet the wants of the people and protect their rights. Madison put it this way concerning the Articles of Confederation,
The public interest, the necessity of the case, imposed upon them the task of overleaping their constitutional limits. But is not the fact an alarming proof of the danger resulting from a government which does not possess regular powers commensurate to its objects? A dissolution or usurpation is the dreadful dilemma to which it is continually exposed.
Keeping with the Founders’ realization of the temporariness of any political structure or constitution, U.S. Supreme Court Justice, Joseph Story, stated that where the requisite human spirit of liberty and constitutional understanding is lacking, the Constitution itself will not last. He said,
[T]he fabric [of the United States Constitution] may fall; for the work of man is perishable. Nay, it must fall, if there be not the vital spirit in the people, which can alone nourish, sustain, and direct, all its movements. Joseph Story, A Familiar Exposition of the United States Constitution, (New York, NY, Harper and Brother, 1868 reprinted), 100-101.
Many liberty-minded people today argue that the Constitution has been, at least, ignored. Other less optimistic people feel the Constitution is gone forever with no possibility of return. But these are only declarations that something is wrong but do nothing to articulate what systemic remedies are not only possible but also likely to produce success of limiting federal power and increasing individual liberty and State autonomy. Declaring the illness does nothing to characterize the requisite “vital spirit in the people” to revive the Constitution, just as the Anti-Federalists’ debunking the Constitution proposed in 1787 did nothing to remedy their constitutional dilemma.
By logical necessity, having a “vital spirit” in the people means that the people are truly guardians of their own liberty and masters of their own fate, not only legally (i.e. passing laws through Congress); but also constitutionally (i.e. amendments) and politically (i.e. restructuring political associations). It means having the actual power to effectuate political change, not based upon the government’s will, but based upon the people’s will.
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Do the people have the kind of power exerted by our forefathers to “alter or abolish” the government they determine is evincing a design of despotism? Or do our actions fall more in line with Obama’s description of the role of the people, to simply trust their government and accept their mandates? Answering the questions will require an objective and systematic approach of not only inspecting ourselves but also identifying all of the means we have to implement self-government in the current generation, not just speculative generations to come. It means stepping outside our comfort zones to explore, as our Founders said it, the science of government and politics. It means abandoning emotional responses to suggested remedies and embracing what science reveals about our governmental and political reality.
In the following articles, I will address the remedies the people have and attempt to show which ones are or may be necessary to restore the fundamental notions of liberty as expressed by the Enlightenment philosophers and our Founders and explain why. I will address:
Part 3, Political Pressure
Part 4, The States
Part 5, Constitutional Amendment
Part 6, Constitutional Convention
Part 7, Revolution
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� 2013 Timothy N. Baldwin, JD - All Rights Reserved
Timothy Baldwin, born in 1979, is an attorney licensed to practice law in Montana (and formerly Florida) and handles a variety of cases, including constitutional, criminal, and civil. Baldwin graduated from the University of West Florida in 2001 with a Bachelor of Arts (BA) degree in English and Political Science. In 2004, Baldwin graduated from Cumberland School of Law at Samford University in Birmingham, AL with a Juris Doctorate (JD) degree. From there, Baldwin became an Assistant State Attorney in Florida. For 2 1/2 years, Baldwin prosecuted criminal actions and tried nearly 60 jury trials. In 2006, Baldwin started his private law practice and has maintained it since.
Baldwin is a published author, public speaker and student of political philosophy. Baldwin is the author of Freedom For A Change, Romans 13-The True Meaning of Submission, and To Keep or Not To Keep: Why Christians Should Not Give Up Their Guns–all of which are available for purchase through libertydefenseleague.com. Baldwin has also authored hundreds of political articles relative to liberty in the United States of America. Baldwin has been the guest of scores of radio shows and public events and continues to exposit principles which the people in America will need to determine its direction for the future.
Web site: libertydefenseleague.com
E-Mail: [email protected]