Living In Post Constitutional America

In reality we have been living in a post constitutional America for quite some time, but as a frog placed in a pot with cool water does not realize the heat has been turned up, we now find ourselves cooked.

Is it too late to escape?

As we look back at recent presidencies such as Clinton and Bush 43, there are numerous cases we can find in which the president, and/ or his agencies operated outside the Constitution. Often it was subtle and not earth shattering, however, each time a “bell is rung,” it cannot be “unrung.”  In other words, once a precedent is set of overstepping a boundary, the boundary is moved, and the next person who steps over takes even more “liberty.”

Barack Obama - 44.20 from Flickr via Wylio

© 2013 DonkeyHoteyFlickr | CC-BY

Enter Barack Obama. There are an endless supply of videos and speeches in which Obama talks of his disdain for the limits of the Constitution. Those of us with eyes and ears, knew well before he was sworn in, what sort of president he would be. However, our republic was set up so that a president could not do these things without repercussions. There are two other branches set to keep the executive in check.

Historically, each branch did their best to follow the limits and restrictions of the Constitution, as well as keep the others in check. This is the whole idea behind the “checks and balances” of our style of Constitutional Republic. With the bold emergence of Progressives in the late 19th century, these safeguards have been consistently eroded away. Even as recently as the 1970s, Congress at least tried to pass legislation that would be viewed as constitutional before it was ever put up for a vote. Now, we have evolved to the point where they pass whatever they want, and wait for a judge to rule on it, after it’s taken to court.  And, of course, there is the abuse of judicial activism, whereby judges use their “feelings” or “personal beliefs” to change law they personally do not like.

The evolution of the legislative and judicial branches are damaging enough, but the executive power is potentially far more dangerous to our loss of liberty, especially in the wake of the demise of established checks and balances. The president has far more ability to become a “king,” through the office itself, and the numerous “alphabet” agencies under his control.  I am reminded of the quote from Lord Acton, “Power tends to corrupt and absolute power corrupts absolutely. Great men are almost always bad men, even when they exercise influence and not authority; still more when you superadd the tendency of the certainty of corruption by authority.”

From the very beginning, we began to see how this president would ignore any constitutional restraints. When the BP drilling rig had the spill in the Gulf early in this administration, Obama simply issued a moratorium on drilling in the Gulf. From Bloomberg:

“The Obama Administration acted in contempt by continuing its deepwater-drilling moratorium after the policy was struck down,” a New Orleans judge ruled.” Interior Department regulators acted with ‘determined disregard’ by lifting and reinstituting a series of policy changes that restricted offshore drilling, following the worst offshore oil spill in U.S. history,” U.S. District Judge, Martin Feldman of New Orleans ruled yesterday.

“Each step the government took following the court’s imposition of a preliminary injunction showcases its defiance,” Feldman said in the ruling.

“Such dismissive conduct, viewed in tandem with the re-imposition of a second blanket and substantively identical moratorium, and in light of the national importance of this case, provide this court with clear and convincing evidence of the government’s contempt,” Feldman said.

This was simply the first of many violations. Fast and Furious has never been adjudicated, although Eric Holder was held in contempt of Congress, minus the consequences. The EPA, from fining a farmer for putting in a stock pond on his personal property to workers dumping millions of gallons of toxic waste into a Colorado river, paid no price, and no one was held accountable. The IRS was and still is guilty of countless abuses of power, with its pressures on conservative groups, audits of those who voice opposition to the administration, and confiscating money or property of citizens for “supposed” environmental violations without due process.

Bureaucracy illustration from Flickr via Wylio

© 2009 Harald GrovenFlickr | CC-BY-SA

Loretta Lynch is currently refusing to comply with judicial orders: The U.S. Department of Justice is defying an order from a federal judge to release details of benefits provided to over 100,000 illegal immigrants under President Barack Obama’s executive action on immigration.

U.S. District Court Judge Andrew S. Hanen ordered the Justice Department to produce a list of individuals who received deportation deferrals from the 2014 DHS directive in a decision made May 19. The decision was made after learning that the DOJ had not disclosed that approximately 100,000 illegal immigrants had received three-year deferrals from deportation between November 20, 2014 and March 3, 2015.

According to the Daily Caller, Judge Hanen says the Justice Department assured him that the 2014 program would not be implemented until February 2015, affording him time to evaluate the case. However, the federal government began issuing deferrals months earlier, in November 2014.

Is there a limit to this abuse of power? In a word, NO!  The representatives who swear an oath to “preserve, protect and defend the Constitution,” violate it with impunity.

“No person shall be held 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 any person be subject for the same offence 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. – 5th Amendment, US Constitution

The 14th Amendment went a step further to impose this restriction on state government, as well.

In the wake of the Orlando terrorist attack, we are now told it is reasonable to use an arbitrary no-fly list to prohibit gun purchases. Now, the murderer in that attack was not on the no-fly list, so what would this do?

We have the 2nd Amendment that has the phrase, “…the people’s right to keep and bear arms shall not be infringed.”  There exists today, multiple agencies denying people due process, well beyond these examples. The IRS, for instance, demands that you hand over evidence which they will use against you, and then take your property, both of which are flagrant violations of the 5th amendmentHowever, since Congress passed laws allowing the agency to do this, no one does more than complain.

Watch this clip provided by Sen. James Inhofe. It speaks of the government’s plan to force compliance.

Probably the most offensive thing about this clip, aside fromt the crucifixion analogy, is the implication that the EPA singles out potential offenders, on a random basis, to serve as examples. Certainly, fostering fear through arbitrary and unduly punitive enforcement actions can be an effective means of ensuring broad compliance. But it’s not exactly in line with the 14th Amendment’s guarantee of equal protection under the law.

We the people are ultimately responsible. Those of us who voted for “goodies and rights,” as well as those of us who have done little more than complain to our friends on Facebook are culpable. The heat has been turned up too high.  Some of the frogs are getting uncomfortable, and are trying to tell the others that we are not in a hot tub.

Is it too late?

I hope not, but time is short.  I leave you with two timely quotes.

Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience. -C. S. Lewis

Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding. -Justice Louis D. Brandeis, dissenting, Olmstead v. United States, 277 US 479 (1928)


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