By William R. Toler
First off, the Constitution doesn’t give people any rights, but is supposed to guarantee them.
I used to consider myself a constitutionalist, being especially fond of the First, Second and Fourth amendments.
But over time, through lots of reading, I’ve begun to see how it’s been used to stifle liberty rather than secure it.
Nineteenth-century lawyer and abolitionist Lysander Spooner once wrote: “But whether the Constitution really be one thing, or another, this much is certain — that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case it is unfit to exist.”
Those were the closing words of his 1869 essay “No Treason: The Constitution of No Authority.”
Although the American people are ultimately to blame for not standing up to the creeping incrementalism of tyranny, Spooner is correct in observing that words on paper have been powerless to prevent it.
With the Bill of Rights established in 1789, the Constitution was unable to stop the Alien and Sedition Acts of 1798, the Sedition Act of 1918 or the USA PATRIOT Act of 2001 from being passed and implemented.
Spooner is also spot-on when he says it has “authorized such a government.” Here are just a few examples.
While another revered founding document, the Declaration of Independence, states “whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it,” some of those actions could be considered treason under Article III, Section 3 of the Constitution.
The document is also wrought with criminal clauses that have allowed those who assume state-sanctioned authority to steal from the common man — and not just in taxes.
A loophole in the Fifth Amendment, referred to as the takings clause, allows government to take private property for “public use” with “just compensation.” Never mind that value is subjective.
Even members of the Supreme Court, the un-elected alleged arbiters of justice, haven’t always been any help, as several neighbors in New London, Connecticut found out in 2005 when the high court interpreted “public use” to be synonymous with “public benefit” after the city condemned their property to make way for a Pfizer plant.
The people lost their property. The plant never came. The site of their former homes, a decade later, sits vacant.
In the 1942 case of Wickard v. Filburn, the court held the federal government was justified in regulating the amount of wheat a farmer grew — even for his own use — through a bastardized interpretation of the Commerce Clause, which allows the feds to regulate commerce between the states.
The protection promised by the Fourth Amendment against unlawful searches and seizures has also been disintegrated over the past decade.
Before we extol the divine declarations of the Constitution, maybe we should take another look and see it for what it really is.
[Note: This column originally appeared in the Sept. 19-20 edition of the Richmond County Daily Journal.]
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