By Steve Orcutt
“A government of laws, and not of men,” is how John Adams defined a republic. Regardless of their differing opinions, the Federalists wanting a strong federal government and the Anti-Federalists arguing for a strictly constrained limited federal government; both vehemently opposed a democracy. Laws do not strictly regulate a democracy; democracy is rule by the whims and desires of the majority and does not secure the liberties of all of the people. Democracy was viewed by the founders equally as dangerous to liberty as a monarchy. In this context, it can be understood why those who insist on calling the United States a democracy infuriate to no end those who know it to be a republic.
“An act of the Legislature repugnant to the Constitution is void.” – Chief Justice John Marshall, Marbury v. Madison decision 1803
A republican form of government does not mean a government run by the Republican Party (GOP). The legal dictionary defines a republic as a “form of government in which the administration of affairs is open to all the citizens. In another sense, it signifies the state, independently of its form of government.” It’s also the form of government we are guaranteed in Article IV Section 4 of the Constitution, “The United States shall guarantee to every State in this Union a Republican Form of Government.” Yes, there are aspects of democracy in a republic, at least in the American form of a republic. We directly elect our representatives to state legislatures, governors (and other state offices), and to both houses of Congress (due to the passage of the 17th Amendment). But we do not directly participate in the passage of laws at the federal level. The passage of legislation is accomplished by those representatives of the people in Congress. Those representatives are supposed to weigh their vote on several criteria, some of which might be: Is this proposed legislation legal and allowed by the Constitution? Does this legislation further the cause of liberty? What are the views of my constituency? A well as other important questions. But at no time should the question be asked, what does the party tell me to do?
What the founders did in the Constitution, while not perfect, itemized specific powers and authority from the whole of the people via the states to the federal government – that’s it! They didn’t conclude the list of powers with, ‘that’s all we can think of, for now, so unilaterally add them willy-nilly as you see fit.’ No, instead they left instructions on how changes to the Constitution and to the powers of the federal government can occur (Article V); and it wasn’t via an ‘Executive Order.’
The federal government was also given one of several charges in the preamble of the Constitution, “secure the Blessings of Liberty to ourselves and our Posterity.” While the preamble is not legally part of the Constitution, it can be viewed as a challenge to future generations saying, ‘We’ve given you this Constitution, the best we could agree upon, preserving the liberties we fought so hard for. It is up to you and the new government to keep guard the liberties of the people, and make your decisions on whether they further those liberties.’
Early in US legal history Supreme Court case, Marbury v. Madison, 5 U.S. 137 (1803) decided whether general legislation can supersede the Constitution, “an act of the Legislature repugnant to the Constitution is void.” What Chief Justice John Marshall was saying in his opinion for the court was that any law contradictory to the meaning and words of the Constitution is never law. So apply that thinking every time you hear of Congress passing a law, or President Obama (or any other previous Presidents) signing an Executive Order, or any time an agency of the executive branch issues a rule or regulation. In the case of orders from the President or any executive branch agency [administration], it is important to remember that there is no authority granted to them by the Constitution to create law. Article 1 Section 1 of the Constitution must be first for a reason; “All legislative Powers herein granted shall be vested in a Congress of the United States.” If you continue to read Article 1, nowhere does it give Congress the authority to delegate its powers to legislate. Therefore, any attempt at creating law (or anything construed to be the law or that will be enforced by force) by a President or their administration is illegal and “repugnant to the Constitution.”
This does not mean that there are not laws that are needed, or that some of the criminal laws enacted by Obama, previous Presidents, his administration, and Congress were not done with good intentions. But the Constitution instructs Congress, to make any laws on a subject they do not have jurisdiction over is by using a Constitutional Amendment. Until ratification of Constitutional Amendments, the jurisdiction falls to the states. Assuming the states’ constitutions give them jurisdiction over a supposed area they can make laws governing that. If neither, the state or the federal governments have the jurisdiction, the power resides with the people. The jurisdiction does not immediately fall to the federal government if no jurisdiction is previously determined, as some in Washington would like to assume, it rests with the people as stated in the 10th Amendment.
The 18th Amendment is a decent example of government operating as the Constitution dictates; while I feel its origin and reasons for banning alcohol were misplaced, it was legally done so. What changed in the Constitution between January 1919 and recent times that has Congress believing it’s unnecessary to go the route of Constitutional Amendment? The legal precedence was set by passage and ratification of the 18th Amendment and was as much acknowledgement by Congress that something cannot be legally banned without a Constitutional Amendment to change the authority over such items. As stated earlier, I do agree with some of the laws illegally passed by Congress and they do probably have a need to be law, but currently, those laws are null and void even if law enforcement and the jurists nationwide refuse to push back and do enforce illegal laws.
As we stand today, we are not a nation governed by laws. While some people argue, primarily from the left, that without this law or that law there will be anarchy. I argue that we are living in anarchy, not of the people, but of government; our federal government is rogue. The same federal government ‘officials’ that break the supreme law of the land, The United States Constitution, are quick to lock up the people for not abiding by their illegal laws. This is the point in which jurisprudence should strike back at the illegal laws. The three constitutional branches of government are not checking one another. The Judiciary is allowing the Executive and Legislative branches run roughshod over the states and the people. The Legislative is allowing the Executive to dictate law, tantamount to being a despot, while refusing the display some backbone and use its power of the purse. All the while our national debt of $18 Trillion ($220+ Trillion in unfunded liabilities over the next 10 years or so) continues to rise. Most recent in history, the Ottoman Empire fell because of much of the same usurpations and out of control spending; and they lasted nearly 600 years.
The press is far from unbiased and is seemingly working off some script because they do not report on instances of Constitutional usurpation. Reporting on the latest viral video or on the musing of a half-literate sports figure seems to be what headlines the nightly news these days. That type of reporting has resulted in an apathetic view of the government and politics in general by the people. Ignorance and apathy of the people can be illustrated as far back as when Jay Leno would ask questions during his ‘Jay-Walking’ bit, to the latest staged petition at Yale University. Seemingly many Americans do not know anything factual or of importance about their government and are willing to toss everyone’s, including their own, liberties and freedoms into the trash heap of history.
One man’s observations and musings cannot change what is broken with our federal government. But together, working to be better informed and educated on government; to speak out when we see the wrongs of our government perpetrated; to spread the principals of liberty, those intangible valuables we must hold to if we desire to be free men and women. I miss America, and I am willing to forge the strongest resistance to our decline.