Part 1A – A Word about the Constitution and our Government – Guest Commentary

I made a plea for closer adherence to the Constitution and the Bill of Rights in my first blog in this series. A close and (Constitutionally knowledgeable) friend of mine, John, sent me comments on my posting and included brief primer on the Constitution and Government. In the text below, comments in italics are mine, the rest came from John.

I asked John to review my comments to make sure I had not said something in error. His first paragraph set me straight on one Constitutional language issue. (Note, I have incorporated this language into the original online post.)

The Washington Monument--an enduring reminder of our Founding Fathers and what they went through to establish the United States and set us on a course for success.

The Washington Monument–an enduring reminder of our Founding Fathers and what they went through to establish the United States and set us on a course for success.

“I think the only thing you said that could arguably be called ‘wrong’ was the phraseology indicating that the Constitution grants the right to free speech and the right to counsel. I agree that the 6th Amendment addresses and in essence ‘grants’ an accused the right to counsel. However, I would say that the 1st Amendment—like the 2d Amendment—merely states that Congress shall make no law abridging a previously existing natural right to free speech or bear arms. It may be a fine distinction, but I could argue that the right to free speech existed before the Constitution and therefore was not ‘granted’ but rather protected by it. Otherwise, I think all your expectations as to what Government should—and should not–do are ‘reasonable and proper’.”

It has always been my (naïve) opinion that judges at any level, were supposed to decide a legal question based on the law, rather than to interpret law to determine if it is applicable to a legal question. If the 1st Amendment says “free speech is protected,” then what is there to interpret? Turns out there is a lot—especially in what can be considered “free speech.” John and I agree that selection of Federal judges (and maybe at other levels, too) is way too political and certainly not legally and constitutionally objective. John said:

“You say that there should be a Supreme Court…of course we do have one, but it has been seriously derelict in the performance of its own stated authority: to decide if Acts of Congress (and Executive orders) are in accordance with the Constitution or not. Personally, I think this is where a majority of the blame lies for our current national condition. The Court has become entirely too politicized and entirely too deferential to Congress’s pushing the envelope of its authority. It is only to be expected that the office of the President and Congress should explore the limits of their Constitutional powers, but had the Court been doing its job, the current excess intrusions into way too many aspects of public and private life by both Congress and the President would have been forestalled.”

John expanded and clarified my position on the Government’s fiscal responsibilities and the financial health of the country.

“You also commented that a major function of Government deals with the financial health of the country. I agree, but, it is not the Government’s job to dictate how and by whom the economy should function. It is the Government’s job to protect and ensure the freedom of individuals to work at their chosen “jobs” without undue interference. Vis-a-vis the Government and the economy, [the Government] should be like a referee at a ball game: the referee doesn’t pick winners and losers, he merely ensures that both sides play by the rules and then lets the best team win.”

“Currently, we have a Government exercising micromanagement techniques over many aspects of private enterprise, in essence supporting those the Government has a priori chosen to be winners, and punishing those of whom the Government disapproves. Of course, this presumes we continue to be a capitalistic, free enterprise economy. The current administration has had virtually nothing good to say about capitalism and heavily endorses the principles of Marxism and the notion of ‘from each according to his ability and to each according to his needs.’ Since this notion apparently appeals to many of this country’s non-tax paying, historically poorly educated voters—poorly educated ABOUT our American history in terms of our politics, economics and traditional values and what it took to attain our current world status—may change the United States into a European-style socialist state that our Founders would find abominable.”

“So overall, I agree with you that Government’s interaction with the economy is crucial, but I would go further and insist that it is not Government’s job to ensure winners and losers, or to provide jobs to any who want one, but simply to supervise and defend a level free enterprise playing field. Even the new Federal Reserve Chair, Janet Yellen, I think, is way off target when she recently said that one of the jobs of the Fed was to, basically, ‘provide jobs’.”

I am sure there are many other things that each of us thinks the Government could or should do, but I doubt that we could meet the requirements for a Constitutional Amendment on anything but a nearly universally accepted change (for information on the Amendment Process, go to: John closed with:

“All of your other observations and expectations are right straight out of Constitutional Law I [reference to any introductory academic course in Constitutional Law], in that this is supposed to be a Government of enumerated powers and not one of infinite discretion. I’m sure we could agree that there are many things that it would be NICE IF Government could do…but that doesn’t justify it doing things in excess of its stated (Constitutional) powers. That’s been our downfall. Too many people think that the government—rather than themselves or private organizations—ought to solve some problem with no thought or concern about whether the government even has the authority to do so. They’re much more interested in ends than means. Once this becomes accepted precedent, there is no turning back to being constrained by the limits of the Constitution.”

This is a “slippery slope” that, historically, led to the fall of many longer standing nations than the United States, including Rome, Russia, Germany, and threatening the economies of several countries in the European Union. I contend that the United States is not immune to this threat.

Finally, I suggest you review the following observations from Scotland, posted by Shaunynews at:

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2 Responses to Part 1A – A Word about the Constitution and our Government – Guest Commentary

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