Dirth of Consideration
by
Matt Giwer (c) 1995 <6/8>

      We have had our new Congress for over six months as I write. The "revolution" is in progress. Every program is up for review. Yet there are magic words we are not hearing. The silence clearly indicates we are in for the status quo, merely a change in degree if it is successful which is always in doubt.
      I have listened closely and the nearest thing I have heard is a suggestion that something might not be within the power of Congress without a further reference. What I have not heard is the "to radical" consideration, the US Constitution.
      We have only 537 nationally elected people from the entire country to be concerned with governance of this country. All the rest in the federal government save for those nine folks in black robes are there to take orders. Yet they do not appear to considering the Constitution. And many question what the other nine think about when deciding cases.
      These are partisan politicians. With all of there disagreements one would expect that at least one or two differences would be based upon the Constitution. It is difficult to believe that there is no disagreement upon its meaning with over 500 people involved.
      The closest we have come to it is the proposed Constitutional Amendment against burning the flag and there it is in the form of, "don't fool with the Bill of Rights," only. Not once has anyone of them, at least not that has made the media, suggested that government control of so many state matters is questionable on Constitutional grounds. Even with block grants, they are block grants for particular purposes and so the purpose is controlled by Washington.
      It is not possible the meaning of the Constitution is clear to all politicians and it is simply us laymen who do not understand its clear meaning. We have ostensibly nine of the finest legal minds in the country on the Supreme Court and 9-0 decisions are few and far between.
      When a law is passed is there no disagreement based upon constitutionality? And I do not mean to single out Congress. Unless my memory is failing I can not remember one presidential veto on constitutional grounds.
      Is there some chance that constitutional considerations are all worked out silently before an issue ever comes up for discussion? Hardly. Consider that even ideas for new laws before they are proposed in written form are attacked yet there is never an attack that such a law would be unconstitutional. Clearly when the Brady Bill and the Feinstein amendments were brought up, there was no floor debate on constitutionality. To the best of my memory there was no constitutional consideration when the 1968 gun control law was being debated.
      What we have is a self-described revolution in Congress that has no more interest in that pesky constitution than did the pre-revolutionary Congress. And it is certainly incumbent upon all elected officials to consider the Constitution. It is right there in the oath of office.
      The argument can be made that it is only their understanding they need uphold and defend but this only further highlights the lack of disagreement. Certainly they must all consider it first and foremost as it is right there in the oath.
      Certainly this implies there has to be a good faith effort to investigate the constitutional aspects of each item by personal research and by advice of those thousands of staffers and advisors and cabinet members that are on the public payroll. It is inconceivable (but likely) that there are none to consider the constitutional aspects of proposed laws.
      Perhaps I am cynical but I do believe the parenthetical comment: there is likely no one considering the constitutionality of proposed laws. The alternative would be sinister to the point of paranoia, that there is a conspiracy not to debate the constitutionality of laws. Perhaps conspiracy is too strong a word. Lets say a gentlemen's agreement not to bring up such matters in front of the serfs.
      The obvious is often too obvious to be believed. But the import is that this revolution, while it may appear to have its heart in the right place does not have a mind to guide it. I do not see it as more than marginally better to have an unconstitutional small government than to have an unconstitutionally large government. As long as it remains committed to unconstitutional programs and policies its size is the only variable.
      More clearly the precedent has been established that a "contract" (even if we like this one) is the basis for a legislative agenda regardless of the Constitution. And there we have a tragic problem. Anyone who claims a law or a proposed law or an area of legislation is unconstitutional is considered in need of Prozac. As of Oklahoma City, he would be called a militia member.
      Part of the reason for this is the Supreme Court which is both activist and deified. The problem with activism is that mere mortals can not understand how the court can come to decisions that defy common reading of the Constitution. Deified in that, like the oracle, its incomprehensible determinations have power even though incomprehensible.
      There is a popular conception that only the Supreme Court can divine the wisdom in the sacred and mystical constitution and anyone pretending to that skill is a fool if not a blasphemer. The problem is not that the Supreme Court is the final arbiter as someone sort of has to be. The problem is not that its decisions can not be questioned in any sense that matters.
      The problem is that in the mind of the country no one but the Supreme Court may understand the Constitution save by reference to Supreme Court decision. It is very like saying one can not understand the plain written words in the Bible without reading the exegesis of some person with a meaning he wants to find. Thus we have the more popular designations of the Warren Court or the Burger Court knowing we are talking personal desires rather than the plain meaning of the Constitution.
      Recently we had a Supreme Court Justice who said he ignored the Constitution in favor of what he saw as justice. Was he impeached? No. The "great oracle" was revered. Of course being black didn't hurt.
      The Constitution is our touchstone of justice. It is perhaps the most Libertarian document ever to be adopted by a people. But the current mindset does not permit a popular discussion of the Constitution. It is not sacred but the words of those who find meaning in it are sacred. Even the power to find meaning is reserved to only nine people at a time. It resembles nothing more than a papacy of nine. (My apologies to the Pope for this one.)
      We are not going to get to a discussion of the few and limited powers of government until it is possible to debate in public and in the simplest terms just what powers the federal government has. And that lead is not going to come from Congress and certainly not from the President. Rather I can imagine, as the Supreme Court appointees are no longer chosen from senior members of Congress, that they are not power hungry people and would rather not be in the position of oracle.
      There is no reason to slow our efforts because of this new Congress nor is there any reason to support its policies save for smaller government. We have fertile ground in this Congress.
      We do have an introduction if we keep away from the legalize drugs issue. They are receptive to a small government. They should be receptive to a larger tool to make it even smaller.
      That tool is that most things they are working on are not to debate the size of government but to determine the functions of government and terminate those that are illegitimate. And to do this we need to legitimize the public debate of constitutionality of laws.
      And that is an uphill fight. It is speaking against the sacred content of our government. That which is incomprehensible but all powerful is sacred. Whatever it says is done and they have no police or army to enforce its decisions. It is magic.
      A government has no place for such veneration. And the very idea that it should rarely reconsider previous decisions is again, and again with apologies to the Pope, imbuing itself with infallibility.
      Once we end the worship of the Supreme Court, we can get on with public debate of the constitutionality of proposed laws.