Part Two discussed the specific shortcomings of the US Constitution, and there were a number of thoughtful comments that added significant value. Link HERE.
Part Three covered suggested steps to be taken and touched on the importance of ENFORCEMENT of the Constitution as the highest law of the land. Link HERE.
This installment is about making the myth of the Constitution real, about how we can go about actually enforcing the Constitution.
The idea of Constitutional enforcement has been an undercurrent in American politics for a long time, almost as long as the Constitution has been in force. Lysander Spooner in his essays entitled "No Treason" was not the first person to point out this issue, nor was he the last. Yet after over 200 years of increasingly obvious issues with the Constitution, we still have no enforcement clause.
Moreover, very few people are discussing what I consider to be the single most egregious flaw in the Constitution. Neither Michael Farris in his push towards an Article 5 Constitutional Convention nor Mark Levin in his book "The Liberty Amendments" promote Constitutional ENFORCEMENT, preferring rather to propose adding still more unenforceable amendments to an unenforced, and unenforceable Document. The only person I know that pushes the idea of enforcement of the Bill of Rights and the Constitution as the highest law of the land is Neil Smith. Despite endless lip service about Constitutional Government, few people out of government, and nobody at ALL in government seems to actually want to enforce The Document. Why is that? Cui Bono?
Well, not having an enforcement clause sure makes looting the taxpayer a lot easier, and it also makes it a lot easier to "enact a multitude of laws and eat out our substance." A country like ours, where over half of the people working actually work for one governmental agency or another, either directly or indirectly, does provide considerable incentive for those folks to vote in favor of keeping their jobs funded. Enacting an enforcement clause is going to be damned difficult to do; enforcement of the Constitution will break lots of rice bowls. Both the Demopublicans and Republocrats see significant benefit in maintaining the illusion of legitimacy provided by the present myth.
Oddly enough, however, given the things the ruling oligarchy in this country have recently done, like having our military parade in red high heels and importing large numbers of 7th century barbarians in the hope that Western civilization will benefit therefrom, I'm hopeful that the right combination of stimuli can make the average American politician vote for damned near anything, as long as the carrot of re-election is dangled temptingly enough in front of them. But in any case, before we get hung up on the "how," let's think first about what an enforcement clause ought to look like. So what should an Enforcement Clause do? I have been thinking about this over the last two years, and here are my thoughts:
One of the problems we have with the current legal system is that it is a form of guild socialism. That is, if you do not belong to the appropriate guild, and pay the guild tax, you do not get to work in that profession. Guild socialism was common in medieval times, and was an early version of merchantilism, acting to restrain market entry and limit competition. American exceptionalism was due in part to getting away from those medieval ideas, and allowing anyone who wanted to enter the market to do so. Unfortunately, the lawyers managed to maintain their guild after the Revolution, and it still rides us today. As an aside, the last time I checked, I believe that there are only a few states that still allow people to read the law and take the Bar exam without having graduated from an accredited law school, one of which is the Commonwealth of Virginia. (see links here and here.)
With regard to the broader issue of Constitutional enforcement, the problem is that it is totally impractical, (in reality not possible,) for a non-attorney at present to act to strike down an unConstitutional law, and the only way to gain 'standing' is to break the law and place yourself at risk of conviction. Given that the overall conviction rate for Federal indictments runs in the high 90% range, why would any sane person do such a thing when the deck is so obviously stacked against the common citizen? The 1934 NFA (*1) which led to the case of US v. Miller, where the Federal Government won on appeal because the plaintiff failed to show up at the Supreme Court, is just one example of such issues; there are probably tens of thousands. If we are to have true enforcement of the Constitution, we have to be sure that access to whatever mechanism is developed is not restricted to the privileged class of lawyers, and that people who perceive an infringement on the Constitutional limits on Federal authority do not have to place themselves at jeopardy to seek correction. Any American must have the right to challenge the acts of every level of government which purports to have jurisdiction over them.
The second issue I see is that Constitutional issues get bumped up the ladder, taking years of time and gobs of money before the Supreme Court rules on the matter at hand......or doesn't, in which case confusion reigns for another stretch of time, and the poor suffering taxpayer who got screwed by the government in the first place gets ignored. There needs to be a process that provides PROMPT relief. "Justice delayed is Justice denied," right? If the determination is made at the local level that there has been Constitutional infringment, or if there is any significant delay, there needs to be immediate action to provide relief from the unConstitutional law or regulation, which according to precedent is now void, but which in practise never goes away. That stay or injunction ought to restrict the government, at whatever level the action is brought, from acting until the issue is finally resolved at whatever level it ends up being resolved. Moreover, if the case is appealed, and the higher court finds in favor of the plaintiff, the stay should be required to be extended to the entire jurisdiction of the court holding in favor of the plaintiff. This puts some teeth into enforcement, and ought to help correct the present tendency of Federal attorneys to do the legal equivalent of the "Rope-a-dope" and to draw out the proceedings and attempt to bankrupt the plaintiff by appealing any time they get an adverse ruling.
The third issue is that nobody is held responsible. There is no personal accountability on the part of any of the myriads of Federal, State, or local governmental elected or appointed officials, agents, or employees for their misfeasance or malfeasance. Those who violate the Constitution do so with impunity. That DEFINITELY needs to change, and those convicted of unConstitutional activity under color of law should suffer for it, both civilly and criminally. On the civil side, the costs of the legal action should be assessed against the person or persons involved in the infringment, personally, and they ought to be discharged from their position and stripped of their wealth, as well as salary, benefits and pension, and any other assets they possess.
On the criminal side, deliberate infringement of the Constitution ought to be a felony, and any such infringement resulting in loss of life, directly or indirectly, ought to be punished severely. One could argue that such subversion of the Constitution and violation of rights under color of Law ought to be treated as treason, with the death penalty available, but in any case, any governmental employee, representative, or agent should be liable for their actions.
So there is my conceptual list of what an Enforcement Clause for the Constitution ought to do. Constitutional Enforcement ought to:
- Be available to any citizen of these united States;
- be resolved promptly, with the presumption in case of delay in favor of the plaintiff, and with stays or injunctions against the unConstitutional law or regulation required;
- Those who promote or enact such rules or legislation should be held accountable for the damage they cause and the costs required to address the issue.
With Regard to all who serve the Light,
(*1- NFA=National Firearms Act of 1934) Edited 5/17/16 to correct an erroneous reference to GCA; h/t to the Backwoods Engineer who pointed this out at the Zelman Partisans website. Thanks!