Presentation, “God, Man and Law” by Joseph Sobran, briefed and [notes] added by David Norris
The average American, whether he has had high school civics or a degree in political science, is apt to assume that the Constitution somehow empowers the government to do nearly anything, while implicitly limiting our rights by listing them. Not that anyone would say it this way. Be that as it may, the Bill of Rights was adopted, but it was designed to meet his [Alexander Hamilton’s] objection. The Ninth Amendment says: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” The Tenth says: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Now what these two provisions mean is pretty simple. The Ninth means that the list of the people’s rights in the Constitution is not meant to be complete — that they still have many other rights, like the right to travel or to marry, which may deserve just as much respect as the right to not have soldiers quartered in one’s home in peacetime. The Tenth, on the other hand, means that the list of powers “delegated” to the federal government is complete — and that any other powers the government assumed would be, in the Framers’ habitual word, “usurped.”
As I said earlier, the Founders believed that our rights come from God, and the government’s powers come from the people. The Constitution is not meant to deny or disparage any other powers it may choose to claim, while the rights not given to the people in the Constitution are reserved to the federal government to give or withhold, and the states may be progressively stripped of their original powers.
What it comes to is that we don’t really have an operative Constitution anymore. The federal government defines its own powers day by day. It’s limited not by the list of its powers in the Constitution, but by whatever it can get away with politically. Just as the president can now send troops abroad to fight without a declaration of war, Congress can pass a national health care program without a constitutional delegation of power. The only restraint left is political opposition.
If you suspect I’m overstating the change from our original principles, I give you the late Justice Hugo Black. In a 1965 case called Griswold v. Connecticut, the Court struck down a law forbidding the sale of contraceptives on grounds that it violated a right of “privacy.” (This supposed right, of course, became the basis for the Court’s even more radical 1973 ruling in Roe v. Wade, but that’s another story.) Justice Black dissented in the Griswold case on the following ground: “I like my privacy as well as the next [man],” he wrote, “but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision.” What a hopelessly muddled—and really sinister—misconception of the relation between the individual and the state: government has a right to invade our privacy, unless prohibited by the Constitution. You don’t have to share the Court’s twisted view of the right of privacy in order to be shocked that one of its members takes this view of the “right” of government to invade privacy.
It gets crazier. In 1993 the Court handed down one of the most bizarre decisions of all time. For two decades, enemies of legal abortion had been supporting Republican candidates in the hope of filling the Court with appointees who would review Roe v. Wade. In Planned Parenthood v. Casey, the Court finally did so. [But] the Court reaffirmed Roe.
Its reasoning was amazing. A plurality opinion—a majority of the five-justice majority in the case—admitted that the Court’s previous ruling in Roe might be logically and historically vulnerable. But it held [as we suppose taught by Darwinian law professors] the paramount consideration was that the Court be consistent, and not appear to be yielding to public pressure, lest it lose the respect of the public.
Therefore the Court allowed Roe to stand. Among many things that might be said about this ruling, the most basic is this: The Court in effect declared itself a third party to the controversy, and then, setting aside the merits of the two principals’ claims, ruled in its own interest! [This is a stellar example of Darwinian Case Law, maintaining the Precedent is more important than infanticide.] It was as if the referee in a prizefight had declared himself the winner. Cynics had always suspected that the Court did not forget its self-interest in its decisions, but they never expected to hear it say so. The three judges who signed that opinion evidently didn’t realize what they were saying. A distinguished veteran Court watcher (who approved of Roe, by the way) told me he had never seen anything like it. The Court was actually telling us that it put its own welfare ahead of the merits of the arguments before it. In its confusion, it was blurting out the truth.
But by then very few Americans could even remember the original constitutional plan. The original plan was as Madison and Tocqueville described it: State government was to be the rule, federal government the exception. The states’ powers were to be “numerous and indefinite,” federal powers “few and defined.” This is a matter not only of history, but of iron logic: the Constitution doesn’t make sense when read any other way. As Madison asked, why bother listing particular federal powers unless unlisted powers are withheld?
The unchecked federal government has not only overflowed its banks; it has created its own economy. Thanks to its exercise of myriad unwarranted powers, it can claim tens of millions of dependents, at least part of whose income is due to the abuse of the taxing and spending powers for their benefit: government employees, retirees,…taxpayer funded teachers, [even] artists. Large numbers of these people are paid much more than their market value because the taxpayer is forced to subsidize them. By the same token, most taxpayers would instantly be better off if the federal government [excesses simply] ceased to exist—if it suddenly returned to its constitutional functions.
Can we restore the Constitution and recover our freedom? I have no doubt that we can. Like all great reforms, it will take an intelligent, determined effort by many people. I don’t want to sow false optimism. [The time is ripe for a constitutional Article V Convention of the States]. The election of Donald J. Trump, 45th President of the United States of America provides optimism, but all of us need to roll up our sleeves and pitch in. The beauty of it is that the people don’t have to invent a new system of government in order to get rid of this one. They only have to restore the one described in the Constitution. And for just that reason, [the mischief of] the ruling parties will be finished as soon as the American people rediscover and awaken their dormant Constitution.”
Used by the permission of “The Schwarz Report”, August 2005, current address: 227 E. 6th St., Long Beach, Ca, 90802. Pat Buchanan, “Joseph Sobran is perhaps the finest columnist of our generation.”
~ D. Norris