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SENTRY JOURNAL » Uncategorized » Post Constitutional America

Post Constitutional America

It’s time we accept reality and the premise of a new argument about America, or as Mark Levin calls it, Ameritopia.

Daily I am astounded by the number of laws and regulations that our legislatures have applied to us especially when juxtaposed with how unwell our politicians observe their own laws or even the simple legal document that created and guides them.  We are a constitutional republic; that is to say, a nation created by a legal document that defines our system of government and then creates boundaries and limitations on what said government can do.  It is largely a legal document written in the spirit of withholding power, not granting it.  Further, and perhaps most importantly, it is law that necessitates a system of Montesquieu’s divided government and a system of checks and balances.

The fear of our founders was that the individual would lose their individual liberty – something commonly misunderstood today.  We feel like we have freedom because we can go to the movies, or we can choose between Mac and PC; but as laws and regulations expand our individual liberties decrease.  Liberty is never absolute and impossible to calculate, but we can appropriately quantify it based on the number of laws applied to us – except that even the Federal government is incapable of doing that.  In fact, the fed can’t even determine how many federal criminal laws there are, much less regulatory laws, or active statutes or codes at a federal level – and we haven’t even begun to speak of state and local laws.

Now, while you can go to Lowes and choose whatever toilet you like, those toilets were already narrowed down by federal and/or state regulation.  You may have picked your car, but literally thousands of regulations went into the building of that vehicle.  At any given moment we are held accountable to an immeasurable number of laws that no individual is able to know… and we call this freedom?  From what?  Captivity?  Okay.  But are we free from interference, obligation, restriction, or control?  You could pick your restaurant in Soviet Russia, but who wouldn’t call that form of government a type of despotism?

The irony, however, is that while the average citizen manages to stay law abiding in spite of the convoluted and uninterpretable legalities placed over him, our law makers, justices, and executives cannot follow their relatively simple guidance.  In fact, they purposefully work in defiance of the Constitution for the purpose of gaining power.  While many of us conservatives and libertarians have been screaming about this for years, it now being recognized by some on the left.  This week liberal Obama supporter and professor of law at The George Washington University Law School, Jonathan Turley, spoke at a House hearing on the abuses of the executive powers by this administration (not that others are guiltless).

Let us reflect on a few that he brought up.  The expansive war power of the President (Libya and the White House “kill list”), ignoring legislative mandates through the DOJ (refusing to deport illegals, refusing to enforce employer mandate), and shifting moneys without congressional approval or appropriations.  The question, as Turley points out, is where does Congress have power anymore?  He can mobilize a war machine without congressional approval, name appointees without congressional approval, defy appropriations (ripping the power of the purse from Congress), and simply ignore any laws passed by the legislative branch by not enforcing them through his Department of Justice via “prosecutorial discretion”.  At this point, how far away is the Chief Executive from a Caesar?  As Trey Gowdy asked in a congressional hearing on Wednesday, “If he [the President] can suspend mandatory minimum and immigration laws, why not election laws”?

Let us not forget that while the President is naming his czars, cabinet members, and even some justices without Congressional approval, more and more power is being handed to them.  In fact, some have begun to call the extensions of the Executive the “4th branch” of our government.  Meanwhile, areas within “4th branch” (the Justice Department, State Department, and IRS) all have huge scandals on their hands that have simply been ignored.  How?  Because Executive privilege is granted to them.  Congress can’t even investigate these areas of government while the heads simply claim ignorance – along with the individual granting them privilege; the President.  Tell me that’s not a conflict of logic and interest.  “We are all ignorant of these criminal acts, but you must remain ignorant as well”.

The so called “most transparent” administration EVER has upped the ante on obscurities with the help of an opaque and willing media accomplice.  The 4th branch consists of 69 agencies, 383 nonmilitary sub-agencies, and almost 3 million non-military employees.  They each have their own guidelines, legalities, and powers that aren’t necessarily afforded to them by any elected individual and, as we’ve seen, aren’t held accountable by any elected individuals.  Unfortunately, as the Washington Post correctly writes, “the fourth branch now has a larger practical impact on the lives of citizens than all the other branches combined”.  Lost in all of this is the power of the state which was the principle antecedent for the framing of the Constitution in the first place.  Now, not only has the state lost most of its powers, it has given them over to a “system of government” outside of the parameters of the Constitution.

The rulemaking is supposed to come from elected legislatures at the state and federal levels; but that is no longer our creed.  It is the faceless bureaucrats who hand down regulations  – and you have no reproach.  The Washington Post again stated that “In 2007, Congress enacted 138 public laws, while federal agencies finalized 2,926 rules, including 61 major regulations”.  How can Congress possibly oversee all of these agencies?  How much less if they have been made impotent by an overly powerful Executive that has coopted this “fourth branch”?

Want it to get more frightening?  Many of these agencies aren’t even held accountable by the Justice system and even have judicial powers themselves.  Because these agencies have so many intricate regulations specific to the agencies themselves, Congress disassociated them from the judicial court system and assigned them their own administrative courts.  Again from the Washington Post “In a given year, federal judges conduct roughly 95,000 adjudicatory proceedings, including trials, while federal agencies complete more than 939,000”.  Meaning, of course, you’re much more likely to be tried by an agency than an actual court; completely throwing out your Article III right to due process within the Judiciary away.   In fact, there are hundreds of examples of individuals who have been acquitted in federal courts only to be held under administrative charges from one of these agencies.

Where is this power granted in our Constitution?  We have an executive that trumps congress, a fourth branch who trumps everyone and has no real check or balance… and we haven’t even talked about legislating from the bench, the Federal Reserve, or foreign powers.  If we still live in a constitutional republic, pray tell me, what is its name?


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