Untried Weapons – Repairing The Tattered Remains Of A Constitution That Has Not Been Tried And Found Wanting, But That Has Been Found Difficult; And Left Untried (Part 5) – Guest Essayist: David Eastman

This essay continues a series exploring briefly why the Constitution is ineffective at restraining federal officials today, and illustrates how members of the present generation must come to view their relationship to the Constitution if it is to be of service in effectively responding to federal overreach. The series will conclude by highlighting two largely untried and fundamentally different approaches to restoring constitutional constraints; issue-based legislative accountability, and a convention of states to amend the US Constitution.

The Constitution in the 21st Century

The two hundred and forty years of our independence as a nation are replete with examples of times that our constitutional forms were temporarily set aside, and sometimes by our nation’s most revered statesmen. The claim of public necessity was used sparingly at first, but it is now made by presidents with an alarming frequency, and in recent years simply on the grounds that Congress has been slow to act. While the nation was once strict in drawing distinctions between matters of truly dire emergencies and matters of mere presidential impatience, it is claimed by some today that the American people have adopted a much more permissive posture and no longer have need of a Constitution whose primary role is simply to serve as an impediment to progress and “the political will of the people”. The nature of the Constitution as a political document is now readily admitted. What is now more likely to be questioned is whether it is—and should remain—a legal document as well. As Washington forewarned us, we have now reached that point where change by usurpation has become the custom of the land.[1]

The checks and balances of the Constitution, guarded by the popular will of the country, once offered a formidable obstacle to the ambitions of designing men. Today however, enemies of the Constitution have become more numerous, more diverse, and more brazen in demonstrating their antipathy towards it. The ambitious and the pragmatic deny the constitution temporarily, as an impediment to an aggrandized view of necessity. Added to this are today’s progressives and liberals (aptly characterized by Pelosi’s public contempt for the Constitution) who not only attack the Constitution, but also deny the very concept of a Constitution. Rounding out the number are the nihilists (self-described radicals such as Alinsky, President Obama, and Hillary Clinton) who attack not only the concept of a Constitution, but also the very society or culture that would give rise to one.[2]

One thing is certain; it will not be possible to find true solutions to our current constitutional crisis without acknowledging the true depth of that crisis. The rise of progressivism provided America her first experience with a widespread movement whose “fundamental purpose [was] the destruction of the political and moral authority of the U.S. Constitution.”[3] That movement has been having its effect for some time, eroding faith in the Constitution and placing it instead in government as the sole source of rights and magnanimous protector of the oppressed. Those who favor this transfer of allegiance use the term “living Constitution” not to explain how we came to have such things as an Air Force, but to provide lip service for their contention that the Constitution is whatever the government says it is, or can get away with doing. With such lip service “Ignoring our Constitution became our constitution.”[4]

What is needed, as Professor Gary Lawson remarked some years ago, is the creation of “a constituency” of the Constitution.[5] The Constitution was and is a political document. Its checks and balances require defense not only in the courts, but also in the political decisions that we make as individuals. Despite the temptation, in this conflict we cannot fall back on the Constitution as simply a law needing to be enforced. Yes, it must be enforced if it is to mean anything at all, but the type of enforcement needed requires a sustained and lasting effort, both legally and politically, with victories counted in inches rather than miles. Any solutions that undermine that long-term effort must be cast aside. Any solutions that fail to develop a constituency of the Constitution must be cast aside. The excesses of federal overreach, now visible to all, have provided us the impetus to fight that overreach in earnest, with groups and organizations now highlighting those excesses in all parts of the nation: “The only question is whether the commanding officers are in sufficient possession of their wits to appreciate the real character of constitutional warfare. Only then can they develop a sound strategy based on reflection and choice.”[6]

David Eastman is a graduate of West Point and a former Captain in the US Army. He has served at all levels of US government; city, county, borough, state and federal, and in each case was obliged to take an oath to support and defend the U.S. Constitution; He is a co-founder of Tax Our Kids, which advocates for sustainable government spending on behalf of future generations of Alaskans. He lives with his family in Wasilla, Alaska.

[1]           “If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit, which the use can at any time yield.” (George Washington’s Farewell Address)

[2]           For those who find all of this just a bit confusing, the David Horowitz Freedom Center has provided an invaluable tool in “Discover The Networks: A Guide to the Political Left”, which is available free of charge at: http://www.discoverthenetworks.com/.

[3]          John Marini, “Abandoning the Constitution”, Claremont Review of Books (Spring 2012).

[4]          James Ceaser, “Restoring the Constitution”, Claremont Review of Books (Spring 2012).

[5]           Gary S. Lawson, “Limited Government, Unlimited Administration: Is it Possible to Restore Constitutionalism?“, Heritage First Principles Series (January 27, 2009).

[6]          Ceaser.

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