The American Founding Fathers and the US Constitution

• The Declaration of Independence confirms that America’s founding fathers believed all rights exist independent of government.
• The United States Constitution was not a popular document when it was adopted. Some historians consider the adoption of the Federal Constitution as a counterrevolution to the original principles of the American Revolution.
• With the intention of mitigating the risk that the federal government would become tyrannical, the Constitution’s Framers incorporated checks and balances on power. This included a separation of powers between the distinct legislative, executive, and judicial branches, limited and specific powers delegated to Congress, a Bill of Rights, and a generalized concept of federalism.

It could have worked in theory

• In theory, the federal government guarantees a minimum standard of liberty below which the states can never transgress. Although states can afford a higher standard of liberty, they are not permitted to infringe upon the minimum liberty guaranteed to the individual by the federal government. To be effective, whenever any law is determined to have trespassed upon that guaranteed level of freedom, the federal government, through the operation of its judicial branch, should declare that law unconstitutional. This process properly operates on all federal, state, and local laws.
  • An appropriately acting federal judge determines whether the law is consistent with those minimum guarantees of freedom identified by fundamental constitutional provisions. Whether the reviewing federal judge personally finds a particular law unwise or unnecessary is irrelevant to the proper analysis.
  • In a world where the Legal Principle is the fundamental Principle by which we measure all other laws, a reviewing federal judge would merely determine whether a challenged law comports with a reasonable interpretation of the Legal Principle. They would strike down any laws that do not comport with at least a reasonable interpretation of how the Legal Principle applies.
  • Most federal judges at the trial level attempt in good faith to follow whatever they genuinely believe is the law’s meaning rather than attempting to infuse their personal opinion or preference into the law.
• James Madison explained that the judicial branch should serve as a check on governmental power by acting like a watchdog, keeping an eye on the other two branches of government.
• The United States was intended as a Constitutional Republic, not an unfettered democracy. Indeed, many Constitutional provisions exist as a check against unfettered Democracy that always results in a tyranny of the majority over the minority. The right of competent adults to control their own bodies, property, money, and time should never be subjected to majority approval.

Unfortunately, the Constitution did not work as intended.

• There are two main reasons why the Framers of the Constitution failed in their deliberate efforts to restrain the federal government:
  • First, and most importantly, the Justices on the United States Supreme Court, who later interpreted the meaning of the United States Constitution, did not, and still do not, share the Framers’ political philosophy.
    • Neither the founding fathers nor the Framers of the United States Constitution won the hearts and minds of those Justices later interpreting the Constitution’s meaning.
    • The Fourth Amendment to the United States Constitution enumerates a right to be free from “unreasonable” searches and seizures. However, it offers no guidance for determining what’s “unreasonable.” The Constitution leaves it to the Justices on the Supreme Court to define what’s “reasonable” in the context of government-sponsored searches and seizures. One could accurately restate the relevant portion of the Fourth Amendment with, “The government can search or seize anyone or anything it wants anytime with no restrictions whatsoever so long as the government decides that what the government did was reasonable.”
    • Some Justices employ a “strict constructionist” judicial philosophy, meaning they endeavor to follow the text strictly as written. Other Justices employ an “originalism” or “textualism” approach, while others view the Constitution as a “living document”, updating its meanings for the context of modern life. No written word is immune to a creative interpretation. There is no substitute for winning the hearts and minds of all those who adopt and interpret the Legal Principle.
  • The second reason the United States Constitution failed to restrain government at all levels is a still-existing fatal flaw that led the United States Supreme Court to dramatically change how it reviewed challenges to government power in 1937. Since 1803, it has been settled law that the United States Supreme Court can declare laws unconstitutional. This is an important check on power against the legislative and executive branches of government.
    • When legislators pass laws that violate rights, the United States Supreme Court should invalidate them by declaring them unconstitutional. This invalidating of unconstitutional laws was one of the critically essential checks and balances intended to allow the judicial branch to restrain the two other branches of government.
    • In the Lochner case in 1905, the Supreme Court ruled against a New York law used by the local government to prevent a baker (Lochner) from working more than 10 hours per day. The Supreme Court upheld “the rights of individuals, both employers and employees, to make contracts regarding labor upon such terms as they may think best, or which they may agree upon with the other parties to such contracts.
    • This ‘Lochner-era’ ended in 1937 with a case entitled West Coast Hotel v. Parrish, which minimized the importance of the right to contract and instead upheld a state minimum wage law applicable to women.
    • Taking advantage of the lack of constitutionally limited number of Supreme Court Justices, FDR threatened to ‘packed the court’ with his hand-selected justices. In response, the Supreme Court changed how it reviewed cases and approved FDR’s ‘New Deal’. In the post-Lochner era, legislation from the government that infringed on ‘property’ received minimal scrutiny compared with infringements on ‘life’ and ‘liberty’. Now the Supreme Court deems almost all government infringements upon an individual’s property as constitutional.
      • This unfounded distinction between “property rights” and “individual rights” allows state and federal governments to infringe on property rights and economic interests with almost unfettered discretion.
      • Other rights found to be individual fundamental rights, such as the right to free speech, remain generally well protected. These rights remain protected because the United States Supreme Court applies strict scrutiny to fundamental rights instead of minimum scrutiny.
      • With strict scrutiny, the law’s proponent must prove a compelling governmental interest in maintaining the law and demonstrate that it is narrowly tailored to achieve that interest and no broader than necessary.
      • Given that we can effortlessly characterize virtually any right as a “property right” or “economic right,” this distinction allows the government almost unfettered discretion to regulate nearly all conduct. Indeed, if you allow me to control your property while you retain control of everything else, you will quickly find I control everything. This is why property rights are so important. So long as you consider your body as your property, it is easy to see that all substantive rights can accurately be reduced to property rights.
• Today’s United States federal government, as well as all state governments, can regulate almost any aspect of life in the United States without much interference or meaningful review by the United States Supreme Court. Due to the United States Congress delegating its legislative powers to countless different administrative agencies residing in the executive branch, we can say the same of a mostly unaccountable army of unelected bureaucrats. This delegation of powers from the legislative to the executive branch may also violate the vital protection of the separation of powers.
• Permitting the states or other small communities to reasonably experiment with how best to implement laws that preserve liberty on difficult questions while establishing an enforceable minimum level of freedom at the federal or larger community level may be the best configuration to create and maintain a free society. We should expect people who do not subscribe to the 3LP will seek to employ the mechanisms of government to impose their moral judgments on others who are not violating the Legal Principle. Judicial review to invalidate such laws is an indispensable tool to protect against such legal aggressions.

Commerce Clause

Description

• The Commerce Clause is another example of how interpretation led to a loss of liberty.
• The Commerce Clause, found in Article I, Section 8 of the U.S. Constitution, gives Congress the power to regulate commerce with foreign nations, among the several states, and with Native American tribes. Over time, it has been interpreted broadly to allow federal regulation of not only trade itself but also activities that substantially affect interstate commerce.

The impact on freedom

• The Commerce Clause is arguably one of the greatest mistakes in U.S. lawmaking history. The Supreme Court transformed this Clause, intended to foster free trade among the states, into an almost endless source of power for Congress to do virtually anything it wanted. Specifically, the Commerce Clause, as currently interpreted, effectively turned the concept of federalism, or limited federal government, entirely on its head. Congress uses the interpretation of this clause to justify virtually unlimited power to do whatever it wants.