Guest editorial/Column #2 by Jon Roland, Constitution Society, 210/224-2868, May 1, 1995

Rediscovery of the Constitution

The Eleventh Commandment was stated in positive terms, "Love thy neighbor ...", but it might be better understood by contemporaries if it were restated using the previous format: "Thou shalt not demonize or dehumanize others." The beginning of hatred is putting a label on someone. Even a seemingly innocent label, intended only to speed up communication, can have the effect of lumping very different people together, dismissing their concerns, and relegating their grievances to the ashcan.

One has to wonder what James Madison or Thomas Jefferson would say if they could come back today and hear people who are devoted to government compliance with the Constitution being dismissed as "extremists".

Well, it would seem that at least five members of the Supreme Court have tentatively joined the ranks of those radicals that federal agents like to describe as people who "take the Constitution literally". In the recent decision in U.S. v.Lopez Justices Rehnquist, Kennedy, O'Connor, Scalia, and Thomas joined to overturn a federal criminal statute based on the interstate commerce clause for the first time since 1936, on the grounds that carrying a gun on or near a school did not "affect" interstate commerce.

A little background here. After the Supreme Court ruled, correctly, against several of President Franklin Roosevelt's legislation intended to deal with the Great Depression, Roosevelt threatened to "pack" the Supreme Court, increasing its number by statute from nine to fifteen, and adding additional members chosen to vote for the constitutionality of his legislation. There are also unconfirmed reports that the justices may have been threatened in other ways. In any case, seeing that they could not withstand the determined efforts of the President and Congress to adopt unconstitutional legislation, they surrendered and proceeded to violate their oath to uphold the Constitution. The Supreme Court has been doing that ever since, allowing more and more federal power to be assumed, most of it based on that interstate commerce clause.

When the subject of federal legislation couldn't be described as "interstate commerce", Congress began to expand federal jurisdiction to include not only "interstate commerce" itself, but anything that had ever moved as interstate commerce, then everything that might some day move as interstate commerce, then anything that might be "part of an aggregate" of things, some of which move as interstate commerce. Then they decided that it should include all the operations of any enterprise that engages in interstate commerce. And, finally, that it should include anything that "affects" interstate commerce.

But that was not enough. Although the original meaning of "to regulate" was "to train or discipline", and was intended to cover the kind of thing done at loading docks and traffic intersections, the meaning was extended to include "prohibition", and the power to impose criminal sanctions on violators, that is, the deprivation of life or liberty, rather than such civil sanctions as the deprivation of property or privileges. This led to a host of federal criminal legislation, much of which might be arguably constitutional if applied only to federal territory not the part of any state, over which the Constitution grants "general legislative" powers, but not over offenses committed on state territory.

If federal courts begin to pick up on this important Supreme Court decision, and to unravel the last 60 years of unconstitutional federal legislation, we could see a contraction of government that will bring significant changes to the lives of everyone. The thing that most irritates constitutionalists and civil libertarians is the assertion of jurisdiction by federal courts over offenses committed on state territory over which the central government does not have jurisdiction. The only crimes committed on state territory over which the federal courts have jurisdiction are treason, counterfeiting, piracy and felonies on the high seas, and offenses against the laws of nations. In addition, the federal government may, arguably, have the power, under the fourteenth amendment, to prosecute for the crime of an official at any level violating the civil rights of a person.

However, when was the last time anyone heard of a high-level federal official being prosecuted for violating the civil rights of anyone? Not that such violations don't happen, of course. It's just that no one is held accountable. And this reveals a basic flaw in the structure of the Executive Branch of the federal government. Agencies are left to police themselves.

What is needed is to restructure the Executive Branch so that every agency and department has at least two other agencies and departments to watchdog it, the watchdogs competing with one another to uncover misconduct. And the watchdogs should have their own watchdogs.