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
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"
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.