A BLUEPRINT FOR RESURRECTING OUR REPUBLIC
Attorney Jonathan Emord
June 1, 2010
Repeatedly I am asked what I would do to restore constitutional governance to America. Let me start by diagnosing the problem and then explaining precisely what needs to be done to eliminate it.
Since the 1930s, the United States has transferred governing power from its elected representatives to some 83 independent regulatory commissions. Those commissions are law makers, prosecutors, and judges, possessing combined legislative, executive, and judicial powers. They operate outside of the constitutional system created by the Founding Fathers and have established a bureaucratic oligarchy in place of our constitutional republic. They give unelected officials and commissions enormous power to invade and deprive Americans of their rights to life, liberty, and property, and effect taxation without representation.
There are at least 6 major ills that have transformed our Constitution of liberty that gave birth to a republic into a Constitution in exile (a term coined by the brilliant D.C. Circuit Judge Douglas H. Ginsberg) that has given birth to a bureaucratic oligarchy. The essential principles the government violates that would otherwise constrain government and protect liberty are the following:
1. No combined legislative, executive, and judicial powers. The Founding Fathers meant to keep tyranny in check and liberty ascendant by preventing any one individual or group from wielding combined legislative, executive and judicial powers. Now the federal bureaucracy wields those powers without accountability to the courts, the Congress, and the American people, and creates almost all laws that govern commerce.
2. No unconstitutional conditions. The government has no power to require that a party relinquish a constitutional right as a condition precedent to receipt of a federal benefit. So, for example, the government ought not be able to condition receipt of social security to seniors on their relinquishment of their right of refuse disclosure of confidential patient records to the state. The government often conditions receipt of benefits on the agreement of a state or an individual to relinquish a right otherwise available to that state or individual.
3. No taxation without representation. Because almost all laws are created by unelected heads of bureaucratic agencies, we are taxed but are not represented in the creation of almost all federal laws that govern us. That taxation without representation violates a primary precept on which the government is based, i.e., that the people are sovereign and that just governments are based on the consent of the governed.
4. No government beyond the limits of enumerated powers. Article I to the Constitution lists specific powers that Congress has, and the Ninth and Tenth Amendments together with the Necessary and Proper Clause constrain the use of those powers to the enumerations in Article I. Since the 1930s, the Congress of the United States has presumed to give federal agencies the power to create law governing every aspect of business through an overblown interpretation of the Commerce Clause. The government is no longer one constrained to act within the scope of the powers enumerated in Article I but, instead, presumes to govern all aspects of life.
5. No deprivation of life, liberty or property without due process of law. Against the backdrop of Franklin Delano Roosevelt’s court packing plan, the Justices of the Supreme Court rejected the doctrine of substantive due process, which theretofore had caused the court to strike down state laws that deprived individuals of freedom of contract and economic liberty. Since then virtually no government restriction on contract or economic activity has been held unconstitutional and laws achieving those ends have been routinely upheld on no more than a rational basis (simply that the means chosen is rationally related to a constitutional end).
6. No takings of private property for public use without just compensation. The Founding Fathers understood that to effectuate the enumerated powers of government there may be a need to acquire private property but wished to allow that acquisition only as essential to pursue an enumerated purpose or function. In Kelo v. City of New London (2005), the Supreme Court upheld a taking of private property not for public use but for the benefit of another private party. The Court erred by allowing a taking for redistributive purposes rather than for essential government functions.
What must be done to cure these ills? We must elect to office individuals committed to remove from statutory and regulatory law all provisions that violate the above six constitutional principles. We must appoint to the judiciary those who respect those core principles, are committed to revive them, and will honor them in practice. Here are six solutions to the problems, solutions that would restore our republic.
1. Reviving the Separation of Powers. Now pending before Congress is a bill I wrote for Congressman Ron Paul entitled the Congressional Responsibility and Accountability Act, H.R. 3396. That bill would prevent any federal agency from enforcing any regulation it adopted until such time as the Congress of the United States voted to codify the regulation. That simple measure would instantaneously restore the separation of powers by denying a regulatory agency the power to make law without action taken by the Congress of the United States. I would additionally recommend legislation that would prohibit any federal agency from adjudicating a dispute with a regulatee but, in every instance, be required to file suit against the regulatee in the federal courts and pursue redress through that independent legal body.
2. Reviving the Unconstitutional Conditions Doctrine. The Congress should conduct a detailed review of existing statutory and regulatory laws and determine which ones impose mandates on states and individuals and, of those, which ones require relinquishment of liberty or property. In those instances where such a relinquishment is required, the aspects of the laws that compel that relinquishment should be deemed of no further legal force or effect. The courts should likewise restore the doctrine in constitutional jurisprudence.
3. Reviving the Doctrine of No Taxation without Representation. The Congress should enact Congressman Ron Paul’s Congressional Responsibility and Accountability Act for another reason. It ensures that laws promulgated by the independent regulatory agencies (now created by unelected officials) have no legal force or effect until those the people elect pass them as laws in the way the Constitution prescribes. That bill thus would revive the doctrine of no taxation without representation. Likewise, the Courts should hold regulations ineffectual unless proven required expressly by Act of Congress, disallowing any interpretive gloss by the agency that either exceeds the express grant of power or contradicts it.
4. Reviving the Enumerated Powers Doctrine. The Supreme Court should restore the enumerated powers doctrine such that legislation which presumes to grant the government power to govern in areas not enumerated in Section 8 of Article I will be held unconstitutional unless necessary for executing an enumerated power and proper for a government dedicated to liberty (liberty being the chief end of government). Under this revived enumerated powers doctrine, the Health Reform bill would be declared unconstitutional because there is no power enumerated in the Constitution by which the government of the United States can compel the citizens of the United States to purchase a particular product, e.g., health insurance.
5. Reviving Substantive Due Process. There is precious little left to liberty when commerce and private contract, the activities almost all Americans engage in every day for the bulk of their days, are accorded almost no protection against laws and regulations that deprive economic liberty. The Congress of the United States should prohibit agencies of the federal government from enacting rules that violate private contract and restrict commerce unless those economic activities involve agreements that deny others their rights (e.g., fraud or crime). The Supreme Court should restore the doctrine of substantive due process to elevate the level of constitutional protection afforded commerce and private contract in recognition that those are liberty and property rights indispensable to the individual liberty that our Constitution designedly protects.
6. Reviving the Takings Clause. The Supreme Court should never permit the taking of private property for redistributive purposes (to provide one private stakeholder with property held by another) regardless of the alleged public interest justification. Private property should only be eligible for taking by the government in instances where it is to be dedicated to a public purpose and where there is a compelling necessity to do so in fulfillment of an expressly enumerated government power. Only then should such a taking be permitted if the government pays the private property owner full market value for the property taken.
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We will never see a restoration of our Constitution of liberty until the above listed doctrines of limited government, now in exile, are restored. We must be tireless in our quest to ensure that those who share this commitment replace the unlimited government adherents in both major parties. For one, I offer the retirement of Senator John McCain in favor of the election of J.D.Hayworth to the U.S. Senate in Arizona. McCain has proven himself an enemy of constitutional government and of the people’s liberties by favoring legislation beyond the powers enumerated in Article I of the Constitution and by favoring broad grants of discretionary authority to federal regulators that invade the rights of private business and individuals. The Founding Fathers’ Constitution of liberty cannot be restored so long as elected officials who lack respect for its doctrines populate the House and Senate.
� 2010 Jonathan W. Emord - All Rights Reserved