Legislative Constitution Quotes

Section 1. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

The Constitution of the Unitied States of America Preamble We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. Article I - The Legislative Branch Section 1 - The Legislature All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

The principles of a free constitution are irrecoverably lost, when the legislative power is nominated by the executive.

Some of us realize the self-evident truth that no election, no constitution, no legislation, and no other pseudo-religious political ritual can bestow upon anyone the right to rule another. Nothing can make a man into a rightful master; nothing can make a man into a rightful slave.

The legislator should direct his attention above all to the education of youth; for the neglect of education does harm to the constitution. The citizen should be molded to suit the form of government under which he lives. For each government has a peculiar character which originally formed and which continues to preserve it. The character of democracy creates democracy, and the character of oligarchy creates oligarchy.

Something is profoundly wrong with the way we live today. For thirty years we have made a virtue out of the pursuit of material self-interest: indeed, this very pursuit now constitutes whatever remains of our sense of collective purpose. We know what things cost but have no idea what they are worth. We no longer ask of a judicial ruling or a legislative act: Is it good? Is it fair? Is it just? Is it right? Will it help bring about a better society or a better world? Those used to be the political questions, even if they invited no easy answers. We must learn once again to pose them. The materialistic and selfish quality of contemporary life is not inherent in the human condition. Much of what appears "natural" today dates from the 1980s: the obsession with wealth creation, the cult of privatization and the private sector, the growing disparities of rich and poor. And above all, the rhetoric that accompanies these: uncritical admiration for unfettered markets, disdain for the public sector, the delusion of endless growth. We cannot go on living like this. The little crash of 2008 was a reminder that unregulated capitalism is its own worst enemy: sooner or later it must fall prey to its own excesses and turn again to the state for rescue. But if we do no more than pick up the pieces and carry on as before, we can look forward to greater upheavals in years to come.

To leave inequality between class and class, between sex and sex, which is the soul of Hindu society, and to go on passing legislation relating to economic problems is to make a farce of our Constitution and to build a palace on a dung heap.”70

Our present condition, is, Legislation without law; wisdom without a plan; constitution without a name; and, what is strangely astonishing, perfect Independance contending for dependance.

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority .... Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

To restrict or legalize abortion, to allow or forbid gay marriage, a legislator would need to write and pass a law, get it signed by the president or a governor, and perhaps override a veto. A Supreme Court justice need only persuade four other people. If he or she is not internally constrained by the authority of a text, he or she is not constrained.

It was the general opinion of ancient nations, that the divinity alone was adequate to the important office of giving laws to men... and modern nations, in the consecrations of kings, and in several superstitious chimeras of divine rights in princes and nobles, are nearly unanimous in preserving remnants of it... Is the jealousy of power, and the envy of superiority, so strong in all men, that no considerations of public or private utility are sufficient to engage their submission to rules for their own happiness? Or is the disposition to imposture so prevalent in men of experience, that their private views of ambition and avarice can be accomplished only by artifice? — … There is nothing in which mankind have been more unanimous; yet nothing can be inferred from it more than this, that the multitude have always been credulous, and the few artful. The United States of America have exhibited, perhaps, the first example of governments erected on the simple principles of nature: and if men are now sufficiently enlightened to disabuse themselves of artifice, imposture, hypocrisy, and superstition, they will consider this event as an era in their history. Although the detail of the formation of the American governments is at present little known or regarded either in Europe or America, it may hereafter become an object of curiosity. It will never be pretended that any persons employed in that service had any interviews with the gods, or were in any degree under the inspiration of heaven, any more than those at work upon ships or houses, or labouring in merchandize or agriculture: it will for ever be acknowledged that these governments were contrived merely by the use of reason and the senses. As Copley painted Chatham, West, Wolf, and Trumbull, Warren and Montgomery; as Dwight, Barlow, Trumbull, and Humphries composed their verse, and Belknap and Ramzay history; as Godfrey invented his quadrant, and Rittenhouse his planetarium; as Boylston practised inoculation, and Franklin electricity; as Paine exposed the mistakes of Raynal, and Jefferson those of Buffon, so unphilosophically borrowed from the Recherches Philosophiques sur les Américains those despicable dreams of de Pauw — neither the people, nor their conventions, committees, or sub-committees, considered legislation in any other light than ordinary arts and sciences, only as of more importance. Called without expectation, and compelled without previous inclination, though undoubtedly at the best period of time both for England and America, to erect suddenly new systems of laws for their future government, they adopted the method of a wise architect, in erecting a new palace for the residence of his sovereign. They determined to consult Vitruvius, Palladio, and all other writers of reputation in the art; to examine the most celebrated buildings, whether they remain entire or in ruins; compare these with the principles of writers; and enquire how far both the theories and models were founded in nature, or created by fancy: and, when this should be done, as far as their circumstances would allow, to adopt the advantages, and reject the inconveniences, of all. Unembarrassed by attachments to noble families, hereditary lines and successions, or any considerations of royal blood, even the pious mystery of holy oil had no more influence than that other of holy water: the people universally were too enlightened to be imposed on by artifice; and their leaders, or more properly followers, were men of too much honour to attempt it. Thirteen governments thus founded on the natural authority of the people alone, without a pretence of miracle or mystery, which are destined to spread over the northern part of that whole quarter of the globe, are a great point gained in favour of the rights of mankind. [Preface to 'A Defence of the Constitutions of the United States of America', 1787]

I have little interest in streamlining government or in making it more efficient, for I mean to reduce its size. I do not undertake to promote welfare, for I propose to extend freedom. My aim is not to pass laws, but to repeal them. It is not to inaugurate new programs, but to cancel old ones that do violence to the Constitution, or that have failed their purpose, or that impose on the people an unwarranted financial burden. I will not attempt to discover whether legislation is "needed" before I have first determined whether it is constitutionally permissible. And if I should later be attacked for neglecting my constituents' "interests," I shall reply that I was informed that their main interest is liberty and that in that cause I am doing the very best I can.

If the president uses executive orders to legislate new laws, that would be an example of him subverting legislative power from Congress, and might be considered a gross perversion of the Constitution.

The Reichstag would be asked to pass an “enabling act” conferring on Hitler’s cabinet exclusive legislative powers for four years. Put even more simply, the German Parliament would be requested to turn over its constitutional functions to Hitler and take a long vacation. But

God has given to men all that is necessary for them to accomplish their destinies. He has provided a social form as well as a human form. And these social organs of humans are so constituted that they will develop themselves harmoniously in the clean air of liberty. Away, then, with the quacks and organizers! Away with their rings, chains, hooks and pincers! Away with their artificial systems! Away with the whims of governmental administrators, their socialized projects, their centralization, their tariffs, their government schools, their state religions, their free credit, their bank monopolies, their regulations, their restrictions, their equalization by taxation, and their pious moralizations! And, now that the legislators and do-gooders have so futilely inflicted so many systems upon society, may they finally end where they should have begun: May they reject all systems, and try liberty; for liberty is an acknowledgment of faith in God and His works.

To leave inequality between class and class, between sex and sex, which is the soul of Hindu society, and to go on passing legislation relating to economic problems is to make a farce of our constitution and to build a palace on a dung heap

Father of the Constitution,” said: “The accumulation of all power – legislative, executive, and judiciary – in the same hands . . . may justly be pronounced the very definition of tyranny.

In examining the division of powers, as established by the Federal Constitution, remarking on the one hand the portion of sovereignty which has been reserved to the several States, and on the other, the share of power which has been given to the Union, it is evident that the Federal legislators entertained very clear and accurate notions respecting the centralization of government. The United States form not only a republic, but a confederation; yet the national authority is more centralized there than it was in several of the absolute monarchies of Europe....

Wisdom and knowledge, as well as virtue, diffused generally among the body of the people being necessary for the preservation of their rights and liberties; and as these depend on spreading the opportunities and advantages of education in various parts of the country, and among the different orders of the people, it shall be the duty of legislators and magistrates in all future periods of this commonwealth to cherish the interests of literature and the sciences, and all seminaries of them, especially the university at Cambridge, public schools, and grammar schools in the towns; to encourage private societies and public institutions, rewards and immunities, for the promotion of agriculture, arts, sciences, commerce, trades, manufactures, and a natural history of the country; to countenance and inculcate the principles of humanity and general benevolence, public and private charity, industry and frugality, honesty and punctuality in their dealings, sincerity, good humor, and all social affections, and generous sentiments among the people.

Anyone who writes a law that cannot be easily understood by an average citizen is not worthy of leadership. The Constitution, which was written by extremely learned men, is quite easy to understand and should serve as a gold standard for the language and size of subsequent legislation that is introduced.

those people who formerly had been half wilde, and civiliz’d but by degrees, made their laws but according to the incommodities which their crimes and their quarrels constrain’d them to, could not be so wel pollic’d, as those who from the beginning of their association, observ’d the constitutions of some prudent Legislator.

My dear Homer, if you are really only once removed from the truth, with reference to virtue, instead of being twice removed and the manufacturer of a phantom, according to our definition of an imitator, and if you need to be able to distinguish between the pursuits which make men better or worse, in private and in public, tell us what city owes a better constitution to you, as Lacedaemon owes hers to Lycurgus, and as many cities, great and small, owe theirs to many other legislators? What state attributes to you the benefits derived from a good code of laws? Italy and Sicily recognize Charondas in this capacity, and we solon. But what state recognizes you.

If legislation is truly necessary, one would expect the government to be able to provide proof of this beyond anecdote and speculation. Such proof is the least we can expect before we accept a government restriction of liberty as legitimate.

Just ask yourself: What rights do members of congress enjoy, as a result of their own legislations, compared with an ‘ordinary citizen’? Have they not, in every sense, implemented a de facto aristocracy, populated by themselves and their cronies?

As the patriots of seventy-six did to the support of the Declaration of Independence, so to the support of the Constitution and Laws, let every American pledge his life, his property, and his sacred honor; – let every man remember that to violate the law, is to trample on the blood of his father, and to tear the character of his own, and his children's liberty. Let reverence for the laws, be breathed by every American mother, to the lisping babe, that prattles on her lap – let it be taught in schools, in seminaries, and in colleges; – let it be written in Primmers, spelling books, and in Almanacs; – let it be preached from the pulpit, proclaimed in legislative halls, and enforced in courts of justice. And, in short, let it become the political religion of the nation; and let the old and the young, the rich and the poor, the grave and the gay, of all sexes and tongues, and colors and conditions, sacrifice unceasingly upon its altars. While ever a state of feeling, such as this, shall universally, or even, very generally prevail throughout the nation, vain will be every effort, and fruitless every attempt, to subvert our national freedom.

It was a strange sight, and perhaps the most disgraceful exhibition ever made by any President; but, as no evil is entirely unmixed, good has come of this, as from many others. Ambitious, unscrupulous, energetic, indefatigable, voluble, and plausible,—a political gladiator, ready for a “set-to” in any crowd,—he is beaten in his own chosen field, and stands to-day before the country as a convicted usurper, a political criminal, guilty of a bold and persistent attempt to possess himself of the legislative powers solemnly secured to Congress by the Constitution. No vindication could be more complete, no condemnation could be more absolute and humiliating. Unless reopened by the sword, as recklessly threatened in some circles, this question is now closed for all time.

Some leaders may be honest and good but unwise in legislation they choose to support. Others may possess wisdom but be dishonest and unvirtuous. We must be concerted in our desires and efforts to see men and women represent us who possess all three of these qualities.

Principles of Liberty 1. The only reliable basis for sound government and just human relations is Natural Law. 2. A free people cannot survive under a republican constitution unless they remain virtuous and morally strong. 3. The most promising method of securing a virtuous and morally strong people is to elect virtuous leaders. 4. Without religion the government of a free people cannot be maintained. 5. All things were created by God, therefore upon him all mankind are equally dependent, and to Him they are equally responsible. 6. All men are created equal. 7. The proper role of government is to protect equal rights, not provide equal things. 8. Men are endowed by their Creator with certain unalienable rights. 9. To protect man's rights, God has revealed certain principles of divine law. 10. The God-given right to govern is vested in the sovereign authority of the whole people. 11. The majority of the people may alter or abolish a government which has become tyrannical. 12. The United States of America shall be a republic. 13. A constitution should be structured to permanently protect the people from the human frailties of their rulers. 14. Life and Liberty are secure only so long as the Igor of property is secure. 15. The highest level of securitiy occurs when there is a free market economy and a minimum of government regulations. 16. The government should be separated into three branches: legislative, executive, and judicial. 17. A system of checks and balances should be adopted to prevent the abuse of power. 18. The unalienable rights of the people are most likely to be preserved if the principles of government are set forth in a written constitution. 19. Only limited and carefully defined powers should be delegated to the government, all others being retained by the people. 20. Efficiency and dispatch require government to operate according to the will of the majority, but constitutional provisions must be made to protect the rights of the minority. 21. Strong human government is the keystone to preserving human freedom. 22. A free people should be governed by law and not by the whims of men. 23. A free society cannot survive a republic without a broad program of general education. 24. A free people will not survive unless they stay strong. 25. "Peace, commerce, and honest friendship with all nations; entangling alliances with none." 26. The core unit which determines the strength of any society is the family; therefore, the government should foster and protect its integrity. 27. The burden of debt is as destructive to freedom as subjugation by conquest. 28. The United States has a manifest destiny to be an example and a blessing to the entire human race.

But I bring up my background in the law because hatred is a pretty big reason I’ve written this book. Not the healthiest emotion, I know, but for me it’s clarifying. What conservatives do and try to do through the Constitution and the law is disgusting. They use the law to humiliate people, to torture people, and to murder people, and tell you they’re just “following orders” from the Constitution. They frustrate legislation meant to help people, free people, or cure people, and they tell you it’s because of “doctrinal interpretative framework.” They use the very same legal arguments that have been used to justify slavery, segregation, and oppression for four hundred years on this continent and tell you it’s the only “objective” way of interpreting the law.

St. Thomas explains that for a law to be just, it must conform to the demands of reason and have an effect which is both good and for the benefit of those for whom it is intended. A law can cease to bind without revocation on the part of the legislator when it is clearly harmful, impossible, or irrational. It would certainly constitute an abuse of authenticity for a pope to forbid the celebration of so hallowed, venerable and Catholic a rite as the Tridentine Mass. Should it be done, there is a sound case to justify the faithful in resisting him, based upon accepted norms within Catholic theology. (p. 25).

The Conservative may ask the following questions: If words and their meaning can be manipulated or ignored to advance the Statist’s political and policy preferences, what then binds allegiance to the Statist’s words? Why should today’s law bind future generations if yesterday’s law does not bind this generation? Why should judicial precedent bind the nation if the Constitution itself does not? Why should any judicial determination based on a judge’s notion of what is “right” or “just” bind the individual if the individual believes the notion is wrong and unjust? Does not lawlessness beget lawlessness? Or is not the Statist really saying that the law is what he says it is, and that is the beginning and end of it? And if judges determine for society what is right and just, and if their purpose is to spread democracy or liberty, how can it be said that the judiciary is coequal with the executive or legislative branch?

Let [the Constitution] be taught in schools, in seminaries, and in colleges, let it be written in primers, in spelling books and in almanacs, let it be preached from the pulpit, proclaimed in legislative halls, and enforced in courts of justice. And, in short, let it become the political religion of the nation.

Without any constitutional basis, public debate, or even the knowledge of most Americans, passing legislation through Congress had come to effectively require 60 votes in the Senate, or what was often referred to as a “supermajority.” By the time I was elected president, the filibuster had become so thoroughly integrated into Senate practice—viewed as an essential and time-honored tradition—that nobody much bothered to discuss the possibility of reforming or doing away with it altogether.

New Hampshire, whose constitution was the last formed, seems to have been fully aware of the impossibility and inexpediency of avoiding any mixture whatever of these departments, and has qualified the doctrine by declaring “that the legislative, executive, and judiciary powers ought to be kept as separate from, and independent of, each other as the nature of a free government will admit; or as is consistent wth that chain of connection that binds the whole fabric of the Constitution in one indissoluble bond of unity and amity.

Our Revolution commenced on more favorable ground. It presented us an album on which we were free to write what we pleased. We had no occasion to search into musty records, to hunt up royal parchments, or to investigate the laws and institutions of a semi-barbarous ancestry. We appealed to those of nature, and found them engraved on our hearts. Yet we did not avail ourselves of all the advantages of our position. We had never been permitted to exercise self-government. When forced to assume it, we were novices in its science. Its principles and forms had entered little into our former education. We established however some, although not all its important principles. The constitutions of most of our States assert, that all power is inherent in the people; that they may exercise it by themselves, in all cases to which they think themselves competent, (as in electing their functionaries executive and legislative, and deciding by a jury of themselves, in all judiciary cases in which any fact is involved,) or they may act by representatives, freely and equally chosen; that it is their right and duty to be at all times armed; that they are entitled to freedom of person, freedom of religion, freedom of property, and freedom of the press.

some living authority would always be required in the State having the same idea of the constitution which guided you when as legislator you were laying down the laws.

The report made a science fiction-like case that the president was within his constitutional rights to reinterpret congressional legislation to conform more closely to his own desires, or to simply refuse to carry out laws with which he did not agree, or that, the report harrumphed, “unconstitutionally encroach on the executive branch.” In sum, anything the president doesn’t want to do he doesn’t have to do; anything he wants to do, consider it done.

As the American Revolution’s tutelary philosopher, John Locke, had pronounced, the legislative branch has the authority “only to make laws, and not to make legislators”—but that’s just what Congress has done in creating administrative-agency rule makers.

Madison suggested that the president should have “power to carry into effect the national laws, to appoint to offices in cases not otherwise provided for, and to execute such other powers ‘not legislative nor judiciary in their nature’ as may from time to time be delegated by the national legislature.”4 The phrase “not legislative nor judiciary in their nature” is crucial. The president was not to have legislative power, meaning he is not constitutionally the “chief legislator”—as too many Americans today believe.

Severability is an important concept in the context of the relations between this Court and Parliament; like 'reading down', it is an instrument of judicial restraint which reduces the danger of producing an overbroad judicial reaction to overbroad legislation.

But I bring up my background in the law because hatred is a pretty big reason I’ve written this book. Not the healthiest emotion, I know, but for me it’s clarifying. What conservatives do and try to do through the Constitution and the law is disgusting. They use the law to humiliate people, to torture people, and to murder people, and tell you they’re just “following orders” from the Constitution. They frustrate legislation meant to help people, free people, or cure people, and they tell you it’s because of “doctrinal interpretative framework.” They use the very same legal arguments that have been used to justify slavery, segregation, and oppression for four hundred years on this continent and tell you it’s the only “objective” way of interpreting the law. Most legal stories

And if Congress can’t delegate the legislative power that the Constitution gives it, it certainly cannot delegate power that the Constitution doesn’t give it, such as the power to hand out selective exemptions from its laws, as agencies do when they grant waivers.35

In our day civil governments have a vested interest in protecting marriage because strong families constitute the best way of providing for the health, education, welfare, and prosperity of rising generations. But civil governments are heavily influenced by social trends and secular philosophies as they write, rewrite, and enforce laws. Regardless of what civil legislation may be enacted, the doctrine of the Lord regarding marriage and morality cannot be changed. Remember: sin, even if legalized by man, is still sin in the eyes of God!

Unfortunately, the executive, judicial, and legislative branches of government have become increasingly concerned with their image and their political parties, have drifted away from strict interpretations of the Constitution, and have substituted their own ideologies for the original vision. As a result, our government produces massively complicated taxation schemes, impossibly intricate and uninterpretable health care laws, and other intrusive measures instead of being a watchful guardian of our rights. Instead of providing an environment that allows diligent people to thrive on the basis of their own hard work and entrepreneurship, our government has taken on the role of trying to care for everyone’s needs and redistributing the fruits of everyone’s labors in a way consistent with its own ideology.

Vice President Cheney has been the most dangerous vice president we've had probably in American history. The idea he doesn't realize that Article I of the Constitution defines the role of the vice president of the United States, that's the Executive Branch. He works in the Executive Branch. He should understand that. Everyone should understand that. And the primary role of the vice president of the United States of America is to support the president of the United States of America, give that president his or her best judgment when sought, and as vice president, to preside over the Senate, only in a time when in fact there's a tie vote. The Constitution is explicit. The only authority the vice president has from the legislative standpoint is the vote, only when there is a tie vote. He has no authority relative to the Congress.

Speaking generally, we may say that whatever legal enactments are held to be for the interest of various constitutions, all these preserve them. And the great preserving principle is the one which has been repeatedly mentioned- to have a care that the loyal citizen should be stronger than the disloyal. Neither should we forget the mean, which at the present day is lost sight of in perverted forms of government; for many practices which appear to be democratical are the ruin of democracies, and many which appear to be oligarchical are the ruin of oligarchies. Those who think that all virtue is to be found in their own party principles push matters to extremes; they do not consider that disproportion destroys a state. A nose which varies from the ideal of straightness to a hook or snub may still be of good shape and agreeable to the eye; but if the excess be very great, all symmetry is lost, and the nose at last ceases to be a nose at all on account of some excess in one direction or defect in the other; and this is true of every other part of the human body. The same law of proportion equally holds in states. Oligarchy or democracy, although a departure from the most perfect form, may yet be a good enough government, but if any one attempts to push the principles of either to an extreme, he will begin by spoiling the government and end by having none at all. Wherefore the legislator and the statesman ought to know what democratical measures save and what destroy a democracy, and what oligarchical measures save or destroy an oligarchy. For neither the one nor the other can exist or continue to exist unless both rich and poor are included in it. If equality of property is introduced, the state must of necessity take another form; for when by laws carried to excess one or other element in the state is ruined, the constitution is ruined.

But after a frustrated Franklin Roosevelt threatened to enlarge the high bench and pack it with his partisans, Justice Owen Roberts, in the infamous switch in time that saved nine, stopped finding New Deal legislation unconstitutional, so that 5–4 decisions against FDR became majority decisions allowing his schemes.

For a half century, the Supreme Court, through increasingly fanciful legal reasoning, has handed the political Left victories in the culture wars—on race, sex, criminal justice, public order, schooling—that it would have found bruising, and sometimes impossible, to win through the constitutional legislative process.

Especially the call for a 28th Amendment. Alex had long been a proponent of changing the Constitution to ensure that every federal statute also applied equally to members of Congress. He’d hated how the legislative branch liked to exempt itself from laws imposed on everyone else, elevating Congress into some sort of ruling class.

White people complaining of “reverse racism” need to help themselves to a number and stand at the back of the line. White people are still too busy legislating bigotry against actual minorities and trying to manipulate the equal protection clause to justify it. Let’s fix that first, and then we can talk about various “economic grievances.

I KEEP TWO TOWERS OF DOCUMENTS IN MY SENATE OFFICE. THE first is only a few inches tall. A collection of all the legislation passed by Congress in 2013, it contains about eight hundred pages. The second tower, which is eleven feet tall, is a collection of regulations proposed and adopted by federal agencies in 2013. It contains about eighty thousand pages.

Neither should we forget the mean, which at the present day is lost sight of in perverted forms of government; for many practices which appear to be democratical are the ruin of democracies, and many which appear to be oligarchical are the ruin of oligarchies. Those who think that all virtue is to be found in their own party principles push matters to extremes; they do not consider that disproportion destroys a state. A nose which varies from the ideal of straightness to a hook or snub may still be of good shape and agreeable to the eye; but if the excess be very great, all symmetry is lost, and the nose at last ceases to be a nose at all on account of some excess in one direction or defect in the other; and this is true of every other part of the human body. The same law of proportion equally holds in states. Oligarchy or democracy, although a departure from the most perfect form, may yet be a good enough government, but if any one attempts to push the principles of either to an extreme, he will begin by spoiling the government and end by having none at all. Wherefore the legislator and the statesman ought to know what democratical measures save and what destroy a democracy, and what oligarchical measures save or destroy an oligarchy. For neither the one nor the other can exist or continue to exist unless both rich and poor are included in it. If equality of property is introduced, the state must of necessity take another form; for when by laws carried to excess one or other element in the state is ruined, the constitution is ruined.

With “not the slightest sign of an end to the strike,” Roosevelt readied a second plan—the creation of a Blue Ribbon Commission to investigate the causes of the strike and make recommendations for both executive and legislative action. Scrambling once again to find warrant for such intervention, he argued he was empowered by his constitutional duty to report to Congress on the state of the Union.

From the fact that the rule of law is a limitation upon all legislation, it follows that it cannot itself be a law in the same sense as the laws passed by the legislator. Constitutional provisions may make infringements of the rule of law more difficult. They may help to prevent inadvertent infringements by routine legislation. But the ultimate legislator can never limit his own powers by law, because he can always abrogate any law he has made. The rule of law is therefore not a rule of the law, but a rule concerning what the law ought to be, a meta-legal doctrine or a political ideal. It will be effective only in so far as the legislator feels bound by it. In a democracy this means that it will not prevail unless it forms part of the moral tradition of the community, a common ideal shared and unquestioningly accepted by the majority.

The Constitution lodges all legislative power in Congress, which therefore cannot delegate its lawmaking function elsewhere. So it’s forbidden for Congress to pass a law creating an independent or executive-branch agency that writes rules legally binding on citizens—for example, to set up an agency charged with making a clean environment and then to let it make rules with the force of law to accomplish that end as it sees fit.

Mitch McConnell so graphically demonstrated when he withheld the nomination of Merrick Garland to the Supreme Court in a shocking act of constitutional disrespect for two other branches of government. Without question, the most profound and relentless assault on our democracy would come during the years of the Trump presidency. But even then, it was the willingness of members of the legislative branch to go along with his serial

The efficient secret of the English Constitution may be described as the close union, the nearly complete fusion of the executive and legislative powers. According to the traditional theory, as it exists in all the books, the goodness of our constitution consists in the entire separation of the legislative and executive authorities, but in truth its merit consists in their singular approximation. The connecting link is the cabinet.

IT BEGAN WITH A GUN. On September 1, 1939, the German army invaded Poland. Two days later, Britain and France declared war on Germany. In the October 1939 issue of Detective Comics, Batman killed a vampire by shooting silver bullets into his heart. In the next issue, Batman fired a gun at two evil henchmen. When Whitney Ellsworth, DC’s editorial director, got a first look at a draft of the next installment, Batman was shooting again. Ellsworth shook his head and said, Take the gun out.1 Batman had debuted in Detective Com-ics in May 1939, the same month that the U.S. Supreme Court issued a ruling in United States v. Miller, a landmark gun-control case. It concerned the constitutionality of the 1934 National Firearms Act and the 1938 Federal Firearms Act, which effectively banned machine guns through prohibitive taxation, and regulated handgun ownership by introducing licensing, waiting period, and permit requirements. The National Rifle Association supported the legislation (at the time, the NRA was a sportsman’s organization). But gun manufacturers challenged it on the grounds that federal control of gun ownership violated the Second Amendment. FDR’s solicitor general said the Second Amendment had nothing to do with an individual right to own a gun; it had to do with the common defense. The court agreed, unanimously.2

The democratic principle of the separation of powers has today collapsed and the executive power has in fact, at least partially, absorbed the legislative power. Parliament is no longer the sovereign legislative body that holds the exclusive power to bind the citizens by means of the law: it is limited to ratifying the decrees issued by the executive power. In a technical sense, the Italian Republic is no longer parliamentary, but executive. And it is significant that though this transformation of the constitutional order (which is today underway to varying degrees in all the Western democracies) is perfectly well known to jurists and politicians, it has remained entirely unnoticed by the citizens. At the very moment when it would like to give lessons in democracy to different traditions and cultures, the political culture of the West does not realize that it has entirely lost its cannon.

Long years of experience indicated to us that Negroes could achieve this goal when four things occurred: 1. nonviolent demonstrators go into the streets to exercise their constitutional rights; 2. racists resist by unleashing violence against them; 3. Americans of good conscience in the name of decency demand federal intervention and legislation; 4. the administration, under mass pressure, initiates measures of immediate intervention and supports remedial legislation.

Given an area of law that legislators were happy to hand over to the affected industries and a technology that was both unfamiliar and threatening, the prospects for legislative insight were poor. Lawmakers were assured by lobbyists a) that this was business as usual, that no dramatic changes were being made by the Green or White papers; or b) that the technology presented a terrible menace to the American cultural industries, but that prompt and statesmanlike action would save the day; or c) that layers of new property rights, new private enforcers of those rights, and technological control and surveillance measures were all needed in order to benefit consumers, who would now be able to “purchase culture by the sip rather than by the glass” in a pervasively monitored digital environment. In practice, somewhat confusingly, these three arguments would often be combined. Legislators’ statements seemed to suggest that this was a routine Armageddon in which firm, decisive statesmanship was needed to preserve the digital status quo in a profoundly transformative and proconsumer way. Reading the congressional debates was likely to give one conceptual whiplash. To make things worse, the press was—in 1995, at least—clueless about these issues. It was not that the newspapers were ignoring the Internet. They were paying attention—obsessive attention in some cases. But as far as the mainstream press was concerned, the story line on the Internet was sex: pornography, online predation, more pornography. The lowbrow press stopped there. To be fair, the highbrow press was also interested in Internet legal issues (the regulation of pornography, the regulation of online predation) and constitutional questions (the First Amendment protection of Internet pornography). Reporters were also asking questions about the social effect of the network (including, among other things, the threats posed by pornography and online predators).

what of the enormous power exercised today by lifetime-appointed judges, who micromanage more and more of society; unelected bureaucrats employed by scores of government departments and agencies, who legislate not through elected members of Congress but by the issuance of untold regulations and rules; and, the surrendering of sovereign legal and policy authority to international organizations, thereby conferring governing decisions to organizations that exist outside the Constitution’s framework?

For a country that is famous for exporting democracy across the globe and has branded itself as the shining city on the hill, the United States has a shameful history when it comes to embracing one of its most basic rights at home. In 1787, when the founders ratified the Constitution, only white male property owners could vote in the eleven states of the Union. In 1865, at the end of the Civil War, black men could cast a ballot freely in only five states. Women couldn’t vote until 1920. The remarkably brief Reconstruction period of 1865–1877, when there were twenty-two black members of Congress from the South and six hundred black state legislators, was followed by ninety years of Jim Crow rule. The United States is the only advanced democracy that has ever enfranchised, disenfranchised, and then reenfranchised an entire segment of the population. Despite our many distinctions as a democracy, the enduring debate over who can and cannot participate in it remains a key feature of our national character.

Six amendments and four resolutions, preserving slavery where it was, preventing its extension elsewhere; balancing northern sentiment and southern interest, northern principles and southern economic welfare. And the clincher, inscribed here in marble as it is inscribed in the Constitution: the Eighteenth Amendment, marking the whole rest of them permanent and everlasting. Eternal compromise. The great legislative Hail Mary: No future amendment of the Constitution shall affect the five preceding articles...

Something is profoundly wrong with the way we live today. For thirty years we have made a virtue out of the pursuit of material self-interest: indeed, this very pursuit now constitutes whatever remains of our sense of collective purpose. We know what things cost but have no idea what they are worth. We no longer ask of a judicial ruling or a legislative act: is it good? Is it fair? Is it just? Is it right? Will it help bring about a better society or a better world? Those used to be the political questions, even if they invited no easy answers. We must learn once again to pose them. The materialistic and selfish quality of contemporary life is not inherent in the human condition. Much of what appears ‘natural’ today dates from the 1980s: the obsession with wealth creation, the cult of privatization and the private sector, the growing disparities of rich and poor. And above all, the rhetoric which accompanies these: uncritical admiration for unfettered markets, disdain for the public sector, the delusion of endless growth. We cannot go on living like this.

Tax relief through deductions is very precarious. It is a way for the government to let you keep a little cash without conceding that it is your money. Tax deductions can be taken away. . . "An income tax deduction is a matter of legislative grace," the U.S. Supreme Court said in 1943. In other words, all income belongs to the state. If it allows you to use some of it for purposes it chooses, be grateful. But don't think it is yours as a matter of right. That is where the Sixteenth Amendment to the U. S. Constitution has delivered us.

A second example of this abandonment of fundamental principles can be found in recent trends in the U.S. Supreme Court. Note what Lino A. Graglia, a professor of law at the University of Texas, has to say about this: 'Purporting merely to enforce the Constitution, the Supreme Court has for some thirty years usurped and exercised legislative powers that its predecessors could not have dreamed of, making itself the most powerful and important institution of government in regard to the nature and quality of life in our society.... 'It has literally decided issues of life and death, removing from the states the power to prevent or significantly restrain the practice of abortion, and, after effectively prohibiting capital punishment for two decades, now imposing such costly and time-consuming restrictions on its use as almost to amount to prohibition. 'In the area of morality and religion, the Court has removed from both the federal and state government nearly all power to prohibit the distribution and sale or exhibition of pornographic materials.... It has prohibited the states from providing for prayer or Bible-reading in the public schools. 'The Court has created for criminal defendants rights that do not exist under any other system of law-for example, the possibility of almost endless appeals with all costs paid by the state-and which have made the prosecution so complex and difficult as to make the attempt frequently seem not worthwhile. It has severely restricted the power of the states and cities to limit marches and other public demonstrations and otherwise maintain order in the streets and other public places.

By the seventh year of the Bush-Cheney presidency, Bush had attached signing statements to about 150 bills enacted since he took office, challenging the constitutionality of well over 1,100 separate sections in the legislation. By contrast, all previous presidents in American history combined had used signing statements to challenge the constitutionality of about 600 sections of bills, according to historical data compiled by Christopher Kelley, a Miami University of Ohio political science professor who was one of the first to study signing statements.

Whatever their contradictions, Americans were consistent, before and after their first revolution, in deeply distrusting government. Having been left on their own for so long, the colonists saw as sinister any British action affecting them: “[ T] he most minor incidents,” the historian Gordon Wood has shown, “erupted into major constitutional questions involving the basic liberties of the people.” 49 Allergies that extreme don’t easily disappear, and this one lasted long after Great Britain accepted the independence of the United States in 1783. The Americans simply turned it upon themselves. Perhaps victory made forbearance less necessary. Perhaps it exposed an issue they’d so far evaded: had the revolution secured equality of opportunity—the right to rise to inequality—or of condition—the obligation not to? Perhaps corruptions in British society had now, like smallpox, infected its American counterpart. Perhaps legislation, if unchecked, always produced tyranny, whether in parliaments or confederations. Perhaps the people themselves weren’t to be trusted. Perhaps the British had been right, some Americans thought but couldn’t say, in having tried to replace neglect with a heavier hand.

They will begin by taking the State and the manners of men, from which, as from a tablet, they will rub out the picture, and leave a clean surface. This is no easy task. But whether easy or not, herein will lie the difference between them and every other legislator,—they will have nothing to do either with individual or State, and will inscribe no laws, until they have either found, or themselves made, a clean surface. They will be very right, he said. Having effected this, they will proceed to trace an outline of the constitution? No doubt. And when they are filling in the work, as I conceive, they will often turn their eyes upwards and downwards: I mean that they will first look at absolute justice and beauty and temperance, and again at the human copy; and will mingle and temper the various elements of life into the image of a man; and this they will conceive according to that other image, which, when existing among men, Homer calls the form and likeness of God. Very true, he said. And one feature they will erase, and another they will put in, until they have made the ways of men, as far as possible, agreeable to the ways of God? Indeed, he said, in no way could they make a fairer picture. And

In the United States, the Supreme Court blocked several attempts to levy a federal income tax in the late nineteenth and early twentieth centuries and then blocked minimum wage legislation in the 1930s, while finding that slavery and, later, racial discrimination were perfectly compatible with basic constitutional rights for nearly two centuries. More recently, the French Constitutional Court has apparently come up with a theory of what maximum income tax rate is compatible with the Constitution: after a period of high-level legal deliberation known only to itself, the Court hesitated between 65 and 67 percent and wondered whether or not it should include the carbon tax.

If Cleveland had only used the bully pulpit to harangue congressional leaders and rammed his “agenda” through the halls of Congress, he might have accomplished something, but Cleveland let Congress legislate and his recommendations ended up in the Senate waste receptacle. In reality, Cleveland should be admired for this stance. According to the Constitution, the president has no power to initiate legislation. Cleveland accepted the limitations the Constitution places on the executive because not doing so would have resulted in an unconstitutional usurpation of power from the Congress. He did not always like the outcome, but Congress could choose how to receive his recommendations.

Only in Maryland could black men born free vote (until 1802, when the state’s constitution was amended to exclude them); only in New Jersey could white women vote (until 1807, when the state legislature closed this loophole). Of the sixteen states in the Union, all but three—Kentucky, Vermont, and Delaware—limited suffrage to property holders or taxpayers, who made up 60–70 percent of the adult white male population. Only in Kentucky, Maryland, North Carolina, Rhode Island, and Virginia did voters choose their state’s delegates to the Electoral College. In no state did voters cast ballots for presidential candidates: instead, they voted for legislators, or they voted for delegates.

Over a two-year period, the Obama administration delayed the implementation of the Affordable Care Act twenty-eight times, ostensibly to give employers time to comply with the law.9 This was a blatantly unconstitutional power grab by the executive office. Congress alone has the power to legislate, and once a law is passed and signed by the president, the executive branch has a constitutional responsibility to enforce that law. Obama had no legal authority to issue such delays, particularly in regard to employer and individual mandates. These mandates would have been (and are) painful and probably would have resulted in even larger losses for the Democrats in the 2014 election cycle.

The combination in the same hands of the power to make the laws and the power to carry them out is the essence of arbitrary rule by decree, the founders believed, guided by such writers as the Baron de Montesquieu, John Locke, and William Blackstone. For them, the separation of powers was key to the protection of liberty from such tyranny, Thomas writes. The Constitution vested all legislative power in Congress, all executive power in the president, and all judicial power in the Supreme Court and inferior courts, because the framers did not want to have those powers delegated to other hands, lest it bring about the “gradual concentration of the several powers in the same department,” as Madison put it in Federalist 51.

Just how difficult this task turned out to be is demonstrated in a number of problems which have arisen in our own day. The failure to use the checks and balances effectively has allowed the judiciary to create new laws (called judicial legislation) by pretending to be merely interpreting old ones. Failure to use the checks and balances has also allowed the President to make thousands of new laws, instead of Congress, by issuing executive orders. It has allowed the federal government to invade the reserved rights of the states on a massive scale. It has allowed the legislature to impose taxes on the people never contemplated by the Founders or the Constitution. The whole spectrum of checks and balances needs to be more thoroughly studied and more vigorously enforced.

States. It was not easy for Chinese to get into the country. In 1882 Congress had passed a law suspending the entry of Chinese laborers and “all persons of the Chinese race” except officials, teachers, students, tourists, and merchants, at the same time formally prohibiting the naturalization of Chinese. The 1882 Act was the culmination of decades of anti-Chinese propaganda and discrimination. In 1852 California Governor John Bigler described Chinese immigrants as “contract coolies, avaricious, ignorant of moral obligations, incapable of being assimilated and dangerous to the welfare of the state.” In 1854 the California Supreme Court reversed the conviction of a white man for killing a Chinese miner by invoking Section 14 of the California Criminal Act, which specified that “no Black or mulatto person, or Indian shall be allowed to give evidence in favor of, or against a white man.” In support of the decision Chief Justice Hugh Murray declared that “to let Chinese testify in a court of law would admit them to all the equal rights of citizenship. And then we might see them at the polls, in the jury box, upon the bench, and in our legislative halls.” In 1879 the California State constitution prohibited corporations and municipal works from hiring Chinese and authorized cities to remove Chinese from their boundaries.1 My father never told us how he got around the restrictions of the Exclusion Act, and we knew better than to probe because it was generally understood that the distinction between being here legally and illegally was a shadowy one.

Wilson’s defining achievement as president was his legislative agenda, the “New Freedom.” He had written in 1908 that the president was “the political leader of the nation.” Wilson took it upon himself to be a new type of executive, a prime minister more than a president, to guide the legislative process so that “no other single force can withstand him, no combination of forces will easily overpower him.”4 The New Freedom represented his plan for a new America, with the government, the Constitution, and the relationship between the central authority and the people all remade—to give the president new, sweeping powers. Teddy Roosevelt had started this process in 1901. Wilson put an exclamation point on the effort. And the presidents who followed him built on Wilson’s theoretical designs and program directives.

Given the religious nature of the Middle Eastern culture, how might a Middle Eastern democracy [be] structured? Will there be three or four branches of government? Should a religious branch be added to the executive, legislative and judicial branches to ensure that Islamic beliefs and law are followed? A simple answer might be yes, but that is probably not the best means. Ideally, the legislative, executive and judicial bodies should all take Islamic beliefs into consideration when carrying out their duties. As such, there should be no need for a separate religious branch. However, to codify the major tenets of the Islamic faith, they should be represented in the constitution or similar document. This does not mean a theocracy will be established, rather it means that a democracy will be established built upon Islamic beliefs.

One of the advantages of living in a constitutional federal republic is that we have the ability, if not the duty, as citizens to repair or replace those acts of legislation under which we have agreed to live. We must act when it has become evident that said legislation no longer serves us as a people or advances the principles upon which this nation was founded, one of these being “the pursuit of happiness,” which may only be secured through wealth creation. If it burdens the debt obligation of the government, it cannot be creating wealth. If it does not advance the cause of regaining American competitive dominance in the global marketplace, it is not creating wealth. If legislation and regulation were proposed that taught people how to fish instead of providing fish, then the unemployed would find a way to create jobs for each other. Wealth creation is mankind’s natural objective when given the opportunity and the tools.

The Constitutional Convention quickly agreed to the proposal of Governor Edmund Randolph of Virginia for a national government of three branches: legislative, executive, and judicial. Randolph’s resolution “that a national Judiciary be established” passed unanimously. Debating and defining the powers of Congress in Article I and of the president in Article II consumed much of the delegates’ attention and energy. Central provisions of Article III were the product of compromise and, in its fewer than five hundred words, the article left important questions unresolved. Lacking agreement on a role for lower courts, for example, the delegates simply left it to Congress to decide how to structure them. The number of justices remained unspecified. Article III itself makes no reference to the office of chief justice, to whom the Constitution (in Article I) assigns only one specific duty, that of presiding over a Senate trial in a presidential impeachment.

I say that the modern 'clerks' [intellectuals] have preached that the State should be strong and care nothing about being just.... -Julien Benda, The Treason of the Intellectuals, p. 107 We must organize the intellectuals. -Willi Munzenberg, communist organizer, 1919 The present situation may be characterized as follows: All our institutions are breaking down, and social chaos rises on every side: (1) the breakdown of the family, of motherhood and fatherhood; (2) the breakdown of morality, especially honesty; (3) the breakdown of Constitutional government and of national security, the phenomenon of the imposter president, cowardly legislators, careerist generals, intelligence officials who are double agents; (4) an educational system that is anti-patriotic; (5) epidemic narcissism, selfishness, entertainment culture and materialism. From all of this we also see the breakdown of the individual into madness – as expressed in the social reinforcement of the above.

Let every American, every lover of liberty, every well-wisher to his posterity, swear by the blood of the Revolution never to violate in the least particular the laws of the country, and never to tolerate their violation by others. As the patriots of seventy-six did to the support of the Declaration of Independence, so to the support of the Constitution and the Laws let every American pledge his life, his property, and his sacred honour; let every man remember that to violate the law is to trample on the blood of his father, and to tear the charter of his own and his children's liberty. Let reverence for the laws be breathed by every American mother to the lisping babe that prattles on her lap. Let it be taught in schools, in seminaries, and in colleges. Let it be written in primers, spelling-books, and in almanacs. Let it be preached from the pulpit, proclaimed in legislative halls, and enforced in courts of justice. And, in short, let it become the political religion of the nation. When

Man has failed to build only from himself autonomously and to find a solid basis in nature for law, and we are left today with Oliver Wendell Holmes’s “experience” and Frederick Moore Vinson’s statement that nothing is more certain in modern society than that there are no absolutes. Law has only a variable content. Much modern law is not even based on precedent; that is, it does not necessarily hold fast to a continuity with the legal decisions of the past. Thus, within a wide range, the Constitution of the United States can be made to say what the courts of the present want it to say—based on a court’s decision as to what the court feels is sociologically helpful at the moment. At times this brings forth happy results, at least temporarily; but once the door is opened, anything can become law and the arbitrary judgments of men are king. Law is now freewheeling, and the courts not only interpret the laws which legislators have made, but make law. Lex Rex has become Rex Lex. Arbitrary judgment concerning current sociological good is king.

According to the Constitution as ratified, the legislature was to be the most powerful and important branch of government. Jefferson echoed this theme in the opening paragraph of his speech. “To you, then, gentlemen, who are charged with the sovereign functions of legislation, and to those associated with you, I look with encouragement for that guidance and support which may enable us to steer with safety the vessel in which we are all embarked amidst the conflicting elements of a troubled world.” Notice that Jefferson was not setting policy; he was looking for “guidance and support” from the “sovereign” men who served in the legislative branch. He would not be “chief legislator.” Jefferson’s job, as he saw it, was to make recommendations and then execute the laws of Congress, nothing more. And in a subtle though important change, Jefferson’s “recommendations” would arrive as a written message to Congress rather than in person—the executive was not to encroach on legislative matters. Every successive president continued Jefferson’s practice until Woodrow Wilson took office in 1913.

On paper, at least, none of this would necessarily stop us from getting a stimulus bill passed. After all, Democrats enjoyed a seventy-seven-seat majority in the House and a seventeen-seat majority in the Senate. But even in the best of circumstances, trying to get the largest emergency spending bill in history through Congress in record time would be a little like getting a python to swallow a cow. I also had to contend with a bit of institutionalized procedural mischief—the Senate filibuster—which in the end would prove to be the most chronic political headache of my presidency. The filibuster isn’t mentioned anywhere in the Constitution. Instead, it came into being by happenstance: In 1805, Vice President Aaron Burr urged the Senate to eliminate the “motion to proceed”—a standard parliamentary provision that allows a simple majority of any legislature to end debate on a piece of business and call for a vote. (Burr, who seems never to have developed the habit of thinking things through, reportedly considered the rule a waste of time.) It didn’t take long for senators to figure out that without a formal way to end debate, any one of them could bring Senate business to a halt—and thereby extract all sorts of concessions from frustrated colleagues—simply by talking endlessly and refusing to surrender the floor. In 1917, the Senate curbed the practice by adopting “cloture,” allowing a vote of two-thirds of senators present to end a filibuster. For the next fifty years the filibuster was used only sparingly—most notably by southern Democrats attempting to block anti-lynching and fair-employment bills or other legislation that threatened to shake up Jim Crow. Gradually, though, the filibuster became more routinized and easier to maintain, making it a more potent weapon, a means for the minority party to get its way. The mere threat of a filibuster was often enough to derail a piece of legislation. By the 1990s, as battle lines between Republicans and Democrats hardened, whichever party was in the minority could—and would—block any bill not to their liking, so long as they remained unified and had at least the 41 votes needed to keep a filibuster from being overridden.

The legislative department derives a superiority in our governments from other circumstances. Its constitutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask, under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments. It is not unfrequently a question of real nicety in legislative bodies, whether the operation of a particular measure will, or will not, extend beyond the legislative sphere. On the other side, the executive power being restrained within a narrower compass, and being more simple in its nature, and the judiciary being described by landmarks still less uncertain, projects of usurpation by either of these departments would immediately betray and defeat themselves. Nor is this all: as the legislative department alone has access to the pockets of the people, and has in some constitutions full discretion, and in all a prevailing influence, over the pecuniary rewards of those who fill the other departments, a dependence is thus created in the latter, which gives still greater facility to encroachments of the former. I

The belief, which one finds in Locke and in most writers of his time, that any honest man can know what is just and lawful, is one that does not allow for the strength of party bias on both sides, or for the difficulty of establishing a tribunal, whether outwardly or in men's consciences, that shall be capable of pronouncing authoritatively on vexed questions. In practice, such questions, if sufficiently important, are decided simply by power, not by justice and law. To some degree, though in veiled language, Locke recognizes this fact. In a dispute between legislative and executive, he says there is, in certain cases, no judge under Heaven. Since Heaven does not make explicit pronouncements, this means, in effect, that a decision can only be reached by fighting, since it is assumed that Heaven will give the victory to the better cause. Some such view is essential to any doctrine that divides governmental power. Where such a doctrine is embodied in the Constitution, the only way to avoid occasional civil war is to practise compromise and common sense. But compromise and common sense are habits of mind, and cannot be embodied in a written constitution.

It is of the nature of war to increase the executive at the expense of legislative authority," the Federalist tell us. And modern commanders in chief tend to reflexively invoke the war metaphor when the public demands that they take action to solve the emergency of the month, real or imagined. "War is the health of the state," Randolph Bourne's famous aphorism has it, but Bourne could just as easily written that "war is the health of the presidency." Throughout American history, virtually every major advance in executive power has come during a war or warlike crisis. Convince the public that we are at war, and constitutional barriers to actions fall, as power flows to the commander in chief. Little wonder, then, that confronted with impossible expectations, the modern president tends to recast social and economic problems in military terms: war on crime, war on drugs, war on poverty. Martial rhetoric often ushers in domestic militarism, as presidents push to employ standing armies at home, to fight drug trafficking, terrorism, or natural disasters. And when the president raises the battle cry, he can usually count on substantial numbers of American opinion leaders to cheer him on.

In his book Democracy Incorporated, Wolin, who taught political philosophy at Berkeley and at Princeton, uses the phrase inverted totalitarianism to describe our system of power. Inverted totalitarianism, unlike classical totalitarianism, does not revolve around a demagogue or charismatic leader. It finds expression in the anonymity of the corporate state. It purports to cherish democracy, patriotism, and the Constitution while manipulating internal levers to subvert and thwart democratic institutions. Political candidates are elected in popular votes by citizens, but candidates must raise staggering amounts of corporate funds to compete. They are beholden to armies of corporate lobbyists in Washington or state capitals who author the legislation and get the legislators to pass it. Corporate media control nearly everything we read, watch, or hear. It imposes a bland uniformity of opinion. It diverts us with trivia and celebrity gossip. In classical totalitarian regimes, such as Nazi fascism or Soviet communism, economics was subordinate to politics. “Under inverted totalitarianism the reverse is true,” Wolin writes. “Economics dominates politics—and with that domination comes different forms of ruthlessness.

Charles I’s attempt to collect ship-money without the consent of Parliament was declared by his opponents to be “unjust and unlawful,” and by him to be just and lawful. Only the military issue of the Civil War proved that his interpretation of the Constitution was the wrong one. The same thing happened in the American Civil War. Had States the right to secede? No one knew, and only the victory of the North decided the legal question. The belief— which one finds in Locke and in most writers of his time—that any honest man can know what is just and lawful, is one that does not allow for the strength of party bias on both sides, or for the difficulty of establishing a tribunal, whether outwardly or in men’s consciences, that shall be capable of pronouncing authoritatively on vexed questions. In practice, such questions, if sufficiently important, are decided simply by power, not by justice and law. To some degree, though in veiled language, Locke recognizes this fact. In a dispute between legislative and executive, he says, there is, in certain cases, no judge under Heaven. Since Heaven does not make explicit pronouncements, this means, in effect, that a decision can only be reached by fighting, since it is assumed that Heaven will give the victory to the better cause. Some such view is essential to any doctrine that divides governmental power. Where such a doctrine is embodied in the Constitution, the only way to avoid occasional civil war is to practise compromise and common sense. But compromise and common sense are habits of mind, and cannot be embodied in a written constitution.

An executive who arrogates to himself the power to ignore the legitimate legislative directives of the Congress or to act free of the check of the judiciary becomes the central threat that the Founders sought to nullify in the Constitution. In the words of James Madison, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” What would Benjamin Franklin think of President Bush’s assertion that he has the inherent power, even without a declaration of war by the Congress, to launch an invasion of any nation on earth, at any time he chooses, for any reason he wishes, even if that nation poses no imminent threat to the United States? How long would it take James Madison to dispose of our current president’s claim, in Department of Justice legal opinions, that he is largely above the rule of law so long as he is acting in his role as commander in chief? I think it is safe to say that our Founders would be genuinely concerned about these recent developments in American democracy and that they would feel that we, here, are now facing a clear and present danger with the potential to threaten the future of the American experiment. Shouldn’t we be equally concerned, and shouldn’t we ask ourselves how it is that we have come to this point? In the name of security, this administration has attempted to relegate the Congress and the courts to the sidelines and replace our democratic system of checks and balances with an unaccountable executive. And all the while, it has constantly angled for new ways to exploit the sense of crisis for partisan gain and political dominance.

As I see it, the War on Drugs—more than any other government program or political initiative—gave rise to mass incarceration as defined above. Although the political dynamics that gave birth to the system date back to slavery, the drug war marked an important turning point in American history, one that cannot be measured simply by counting heads in prisons and jails. The declaration and escalation of the War on Drugs marked a moment in our past when a group of people defined by race and class was viewed and treated as the “enemy.” A literal war was declared on a highly vulnerable population, leading to a wave of punitiveness that permeated every aspect of our criminal justice system and redefined the scope of fundamental constitutional rights. The war mentality resulted in the militarization of local police departments and billions invested in drug law enforcement at the state and local levels. It also contributed to astronomical expenditures for prison building for people convicted of all crimes and the slashing of billions from education, public housing and welfare programs, as well as a slew of legislation authorizing legal discrimination against millions of people accused of drug offenses, denying them access to housing, food stamps, credit, basic public benefits, and financial aid for schooling. This war did not merely increase the number of people in prisons and jails. It radically altered the life course of millions, especially black men who were the primary targets in the early decades of the war. Their lives and families were destroyed for drug crimes that were largely ignored on the other side of town. Those who define “mass incarceration” narrowly, to include only individuals currently locked in prisons or jails, erase from public view the overwhelming majority of

True law necessarily is rooted in ethical assumptions or norms; and those ethical principles are derived, in the beginning at least, from religious convictions. When the religious understanding, from which a concept of law arose in a culture, has been discarded or denied, the laws may endure for some time, through what sociologists call "cultural lag"; but in the long run, the laws also will be discarded or denied. With this hard truth in mind, I venture to suggest that the corpus of English and American laws--for the two arise for the most part from a common root of belief and experience--cannot endure forever unless it is animated by the spirit that moved it in the beginning: that is, by religion, and specifically by the Christian people. Certain moral postulates of Christian teaching have been taken for granted, in the past, as the ground of justice. When courts of law ignore those postulates, we grope in judicial darkness. . . . We suffer from a strong movement to exclude such religious beliefs from the operation of courts of law, and to discriminate against those unenlightened who cling fondly to the superstitions of the childhood of the race. Many moral beliefs, however, though sustained by religious convictions, may not be readily susceptible of "scientific" demonstration. After all, our abhorrence of murder, rape, and other crimes may be traced back to the Decalogue and other religious injunctions. If it can be shown that our opposition to such offenses is rooted in religion, then are restraints upon murder and rape unconstitutional? We arrive at such absurdities if we attempt to erect a wall of separation between the operation of the laws and those Christian moral convictions that move most Americans. If we are to try to sustain some connection between Christian teaching and the laws of this land of ours, we must understand the character of that link. We must claim neither too much nor too little for the influence of Christian belief upon our structure of law. . . . I am suggesting that Christian faith and reason have been underestimated in an age bestridden, successively, by the vulgarized notions of the rationalists, the Darwinians, and the Freudians. Yet I am not contending that the laws ever have been the Christian word made flesh nor that they can ever be. . . . What Christianity (or any other religion) confers is not a code of positive laws, but instead some general understanding of justice, the human condition being what it is. . . . In short, judges cannot well be metaphysicians--not in the execution of their duties upon the bench, at any rate, even though the majority upon the Supreme Court of this land, and judges in inferior courts, seem often to have mistaken themselves for original moral philosophers during the past quarter century. The law that judges mete out is the product of statute, convention, and precedent. Yet behind statute, convention, and precedent may be discerned, if mistily, the forms of Christian doctrines, by which statute and convention and precedent are much influenced--or once were so influenced. And the more judges ignore Christian assumptions about human nature and justice, the more they are thrown back upon their private resources as abstract metaphysicians--and the more the laws of the land fall into confusion and inconsistency. Prophets and theologians and ministers and priests are not legislators, ordinarily; yet their pronouncements may be incorporated, if sometimes almost unrecognizably, in statute and convention and precedent. The Christian doctrine of natural law cannot be made to do duty for "the law of the land"; were this tried, positive justice would be delayed to the end of time. Nevertheless, if the Christian doctrine of natural law is cast aside utterly by magistrates, flouted and mocked, then positive law becomes patternless and arbitrary.

Aristotle, who lived after the downfall of Sparta, gives a very hostile account of its constitution.5 What he says is so different from what other people say that it is difficult to believe he is speaking of the same place, e.g. 'The legislator wanted to make the whole State hardy and temperate, and he has carried out his intention in the case of men, but he has neglected the women, who live in every sort of intemperance and luxury. The consequence is that in such a State wealth is too highly valued, especially if the citizens fall under the dominion of their wives, after the manner of most warlike races…. Even in regard to courage, which is of no use in daily life, and is needed only in war, the influence of the Lacedaemonian women has been most mischievous…. This license of the Lacedaemonian women existed from the earliest times, and was only what might be expected. For ... when Lycurgus, as tradition says, wanted to bring the women under his laws, they resisted, and he gave up the attempt.' He goes on to accuse Spartans of avarice, which he attributes to the unequal distribution of property. Although lots cannot be sold, he says, they can be given or bequeathed. Two-fifths of all the land, he adds, belongs to women. The consequence is a great diminution in the number of citizens: it is said that once there were ten thousand, but at the time of the defeat by Thebes there were less than one thousand. Aristotle criticizes every point of the Spartan constitution. He says that the ephors are often very poor, and therefore easy to bribe; and their power is so great that even kings are compelled to court them, so that the constitution has been turned into a democracy. The ephors, we are told, have too much licence, and live in a manner contrary to the spirit of the constitution, while the strictness in relation to ordinary citizens is so intolerable that they take refuge in the secret illegal indulgence of sensual pleasures.

the rivalry between the big and little states almost tore the convention apart. Their dispute was over whether the legislative branch should be proportioned by population or by equal votes per state. Finally, Franklin arose to make a motion on behalf of a compromise that would have a House proportioned by population and a Senate with equal votes per state. “When a broad table is to be made, and the edges of planks do not fit, the artist takes a little from both, and makes a good joint,” he said. “In like manner here, both sides must part with some of their demands.” His point was crucial for understanding the art of true political leadership: Compromisers may not make great heroes, but they do make great democracies. The toughest part of political leadership, however, is knowing when to compromise and when to stand firm on principle. There is no easy formula for figuring that out, and Franklin got it wrong at times. At the Constitutional Convention, he went along with a compromise that soon haunted him: permitting the continuation of slavery. But he was wise enough to try to rectify such mistakes. After the Constitutional Convention, he became the president of a society for the abolition of slavery. He realized that humility required tolerance for other people’s values, which at times required compromise; however, it was important to be uncompromising in opposing those who refused to show tolerance for others. During his lifetime, Benjamin Franklin donated to the building fund of each and every church built in Philadelphia. And at one point, when a new hall was being built to accommodate itinerate preachers, Franklin wrote the fund-raising document and urged citizens to be tolerant enough so “that even if the Mufti of Constantinople were to send a missionary to preach Mohammedanism to us, he would find a pulpit at his service.” And on his deathbed, he was the largest individual contributor to the building fund for Mikveh Israel, the first synagogue in Philadelphia.

Now, in reality, the world have paid too great a compliment to critics, and have imagined them men of much greater profundity than they really are. From this complacence, the critics have been emboldened to assume a dictatorial power, and have so far succeeded, that they are now become the masters, and have the assurance to give laws to those authors from whose predecessors they originally received them. The critic, rightly considered, is no more than the clerk, whose office it is to transcribe the rules and laws laid down by those great judges whose vast strength of genius hath placed them in the light of legislators, in the several sciences over which they presided. This office was all which the critics of old aspired to; nor did they ever dare to advance a sentence, without supporting it by the authority of the judge from whence it was borrowed. But in process of time, and in ages of ignorance, the clerk began to invade the power and assume the dignity of his master. The laws of writing were no longer founded on the practice of the author, but on the dictates of the critic. The clerk became the legislator, and those very peremptorily gave laws whose business it was, at first, only to transcribe them. Hence arose an obvious, and perhaps an unavoidable error; for these critics being men of shallow capacities, very easily mistook mere form for substance. They acted as a judge would, who should adhere to the lifeless letter of law, and reject the spirit. Little circumstances, which were perhaps accidental in a great author, were by these critics considered to constitute his chief merit, and transmitted as essentials to be observed by all his successors. To these encroachments, time and ignorance, the two great supporters of imposture, gave authority; and thus many rules for good writing have been established, which have not the least foundation in truth or nature; and which commonly serve for no other purpose than to curb and restrain genius, in the same manner as it would have restrained the dancing-master, had the many excellent treatises on that art laid it down as an essential rule that every man must dance in chains. To

Politicians are the only people in the world who create problems and then campaign against them. Have you ever wondered why, if both the Democrats and Republicans are against deficits, we have deficits? Have you ever wondered why if all politicians are against inflation and high taxes, we have inflation and high taxes? You and I don’t propose a federal budget. The president does. You and I don’t have Constitutional authority to vote on appropriations. The House of Representatives does. You and I don’t write the tax code. Congress does. You and I don’t set fiscal policy. Congress does. You and I don’t control monetary policy. The Federal Reserve Bank does. One hundred senators, 435 congressmen, one president and nine Supreme Court justices — 545 human beings out of 235 million — are directly, legally, morally and individually responsible for the domestic problems that plague this country. I excused the members of the Federal Reserve Board because that problem was created by the Congress. In 1913, Congress delegated its Constitutional duty to provide a sound currency to a federally chartered by private central bank. I exclude all of the special interests and lobbyists for a sound reason. They have no legal authority. They have no ability to coerce a senator, a congressman or a president to do one cotton-picking thing. I don’t care if they offer a politician $1 million in cash. The politician has the power to accept or reject it. No matter what the lobbyist promises, it is the legislators’ responsibility to determine how he votes. Don’t you see the con game that is played on the people by the politicians? Those 545 human beings spend much of their energy convincing you that what they did is not their fault. They cooperate in this common con regardless of party. What separates a politician from a normal human being is an excessive amount of gall. No normal human being would have the gall of Tip O’Neill, who stood up and criticized Ronald Reagan for creating deficits. The president can only propose a budget. He cannot force the Congress to accept it. The Constitution, which is the supreme law of the land, gives sole responsibility to the House of Representatives for originating appropriations and taxes. Those 545 people and they alone are responsible. They and they alone should be held accountable by the people who are their bosses — provided they have the gumption to manage their own employees.

By appealing to the moral and philosophical foundation work of the nation, Lincoln hoped to provide common ground on which good men in both the North and the South could stand. “I am not now combating the argument of necessity, arising from the fact that the blacks are already amongst us; but I am combating what is set up as moral argument for allowing them to be taken where they have never yet been.” Unlike the majority of antislavery orators, who denounced the South and castigated slaveowners as corrupt and un-Christian, Lincoln pointedly denied fundamental differences between Northerners and Southerners. He argued that “they are just what we would be in their situation. If slavery did not now exist amongst them, they would not introduce it. If it did now exist amongst us, we should not instantly give it up. . . . When it is said that the institution exists; and that it is very difficult to get rid of it, in any satisfactory way, I can understand and appreciate the saying. I surely will not blame them for not doing what I should not know how to do myself.” And, finally, “when they remind us of their constitutional rights, I acknowledge them . . . and I would give them any legislation for the reclaiming of their fugitives.” Rather than upbraid slaveowners, Lincoln sought to comprehend their position through empathy. More than a decade earlier, he had employed a similar approach when he advised temperance advocates to refrain from denouncing drinkers in “thundering tones of anathema and denunciation,” for denunciation would inevitably be met with denunciation, “crimination with crimination, and anathema with anathema.” In a passage directed at abolitionists as well as temperance reformers, he had observed that it was the nature of man, when told that he should be “shunned and despised,” and condemned as the author “of all the vice and misery and crime in the land,” to “retreat within himself, close all the avenues to his head and his heart.” Though the cause be “naked truth itself, transformed to the heaviest lance, harder than steel,” the sanctimonious reformer could no more pierce the heart of the drinker or the slaveowner than “penetrate the hard shell of a tortoise with a rye straw. Such is man, and so must he be understood by those who would lead him.” In order to “win a man to your cause,” Lincoln explained, you must first reach his heart, “the great high road to his reason.” This, he concluded, was the only road to victory—to that glorious day “when there shall be neither a slave nor a drunkard on the earth.” Building on his rhetorical advice, Lincoln tried to place

It has to be said: there are too many great men in the world. There are too many legislators, organizers, founders of society, leaders of peoples, fathers of nations, etc., etc. Too many people put themselves above humanity in order to rule it and too many people think their job is to become involved with it. People will say to me: you yourself are becoming involved, you who talk about it. That is true. But they will agree that it is for a very different reason and from a very different point of view, and while I am taking on those who wish to reform, it is solely to make them abandon their effort. I am becoming involved with it not like Vaucanson with his automaton but like a physiologist with the human organism, in order to examine it and admire it. I am becoming involved with it in the same spirit as that of a famous traveler. He arrived among a savage tribe. A child had just been born and a host of fortune-tellers, warlocks, and quacks were crowding around it, armed with rings, hooks, and ties. One said, “This child will never smell the aroma of a pipe if I do not lengthen his nostrils.” Another said, “He will be deprived of the sense of hearing if I do not make his ears reach down to his shoulders.” A third said, “He will never see the light of the sun unless I make his eyes slant obliquely.” A fourth said, “He will never stand upright if I do not make his legs curve.” A fifth said, “He will never be able to think if I do not squeeze his brain.” “Away with you,” said the traveler. “God does His work well. Do not claim to know more than He does and, since He has given organs to this frail creature, leave those organs to develop and grow strong through exercise, experimentation, experience, and freedom.” [print edition page 146] God has also provided humanity with all that is necessary for it to accomplish its destiny. There is a providential social physiology just as there is a providential human physiology. The social organs are also constituted so as to develop harmoniously in the fresh air of freedom. Away with you, therefore, you quacks and organizers! Away with your rings, chains, hooks, and pincers! Away with your artificial means! Away with your social workshop, your phalanstery, your governmentalism, your centralization, your tariffs, your universities, your state religion, your free credit or monopolistic banks, your constraints, your restrictions, your moralizing, or your equalizing through taxes! And since the social body has had inflicted on it so many theoretical systems to no avail, let us finish where we should have started; let us reject these and at last put freedom to the test, freedom, which is an act of faith in God and in His work.