Legislative Constitution Quotes

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.

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 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.

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.

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

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.

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

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.

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.

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

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.

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.

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.

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.

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?

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.

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.

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.

in 1807, the British Parliament passed legislation to abolish the slave trade the following year. In the United States, abolition of the slave trade also took effect in 1808. It was not until August 1, 1834, that slavery itself was finally abolished in Canada and in the rest of the British Empire. Another thirty-one years passed before the Thirteenth Amendment of the United States Constitution officially abolished slavery in the USA in 1865.

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.

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.

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.

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).

One suspects that, at some level, progressives grasp the power of this dynamic, which is why they advocate for national legislation for every problem to defeat the individual liberty that federalism helps secure.

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.

The legislative branch writes laws, the head of the executive branch takes care that the laws are faithfully executed, at which point the judiciary is perpetually poised to scrutinize the content and application of the laws. Which makes the judiciary the epicenter of constitutional government.

In Law, Legislation, and Liberty, Hayek lamented how western democracies were increasingly circumventing the spirit of liberal constitutionalism by passing coercive legislation, typically under the guise of achieving social justice, but in reality serving well-organized coalitions of special interests.

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.

They purport to honor electoral politics, freedom of speech, the right to assembly, and the Constitution. But they so corrupt and manipulate the levers of power internally that democracy is extinguished. The Constitution remains in place but has been so radically reinterpreted by the courts and by the executive and legislative branches of government, all serving corporate power, as to be essentially nullified.

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

Some are displeased with it, not on account of any errors or defects in it, but because, as the treaties, when made, are to have the force of laws, they should be made only by men invested with legislative authority. These gentlemen seem not to consider that the judgments of our courts, and the commissions constitutionally given by our governor, are as valid and as binding on all persons whom they concern, as the laws passed by our legislature

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.

In their desire to root out tyranny once and for all, the members of the state conventions who drafted the new constitutions stripped the new elected governors of much of the power that the royal governors had exercised. No longer would governors have the authority to create electoral districts, control the meeting of the assemblies, veto legislation, grant lands, establish courts of law, issue charters of incorporation to towns, or, in some states, even pardon crimes.

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.

He found such a predilection for democracy in the minds of the citizens, that he preserved to every free Athenian his equal vote in the assembly of the people, which he made supreme in all cases, legislative, executive, and judicial. He had not, probably, tried the experiment of a democracy in his own family, before he attempted it in the city, according to the advice of Lycurgus; but was obliged to establish such a government as the people would bear, not that which he thought the best, as he said himself.

At the state’s constitutional convention of 1878, John F. Miller warned: “Were the Chinese to amalgamate at all with our people, it would be the lowest, most vile and degraded of our race, and the result of that amalgamation would be a hybrid of the most despicable, a mongrel of the most detestable that has ever afflicted the earth.” Two years later, California lawmakers enacted legislation to prohibit the issuance of a license authorizing the marriage of a white person with a “negro, mulatto, or Mongolian.

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.

A simple and perfect democracy never yet existed among men. If a village of half a mile square, and one hundred families, is capable of exercising all the legislative, executive, and judicial powers, in public assemblies of the whole, by unanimous votes, or by majorities, it is more than has ever yet been proved in theory or experience. In such a democracy, for the most part, the moderator would be king, the town-clerk legislator and judge, and the constable sheriff; and, upon more important occasions, committees would be only the counsellors of both the former, and commanders of the latter.

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.

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

The constitution of Massachusetts has observed a sufficient though less pointed caution, in expressing this fundamental article of liberty. It declares “that the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them.” This declaration corresponds precisely with the doctrine of Montesquieu, as it has been explained, and is not in a single point violated by the plan of the convention.

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.

Allowing unelected judges to declare laws enacted by popularly elected legislatures unconstitutional and invalid seemed flagrantly inconsistent with free popular government. Such judicial usurpation, said Richard Dobbs Spaight, delegate to the Constitutional Convention from North Carolina, was “absurd” and “operated as an absolute negative on the proceedings of the Legislature, which no judiciary ought ever to possess.” Instead of being governed by their representatives in the assembly, the people would be subject to the will of a few individuals in the court, “who united in their own persons the legislative and judiciary powers,” making the courts more despotic than the Roman decemvirate or of any monarchy in Europe.

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.

However radical these changes in executive authority may have been, many Americans believed that they did not get to the heart of the matter and destroy the most insidious and dangerous source of despotism—the executive power of appointment to office. Since in a traditional monarchical society the distribution of offices, honors, and favors affected the social order, Americans were determined that their governors would never again have the capacity to dominate public life. The constitution-makers took exclusive control over appointments to executive and judicial offices from the traditional hands of the governors and gave it in large part to the legislatures. This change was justified by the principle of separation of powers, a doctrine Montesquieu had made famous in the mid eighteenth century. The idea behind maintaining the executive, legislative, and judicial parts of the government separate and distinct was not to protect each power from the others, but to keep the judiciary and especially the legislature free from executive manipulation—the very kind of manipulation that, Americans believed, had corrupted the English Parliament.

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.

​If civil society be the offspring of convention, that convention must be its law. That convention must limit and modify all the descriptions of constitution which are formed under it. Every sort of legislative, judicial, or executory power are its creatures. They can have no being in any other state of things; and how can any man claim, under the conventions of civil society, rights which do not so much as suppose its existence,—rights which are absolutely repugnant to it? One of the first motives to civil society, and which becomes one of its fundamental rules, is, that no man should be judge in his own cause. By this each person has at once divested himself of the first fundamental right of uncovenanted man, that is, to judge for himself, and to assert his own cause. He abdicates all right to be his own governor. He inclusively, in a great measure, abandons the right of self-defence, the first law of Nature. Men cannot enjoy the rights of an uncivil and of a civil state together. That he may obtain justice, he gives up his right of determining what it is in points the most essential to him. That he may secure some liberty, he makes a surrender in trust of the whole of it.

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.

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.

Not every answer to the running of a great empire was to be found in the Qur’an. Similarly absent was guidance on some of the most basic aspects of daily life: whether it was acceptable for the faithful to urinate behind a bush, for instance, or to wear silk, or to keep a dog, or for men to shave, or for women to dye their hair black, or how best to brush one’s teeth. For the Arabs simply to have adopted the laws and customs of the peoples they had subdued would have risked the exclusive character of their rule. Worse, it would have seen their claim to a divinely sanctioned authority fatally compromised. Accordingly, when they adopted legislation from the peoples they had conquered, they did not acknowledge their borrowing, as the Franks or the Visigoths had readily done, but derived it instead from that most respected, that most authentically Muslim of sources: the Prophet himself. Even as Poitiers was being fought, collections of sayings attributed to Muhammad were being compiled that, in due course, would come to constitute an entire corpus of law: Sunna. Any detail of Roman or Persian legislation, any fragment of Syrian or Mesopotamian custom, might be incorporated within it. The only requirement was convincingly to represent it as having been spoken by the Prophet—for anything spoken by Muhammad could be assumed to have the stamp of divine approval.

The original Virginia settlers had been gentlemen—adventurers, landless men, indentured servants, united by a common desire to better themselves socially and financially in the New World. The best of them were men cast in the sturdy English empirical tradition of fair-mindedness and freedom, who sought to apply the common law justly, govern sensibly in the common interest, and legislate according to the general needs of the Commonwealth. They and their progeny were to constitute one principal element in American tradition, both public and private—a useful, moderate, and creative element, good for all seasons. The Mayflower men—and women—were quite different. They came to America not primarily for gain or even livelihood, though they accepted both from God with gratitude, but to create His kingdom on earth. They were the zealots, the idealists, the utopians, the saints, and the best of them, or perhaps one should say the most extreme of them, were fanatical, uncompromising, and overweening in their self-righteousness. They were also immensely energetic, persistent, and courageous. They and their progeny were to constitute the other principal element in the American tradition, creative too but ideological and cerebral, prickly and unbending, fiercely unyielding on occasions to the point of self-destruction. These two traditions, as we shall see, were to establish themselves firmly and then to battle it out, sometimes constructively, occasionally with immense creative power, but sometimes also to the peril of society and the state.

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

The four presidents who “tried to save” America took this perilous trail. That should be admired, not condemned. It also should be noted that none of the men who “tried to save her” were pushovers in office. They typically deferred to Congress when the Constitution required they do so, and they let Congress lead the legislative process—that was the proper course constitutionally. But Congress often characterized them as too strong and too willing to wield executive power. That should say something about the charge that they were executive lightweights. These four men exercised power not for political gain but to “defend the Constitution” from radical departures from its original intent. They defended their oath. If Americans believe in a federal Republic with limited powers, defined by a written constitution, with checks and balances—not only between the three branches of the general government but also between the general and state governments—then the four men who “tried to save” constitutional government in our Republic should be regarded as the greatest presidents in American history. They must be our standard. Our future executives should be more like Tyler than either Roosevelt in the use of executive powers and more like Cleveland or Coolidge than Obama in regard to character. The presidency is a potentially dangerous office that, regardless of which party controls it, should always be viewed with suspicion. A return to this type of vigilance would protect both individual liberty and the liberty of the community from executive abuse. As we enter another presidential election season, that should be our goal. A proper understanding of the president’s limited powers under our Constitution should guide the way all Americans vote. THE FOUNDERS’ EXECUTIVE The Founders left clues in the historical record, some of them more conspicuous than others, which defined their vision for the executive branch.

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.

Some advocates of “limited government” have attempted to get around this problem by stipulating that the government must be limited to a very strict constitution to keep it confined to its “proper” functions and prevent it from passing immoral and destructive laws. But this is to ignore the fact that those who write the constitution and those who enforce it must be elected by majority vote (or else appointed by those who are elected). A constitution is only as good as the men who write and enforce it, and if majority opinion can’t create truth in matters of legislation, it can’t create truth in matters of constitutional formulation and interpretation, either. If it is wrong to employ the mass opinion-mongering method of voting to determine the policies of a government, it is even more wrong to use it to determine the form and structure of that government.

In other words, we are not writing a treatise on legislation or on the law of contracts or, for that matter, on the Constitution. Our subject is solely interpretation: how a legal message is to be received by those who must apply its directives.

The 1742 essays ‘The Epicurean’, ‘The Stoic’, ‘The Platonist’, and ‘The Sceptic’, taken together, demanded to be read as, in effect, Hume's explanation of why he did not think of himself as able to continue with moral philosophy's traditional project of emotional therapy and improvement of character, and why, as moral philosopher, he concerned himself with the purely explanatory task of identifying the factors which determine moral judgement. Hume liked to portray himself an anatomist of the moral life – and as an anatomist also of politics. He made a much more serious attempt than was common at the time to rise above factionalism and to discuss politics with genuine impartiality, in the interests of understanding the deeper forces threatening the much-vaunted constitutional settlement of 1688. And in his writings on commerce, there were none of the usual pleas of books on trade for this or that piece of legislative reform, in the interests of this or that part of the mercantile or manufacturing community. The ‘chief business’ of both philosophers and politicians, Hume wrote in ‘Of Commerce’, was ‘to regard the

The only way judicial nominations will be detoxified...is for the Supreme Court to restore our constitutional order by returning improperly amassed federal power to the states; securing all of our rights, enumerated and unenumerated alike; and forcing Congress to legislate on the remaining truly national issues rather than delegating that legislative power to executive-branch agencies.

Congress and the presidency have gradually taken more power for themselves, and the Supreme Court has allowed them to get away with it, aggrandizing itself in the process. As the Court has let both the legislative and executive branches swell beyond their constitutionally authorized powers, so have the laws and regulations that it now interprets.

The way the First Step Act passed, through policy, legal, and constitutional arguments about what is right, appropriate, and just, through a consideration of facts and data and evidence about what is most effective in deterring crime and preventing recidivism-- all of it was done through the legislative process That is how our system is supposed to work. Elected legislatures exist to consider and to weigh policy arguments and to reflect the wishes and values of the voters who elected them. When unelected judges seize issues of the criminal law and mandate that violent criminals receive lesser punishments, they are going against both the constitutional structure and their responsibility as judges. -pp. 162-3

The practice, which runs counter to U.S. constitutional goals of fair representation, got its name from the machinations of some Massachusetts legislators, when in 1812, Governor Elbridge Gerry signed a bill that drew district lines for the state. One hyper-partisan district in the Boston area took the shape of a salamander, and so the portmanteau of gerrymander was born, and with it came denunciations from the press of the time as well as the governor himself.

The most critical of all these changes was the reorganization of legislature. William Markham, the Anglican deputy governor of the Province of Pennsylvania, saw his powers greatly reduced, and he retained only a managerial position. The new legislature was responsible for electing their own leaders and officials, and for establishing their own laws, rendering the governor's voice mute. Some have gone so far as to assert that this charter was the precursor of American democracy. Modern historians believe that the charter served as a template for the United States Constitution and the Bill of Rights, as well as a basis for legislation for other democratic countries around the world.

In 1784, it was the first state to legislate the abolition of slavery. However, Rhode Island did not participate in the Constitutional Convention at Philadelphia in 1787 because there was no provision for the freedom of religion.

Part of the Hawaiian sovereignty movement that remains highly relevant today is the comparison between the rights of Native Americans and the rights of Native Hawaiians. Native Americans, along with Native Alaskans, possess constitutionally-enshrined rights to selfdetermination that Native Hawaiians largely do not. Although the US has, in modern times, recognized the rights and sovereignty of Native Hawaiians to mostly govern themselves and their islands, this recognition has not been made explicit. This lack of a clear-cut understanding and written legislation is a point of contention that continues even today, with many Hawaiian sovereignty groups fighting the US with awareness, protests, and the law.

No constitution arises from deliberation. The rights of the people are never written, except as simple restatements of previous, unwritten rights. … Although written laws are merely the declarations of pre-existing laws, it is far from true that all these laws can be written. … The more of it one puts into writing, the weaker the institution becomes. … No nation can give itself liberty if it is not already free, for human influence extends only as far as existing rights have developed. … There never existed a free nation which did not have seeds of liberty as old as itself in its natural constitution. … Nor has any nation ever successfully attempted to develop, by its fundamental written laws, rights other than those which existed in its natural constitution. … One of the greatest errors of a century which professed them all was to believe that a political constitution could be created and written a priori, whereas reason and experience unite in proving that a constitution is a divine work and that precisely the most fundamental and essentially constitutional of a nation’s laws could not possibly be written. … Promises, contracts, and oaths are mere words. It is as easy to break this trifling bond as to make it. Without the doctrine of a Divine Legislator, all moral obligation becomes illusory. Power on one side, weakness on the other: this constitutes all the bonds of human societies. The codifiers of Roman law unpretentiously inserted a remarkable fragment of Greek jurisprudence in the first chapter of their collection. Among the laws which govern us, it says, some are written and others are not. Nothing could be more simple and yet more profound. …428

Much of the criticism concerning partisan gerrymandering during the 2010s focused on GOP-drawn districts in states like North Carolina, Pennsylvania, and Michigan, as discussed in the next chapter. However, when all states with more than one district are considered, comparison of the average district compactness concludes that Democrats ignored this traditional districting principle more than did Republicans.11 On each of the three measures considered here, Democratic districts scored less well than those fashioned by the GOP. Legislatively drawn plans in states not controlled by one party were more compact than those drawn by Republicans or Democrats on the convex hull measure, but on the other two measures they scored between the two parties’ plans. In keeping with the suspicions of reformers, partisan plans tended to have less compact districts than plans drawn by other entities. Districts in plans prepared by independent commissions scored slightly better on Reock but were a little less compact than districts prepared by courts on Polsby-Popper and convex hull. In two of the nation’s most populous states, restricting the influence of the legislature coincided with more compact districts in 2013 than in 2003. In California, authority to redistrict was shifted from the legislature to an independent commission, while in Florida the legislature retained the authority to draw new districts but a constitutional amendment banned efforts to advance the interests of a party or incumbent.

However, it was best known to the delegates as stated by the French thinker Montesquieu. He pointed out that "When the legislative and executive powers are united in the same person, or the same body of magistry, there can be no liberty; because apprehension may arise lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.

When a citizen challenged a particular piece of legislation it was the duty of the Supreme Court to state whether the legislation was right or wrong. If the courts did not know what their function was, there would be dictatorship. While law was necessary for the upkeep of society, equally essential were courts to determine whether the legislature passed the law within the written word of the Constitution.4

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 people ensnared by the system. Twice as many people are on probation or parole in this country as are locked in literal cages. The United States has a staggering 2.3 million people in prison-a higher rate of incarceration than any country in the world-but it also has another 4.5 million people under state control outside of prisons, on probation or parole. More than 70 million Americans-over 20 percent of the entire U.S. population, overwhelming poor and disproportionately people of color-now have criminal records that authorize legal discrimination for life. The New Jim Crow was intended to help people see that it is a serious mistake to think of mass incarceration as simply a problem of too many people in prisons and jails. It is that, but it is also much, much more. Prison statistics barely begin to capture the enormity of this crisis. And yet for too many, the discussion begins and ends there.

When Congress passed Obamacare it attempted by statute to confer fundamental legislative powers on the executive branch, and even sought to prohibit future Congresses from altering its unconstitutional act. Specifically, Congress created the fifteen-member Independent Payment Advisory Board (IPAB), which ostensibly is responsible for controlling Medicare costs. The board submits a proposal to Congress, which automatically becomes law, and the Department of Health and Human Services must implement it, unless the proposal is affirmatively blocked by Congress and the president. Even then, it can be stopped only if the elected branches agree on a substitute. Obamacare also attempts to prohibit citizens from challenging the board’s decisions in court. Moreover, Obamacare seeks to tie the hands of future Congresses by forbidding Congress from dissolving the board outside of a seven-month period in 2017, and only by a supermajority three-fifths vote of both houses. If Congress does not act in that time frame, Congress is prohibited from even altering a board proposal.42 Apart from all the rest, the abuse of power by one Congress and president in attempting to reorganize the federal government and redraft fundamentally the Constitution outside of the amendment processes, with the intention of binding all future Congresses in perpetuity and leaving citizens with no political or legal recourse, is simply sinister. But it underscores the Statists’ contempt for the Constitution and self-government.

It was added that the "true intent and meaning" of the act was "not to legislate slavery into any Territory or State, nor to exclude it therefrom, but to leave the people thereof perfectly free to form and regulate their domestic institutions in their own way, subject only to the Constitution of the United States.

Political authority, the authority of the State, may arise in a number of possible ways: in Locke's phrase, for instance, a father may become the "politic monarch" of an extended family; or a judge may acquire kingly authority in addition, as in Herodotus' tale. Whatever its first origin, political authority tends to include all four pure types of authority. Medieval scholastic teachings of the divine right of kings display this full extent of political authority. Even in this context, however, calls for independence of the judicial power arose, as exemplified by the Magna Carta; in this way the fact was manifested that the judge's authority, rooted in Eternity, stands apart from the three temporal authorities, which more easily go together, of father, master, and leader. The medieval teaching of the full extent of political authority is complicated and undermined by the existence of an unresolved conflict, namely that arising between ecclesiastical and state power, between Pope and Emperor, on account of the failure to work out an adequate distinction between the political and the ecclesiastical realms. The teachings of absolutism by thinkers such as Bodin and Hobbes resolved this conflict through a unified teaching of sovereignty that removed independent theological authority from the political realm. In reaction to actual and potential abuses of absolutism, constitutional teachings arose (often resting on the working hypothesis of a "social contract") and developed—most famously in Montesquieu—a doctrine of "separation of powers." This new tradition focused its attention on dividing and balancing political power, with a view to restricting it from despotic or tyrannical excess. Kojève makes the astute and fascinating observation that in this development from absolutism to constitutionalism, the authority of the father silently drops out of the picture, without any detailed analysis or discussion; political authority comes to be discussed as a combination of the authority of judge, leader, and master, viewed as judicial power, legislative power, and executive power. In this connection, Kojève makes the conservative or traditionalist Hegelian suggestion that, with the authority of the father dropped from the political realm, the political authority, disconnected from its past, will have a tendency towards constant change.

What bothered him most was the ease with which the majority of Coruscanti had acclimated to the changes. Their willingness—almost an eagerness—to surrender personal freedoms in the name of security. And a false security, at that. For while Coruscant seemed far from the war, it was also at the center of it. Now, three years into a conflict that might have been ended as abruptly as it had begun, every new security measure was taken in stride. Except, of course, by members of those species most closely associated with the Separatist agenda—Geonosians, Muuns, Neimoidians, Gossams, and the rest—many of whom had been ostracized or forced to flee the capital. Having lived for so long in fear and ignorance, few Coruscanti stopped to question what was really going on. Least of all the Senate itself, which was so busy modifying the Constitution that it had completely abandoned its role as a balancing arm of the government. Before the war, widespread corruption had stifled the legislative process. Bills languished, measures sat for years without being addressed, votes were protested and subjected to endless recounts … But one effect of the war had been to replace corruption and inertia with dereliction of duty. Reasoned discourse and debate had become so rare as to be archaic.

a frank acknowledgment that there is not under our Constitution a judicial remedy for every political mischief, for every undesirable exercise of legislative power.

She knew that sometimes a well-placed question could effect a significant change in direction. She also knew that Palmer was not a dyed-in-the-wool right-winger; he was not opposed to energy efficiency per se, just disagreed about the appropriate constitutional delivery. She leaned forward and asked him, ‘How would you do it, Sir Geoffrey?’ he replied at length, expounding on all the ways it could be done. Dennis Marshall, the select committee chair, looked at Jeanette and back at Sir Geoffrey and said, ‘Professor Palmer, would you like to assist the committee with a redraft?’ Jeanette loved to tell this story and would joyfully recount watching the expression on the face of the ministry of commerce official at the back of the room go from a grin to a horrified grimace as Palmer said yes. With Palmer’s help, an ambitious first attempt at writing law grew to become a fine piece of legislation. (the EECA)

constitutional system contains an unusually large number of counter-majoritarian institutions. These include the following: The Bill of Rights, which was added to the Constitution in 1791, just after the Constitutional Convention in Philadelphia. A Supreme Court with lifetime appointments for justices and power of judicial review, or the authority to strike down as unconstitutional laws passed by congressional majorities. Federalism, which devolves considerable lawmaking power to state and local governments, beyond the reach of national majorities. A bicameral Congress, which means that two legislative majorities are required to pass laws.

In contrast with those who urge using redistricting to promote competitiveness, Thomas Brunell disagrees with those concerns and, instead, argues the virtues of uncompetitive districts. As mentioned in chapter 1, Brunell justifies packing on the basis that more people would be satisfied with Congress, its policies, and their legislators if most voters lived in districts in which their party constituted an overwhelming majority.84 High concentrations of supporters of one

The Florida legislature continues to do redistricting but amendments to the state constitution ratified in 2010 reduce the weight that legislators can give to partisanship and incumbency. The courts enforced these requirements when Democrats challenged the plans for the state Senate and Congress. A new congressional plan implemented in 2016 led to Democrats picking

These ideas (taken in their general sense) were not unknown to the ancient philosophers : they keenly felt the impotency, I had almost said the nothingness, of writing, in great institutions; but no one of them has seen this truth more clearly, or expressed it more happily, than Plato, whom we always find the first upon the track of all great truths. According to him, “the man who is wholly indebted to writing for his instruction, will only possess the appearance of wisdom. The word, he adds, is to writing, what the man is to his portrait. The productions of the pencil present themselves to our eyes as living things; but if we interrogate them, they maintain a dignified silence. It is the same with writing, which knows not what to say to one man, nor what to conceal from another. If you attack it or insult it without a cause, it cannot defend itself; for its author is never present to sustain it. So that he who imagines himself capable of establishing, clearly and permanently, one single doctrine, by writing alone, is a great blockhead. If he really possessed the true germs of truth, he would not indulge the thought, that with a little black liquid and a pen he could cause them to germinate in the world, defend them from the inclemency of the season, and communicate to them the necessary efficacy. As for the man who undertakes to write laws or civil constitutions, and who fancies that, because he has written them, he is able to give them adequate evidence and stability, whoever he may be, a private man or legislator, he disgraces himself, whether we say it or not; for he has proved thereby that he is equally ignorant of the nature of inspiration and delirium, right and wrong, good and evil. Now, this ignorance is a reproach, though the entire mass of the vulgar should unite in its praise.

The aura of respectability he lent to a slew of legislative proposals—selling public school property to private individuals, pupil-placement laws, and “a constitutional amendment relieving South Carolina of its obligation to provide a free public school system”—made them seem the work of reasonable, learned statesmen.

None of that violence would have happened, however, and certainly would not have been given the broader societal stamp of approval, if the respected elements in white society—governors, legislators, U.S. senators, congressmen, and even, more tepidly, the president of the United States—had not condoned complete defiance of and contempt for the Supreme Court and the constitutional provision that its decisions are the law of the land.

The first model of what the Ninth Amendment might have meant when it came into being is the state law rights model. Under this model, the Ninth Amendment simply tells us that rights enjoyed under state law “continue in force under the Constitution until modified or eliminated by state enactment, by federal preemption, or by a judicial determination of unconstitutionality.”43 The Ninth Amendment does not protect these rights from the federal government, it simply says the rights “continue in force” until changed or overridden. For example, state laws regulating the formation of contracts continue in force after the adoption of the Constitution, but might be pre-empted by federal legislation in the future.

Each House of Congress makes its own rules, but Congress can legislate much of the scope, budget, and organization of the other branches. The familiar notion of “coequal” branches is largely an invention of modern presidents. In a number of Federalist essays, Hamilton and Madison used the term coequal to describe the relations of the states with one another, the taxing powers of the state and federal governments, and the relations of the two houses of Congress, but never the relations of the three branches of government.

The Annenberg Public Policy Center at the University of Pennsylvania has conducted the Civics Knowledge Survey since 2006.76 The 2022 findings include the following jaw-droppers: •   “Less than half (47%) of U.S. adults could name all three branches of government (executive, legislative, judicial) … One in 4 respondents could not name any.” •   “Over half of Americans (51%) continue to assert incorrectly that Facebook is required to let all Americans express themselves freely on its platform under the First Amendment.” •   “1 in 5 (22%) incorrectly thinks that it is accurate to say that under the Constitution a president can ignore a Supreme Court ruling if the president believes it is wrong.” •   “Nearly 1 in 3 people (32%) incorrectly thinks that a judge has the prerogative to force a defendant to testify at trial.” •   “Asked what it means when the Supreme Court rules 5–4 in a case, just over half (55%) correctly chose ‘the decision is the law and needs to be followed.

But progress—slow and winding—has been made over the decades toward America fulfilling its promise. The hard-fought passage of the Thirteenth through Fifteenth, as well as the Nineteenth, Amendments to the Constitution, civil rights legislation, the legalization of same-sex marriage—all demonstrate that this country has an ability to recognize and correct mistakes and introduce political reform and policy change. This is another built-in advantage of democracies. Certainly more must be done, but as Winston Churchill put it, “No one pretends that democracy is perfect or all-wise. Indeed it has been said that democracy is the worst form of government except for all those other forms that have been tried.

The framers of the Fifteenth Amendment recognized that it’s one thing for the Constitution to prohibit racial discrimination in voting but quite another to make sure that states actually let people of color into the voting booth. So the Fifteenth Amendment also provided that “Congress shall have the power to enforce this article by appropriate legislation.

The dominance of wealth, or the particular capitalistic régime under which the great masses of the people are possessed of little but their labor power, while the ownership of the instruments of production is concentrated in the hands of a few powerful employers, is known as the "Servile State." There can be no industrial peace where such conditions exist, no matter how wages may increase and hours of labor be shortened. democratic forms of government are in themselves no solution. "While the Constitution had taken on increasingly democratic forms," wrote Cardinal Bourne in reference to England, "the reality underlying these forms had been increasingly plutocratic. Legislation under the guise of 'social reform' tended to mark off all wage-earners as a definitely servile class.

Article 73 of the Constitution clearly stipulates that, subject to the Constitution, the executive power of the union shall extend to matters in respect of which Parliament has the power to make laws. Article 162 of the Constitution subjects the executive power of the state to the same limitations. The executive power is thus coterminous with legislative power. That is why it is said in all representative democracies that the government is one of laws and not of men.

One was the American Legislative Exchange Council (ALEC), a group aimed at waging conservative fights in every state legislature in the country. From 1973 until 1983, the Scaife and Mellon family trusts donated half a million dollars to ALEC, constituting most of its budget. “ALEC is well on its way to fulfilling the dream of those who started the organization,” a Weyrich aide wrote to Scaife’s top adviser in 1976, “thanks wholly to your confidence and the tremendous generosity of the Scaife Family Charitable Trusts.

One might think that the exposure of unsanitary conditions and animal cruelty in the corporate farming and food-processing industries would provoke lawmakers to punish the perpetrators and tighten laws protecting the safety of our food supply. But no, in several states they have instead directed their fury against the citizen-activists who exposed the wrongdoing by levying heavy penalties against the surreptitious photographing of inhumane outrages. 6 Republican legislators in North Carolina introduced a bill to make it a felony to disclose the chemicals (some of which are toxic to humans and animals) employed in fracking for natural gas. The bill also authorized drilling companies to oblige emergency responders cleaning up chemical spills to sign a confidentiality agreement promising not to disclose the names of the chemicals in their proprietary stew to the public—or their toxicity.

The Constitution of the United States was written in such a way as to restrain government growth and power if there was the will to adhere to it, but unfortunately many of our legislators feel that the Constitution is outdated and largely irrelevant to today’s society.

My state’s constitution seems to contain a provision requiring that once every two years we must pass a bill which dazzles the entire country in its glittering, bejeweled stupidity. Not all of them are bad. I rather like the absurd ones. For instance, it is illegal to go whale hunting in Oklahoma. That law is certainly a nice gesture (whales both sing and have giant brains, putting them one point ahead of many legislators). But humpback poaching has never really been problematic in our part of the country, what with it being landlocked and all.

There is only one alternative to having the courts decide upon the validity of legislative acts, and that is by requiring the courts to treat the opinion of the legislature upon the validity of its statutes, evidenced by their passage, as conclusive. But the effect of this would be that the legislature would not be limited at all except by its own will. All the provisions designed to maintain a government carried on by officers of limited powers, all the distinctions between what is permitted to the national government and what is permitted to the state governments, all the safeguards of the life, liberty and property of the citizen against arbitrary power, would cease to bind Congress, and on the same theory they would cease also to bind the legislatures of the states. Instead of the constitution being superior to the laws the laws would be superior to the constitution, and the essential principles of our government would disappear. More than one hundred years ago, Chief Justice Marshall, in the great case of Marbury vs. Madison, set forth the view upon which our government has ever since proceeded. He said: "The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limit committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The

Virtually all constitutional protected civil liberties have been undermined by the drug war. The Court has been busy in recent years approving mandatory drug testing of employees students, upholding random searches and sweeps of public schools and students permitting police to obtain search warrants based on anonymous informant's tip, expanding the government's wiretapping authority, legislating then use of paid, unidentified indpformants by police and prosecutors, approving them use of helicopter surveillance of homes without warrant, and allowing the forfeiture of cash, homes, and other property based on unproven allegations of illegal activity.

The Founding and the Constitution WHAT GOVERNMENT DOES AND WHY IT MATTERS The framers of the U.S. Constitution knew why government mattered. In the Constitution’s preamble, the framers tell us that the purposes of government are to promote justice, to maintain peace at home, to defend the nation from foreign foes, to provide for the welfare of the citizenry, and, above all, to secure the “blessings of liberty” for Americans. The remainder of the Constitution spells out a plan for achieving these objectives. This plan includes provisions for the exercise of legislative, executive, and judicial powers and a recipe for the division of powers among the federal government’s branches and between the national and state governments. The framers’ conception of why government matters and how it is to achieve its goals, while often a matter of interpretation and subject to revision, has been America’s political blueprint for more than two centuries. Often, Americans become impatient with aspects of the constitutional system such as the separation of powers, which often seems to be a recipe for inaction and “gridlock” when America’s major institutions of government are controlled by opposing political forces. This has led to bitter fights that sometimes prevent government from delivering important services. In 2011 and again in 2013, the House and Senate could not reach agreement on a budget for the federal government or a formula for funding the public debt. For 16 days in October 2013, the federal government partially shut down; permit offices across the country no longer took in fees, contractors stopped receiving checks, research projects stalled, and some 800,000 federal employees were sent home on unpaid leave—at a cost to the economy of $2–6 billion.1 39

​"So it will be appropriate to offer a brief exposition of the subject. We can speak of three factors that led Mussolini to confront the problem of race in 1938. [181] On 5 August 1938, an official document [182] declared, ‘The climate is now ripe for an Italian racism’, for which the Grand Council outlined the fundamental directives the following October. The first legislative provisions ‘for the defence of the Italian race’ were promulgated the following month. Of the three factors, the one that concerned the Hebraic problem was the most incidental. There are few or no references to this problem in Mussolini’s early writings. One can only cite an old article that mentions a well-known theme, that the Hebrew, subjugated and deprived of the usual means to compete directly in the modern world, had recourse to the indirect means constituted by money, finance and intelligence (in the profane sense) to exercise power and for self-affirmation. In addition, in an article from 1919, Mussolini wondered whether Bolshevism, which was supported in its origins by Jewish bankers in London and New York and counted (at that time) numerous Hebrews among its leaders, did not represent ‘Israel’s revenge against the Aryan race’. [183]"​

The Supreme Court was beyond their constitutional power when they handed George W. Bush the victory in 2000 by ruling that if all the votes were counted in Florida, as that state’s supreme court had ordered, it would “cause irreparable harm to petitioner [George W. Bush].” They were beyond their constitutional power every single time they struck down a law passed by Congress and signed by the president over the years. And most important, the Supreme Court was way beyond their constitutional authority every single time they created out of whole cloth new legal doctrines, such as “separate but equal” in Plessy v. Ferguson, “privacy” in Roe v. Wade, or “corporations are people” in Citizens United v. Federal Election Commission. But in the fine tradition of John Marshall, today’s Supreme Court wants you to believe that they are the über-overlords of our nation. They can make George W. Bush president, without any appeal. They can make money into speech, they can turn corporations into people, and the rest of us have no say in it. And they’re wrong. It’s not what the Constitution says, and it’s not what most of our Founders said. Which raises the question: If the Supreme Court can’t decide what is and what isn’t constitutional, then what is its purpose? What’s it really supposed to be doing? The answer to that is laid out in the Constitution in plain black-and-white. It’s the first court where the nation goes for cases involving disputes about treaties, ambassadors, controversies between two or more states, between a state and citizen of another state, between citizens of different states, and between our country and foreign states. Read Article 3, Section 2 of the Constitution—it’s all there. Not a word in there about “judicial supremacy” or “judicial review”—the supposed powers of the court to strike down (or write) laws by deciding what is and what isn’t constitutional. President Thomas Jefferson was pretty clear about that—as were most of the Founders—and the court didn’t start seriously deciding “constitutionality” until after all of them were dead. But back in the day, here’s what Jefferson had to say: The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves… When the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity.177 Their elective capacity? That’s a fancy presidential-founder way of saying that the people can toss out on their butts any member of Congress or any president who behaves in a way that’s unconstitutional. The ultimate remedy is with the people—it’s the ballot box. If we don’t like the laws being passed, then we elect new legislators and a new president. It’s pretty simple.

The Constitution provides for the abolition or creation of legislative councils in states. Accordingly, the Parliament can abolish a legislative council (where it already exists) or create it (where it does not exist), if the legislative assembly of the concerned state passes a resolution to that effect. Such a specific resolution must be passed by the state assembly by a special majority, that is, a majority of the total membership of the assembly and a majority of not less than two-thirds of the members of the assembly present and voting. This Act of Parliament is not to be deemed as an amendment of the Constitution for the purposes of Article 368 and is passed like an ordinary piece of legislation (ie, by simple majority).

On the first day of the meeting that would become known as the United States Constitutional Convention, Edmund Randolph of Virginia kicked off the proceedings. Addressing his great fellow Virginian General George Washington, victorious hero of the War of Independence, who sat in the chair, Randolph hoped to convince delegates sent by seven, so far, of the thirteen states, with more on the way, to abandon the confederation formed by the states that had sent them—the union that had declared American independence from England and won the war—and to replace it with another form of government. “Our chief danger,” Randolph announced, “arises from the democratic parts of our constitutions.” This was in May of 1787, in Philadelphia, in the same ground-floor room of the Pennsylvania State House, borrowed from the Pennsylvania assembly, where in 1776 the Continental Congress had declared independence. Others in the room already agreed with Randolph: James Madison, also of Virginia; Robert Morris of Pennsylvania; Gouverneur Morris of New York and Pennsylvania; Alexander Hamilton of New York; Washington. They wanted the convention to institute a national government. As we know, their effort was a success. We often say the confederation was a weak government, the national government stronger. But the more important difference has to do with whom those governments acted on. The confederation acted on thirteen state legislatures. The nation would act on all American citizens, throughout all the states. That would be a mighty change. To persuade his fellow delegates to make it, Randolph was reeling off a list of what he said were potentially fatal problems, urgently in need, he said, of immediate repair. He reiterated what he called the chief threat to the country. “None of the constitutions”—he meant those of the states’ governments—“have provided sufficient checks against the democracy.” The term “democracy” could mean different things, sometimes even contradictory things, in 1787. People used it to mean “the mob,” which historians today would call “the crowd,” a movement of people denied other access to power, involving protest, riot, what recently has been called occupation, and often violence against people and property. But sometimes “democracy” just meant assertive lawmaking by a legislative body staffed by gentlemen highly sensitive to the desires of their genteel constituents. Men who condemned the working-class mob as a democracy sometimes prided themselves on being “democratical” in their own representative bodies. What Randolph meant that morning by “democracy” is clear. When he said “our chief danger arises from the democratic parts of our constitutions,” and “none of the constitutions have provided sufficient checks against the democracy,” he was speaking in a context of social and economic turmoil, pervading all thirteen states, which the other delegates were not only aware of but also had good reason to be urgently worried about. So familiar was the problem that Randolph would barely have had to explain it, and he didn’t explain it in detail. Yet he did say things whose context everyone there would already have understood.

He was especially intent that the federal judiciary check any legislative abuses. In number 78, Hamilton introduced an essential concept, never made explicit in the Constitution: that the Supreme Court should be able to review and overturn legislation as unconstitutional.

Among the other legislations introduced by Atal, one was to amend the Constitution so as to remove Article 370 that gave special status to J&K. Debated in the House twice, the amendment put forth by Atal, however, lost in the voting.

The alienation of Americans from the democratic process has also eroded knowledge of the most basic facts about our constitutional architecture of checks and balances. When the Annenberg Public Policy Center at the University of Pennsylvania conducted a broad survey on our Constitution, released in September 2006, they found that more than a third of the respondents believed the executive branch has the final say on all issues and can overrule the legislative and judicial branches. Barely half—53 percent—believed that the president was required to follow a Supreme Court decision with which he disagreed. Similarly, only 55 percent of those questioned believed that the Supreme Court had the power to declare an act of Congress unconstitutional. Another study found that the majority of respondents did not know that Congress—rather than the president—has the power to declare war. The Intercollegiate Studies Institute conducted a study in 2005 of what our nation’s college students knew about the Constitution, American government, and American history that provoked the American Political Science Association Task Force on Civic Education to pronounce that it is “axiomatic that current levels of political knowledge, political engagement, and political enthusiasm are so low as to threaten the vitality and stability of democratic politics in the United States.” The study found that less than half of college students “recognized that the line ‘We hold these truths to be self-evident, that all men are created equal’ is from the Declaration of Independence.” They also found that “an overwhelming majority, 72.8 percent, could not correctly identify the source of the idea of ‘a wall of separation’ between church and state.” When the John S. and James L. Knight Foundation conducted a survey of high school students to determine their feelings toward the First Amendment, they found that “after the text of the First Amendment was read to students, more than a third of them (35 percent) thought that the First Amendment goes too far in the rights it guarantees. Nearly a quarter (21 percent) did not know enough about the First Amendment to even give an opinion. Of those who did express an opinion, an even higher percentage (44 percent) agreed that the First Amendment goes too far in the rights it guarantees.” The survey revealed that “nearly three-fourths” of high school students “either don’t know how they feel about [the First Amendment] or they take it for granted.

The assassin’s bullet: Lee Harvey Oswald created a constitutional space for decisive legislative action, opening a path for Lyndon Johnson to save the civil rights revolution at the cost of destroying the New Deal coalition.

Article. I. 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.

There were other important reasons for the growth of American individualism at the expense of community in the second half of the twentieth century besides the nature of capitalism. The first arose as an unintended consequence of a number of liberal reforms of the 1960s and 1970s. Slum clearance uprooted and destroyed many of the social networks that existed in poor neighborhoods, replacing them with an anonymous and increasingly dangerous existence in high-rise public housing units. “Good government” drives eliminated the political machines that at one time governed most large American cities. The old, ethnically based machines were often highly corrupt, but they served as a source of local empowerment and community for their clients. In subsequent years, the most important political action would take place not in the local community but at higher and higher levels of state and federal government. A second factor had to do with the expansion of the welfare state from the New Deal on, which tended to make federal, state, and local governments responsible for many social welfare functions that had previously been under the purview of civil society. The original argument for the expansion of state responsibilities to include social security, welfare, unemployment insurance, training, and the like was that the organic communities of preindustrial society that had previously provided these services were no longer capable of doing so as a result of industrialization, urbanization, decline of extended families, and related phenomena. But it proved to be the case that the growth of the welfare state accelerated the decline of those very communal institutions that it was designed to supplement. Welfare dependency in the United States is only the most prominent example: Aid to Familles with Dependent Children, the depression-era legislation that was designed to help widows and single mothers over the transition as they reestablished their lives and families, became the mechanism that permitted entire inner-city populations to raise children without the benefit of fathers. The rise of the welfare state cannot be more than a partial explanation for the decline of community, however. Many European societies have much more extensive welfare states than the United States; while nuclear families have broken down there as well, there is a much lower level of extreme social pathology. A more serious threat to community has come, it would seem, from the vast expansion in the number and scope of rights to which Americans believe they are entitled, and the “rights culture” this produces. Rights-based individualism is deeply embedded in American political theory and constitutional law. One might argue, in fact, that the fundamental tendency of American institutions is to promote an ever-increasing degree of individualism. We have seen repeatedly that communities tend to be intolerant of outsiders in proportion to their internal cohesiveness, because the very strength of the principles that bind members together exclude those that do not share them. Many of the strong communal structures in the United States at midcentury discriminated in a variety of ways: country clubs that served as networking sites for business executives did not allow Jews, blacks, or women to join; church-run schools that taught strong moral values did not permit children of other denominations to enroll; charitable organizations provided services for only certain groups of people and tried to impose intrusive rules of behavior on their clients. The exclusiveness of these communities conflicted with the principle of equal rights, and the state increasingly took the side of those excluded against these communal organizations.

By the end of his second term, Bush II had issued more than 1,100 constitutional challenges to provisions of law. Further, he employed them in an unprecedented way: to effectively curtail the power of the legislative branch by threatening (via the challenge) to not enforce a law passed by Congress. In effect, Bush claimed to accomplish what the Supreme Court has deemed unconstitutional—a line item veto.

Demonstrating the Obama administration’s awareness of both the lawlessness of its actions and the fact that they were certain to undermine legislative efforts to reform immigration law in a manner consistent with the Constitution, one DHS memorandum observed: Even many who have supported a legislated legalization program may question the legitimacy of trying to accomplish the same end via administrative action, particularly after five years where the two parties have treated this as a matter to be decided in Congress.3

The danger of an administrative return to an extralegal regime becomes particularly concrete when one recognizes the potential for evasion. Administrative law evades not only the law but also its institutions, processes, and rights. The central evasion is the end run around acts of Congress and the judgments of the courts by substituting executive edicts. This suggests that there can be an alternative system of law, which is not quite law, but that nonetheless can be enforced against the public. As if this were not enough, the evasion also gets around the Constitution’s institutions and processes. For example, when the executive makes regulations, it claims to escape the constitutional requirements for the election of lawmakers, for bicameralism, for deliberation, for publication of legislative journals, and for a veto. Similarly, when the executive adjudicates disputes, it claims to sidestep most of the requirements about judicial independence, due process, grand juries, petit juries, and judicial warrants and orders. The judicial evasion is particularly troubling when one realizes that it escapes almost all of the procedural rights guaranteed by the Constitution. Recognizing at least the due process problem, courts and commentators sometimes suggest that administrative adjudication is subject to a lesser, administrative version of due process. It remains unclear, however, how a fraction of a right can substitute for the whole, or how the due process of administrative power in an administrative tribunal can substitute for the due process of law in a court. This is like a substitution of water for whisky, and the fact that both are liquid does not hide the evasion.

This breadth of constitutional law in barring extralegal legislation is revealing about more than the past. The reader will have to wait patiently until chapter 7 for details of the current regime of extralegal lawmaking, but the significance of the history can already be anticipated. In an era of administrative legislation, it often is assumed that when the U.S. Constitution grants legislative power to Congress, it does not bar the executive from issuing binding rules, making interpretations, or setting taxes—as long as the executive has legislative authorization or at least acquiescence. The history of constitutional law, however, reveals that constitutions developed to bar all extralegal lawmaking—the point being to confine government to ruling through the law. Thus, administrative legislation—whether by proclamation, rulemaking, interpretation, or taxation—is not a novel form of lawmaking, and it cannot, on account of its alleged novelty, escape constitutional restrictions. On the contrary, it is a return to the extralegal legislation that constitutions were established to prohibit.

This system is called the " system of checks and balances," because each department of the government is supposed to be a check upon each of the others. To persons who do not know much about the Constitution, it is doubtless comforting to feel that they live under a government of "checks and balances." Checks and balances suggest scales, and scales suggest justice. But this comfortable feeling does not last long when one learns whence came this system, how it originated and what it means. It did not come from America. It came from England. The king of England used to be an absolute monarch. His will was the only law. The rich, titled gentlemen of his day did not always like his laws. They yearned to place a check upon him. They knew of no way to place a check upon him except by taking a hand in the making of laws. So, to put a brake upon the king, they established a house of lords, composed of some of their own number. They could not make the king enact any law they wanted, but they could 58 OUR DISHONEST CONSTITUTION prevent him from enacting any law they did not want. That helped some. It helped the aristocratic persons so much that the common people took notice. They, too, had grievances. The king and the lords sometimes passed laws that the common people did not want. So the common people decided to put a check upon both the king and the lords by establishing a house of commons. Thereafter no law could be enacted without the consent of the commons. Thus do we see how naturally this two-headed legislative body came into existence, neither of which could do anything without the consent, not only of the other, but of the head of the State. Nor was it inconsistent upon the part of Mr. Madison and other gentlemen who were opposed to majority rule, to transplant this system to America.

In sum, part I has shown that administrative law revives prerogative legislation, together with the prerogative of suspending and dispensing with law—thus restoring an extralegal regime of making and unmaking law. And lest it be thought that this is improbable, it should be recalled that some leading advocates of administrative law candidly admitted that their project was to return to prerogative power. John Dickinson, for example, observed that “the question of whether or not the king can issue ordinances parallels our modern question as to whether or not an executive body or officer can establish regulations; and the arguments used pro and con have followed much the same lines.”25 Put more theoretically, administrative lawmaking is not a power exercised through law, but a power outside it. Indeed, as will become more fully apparent in part III, it is a power above the law. But even when considered simply as a power outside the law, this extralegal regime revives what once was considered absolute power. Administrative law thus returns to the very sort of power that constitutions developed in order to prohibit. The prerogative to issue law-like commands was the primary point of contention in the English constitutional struggles of the seventeenth century. In response, the English developed a constitution and Americans enacted a constitution that placed all legislative power in the legislature. It therefore is mistaken to assume that American administrative law is a novel mode of governance, which could not have been anticipated or barred by the U.S. Constitution. On the contrary, administrative power revives extralegal rulemaking, interpretation, dispensing, and suspending, and thus almost the entire regime of extralegal lawmaking once associated with absolute prerogative power. It thereby restores what constitutions barred when they located legislative power in their legislatures.

the limits amplified the corrosive effects of ambition on the legislators, who focused from day one on how best to use their limited time as a springboard to their next post. That produced incentives to go for a big, short-term splash and leave the long-term mess to the next wave of their successors.

The politics of the 1970s were the second factor in this social shift. In his efforts to confront the Nasserite and socialist forces in Egypt, President Anwar Sadat unleashed Egypt's Islamic forces. He released thousands of the Muslim Brotherhood's leaders and members from jail (after years of imprisonment and prosecution under Nasser), and allowed the Brotherhood's old newspaper the Call (Al-Dawaa) to be reissued. He tried to assume the mantle of Islam by calling himself ‘the guardian of the faith’; emphasized that his first name was ‘Mohamed’ not ‘Anwar’; promoted religious schools; authorized a major increase in the budget of Al-Azhar and an expansion of its parallel educational system; opened the door for leading religious scholars and commentators to dominate the state-controlled media; introduced apostasy laws in Egypt after years of a highly liberal intellectual atmosphere; declared sharia law (Islamic jurisprudence) as the principal source for the Egyptian constitution (after decades during which religion was generally marginal to legislation with the exception of personal status laws); and declared himself the leader of ‘an Islamic pious country’.

By the same token, the executive cannot exercise legislative power, even if it has legislative authorization, for when it acts alone, it is a sort of Rump—certainly as much a Rump as the House of Commons once was. Although it would be bad enough for the two houses of Congress to exercise legislative power alone, it is worse for the president or his subordinates to do so, for he constitutionally enjoys only a negative on legislation. Put another way, if Congress cannot delegate legislative power to the two congressional bodies that ordinarily adopt legislation, how can Congress delegate this power to the body that ordinarily has only a veto on legislation? Such, however, is the current reality. The result is a strange reversal of roles. Administrative lawmaking belongs to the branch of government that constitutionally enjoys only a veto. In contrast, the veto on such lawmaking now requires full, constitutionally authorized legislation adopted by both houses of Congress and the president. Thus, whereas the adoption of legislation once arose from the branch designed to be representative and cautious, it now often comes from the branch designed for effective force. And whereas the veto arose from the forceful part of government, it now in many instances must come from a combination of all branches. Unsurprisingly, this reverses

It may be thought that administrative legislation at least comes with virtual representation. Although the administrative lawmakers themselves are unelected, they are appointed by presidential authority, and they act under congressional authorization or acquiescence. It therefore could be imagined that they are virtually, even if not actually, acting as representatives of the people. In fact, however, most administrators are not even chosen directly by the president. Although heads of agencies and a few others at the top of each agency are political appointees, selected by the president or his staff, almost all other administrators are hired by existing administrators. Thus, almost all of those who make law through administrative interpretations were never even picked by elected politicians. Far from being elected by the people, let alone elected politicians, they are appointed by other administrators. Their authority thus is not even virtually representative, but is merely that of a self-perpetuating bureaucratic class. Accordingly, the suggestion that their lawmaking comes with virtual representation is illusory. Virtual representation, moreover, is not a very convincing theory, for it traditionally was an excuse for denying representation to colonists and then to women. For example, although women could not elect representatives and senators, they were said to be virtually represented through their husbands or fathers.10 Nowadays, the same sort of theory (whether put in terms of “virtual,” “delegated,” or “derivative” representation) remains an excuse for refusing representation—this time for refusing it to the entire nation. Nor is this a coincidence. As will soon be seen, it was when Americans acquired equal voting rights that much legislation was shifted outside the elected legislature. The virtual representation excuse therefore should be understood in the same way in the past, as a brazen justification for denying representation. Administrative agencies or officers thus are not representative lawmaking bodies, let alone the Constitution’s representative lawmaking body. Perhaps it will be suggested that it is sufficient for administrative power to be mere state coercion. But no one, neither an individual nor a government, has any natural superiority or power over anyone else. Therefore, if a law is not to be mere coercion, it must be made by the people or at least by their representative legislature, and obviously administrative law is not made by either.

Every thing in the law of Moses, superadded to the moral law of nature, is positive or voluntary; and, therefore, changeable, according to circumstances and the will of the supreme legislator; and even while they continued, they were only applicable to the cases, place, and circumstances, for which they were intended and enacted. Their example may be further applied, but their authority cannot.

If the assumptions underlying the legislative state of the parliamentary-democratic variety are no longer tenable, then closing one's eyes to the concrete constitutional situation and clinging to an absolute, 'value-neutral,' functionalist and formal concept of law, in order to save the system of legality, is not far off. The 'law,' then, is only the present decision of the momentary parliamentary majority.

While the word “republic” derives etymologically from the Latin “res publica”—which literally means “the people’s thing,” what a republic or a “republican form of government” is today remains debatable; but what it is not is clear: No matter its political composition, a government that does not adhere to the rule of law, is ruled by a president who dictates, courts that legislate, and a legislature that is elected by a minority, led by the few, and administered by members who fail to embody the will of the people, represent party caucuses and factious special interests, overlook executive overreach, transfer legislative powers, and maintain monarchic lengths of time in office—and all of this to the detriment of justice, the Union, and the Constitution—is not a republic or republican form of government but something else.

Congress, representing the voice of the people, should use every tool available to prevent the president from subverting the rule of law. When the president usurps the legislative power and defies the limits of his authority, it becomes all the more imperative for Congress to act. And Congress should use those powers given to it by the Constitution to counter a lawless executive branch—or it will lose its authority. If

The original Constitution is a dead letter, having suffered decades of legislative, executive and judicial usurpation. The natural- and common law traditions, once loadstars for lawmakers, have been buried under the rubble of legislation and statute. However much one shovels the muck of lawmaking aside, natural justice and the Founders' original intent remain buried too deep to exhume.

Humans have natural rights in the state of nature but they do not have civil rights. Civil rights are derived from membership in a society. The Republicans who controlled both houses of Congress after the Civil War knew this. They also knew that, before conferring civil rights, they had to once and for all abolish slavery. The Thirteenth Amendment ending slavery was passed by the Senate on April 8, 1864, and by the House on January 31, 1865. Republican support for the amendment: 100 percent. Democratic support: 23 percent. Even after the Civil War, only a tiny percentage of Democrats were willing to sign up to permanently end slavery. Most Democrats wanted it to continue. In the following year, on June 13, 1866, the Republican Congress passed the Fourteenth Amendment overturning the Dred Scott decision and granting full citizenship and equal rights under the law to blacks. This amendment prohibited states from abridging the “privileges and immunities” of all citizens, from depriving them of “due process of law” or denying them “equal protection of the law.” The Fourteenth Amendment passed the House and Senate with exclusive Republican support. Not a single Democrat either in the House or the Senate voted for it. Two years later, in 1868, Congress with the support of newly-elected Republican president Ulysses Grant passed the Fifteenth Amendment granting suffrage to blacks. The right to vote, it said, cannot be “denied or abridged by the United States or any state on account of race, color or previous condition of servitude.” In the Senate, the Fifteenth Amendment passed by a vote of 39 to 13. Every one of the 39 “yes” votes came from Republicans. (Some Republicans like Charles Sumner abstained because they wanted the measure to go even further than it did.) All the 13 “no” votes came from Democrats. In the House, every “yes” vote came from a Republican and every Democrat voted “no.” It is surely a matter of the greatest significance that the constitutional provisions that made possible the Civil Rights Act, the Voting Rights Act, and the Fair Housing Bill only entered the Constitution thanks to the Republican Party. Beyond this, the GOP put forward a series of Civil Rights laws to further reinforce black people’s rights to freedom, equality, and social justice. When Republicans passed the Civil Rights Act of 1866—guaranteeing to blacks the rights to make contracts and to have the criminal laws apply equally to whites and blacks—the Democrats struck back. They didn’t have the votes in Congress, but they had a powerful ally in President Andrew Johnson. Johnson vetoed the legislation. Now this may seem like an odd act for Lincoln’s vice president, but it actually wasn’t. Many people don’t realize that Johnson wasn’t a Republican; he was a Democrat. Historian Kenneth Stampp calls him “the last Jacksonian.”8 Lincoln put him on the ticket because he was a pro-union Democrat and Lincoln was looking for ways to win the votes of Democrats opposed to secession. Johnson, however, was both a southern partisan and a Democratic partisan. Once the Civil War ended, he attempted to lead weak-kneed Republicans into a new Democratic coalition based on racism and white privilege. Johnson championed the Democratic mantra of white supremacy, declaring, “This is a country for white men and, by God, as long as I am president, it shall be a government of white men.” In his 1867 annual message to Congress, Johnson declared that blacks possess “less capacity for government than any other race of people. No independent government of any form has ever been successful in their hands. On the contrary, wherever they have been left to their own devices they have shown a consistent tendency to relapse into barbarism.”9 These are perhaps the most racist words uttered by an American president, and no surprise, they were uttered by a Democrat.

The Bank, said the message, was unconstitutional because Jackson said it was. It dismissed Chief Justice John Marshall’s decision in McCulloch v. Maryland by insisting that the president was the equal and possibly the superior of the judiciary in weighing the constitutionality of legislation.

The inevitable result is that judges make decisions that are in line with their politics, their prejudices, their cultural alignments, their value systems, without reference to anything that claims to be stable or in any sense culture-transcendent. The best of them are very clever people who can always use the Constitution to support their biases. They are, in short, a reflection of the philosophical pluralism reigning in the land; we should not expect otherwise. Second, for various complex reasons, this is increasingly a time when judges rule. The people rule less and less, even through their duly elected legislators; unelected judges rule.

Once we have a constitution and relevant legislative institutions in place, working out details may then be facilitated, although it need not be very democratic.

do not remember having ever fainted away, or having even been moved to tears of joyful pride, at sight of any legislative body. I have borne the House of Commons like a man, and have yielded to no weakness, but slumber, in the House of Lords. I have seen elections for borough and county, and have never been impelled (no matter which party won) to damage my hat by throwing it up into the air in triumph, or to crack my voice by shouting forth any reference to our Glorious Constitution, to the noble purity of our independent voters, or, the unimpeachable integrity of our independent members.

I will endorse the Supreme Court's unfairly maligned opinion in Employment Div. v. Smith, and I will argue that there is no constitutional right to harm others simply because the conduct is religiously motivated. The Court's First Amendment doctrine is wise. Legislatures can exempt the religious from some laws, but only where legislators and prosecutors ask the hard questions and where the religious entities have borne the burden of proving that exempting them renders significant harm.

I believe the Federal government has grown out of control, threatening the Rights, Liberties, and Property of the People. This is being done at the Executive, Legislative, and Judicial level. This is in direct opposition to the Constitution and the Founding Fathers vision for the Federal government. Because I believe this, today I exercised my right as a Free Citizen, and did not visit the White House. This was not about politics or party, as in my opinion both parties are responsible for the situation we are in as a country. This was about a choice I had to make as an INDIVIDUAL. This is the only public statement I will be making on this topic. TT

In the summer of 2014, then-Senate Majority Leader Harry Reid (D-NV), Senator Chuck Schumer (D-NY), and other members of the Democratic brain trust introduced a measure to amend the First Amendment as follows: Authorizes Congress and the states to regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections. Grants Congress and the states the power to implement and enforce this amendment by appropriate legislation, and to distinguish between natural persons and corporations or other artificial entities created by law, including by prohibiting such entities from spending money to influence elections. Declares that nothing in this amendment shall be construed to grant Congress or the states the power to abridge the freedom of the press.8 So, let me get this straight: The amendment would allow politicians in Washington, D.C., and state capitals to regulate speech that directly relates to the business of government and their jobs—the type of speech that should be most protected! This con job was nothing but a power grab to control how citizens—including corporations and conservative interest groups—can express their political views, a grab to help keep corrupt incumbents in office. After all, it’s tough to be voted out of office when you help control what your opponents and constituents can say about you. And it’s awfully hard to express one’s individual right to a fair vote when the outcome of an election is effectively rigged. Note the special carveout for the media. Reid and company were trying to make it so corporations and conservative interest groups would be muzzled, but unions and the Democrats’ tame press would be free to spew any kind of biased crap they like. If they can’t win elections fair and square, Democrats are more than willing to silence huge portions of the citizenry to stay in power. Had the amendment somehow passed, it would have been the first time one of the Constitution’s core individual rights would have been infringed through the amendment process itself.9 The attempt itself is disgraceful.

Also, by having autonomous conventions approve the Constitution, the new republic would derive its legitimacy not from the statehouses but directly from the citizenry, enabling federal law to supersede state legislation. With

In law, the moment of temptation is the moment of choice, when a judge realizes that in the case before him his strongly held view of justice, his political and moral imperative, is not embodied in a statute or in any provision of the Constitution. He must then choose between his version of justice and abiding by the American form of government. Yet the desire to do justice, whose nature seems to him obvious, is compelling, while the concept of constitutional process is abstract, rather arid, and the abstinence it counsels unsatisfying. To give in to temptation, this one time, solves an urgent human problem, and a faint crack appears in the American foundation. A judge has begun to rule where a legislator should.

...More to the point, do their representatives and senators in Washington deliberately prioritize the stated requirement of the Pentagon and CIA above the most basic need of their constituents? Yes, if those legislators have developed the unfortunate tendency to go into a trance every time someone utter the magic phrase "national security." In truth, it happen often enough, and many times of the course of my career I saw Congress respond to that occult incantation like iron filing drawn to a magnet. p 64

Board of Adjustment 127–8, 138 Board of Appeal 141 Constitution 75, 78 Supreme Court 138 of New Jersey 102 see also legislation, local government use see land-use, change of use Uthwatt Report 20–22 utilité publique, concept of 45 Vaïsse 47 Van Gunsteren, H.R. 72 variances see zoning Vénissieux (Rhône) Rue du Château 97–8 Vernaison (Rhône) 106, 137 Le Soleil Levant 93, 106–7, 124, 126, 137, 142, 146 Le Pellet 105, 142, 148 Transports Griset 103–4, 105, 126, 135, 142, 148 Vichy government see France Vienne (département) 136 Village of Euclid v. Ambler Realty 76, 97 Villemomble (Seine-St-Denis) 49 Villeurbanne (Rhône) 49 Wakeford, R. 79, 128–9, 131,

2010 is not just any election year: it is crucial given that this class of governors will be in charge as their states draw Congressional and state legislative districts as part of the reapportionment process after the next census. And given historical trends in midterm elections and the lopsided majority Democrats enjoy in Congress, the possibility that Republicans could make gains in House races next year could give the party a psychological boost at the halfway point of Mr. Obama’s term. Jankowski immediately recognized the opportunity. As provided in the Constitution, every state redraws all of its district lines every ten years, that is, after the census. That means elections in “zero years” matter more than others. Jankowski realized it would be possible to target states where the legislature is in charge of redistricting, flip as many chambers as possible, take control of the process, and redraw the lines.

McCulloch would have put him on notice that "it is a constitution we are expounding," one that was "intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs," and which did not "deprive the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances." It had become clear by 1868, if not before then, that the Constitution was not chained to the original expectations as to what powers the legislature could exercise. This recognition, in turn, suggests a more durable basis for a doctrine of substantive due process than simply labeling everything one finds distasteful or wrongheaded as "arbitrary." The eighteenth-century understanding of due process may have been primarily, if not exclusively, procedural, but it had evolved in a legal system where the legislature exercised unfettered power over substantive law. The new Constitution's Supremacy Clause, however, subordinated legislative power to the Constitution itself. As I suggested in my opening essay, in a republic, "due process," when it comes to the wisdom of government policy, is ordinarily provided by the political process, but it is likely the case that we do not regard every issue as properly resolved by majoritarian institutions. As

CIVIL DISOBEDIENCE: YOU IN? Peter and the other apostles replied: “We must obey God rather than human beings!” Acts 5:29 The English historian Lord Acton wrote, “Power tends to corrupt and absolute power corrupts absolutely. Great men are almost always bad men, even when they exercise influence and not authority: still more when you superadd the tendency or the certainty of corruption by authority.” People can’t seem to help themselves. When they get a taste of power, they often abuse it and lord it over everyone else. That includes legislators, chief executives, and even judges (and justices of the Supreme Court). Laws, made under the guise of authority, are sometimes bad laws that oppress the innocent. If a law is unjust and opposed to God’s laws, we need to oppose it. Throughout our history—most famously with the abolitionist movement—Americans have done just that. Like the apostles, we must obey God’s eternal moral law rather than the human-made law of the moment. Our Founding Fathers were suspicious of government power—especially the power of the federal government—because they too understood that power corrupts. We should always view government power suspiciously and reject it when it oversteps its bounds. SWEET FREEDOM IN Action Today, pledge to support candidates for office who actually believe in limited government as set forth in our Constitution and who give paramountcy to God’s eternal law.

The president claimed that using federal interventions to ensure black civil rights “violated ‘all our experience as a people’ and constituted a ‘stride towards centralization, and the concentration of all legislative power in the national Government.’ ” Johnson also made claims that interceding for black people actually discriminated against white people.

Through much of her history she was ruled by an extreme form of autocracy, under which the tsar not only enjoyed unlimited legislative, judiciary, and executive powers but literally owned the country, in that he could, at will, exploit its human and material resources—the type of regime that the German sociologist Max Weber labeled “patrimonial.” The administration of the vast empire was entrusted to a bureaucracy that, along with the armed forces and police, maintained order without being accountable to the people. Until 1905, when civil disorders compelled the tsar to grant his subjects a constitution and civil rights, Russians could be arrested and exiled without trial for merely contemplating changes in the status quo.