Government increasingly mocks Constitution

As I prepared for my first constitutional law seminar of the fall semester at John Marshall Law School in Atlanta last week, I was reminded again of the majesty of the document which forms the basis for my teaching role.  I have always considered the Constitution of the United States to be the most magnificent document ever writ by the hand of Man. It is profound in its clarity of purpose and its deep understanding of human nature.  It outshines by orders of magnitude other, more “modern” government blueprints; such as the multi-hundred page, detail-burdened European Union version.

It is the Constitution alone to which top government officials, including the President and members of Congress, take an oath upon assuming office.  They swear to protect and defend the Constitution; not their opinions or their policies; not what their constituents might want from government; and certainly not what office holders themselves seek to have government do for themselves or their constituents.  The constitutional framework our nation adopted after months of heated debate in 1788 was intended to protect the liberty of the citizenry, but equally to restrain and keep the government itself within bounds.

In 21st-Century parlance, individual liberty was to be the Constitution’s “default mode.” No longer.

Through a toxic combination of ignorance and deliberate indifference to the purposes and history of the Constitution, it has in many respects been so decimated as to provide currently only fitful protection for the liberty we as Americans were supposed to enjoy.  This once-hallowed document now affords virtually no checks on the scope, power and cost of the federal government.  Events of recent days and months have illustrated quite graphically this sad state of constitutional affairs.

The debate over construction of a Muslim community center in lower Manhattan a few blocks from the site of the former World Trade Center, confirms for us that the First Amendment’s oft-quoted guarantee that in America government cannot use its power to limit religious expression or practice, is honored as much in the breach as in the practice. 

“Sensitivity” to the views of those who do not want a Muslim center to be built so close to “Ground Zero” now appears to trump the heretofore clear directive of the First Amendment — at least in the eyes of many who claim to understand and support the Constitution, including the former Speaker of the U.S. House of Representatives, the former Republican vice presidential nominee, and many current members of Congress.

“Fear” is another oft-played constitutional trump card.  Ever since the World Trade Center was toppled by terrorist-piloted airliners on September 11, 2001, fear of another terrorist incident has time and again trumped the Fourth Amendment’s clear mandate against baseless government snooping.  Thanks to the constitutional contortions launched by former President George W. Bush, and largely continued by the current administration, the government claims the right to listen at will to our phone and internet communications, and to monitor our driving patterns, our travel activities, and our spending habits. 

“Public Safety” regularly is used by governments to make a mockery of the Second Amendment’s guarantee of the individual right to “keep and bear arms.”  

“National security” has become the Holy Grail of government action to justify all manner of intrusion into the lives of the citizenry.  No less a constitutional scholar than the former Attorney General of the United States, Alberto Gonzalez, opined preposterously in 2007 that the “Great Writ” of habeas corpus did not enjoy constitutional gravitas in the face of terrorist challenges to our security.

The “health-care crisis” has become the justification for government to drive the final stake through the heart of the Constitution’s “commerce clause”; crafted oh, so long ago as a simple guarantee of freedom of interstate commerce.

Were James Madison alive today, he would weep for America; and his tears would not be tears of joy.

90 comments Add your comment

Tom K

August 23rd, 2010
6:12 am

Both parties have done a pretty good job of raping the Constitution for their own ends. When it’s something they support, it doesn’t matter what the Constitution says. When it’s something they oppose, they trot it out like it means something to them.

Constitutionality can’t be a sometimes thing. It must be something that all laws are judged by and those who are elected should try to balance the wishes of the people with what is permitted by that sacred document. They don’t, and they haven’t for quite some time.

John

August 23rd, 2010
7:20 am

Rape is a strong word. It does not fit here.

If the Constitution was thrown away each time someone wanted to avoid it then it would no longer exist, and this discussion would never happen.

What has happened is a gradual chipping away at the restrictions and protections that exist in the Constitution.

Fear and public safety arguments have been the worst culprits of Constitutional attacks. Warrantless wiretapping of citizens occurred out of fear of terrorist attacks. Public safety over-rode Constitutional guarantees to give us the patriot act. Advocates of the act and of the government listening into citizen’s phone calls argue that the only people who should be worried are those with something to hide. Conveniently forgotten is the question of who decides when someone has something to hide — the government, democrats, republicans, a bureaucrat?

Courts have thankfully pushed back against gun bans. The McDonald case from Chicago has ended all-out bans of carrying guns. Nevertheless, it is something that will likely need to be defended again in the future.

I do diverge on the question of healthcare. The Commerce Clause has become demonized, but that does not mean it has no legitimate uses. Regulating health insurers who enjoy immunity from anti-monopoly provisions enforced against other industries is, I believe, well within the ambit of the commerce clause’s power.

Many will, at this point, argue that penalizing those who do not get healthcare coverage is beyond the power of the Commerce Clause. They are right. However, it is not necessarily beyond the taxation power of Congress.

The interesting question of the healthcare bill is not whether it is allowable under the commerce clause. The interesting question is whether Congress’ taxation penalties on those who do not get health insurance have pushed beyond the powers of Congress’ power to tax. There is much less jurisprudence on the scope of Congress’ power to tax, and it will be interesting to see how the Supreme Court outlines that power.

Finally, it is good to see Mr. Barr defend freedom of religion. It is sad to see so many who claim to be constitutionalists ignore one of the fundamental constitutional protections — freedom of religion — in the New York mosque debate. After all, our nation was founded in large part by those persecuted for their religious views.

Jim W

August 23rd, 2010
7:35 am

Bob Barr is an unwavering voice in the fight to keep these issues visible. He is not a Constitutional purist, he is a pure Constitutionalists. Our freedoms under the Constitution will erode without the public working to keep them intact. We all need to be concerned about all of the facets of this erosion whether it is the first amendment, the second amendment or the fourteenth. Mr. Barr, thank you for your ongoing, intelligent, dissertations on the subject.

Drawing Black Lines

August 23rd, 2010
8:12 am

Enter your comments here

Eric

August 23rd, 2010
8:31 am

John: The problem with health care as a “tax” is that premiums are going toward a private health insurance firm rather than to the national treasury. As a free citizen, if I’m not in agreement with various aspects of the available health insurance plans, I should have the right not to participate without penalty. I gladly pay my taxes to Uncle Sam, but not to greedy insurance companies.

Chill Will

August 23rd, 2010
8:36 am

Just waiting on the revolution to happen, tho it probably wont happen in my life time. Yet I believe if we allow the incremental destruction of our freedoms, we the people will have no choice.

barking frog

August 23rd, 2010
8:37 am

“Congress shall make no laws” is the ruling clause in the amendments
and is the government limiting aspect of our Constitution. The
amendments are delineations of the rights that the writers thought
would be clear in the original and not “add ons”. They should be
seen as clarifiers the interpreters had to have forced upon them.

john k

August 23rd, 2010
8:38 am

Bob, what about imposing one set of rules for vendors at a carnival, and advocating letting another skirt all those rules because they’re “cute?”

jt

August 23rd, 2010
8:50 am

“In 21st-Century parlance, individual liberty was to be the Constitution’s “default mode.”

The constitution is dead.

For those who love liberty, it is time to “default” to the Articles of Federation and the Declaration of Independence. Those are the only articles that matter to me.

Bubba

August 23rd, 2010
9:14 am

It started with Bush? Please. Madison would have been weeping a long time ago; perhaps when Lincoln had a sitting congressman arrested, imprisoned and dumped behind Confederate lines for opposing the Civil War. Or when FDR had American citizens sent to internment camps because of their Japanese heritage. Heck, even Jefferson admitted he exceeded the powers of the presidency in making the Louisiana Purchase. His rationale? It was too good of a deal to pass up.

God Loving Patriot

August 23rd, 2010
9:14 am

What the constitutionalists don’t speak of here is that freedom of religion for ALL religions! You speak of the patriots rising up against a mosque being built on the grounds where 3000 innocent Americans were killed by muslim terrorists, yet you fail to mention that two weeks before, the so-called president of this country canceled National Prayer Day in America, calling it an affront to other religions. Uh, did he by chance mean muslim religion? If you want to call it an affront, why don’t you liberals just give away our country to the muslims and live under Sharia law? Then see how much freedom of anything you have. As the great Ronald Reagon once said, “If we ever forget that we are one nation under God, then we will be one nation gone under.”

Intown

August 23rd, 2010
9:16 am

John Marshall Law . . . is that accredited?

Barack

August 23rd, 2010
9:17 am

What’s the big deal about the constitution…we can navigate around it if we have to. More importantly…can anyone help me get rid of that nasty slice off the tee?

Ole Guy

August 23rd, 2010
9:19 am

John, the problem with reality is the very fact that reality, in its unvarnished presence is, quite often, a not very palatible thing to behold. Tommy K is quite accurate in his observation that our leadership has raped the Constitution, very much as the elements of the evening would procure companionship of the opposite persuasion for the express purpose of enabling a specific agenda, only to discard that procured upon realizing fullfillment. Sounds pretty nasty, does it not? Yet this is precisely what our leadership has done. What else would you call the deprivation of privacy wraped in a flag-draped cloak righteously dubbed The Patriot Act?

God Loving Patriot

August 23rd, 2010
9:19 am

As far as the Constitution and the Obamacare proposition, the Constitution states that the Federal government may NOT force Americans to purchase ANYTHING! Nuff said.

Beth

August 23rd, 2010
9:20 am

These are all great points, but, this great nation was founded on “IN GOD WE TRUST” and the more the government keeps trying to take God out of this country the worse the conditions will get. It is a disgrace that the government wants to take “One Nation Under God” out of our pledge but will concider allowing the construction of a mosque just minutes away from the site where so many Americans lost their lives because of Terrorists!

P F

August 23rd, 2010
9:23 am

If you really want an idea of what seems to be happening slowly, everyone should read two books. ‘1984′ & ‘Brave New World’. Both (and in particular BNW) describe how an “utopian” society is created by sacrificing individual liberty.

Beth

August 23rd, 2010
9:27 am

I agree with God Loving Patriot 100%. The government doesn’t mind discriminating against religions that actually believe in God!

Mark

August 23rd, 2010
9:29 am

To the patriot: You would do well to engage your brain before you let your mouth speak. You’re wrong on both counts. President Obama has never cancelled the National Day of Prayer (here’s this year’s proclamation: http://nationaldayofprayer.org/news/2010-presidential-proclamation/) and the Constitution makes no such statement about buying things (you might read this: http://communities.washingtontimes.com/neighborhood/stimulus/2010/aug/11/whats-constitution-good/). Ignorance must not be bliss, because yours seems to be making you very unhappy.

G'Vegas Dawg

August 23rd, 2010
9:32 am

Intown – are you serious??

Sick&Tired

August 23rd, 2010
9:38 am

What’s more important to you the Constitution or your religious (Bible, Koran, etc..)? The problem with the world today is MAN/WOMAN; with the need to have power and dominate by greed.

People are using the Constitution for their own views and political gains. However, Revelation sums it all up.

Pamela McGregor

August 23rd, 2010
9:42 am

Listened to Morning Joe this am. The commentators were right. What a sad day yesterday. The righteous indignation of 9/11 should also be in OK where Tim, a christian, murdered innocent babies. Please build a center there, too – any religous group – and the victims will be forever victimized and stabbed in the heart again…for this too is holy ground…..

ViewFromMidtown

August 23rd, 2010
9:44 am

This frog has been boiling for a long time Bob. The fourth amendment was being eviscerated long before 9/11 by “law & order” conservatives and the endless and useless “war on drugs” with goodies like no-knock warrants and asset forfeiture laws. More recently, the activist Roberts Court has been working to curtail the enumeration of rights to criminal suspects (Miranda warning) helping to further tip the scales to the government. Politicians rarely mention these items due to fear of being labeled “soft on crime” and there is no major lobbying group for the Fourth Amendment unlike the First and Second.

The ginned-up lower-Manhattan Islamic center brouhaha is a great example of why the founders added the bill of rights as they recognized the dangers of the tyranny of the majority. Unfortunately, many on the right have been openly attacking the key mechanisms that protect unpopular minorities with their tirades against “judicial tyranny” in the court system and insistence that any subject, even fundamental rights, should be up for popular vote. This all plays very well with a certain bloc of voters who are nervous and uncertain about the future which may include losing their majority and privileged statuses.

The irony is that the representative democracy which is a key defining feature of this country has given birth to the politics that threatens to undermine and cripple it.

he democracy will cease to exist when you take away from from those who are willing to work and give to those who would not

August 23rd, 2010
9:45 am

Charles Krauthammer said recently, “decline is a choice.” The Democrats are offering it to the American people, and a certain proportion of them seem minded to accept. Enough to make a decline of America inevitable?

And as John Adams said in a letter to John Taylor in 1814 “Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There never was a democracy yet that did not commit suicide.”

Sick&Tired

August 23rd, 2010
9:49 am

If you people truly care about your constitutional rights, you should read the article about all the judges in this state who have resigned due to inappropriate conduct. These people are expected to carry out unbiased practices, but are amongst the immoral. They are the first line of defense to our Constitutional Rights, laws and best practices. If you can’t trust a Judge, your constitutional rights are null and void.

Bubba

August 23rd, 2010
9:50 am

In the interest of accuracy, Timothy McVeigh was not a Christian, although he grew up in the Catholic Church. But as an adult, he was an agnostic.

John

August 23rd, 2010
9:56 am

I believe in the Constitution.

The more I look at any party in power, the more it seems they don’t believe in the Constitution.

And the more it seems like the minority party does believe.

But then, the parties in power switch, and so do their Constitutional beliefs.

Amazing.

whocares

August 23rd, 2010
10:21 am

The Constitution is the foundation of our country, bottomline. If you don’t uphold or defend it. You are NOT an American! If you challenge it or try to change what it stands for then you are no better than these other countries that hate us for everything we stand for because the Constitution is what we stand for.

If not, then its the same thing if I say today I am not going to pay my taxes this year because I haven’t made as much money as last year, so I am just going to do it in a year or two. You can’t be a Fairweather American and only uphold the Constitution to how you see fit or it works for you. That is Republican, Democrat, etc.

Stephen White

August 23rd, 2010
10:22 am

The author of this article refers to the Constitution as “This once-hallowed document” as if it were a “sacred object” never to be disobeyed or changed in any way and to which citizens owe unwavering and unilateral homage. After citing what he considers to be a number of ways in which deviations from Constitutional fundamentalism have been allowed to survive without suppression, this author then offers the following hyperbolic observation that “Were James Madison alive today, he would weep for America; and his tears would not be tears of joy.” On the contrary, many think he would be delighted if not downright amused. Ditto for Thomas Jefferson, et. al.
Oddly, it was James Madison who is often referred to as the “Father of the Bill of Rights,” the first admission by the collective body of congress and the states that the original document was a “flawed and imperfect” document and needed to be amended from time to time. It is also odd that the power of judicial review grew out of this hallowed document. It is as if Jahweh, God, or Allah had granted the power to rewrite the Ten Commandments (and holy writings) to the people by allowing the people to select representatives who could vote on appointees to the sacred body that could change the meanings and interpretations of Holy Writ. How dare they do such a thing!
And conservatives and liberals alike believe that judicial power and law enforcement authority has been exercised in ways that are inconsistent with constitutional sanctity. If courts allow all of the things the author despises (because he is a Republican), they also render decisions repugnant to Democrats (See Gore v. Bush which some characterize in the famous phrase: “How the Supreme Court Stole the Election of 2000″). What the author seems to be saying is, we want to enshrine our version of constitutional interpretation and tolerance (however narrow) in an untouchable palace of honor and allow no deviations in practice or law from it. The world of strict constructionists is populated with people (like this author) who live in a judicial and administrative fantasy world where think-alike R-fundamentalists find comfort in each and every other’s arms, but it is a world that will not tolerate diversity. AND that is not the real world in which most U. S. citizens, whether they admit it or not, live.
I yearn for the day when the phrase “moderate Republican” will no longer be a term of disdain. Perhaps then a real discussion about the Constitution can take place.

Pedro

August 23rd, 2010
10:34 am

While I believe that the right to build the mosque exists, I feel that it is in poor taste and an inflammatory gesture to build it in its proposed location. If you poke me in the eye I will likely poke you back. To proceed with this construction effort is not in the best interest of healing, regardless of the right to do so.

Matt Wilson For Supreme Court

August 23rd, 2010
10:35 am

Bob Barr’s lamentations are entirely correct and reflect a failure of our Courts, particularly our Supreme Courts to “protect and defend” our constitutions, our civil rights and liberties, and to restrain the growth of government, and therefore the growth of taxes. This is precisely why I am running for the Supreme Court of Georgia. Please visit http://www.wilsonforsupremecourt.com to help protect our constitution, our rights and freedoms, and to limit government.

J.B. STONER

August 23rd, 2010
10:39 am

In DIXIE land, where I was born, early lord one frosty morn, LOOK AWAY,LOOK AWAY…..LOOK AWAY DIXIE LAND !!!!!!!!!!!!!!!1

Bob Barr

August 23rd, 2010
10:41 am

In response to a comment this morning regarding John Marshall Law School in Atlanta — yes, John Marshall is fully accredited by the ABA. It is an excellent law school with both day and evening programs.

Aquagirl

August 23rd, 2010
10:43 am

……..sez the ex-prosecutor from the Drug Wars.

Reality

August 23rd, 2010
10:44 am

All documents were written in a time in history. When the Consitution was written, in no way did they intend for individual citizens to literally vote for the President. However, we now do.

Also, I do not think that the writers of the Constitution imagined the complete lack of morals and ethics of big business. The Enrons, the pharmacy companys, etc. I had sugery three months ago and am getting double and triple billed by the hospital, the anethesititist, the surgeon, the ‘facility’, and so on. Their threat is that they will ruin my credit rating.

With no recourse to these unethical practices, new laws must be put in place to protect the people.

Too many people lost their retirement and savings to Enron. Sure, some ‘people were caught’ and are serving time in jail, but what good is that to Mr. and Ms. Smith that still must work at the age of 80 cause they lost their retirement? The laws must be changed.

Obama has done the right things for the people. Finance reform was needed. Health care reform was needed. People must be protected from those unethical people looking to take advantage of others.

GB

August 23rd, 2010
10:45 am

Is it a violation of the First Amendment for citizens, ranging from survivors of 9/11 victims, to journalists, to Congressmen, to suggest to the builders of the mosque that they not build it? Is it a violation for this suggestion to be emphatic? I certainly don’t see why.

This mosque is being built to make a point; it is a war cry; it is a victory cry. We attacked; we destroyed the WTC; we are winning the war against Christendom. This mosque is the proof of our strength and of the weakness of our enemies, and of their foolishness.

I can read the First Amendment. There is nothing in it that says Americans must be silent and raise no protest when the Moslems raise this war cry.

Reality

August 23rd, 2010
10:48 am

I would much prefer our Supreme Court and our President “protect and defend” the people of this Country rather than the Consititution! As any social studies expert would tell you, the Consitution is a living, breatheing document that should be changed (called amendments) to remain current.

Reality

August 23rd, 2010
10:59 am

@GB – I think that you are watching too much FOX news. Let’s look at facts…

1. It is not a mosque. It is a Muslum community center fashioned after the Jewish community center in NYC.

2. It is not on ground zero. It is blocks from there.

3. The point of this MCC (Muslum community center) is not as you wrote, but rather to reach out to the community – muslum and others – to share ideas and promote understanding and tolerance (this is something you obviously need).

It is the idiot right wingers that inflamed this to the ‘issue’ that it is today. They are stirring up intoleratence to religous freedom – something that is certainly a mainstay in the US (at least I thought it was).

Keep up the good fight!

August 23rd, 2010
11:25 am

Ummm.. Reality, you dont for a President, the electoral college does….otherwise Gore would have been President since he won the popular vote.

While I dont agree with Bob’s interpretation of what is or is not “constitutional” I do weep for those who would so easily throw it out when it is very clear….including the 14th amendment. Too often the demand is for expediency rather than rational thought.

Keep up the good fight!

August 23rd, 2010
11:29 am

If the same construction in NY had been a Shinto Temple, most people would never care. And if they built a church at Centenial Park, would anyone say that is an affront to those injured or killed when, in the name of Christians, afterall a Christian terrorist set off a bomb in the name of the bible to stop abortions.

Bubba

August 23rd, 2010
11:44 am

Reality, you are wrong — there is a mosque within the community center. It says so on their own web site.

Curious Observer

August 23rd, 2010
11:53 am

The Constitution has always been a document to be ignored in times of national emergencies. Lincoln suspended the right of habeas corpus during the Civil War. Roosevelt ignored it by imprisoning Japanese-American citizens after the Pearl Harbor attack. And Congress ignored it by passing the Patriot Act after the 9/11 attacks. The Constitution is whatever the people in power, with the concurrence of whatever majority sits on the Supreme Court, say it is. You are in deep water and clinging to a fragile reed if you rely on the Constitution to protect you.

OnPatroll

August 23rd, 2010
12:00 pm

John Marshall Law School in Atlanta

founded 1933
accredited 2009

nice

ppbkwriter

August 23rd, 2010
12:10 pm

Without getting into a debate about the right of Muslims to build a mosque near Ground Zero, how is it a violation of their First Amendment rights to ask them to erect it farther away from the World Trade Center site? Also, if, as some people have stated, it is not a mosque but only a community center that is being proposed, how does the First Amendment even come into play?

Reality

August 23rd, 2010
12:16 pm

@Bubba – I am not “wrong.” It is a MCC first, and a small site for prayer within it. It isn’t just a “Mosque.”

The people that first initiated this met with the Jewish Community Center in NYC to follow their lead as a community center. Of course, there must be a place for them to say prayers as their religon dictates.

If is not a “mosque” it is a community center. It isn’t on “ground zero” it is blocks away.

[...] for the Atlanta Journal Constitution, former Libertarian Presidential candidate Bob Barr recently lamented that the Constitution has [...]

Reality

August 23rd, 2010
12:25 pm

For those freaked out by this Muslum Community Center a few blocks from ground zero, how far away should it be to make you feel better? 10 blocks? 20 blocks?

And, why should they do this to just make you ‘feel better?’

I am not Muslum. I was born and raised here in GA as a Christian. However, I am a strong believer in freedoms – religous and otherwise.

Imagine the statement that the US makes to the world (including the Muslum one) if we do allow this community center to be built! We would be saying that we accept peaceful people of all religons and only reject the violent and fringe people.

Honestly, I fear those fringe people that are Christians as much as I fear those that are Muslums!

Reality

August 23rd, 2010
12:29 pm

@Keep up the Good Fight,

The popular vote has determined the president in all recent elections except one. And, you named that one. Bush was declared president by the Supreme Court. That was an exception.

In the other elections, the popular vote determined the winner. Yes, the electorial college went through the motions, but they followed the popular vote State by State. This is not what the writers of the Constitution had in mind.

Reality

August 23rd, 2010
12:35 pm

In the Federalist papers, in Jefferson vs. Hamilton, they argued about whom should be able to vote (whose vote really counts). Hamilton argued that only the most educated and affluent should vote for President while Jefferson said that only property owners should vote.

Later, the Constitution was again amended that declared that US Senators only should vote for the President.

Those people, in no way, imagined that some electorial college or most the popular vote would elect the President of the US.

jconservative

August 23rd, 2010
1:09 pm

Nice piece of writing Barr.

The debate on the Islamic cultural center and ground zero is just that, a debate. As long as government keeps its hands out of the debate no violation of the Constitution takes place.

But I do find it curious that the anti factions on the Islamic cultural center prefer to ignore the actual Islamic mosque 4 blocks from Ground Zero (Masjid Manhattan) and the other Islamic mosque 12 blocks from Ground Zero (Masjid al-Farah). Why are these two actual, already existing, mosques ignored but the cultural center is causing a furor?

Can anyone help?