The Constitution in Exile.
The Constitution in Exile, by Judge Andrew P. Napolitano, hardcover, 290 pages, $25.99, ISBN 1-5955-5030-5, Nashville, Tennessee, Nelson Current, 2006.
In the Introduction, Judge Andrew Napolitano discusses natural rights, Natural Law, and Positivism. He holds that natural rights are not derived from government, but rather, from God.
These basic freedoms (freedom of press, speech, religion, association, travel, etc.) cannot be withheld unless one is convicted of violating Natural Law by "procedural due process." Natural Law respects natural rights, which can only be withdrawn following a jury conviction, regardless of whether or not one shares the majority or minority viewpoint.
Positivism, on the other hand, is the opposite of Natural Law, and holds that laws are "grounded in the pursuit of goodness." Thus, the majority gets to define "goodness," and the minority is subject to losing natural rights.
According to the Judge, a Positivist believes government's goal is to provide the greatest benefit to the greatest number of people. Throughout, the book, he argues that the federal government was firmly rooted in Natural Law by the U. S. Constitution, but the passage of time has allowed Positivists to ignore this precious document and replace it with Positivist (collectivist) theory.
Napolitano reviews the early history of this country and the fierce battles between the Federalists and the anti-Federalists. At the center of this struggle were Thomas Jefferson (an ardent anti-Federalist) and the man who ascended to Chief Justice of the U.S. Supreme Court the day before Jefferson took the Presidential oath. That man was John Marshall, a passionate Federalist, and also Jefferson's first-cousin. Adherence to the U.S. Constitution must not be an inherited trait!
Although Chief Justice Marshall chiseled away at the Constitution's boundaries of the Federal Government, by 1992 this government even engaged in the business of regulating our toilets!
The Energy Policy and Conservation Act of 1992 establishes a maximum toilet flush volume of 1.6 gallons. Studies have demonstrated that such legislation actually wastes water by requiring multiple flushes, causing clogged toilets, and contributing to other problems. Now we know why toilets don't flush! My home was built in 1980, prior to the advent of government-regulated toilets. Sadly, one of the original reservoirs had a crack in it, and I was restricted to replacing it with the 1.6 gallon flusher. It doesn't work well, and frequently requires more than one flush, thus subverting the very purpose of its existence--water conservation.
A far greater concern than a poorly flushing toilet, however, is the reality that Congress has criminalized my freedom to choose the toilet capacity that best suits my needs. I find nothing in the U.S. Constitution that grants Congress this authority. Is this not criminal on the part of Congress?
The book's chapter "Dishonest Abe" recounts Lincoln's ruthless assault on the U.S. Constitution. Clement Laird Vallandigham was elected to U.S. Congress in 1858 from my home town of Dayton, Ohio. He happened to be an outspoken critic of the War Against the South, as well as the imposition of an income tax. He was arrested in May, 1863 for violating Lincoln's law, and was tried and convicted by a military tribunal. His conviction was not upheld by any federal court, but rather, by Lincoln himself.
Napolitano recounts the Louisiana legislature in 1869 granting a slaughterhouse monopoly to a group of 17 individuals in New Orleans, disenfranchising all the other butchers. How many Constitutional provisions did this legislation fracture? Not surprisingly, this matter found its way to the Supreme Court, where, very surprisingly, it was upheld! Certainly Positivism had taken hold, but by the 1930s the executive and legislative branches generated even greater assaults on the Constitution.
By invoking the Commerce Clause, the Roosevelt Administration did as it pleased. The Agricultural Adjustment Administration, the National Labor Relations Board, and the Social Security Act, represent just a few of this era's constitutional violations. Most alarming, though, was Roosevelt's brazen attempt to mold his own Supreme Court by simply expanding its number!
This book would not be complete without a detailed account of the post 9/11 unconstitutional measures. According to the Judge, "The PATRIOT Act even makes it a crime for that person to go into court and tell a federal judge what the government did to him or her."
In the case of six young Arab Americans (the Lackawanna Six), government lawyers threatened during plea negotiations to declare these citizens "enemy combatants" if they should dare to refuse to plead guilty, refuse to cooperate with their own prosecution, and insist on their due process rights. This is unprecedented in U.S. history--for a defendant to be told that his insistence on due process would lead to punishment without a trial.
If this book were published today, how would the Judge view the current Oval Office occupant and current Congress with respect to the U.S. Constitution? Would it be any less harsh? More harsh?
Between 1937 and 1995, not a single federal law was declared unconstitutional by the U.S. Supreme Court. The Commerce Clause offered wide berth for the Positivists to legislate for the "good" of the majority. The title of this book (first coined by U.S. Court of Appeals Judge Douglas Ginsburg--The Constitution in Exile), evokes images of the Supreme Law of the Land languishing in desolation and obscurity. The title suggests at least the possibility of the Constitution's return from exile. Failure to rescue the U.S. Constitution from exilic incatenation will usher in the chaos and lawlessness of Positivism.
Kenneth D. Christman, M.D.