The following editorial is written by a retired Chief of Police and current staff writer for Law Enforcement Today.
The United States Constitution is a series of enumerated rights which on their face seem pretty clear. There has been some confusion over the years as to what exactly the Constitution is made to accomplish.
It is not, as some people believe, enumerated rights granted to the government. Rather, the Constitution guarantees its citizens these rights and restricts the government from unduly interfering in those rights.
For example, the Second Amendment says, “A well regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear Arms shall not be infringed.” This seems pretty simple.
The first portion addresses the necessity of a “well regulated Militia, being necessary to the security of a free state.” Separated by a comma, the second portion reads “the right of the people to keep and bear Arms shall not be infringed.” This also seems pretty simple.
The problem with the Second Amendment has come about as people who are opposed to gun rights have played grammatical judo with the clause. Some define “militia” as meaning the military.
At the time the Constitution was written, militias were very much a part of the national defense. During the Revolutionary War, citizen militias were an important component of the Colonial Army, assisting the “regulars” with fighting off the British. Militias were a group of private citizens, not soldiers. That was well understood by the framers.
Others take the two portions of the Amendment and combine them, once again engaging in grammatical hocus pocus, claiming that people who aren’t in a militia (the military) do not have the right to bear arms “uninfringed.”
Former Fox News contributor Judge Andrew Napolitano wrote an opinion piece asking if we do still indeed have the U.S. Constitution. Especially with what we have seen over the past 18 months, it is a good and valid question.
Since the beginning of the coronavirus pandemic, we have seen governors and mayors across the United States infringe on pretty much every portion of the Bill of Rights in the interests of “public safety” or a “public health emergency.”
The problem comes in to play as Napolitano said when those “emergency” dictates take on the form of dictatorial, draconian policies or mandates that undermine the United States Constitution.
For example, last year in places from New York to California, elected officials implemented restrictions on people’s right to worship freely, a right guaranteed under the First Amendment.
People were prohibited from peaceful assembly (but were permitted to violently protest) with the excuse being they were “fighting for justice.” The sheer hypocrisy with which decisions were made on “who” could assemble and who could not appeared to be a clear violation of the First Amendment.
Yet in some cases, judges upheld the mandates blocking church attendance and other religious observances, claiming that “public health” somehow trumps the Constitution.
The foundation of the Constitution and our other founding documents was to guarantee Americans certain inalienable rights as defined in the Constitution, the Bill of Rights and the Declaration of Independence.
As Napolitano wrote, “government is essentially the negation of freedom.” The values upon which our founding documents were built are “maximum personal liberty and minimal government.” The last eighteen-plus months have shown us that foundation no longer appears to be in play.
The country we are seeing today would hardly be recognizable to our Founding Fathers. Hell, it is barely recognizable to my generation, the baby boomers. In fact, I would argue it is barely recognizable to Generation X.
The most important of our rights were codified in the first ten amendments to the Constitution, the Bill of Rights. The first eight of those rights are spelled out, Napolitano writes, in the first eight amendments.
Clearly, the rights allowed to U.S. citizens are too innumerable to list, and the Ninth Amendment spells out that since that is the case, the United States government (and its sub-units) are required to respect the natural enumerated rights of all persons, in addition to specifically enumerated rights.
The Tenth Amendment, as the ultimate and final of the Bill of Rights specifically recognized that the framers of the Constitution understood that the agreement was a compact between sovereign states, who fought a revolution against an overbearing, non-responsive central government.
In so entering the compact, the states agreed that only certain powers were granted to the federal government, and those not so enumerated were retained to the states.
One of the most important Articles in the Constitution is Article II, Section I, Clause II, which specifically allows the states…not the federal government…to “appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the state may be entitled in the Congress…”
In other words, the state legislature decides the manner in which elections may be conducted…not Congress, not the courts, not state attorney generals…the legislature.
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This clause became important in last November’s elections when courts, unelected election officials, governors and attorneys general changed voting laws due to the COVID-19 pandemic, clear violations of Article II, Sec. I.
This was a case where the claim that was made was that “public health” appeared to trump the Constitution, which is absurd.
The Tenth Amendment became a point of contention among the states because much of it was, as Napolitano stated “the theoretical basis and public understanding of the American experiment in the 1780s and 1790s.”
He noted that many opposed the ratification of the Constitution because they feared ”a new central government would control economic activities with its own bank [federal reserve], fight needless wars [self-explanatory], invalidate state sovereignty [Texas and Florida currently under fire], and curtail civil liberties [COVID-19 mandates].”
This is of course nothing new, although it has gotten much worse. Napolitano noted that a mere seven years after the Constitution was ratified, the Alien and Sedition Acts were passed (1798), where criticism of the federal government and in particular the administration of President John Adams was criminalized. In fact, some of the very people who had written the First Amendment violated that very constitutional right seven years later.
In response to that act, Thomas Jefferson and James Madison, two of the Founders authored documents called the Virginia and Kentucky resolutions, which were enacted into law by the respective state legislatures. The Alien and Sedition Acts were declared unconstitutional in those two states.
What does that mean? Basically that in the view of at least some of the Constitution’s ratifiers, states which had voluntarily formed the federal government possessed the power to correct it.
In other words, the state statutes passed in Virginia and Kentucky defined the Alien and Sedition Act, which they called blatant violations of freedom of speech, to be null and void in those two states. Moreover, since the Constitution was a voluntary compact, the “states that formed it and joined it voluntarily have the sovereign power to leave it.”
In theory, the Civil War, as well as the Supreme Court (which Biden has on at least two occasions defied by the way) decided that nullification and secession were not valid. However as Napolitano says, defeating such an idea (politically, legally, or militarily) doesn’t mean the idea isn’t a valid one.
This brings us to present day. In recent weeks, we have seen the federal government insert itself into states such as Florida and Texas in order to circumvent laws or regulations put in place by their respective state legislatures.
For example in Florida, Gov. Ron DeSantis issued an executive order banning school districts from imposing mandatory mask mandates, instead deferring that decision to parents, where it should lie. The Biden administration has attempted to insert itself into the situation, which is clearly a states right issue, not the federal government.
In the case of DeSantis, the executive order drew its authority from a Parents’ Bill of Rights, passed by the Florida state legislature and signed into law by DeSantis on June 29. A court issued a temporary stay on the ruling; however a defiant DeSantis is still promising to withhold state education funding from any district that defies the order.
Last week, the Texas state legislature received tacit approval from the United States Supreme Court, which refused to hear an appeal on the state’s restrictive abortion law, which allows suit to be filed in any case where an abortion is performed after six weeks from conception when a heartbeat can be detected.
Once again, the federal government is attempting to insert itself in the Texas case in a clear attack on state rights and another rebuke of the Supreme Court.
So Napolitano asks, “Has the Constitution failed us?”
A more accurate question is, “Have we failed the Constitution?”
In theory, the Constitution is still the overarching legal document in the country. However as we have seen in rulings such as Roe v. Wade and Obamacare, the 10th Amendment has been rendered moot by activist courts. Nowhere in the Constitution is there a guaranteed right to take an unborn baby’s life, nor is there a “right” to healthcare. Yet here we are.
The Constitution was designed as a means to restrain an overbearing federal government. Has that happened? Hardly…as Napolitano states that as an “instrument of restraint, the Constitution is an abysmal failure.” And that is hard to argue with.
The federal government’s motto as told by the late, great President Ronald Reagan:
“If it moves, tax it. If it keeps moving, regulate it. And if it stops moving, subsidize it.”
The American people also witness two sets of rules. One for the ruling class, the rest for the rest of us. Nowhere is that more blatant than the situation involving Hunter Biden, son of Joe Biden.
He was caught clearly violating federal laws with regard to firearms, which by the way is his father’s pet peeve. So has he been arrested? No. Is he even being investigated? Who knows.
We saw the federal government engaged in a concocted scheme, a soft coup if you will in order to take down President Trump, a plot facilitated at the highest levels of the FBI, the Hillary Clinton campaign, and the Democratic National Committee.
Yet the only ones charged were the victims of the plot save one FBI agent who got slapped with probation. Once again, two kinds of justice.
As mentioned above, the draconian, Constitutional right-busting emergency orders have had the most significant affect on the civil liberties of the American people perhaps in history. The states allowed themselves to be coerced by “public health officials” and get embarrassed by complicit media into eviscerating those civil liberties.
As we enter the 19th month of 15 days to “flatten the curve” of the coronavirus, where we were promised months ago that masks would “go away” once people got vaccinated, we are back to mask mandates. We have the federal government realizing they don’t have the power to issue such mandates instead giving a wink and a nod to private businesses to implement their own mandates.
As the so-called “Delta” variant of coronavirus, a more contagious but less lethal strain of the virus takes hold, the Biden administration, the CDC and the complicit mainstream media have started to attempt coercive means to get people to “get the jab” and wear masks.
Napolitano notes that “these so-called health measures are essentially experiments that, when administered coercively by the government, violate the letter, values and lessons of Nuremberg.”
The greatest thing about the United States of America is our freedom and liberty. Our country is supposed to be a nation of laws, founded in our Constitution where any powers not enumerated to the federal government are reserved for the states.
We also have state legislatures which, as representatives of the people, are supposed to write and pass laws, which are then either signed into law or vetoed by the chief executive, in this case governors or in the case of federal laws the president.
Yet, for the last 19 months, we have seen the legislative process bypassed where mayors and governors (and the Centers for Disease Control) have been put in the position of running the country, bypassing the right of people to have a representative government. Remember “no taxation without representation?” That is exactly what is currently occurring.
The American people have been continually receiving mixed messaging from the ruling class. Masks work…no they don’t work. Wear one mask, no two, maybe three. How about goggles and face shields?
Wash your hands, never mind that doesn’t matter. Six feet social distancing, no three feet. Wear a mask to walk inside a restaurant, take it off when you sit down. It’s absurdity at its worst. What happened to personal responsibility?
The absurdity has now reached epidemic levels. We were told we needed vaccines to protect from the virus. But those who weren’t vaccinated still had to wear masks. Why? If vaccines work, what difference does it make if the unvaccinated are masked?
Kids are told they have to wear masks in school, with a virus that has a 99.995% survival rate for children, if they even contract COVID. Why masks then? Teachers (who whine they are at risk) are all old enough to get vaccinated. They should have no risk of getting COVID from kids.
“If the Constitution is the supreme law of the land, how can government attack the rights the Constitution protects? If freedom is our birthright, what has become of it?” Napolitano asks.
We have already seen what happens when a centralized government gets drunk with power. The current Balkanization of our nation by Democrats through Marxist ideology such as critical race theory may be the impetus for some states to declare they’ve had enough.
Is it time for the American people to say, we’ve had enough? Maybe. There’s an earthquake brewing and many people, led by parents sick and tired of their children being used as pawns in a power play between the Marxist progressives and mainstream Americans, may be those who lead the way.
This isn’t the America our founders foresaw. It isn’t the America it was even twenty years ago. For those who love our country and the ideals upon which we were founded, we are definitely in uncharted territory.
At one time, we could always count on the Constitution to save us. That may no longer be the case.
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