Is the Constitution being eroded by activist judges, unelected and unaccountable bureaucratic Central Planners, and Congressmen who detest the limits of the Constitution?

Conservative in California 2010/12/28 05:27:49
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Thomas Sowell

Political End Runs


The Constitution of the United States begins with the words "We the people." But neither the Constitution nor "we the people" will mean anything if politicians and judges can continue to do end runs around both.

Bills passed too fast for anyone to read them are blatant examples of these end runs. But last week, another of these end runs appeared in a different institution when the medical "end of life consultations" rejected by Congress were quietly enacted through bureaucratic fiat by administrators of Medicare.

Although Congressman Earl Blumenauer and Senator Jay Rockefeller had led an effort by a group of fellow Democrats in Congress to pass Section 1233 of pending Medicare legislation, which would have paid doctors to include "end of life" counselling in their patients' physical checkups, the Congress as a whole voted to delete that provision.

Republican Congressman John Boehner, soon to become Speaker of the House, objected to this provision in 2009, saying: "This provision may start us down a treacherous path toward government-encouraged euthanasia."

Whatever the merits or demerits of the proposed provision in Medicare legislation, the Constitution of the United States makes the elected representatives of "we the people" the ones authorized to make such decisions. But when proposals explicitly rejected by a vote in Congress are resurrected and stealthily made the law of the land by bureaucratic fiat, there has been an end run around both the people and the Constitution.

Congressman Blumenauer's office praised the Medicare bureaucracy's action but warned: "While we are very happy with the result, we won't be shouting it from the rooftops because we are not out of the woods yet."

In other words, don't let the masses know about it.

It is not only members of Congress or the administration who treat "we the people" and the Constitution as nuisances to do an end run around. Judges, including Justices of the Supreme Court, have been doing this increasingly over the past hundred years.

During the Progressive era of the early 20th century, the denigration of the Constitution began, led by such luminaries as Princeton scholar and future President of the United States Woodrow Wilson, future Harvard Law School Dean Roscoe Pound and future Supreme Court Justice Louis Brandeis.

As a Professor at Princeton University, Woodrow Wilson wrote condescendingly of "the simple days of 1787" when the Constitution was written and how, in our presumably more complex times, "each generation of statesmen looks to the Supreme Court to supply the interpretation which will serve the needs of the day."

This kind of argument would be repeated for generations, with no more evidence that 1787 was any less complicated than later years than Woodrow Wilson presented-- which was none-- and with no more reasons why the need for "change" meant that unelected judges should be the ones making those changes, as if there were no elected representatives of the people.

Professor Roscoe Pound likewise referred to the need for "a living constitution by judicial interpretation," in order to "respond to the vital needs of present-day life." He rejected the idea of law as "a body of rules."

But if law is not a body of rules, what is it? A set of arbitrary fiats by judges, imposing their own vision of "the needs of the times"? Or a set of arbitrary regulations stealthily emerging from within the bowels of a bureaucracy?

Louis Brandeis was another leader of this Progressive era chorus of demands for moving beyond law as rules. He cited "newly arisen social needs" and "a shifting of our longing from legal justice to social justice."

In other words, judges were encouraged to do an end run around rules, such as those set forth in the Constitution, and around the elected representatives of "we the people." As Roscoe Pound put it, law should be "in the hands of a progressive and enlightened caste whose conceptions are in advance of the public."

That is still the vision of the left a hundred years later. The Constitution cannot protect us unless we protect the Constitution, by voting out those who promote end runs around it.

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  • capt.canuck 2011/04/02 18:19:15 (edited)
    i'm not an american. but i respect what the founding fathers created; and i hope that the american people have what it takes to regain their lost liberties, and do better to protect their rights in the future.

    my opinion is that the congress/senate/executive government is controlled by special interest groups (primarily wall street) and no matter who gets elected, they are controlled by the same groups; and the only reason they even pretend to offer a choice is to placate the population, and provide the illusion that political participation really exists. meanwhile, they continue to erode your rights (such as the "patriot act").

    those in real control do not want the people to have the rights "guaranteed" in your constitution, and do not want such a thing to exist today; or god forbid to exist in any future nation, government or regime. they want the world to run on their terms, without debate or public consultation.

    why do you think that your factories have all been moved to china? it's because they want to destroy america and her ideals, and rebuild the world around countries that have proven to have submissive, controlled populations. america will be left hollowed out, with the only jobs left being the extracting of resources, military, government or other immovable industries.

    i can only hope that it is not already too late...
  • Beccy 2011/02/24 02:17:37
    But we the American people are also eroding the constitution buy demanding that other peoples rights are taken from them. Both sides do it
  • Quazimoto 2011/01/02 01:54:39
  • Andrew 2011/01/01 02:57:42
    Yes, of course it is. One example of how these judges are eroding the Constitution is the fact that a San Francisco judge overturned Prop 8.
  • Bob 2010/12/29 22:17:39
    The greatest travisty to the Constitution has been the use of Executive Orders and Departmental Regulations which are initially cast aside by the lawfully elected legislators. This activity is nothing short of direct circumvention of the "Checks & Balances" established by and within the 3 separate and distinct branches of government. This 112th Congress must do something to cease the departments from acting behind their backs and with the Executive Branch's whimsical wishes. Additionally the Czar components used by the executive branch must be ceased, too.
  • WannaBeRSC the Contrarian SOB 2010/12/29 17:33:47
    WannaBeRSC the Contrarian SOB
  • Rore73 2010/12/29 04:32:10
    Some of the Washington politicians are out of control and something needs to be done before it's too late and Obama "Brown Shirts" (union thugs) start knocking down doors!
  • Patriot Unit 2010/12/29 02:05:22
    Patriot Unit
    Yes, they have no Constitutional right to do the things they do. There is nothing in the Constitution that says they can make law, or legislate from the bench. That is the Job of Congress Only. Neither is there anything in the Constitution that gives Bureaucrats the right to make law, as, so many of their Regulations end up being in one form or another. And there is nothing in the Constitution that gives the Congress the right to do anything other than what is listed in the enumerated powers. But you will never get any of them to admit it. If they can't pass a stupid law, they run to a activist Judge. If that Judge does not support them, then they just turn everything over to the Bureaucrats. For those of you that believe that our Constitution is the Law of the Land, then I COMMEND You. For those that don't. I say get the hell out of this Country, and take, another Liberal, Socialist, Marxist, Stateist, Progressive with you.
  • Harry 2010/12/28 23:57:35
    Both judicial fiat and implementation of policy through an unelected bureaucracy pose - along with the continuing dumbing down of the American electorate - ominous threats to representative democracy in the U.S.
  • Patriot... Harry 2010/12/29 02:12:00
    Patriot Unit
    Yes, and those that think themselves Americans know that. The sad thing is, that they don't tend to support what is right, and lean towards just trying to get along. Being Politically Correct is a curse of this Nation. I am sorry but Being Conservative, is never going to be compatible with being Liberal. You can not compromise They are complete opposites.Liberals believe in Social Engineering, above all else, and the Progressives, follow closely behind. Conservatives believe that our Constitution Means something, and what is says is binding on the Federal Government. Which was set up by the States. Not to control the States, but to help them Defend the Nation and its laws.
  • Rick from Overland Park 2010/12/28 22:22:28
    Rick from Overland Park
    Progressives represent the 'Prince of the Power of the Air,' and resent anything established by Christians, e.g., the Constitution, our Republic, and the freedom derived thereof. They plot the destruction of the United States as the only deterrent to worldwide despotism. They did this by infiltrating the original Christian Ivy League colleges making them progressive. They in turn trained progressive professors, teachers, lawyers, and politicians to take over our institutions. They also infiltrated churches. They are in high schools, grade schools, and pre-schools robbing us of our children. They promised us pie in the sky, and we listened to them. And they sneaked it in as Thomas Sowell just told us.

    Isaiah 30:9 "That this is a rebellious people, lying children, children that will not hear the law of the LORD: 30:10Which say to the seers, See not; and to the prophets, Prophesy not unto us right things, speak unto us smooth things, prophesy deceits."
  • Jackie 2010/12/28 20:40:52
    Absolutely, definitely, and without any doubt. They have been working toward that end for many years. When you want absolute power you must first remove the limits. They want anarchy and chaos to reign. No limits.
  • Kane Fernau 2010/12/28 20:25:59
    Kane Fernau
    Progressives are deeply imbeded in the bureaucracy.
  • OPOA912 2010/12/28 18:51:24
    I glad to see the results of this poll showing that Americans really do "get it".
  • pamela 2010/12/28 15:40:12
    I feel that the government as a whole,, including federal judges, need to rule as by how the constitution is written. No one that works for the federal government in such a manner, should rule in any other way. They should be held accountable not just for any possibly good they do, and how they work things out, but they need to be accountable for anything that goes wrong too, and that includes how the judges rule. Hold them all accountable for everything that gets said and done.
  • Racefish 2010/12/28 15:28:01
    All the above. It seems as if all are trying to find a way "around" the Constitution to further their political agenda or to retain power.
  • Wolf 2010/12/28 14:20:55
    No the Constitution is being attacked by the politicians who seem to commit treason at will...
  • possiblymaybe 2010/12/28 14:06:27
    I'm gathering 2 key issues is a lack of judicial constructionism and true legislative congressionalism on the federal AND state level. And I am NOT talking about Republicans. A title doesn't mean a damn thing. And I'm not talking about social conservatives. While that is up to the individual what they believe, the constitution should not interpret liberties of the people to be excessively conditional.
  • Torchmanner ~PWCM~JLA 2010/12/28 12:18:39 (edited)
    Torchmanner ~PWCM~JLA
    The communist leftwing call the Constitution a "living" document. It gets in the way of their evil agenda.
  • XZQZQ 2010/12/28 11:01:27 (edited)
    Yes on all counts....And the remedy ? I would say a strong conservative President, and conservative Congress.... down-size the bureaucracy, remove Federal judges who have violated their oaths of office by disregarding both Constitution and statutes, cut the size and scope of the Federal government.....

    Above all, appoint a Special Prosecutor, with a mandate to do precisely what the left has done for decades: criminalize political differences...to prosecute and imprison as many Progressives, union leaders, etc. as possible.... once the first lefty has been convicted, and facing a conservative Federal judge who is anxious to sentence the convicted lefty to 300 years in prison, I think that the targets will fall all over themselves to rat each other out.....

    It is unfortunate that the Federal judiciary, the last branch of the government to enjoy any prestige, to have surrendered to the all-to- obvious politicization, but that being the case, we need to purge all public officials who are unwilling to follow the Constitution, as actually written....private citizens may hold any political views that they wish, not so high public officials, such as the Federal judiciary.... or even professors at publicly-supported law schools....meaning any non-profit school...
  • Rick fr... XZQZQ 2010/12/28 22:24:30
    Rick from Overland Park
    Many would call that a purge, but that is what we need. If not, it will happen again down the road.
  • Patriot... XZQZQ 2010/12/29 02:13:45
    Patriot Unit
    yes, as well as strong Conservative Legislators Not the good old boy Republicans.
  • NidStyles 2010/12/28 10:08:43
    Our entire Monetary system is Un-Constitutional.
  • Drew~PWCM~JLA~ 2010/12/28 09:47:21
    This man is a true patriot and American vs almost all of what we have on the SCOTUS and Congress and every court in the USA,
  • Don Leuty 2010/12/28 08:05:57
    Don Leuty
    Sowell is dead on. This has been going on for decades, but the last 6 years have taken it to new heights.
  • Bureauc 0Bamao 2010/12/28 07:51:58
    Bureauc 0Bamao
    The Progressives do not over look any chance to nibble away at the Constitution.
  • Matt 2010/12/28 06:53:38
    Politicians either ignore the law or alter it to serve themselves and their corporate and banking sponsors !
  • BoomLover 2010/12/28 06:38:48
    In a word, "Yes!"...that said, evidence is front and center in the news and almost every other place you care to look, that our Constitution is being abused, mis-used, and twisted by the very people we have put in power to follow and enforce it! We really do need a "Voter's Revolt" in this country to get us back on track...and to take the country back from those who are using us and our tax monies to feather their own nests, and those of their cronies! This last election was a start, but we need to really hammer it in now, and make it a turning point that we can be proud of! Thank you, Thomas Sowell, for another great article!
  • RageFury 2010/12/28 06:15:25
    Only a fool would argue otherwise.
  • Greywolf 2010/12/28 06:13:44
    Of course there has been an expansion by the Federal Government in total disregard to the limits as set forth by the constitution.
  • Ken 2010/12/28 05:39:15
    and we need to start arresting those that do.
  • Faith † 2010/12/28 05:30:54
  • Patriot... Faith † 2010/12/29 02:21:43
    Patriot Unit
    Well I would tend to think there are not many in Congress even know what the Bill of Rights is, or where to finds it. If they do, they sure forgot to read it. I think that they should all be required take a written test at the time of filing to run. One that is based on the Constitution, and its Amendments. If they can't pass the Comprehensive test they can't run. And once they do win, they should be required to sign and post their Signature on the back of the Pocket Constitution, that they are given when they are sworn in. And they should also be required to read aloud, on the floor of Congress, each and ever bill they support. If it has more than one sponsor, then they should also be required to read it aloud. And that goes for every amendment, and closet bill they try to sneak into another bill.
  • Faith † Patriot... 2010/12/29 02:25:20
    Faith †
    Did you hear about a teapartyer whos an incomeing Congressman is going to read the Consitution on the floor during a joint sesstion of the new congress.

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