The U.S. Constitution from a libertarian view

Chris Banner

By A Contributor

At the heart of Andrew Napolitano’s latest book, “Theodore and Woodrow,” is the question of how the U.S. Constitution is to be interpreted.

Is it to be taken in the sense in which it was written in 1787, together with the first ten amendments, adopted in 1791, whatever that may have been? Or, is it to be regarded as a living document to be understood, even amended, in the needs of a date at which a question arises.

The Preamble to the Constitution says, “We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, 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.”

The structure and powers of the Federal government follow from these values, which the drafters believed were, by Natural Law, unalienable rights.

In 1790, the U.S. population was 3,929,214; today it is over 300 million. In 1790, the population of Philadelphia, the country’s largest city, was 28,522.

The country was a federation of 13 small states on the Atlantic Coast and it took four or five days to travel from Philadelphia to Boston. Clearly, many things have changed since the Constitution was written. How are we to understand and apply the document today?

Napolitano is a member of the Libertarian party. He was a senior judicial analyst for Fox News Channel and was a personality on various Fox programs.

The reader, therefore, knows Napolitano’s biases before starting.

Napolitano makes the case for a Constitutional interpretation based on its 1791 meaning.

He asserts that presidents, congresses and courts have taken the second position, resulting in loss of our Constitutional rights.

Actually, interpreting the Constitution as a living document came as early as 1803 in the case of Marbury v. Madison, in which Chief Justice John Marshall said, in essence, that the Constitution meant whatever the highest court dealing with a case said it meant.

Napolitano argues that some of the later amendments are changes for the worse, which were made by the Progressives, including power-hungry Roosevelt and Wilson. He ignores the fact that all amendments must be passed by two-thirds of both houses of Congress and three-fourths of the states.

Presidents cannot declare them, no matter how they might wish they could.

Each of the book’s sixteen chapters deals with issues regarding a particular freedom.

Among them are child compulsory education and child labor laws; federal regulatory bodies; Federal Reserve Bank and banking regulations generally; federal income tax; loss of state’s rights, including the direct election of senators to the federal government; federal civil service, especially the IRS; the military draft, which he calls slavery; American imperialism; the welfare state; the war on drugs; censorship and suppression of embarrassing or opposing views and information; and more. In all, it is quite a list.

Actually, these so-called losses of freedom came about through voter approved Constitutional amendments, laws passed by Congress and court decisions.

Napolitano argues that through the various presidential regulatory bodies, the presidents have robbed us of our rights — a usurpation of the law-making process.

He ignores the fact that these regulatory bodies were created by laws Congress made and courts upheld. Congress can repeal these laws if enough of the people call for it.

So far, they have not, and in most cases the people are happy to have them, for they meet the people’s felt needs.

The reader needs to be careful as he makes his way through “Theodore and Woodrow” because Napolitano uses words in inaccurate and inflammatory manners.  Below are some examples and replies to them.

Military conscription is a form of involuntary servitude, therefore slavery.

Actually, it has been necessary to provide for our common defense. The rise of U.S. imperialism began with the Spanish-American war.

He does not discuss our greatest imperialistic land-grab and genocide of all, the expansion of the U.S. by massacring the Indians and taking their land, which began long before the Progressive Era.

Our military bases in foreign countries are a form of imperialism and colonialism.

Actually, these bases are enclaves established by treaty with the host countries and the U.S. has no legal power over these countries.

Anti-trust laws rob us of our economic freedom. Actually, we had lost our freedom because these businesses so dominated commerce that, realistically, individuals had no choice left.

Concerning the federal income tax, “Robbery is robbery, no matter who perpetrates it. Period.” Actually, taxes make possible the government delivering the things mentioned in the Preamble, which we cannot provide for ourselves.

In the end, “Government is essentially the negation of freedom.”

He does not consider that through the Progressives we have regained the freedoms listed in the Preamble that we had lost earlier. If you agree with Napolitano’s positions, you will find exposition of his ideas affirming. If you do not agree with them, you should read his book to know what the other side is thinking and saying and be able to say why you think he is wrong. Either way, it is a good book.

Christopher Banner is a Manhattan resident.

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