By
Bruce Walker

The
recent news stories that Obama intends to implement much of his health care
agenda through executive orders shows just how broken the Constitution of the
United States has become.  The foundational document of American
government provides no legislative power in the presidency – none, zero,
nada.  George Washington felt that even the presidential veto should be
used only in opposition to congressional bills that were
unconstitutional.  Now, the notion that the president can, effectively,
legislate without the involvement of Congress (in certain areas and for certain
reasons) has become quietly accepted as part of our federal system.

More
troubling, a vast amount of law-making has been delegated to quasi-independent
agencies like the Interstate Commerce Commission, the Federal Communications
Commission, and the Federal Power Commission.  The people who serve on
these bodies are not elected.  They are appointed for long terms by the
president and confirmed by the Senate.  Independent regulatory agencies in
effect make regulations, execute laws and regulations, and even serve as an
administrative tribunal for those laws and regulations.  Congress has created
these bodies by statute, but the authority to do this under the language of the
Constitution is extremely dubious. 

Not
only do presidents and independent regulatory agencies now “make” law, but
federal judges have been doing that for a long time.  Judicial orders,
often spun out of whole cloth from the notional language of the Constitution,
“create” new law.  Aside from the sheer confusion of having so many
conflicting sources of federal law, these myriad federal legislative entities
are almost entirely unaccountable to the people.  Federal judges serve for
life.  The essentially anonymous commissioners on all the regulatory
bodies, never elected, serve such long terms that they might as well have
lifetime appointments in some cases.

The
amendment of the Constitution, which is the only means by which federal
legislative power could be devolved to other bodies, has long since simply been
ignored.  When the Supreme Court passed Roe v. Wade, it amended the
Constitution while lying through its teeth about finding a penumbra of privacy
rights.  The process for amending the Constitution requires, and was
intended to require, a vast consensus of political will:  two thirds of
both houses of Congress and three quarters of both chambers of the legislatures
of the states. 

How
do we amend the Constitution these days?  Five out of nine justices of the
Supreme Court decide what they would like the Constitution to be.  A
simple majority of nine unelected judges can do almost anything in our
constitutional system.  Thomas Jefferson thought that a simple majority of
both houses of Congress should be sufficient to overturn a Supreme Court
decision.  Now, the only way to overturn the ruling of the Supreme Court
on a constitutional issue is two thirds of both Houses and three quarters of
both houses of the state legislatures. 

The
areas of proper federal legislation have also grown exponentially, far beyond
anything dreamt of when the Constitution was adopted.  During the health
care debate, some innocent asked where in the Constitution was the authority to
compel everyone to purchase health insurance.  The left quickly found the
answer:  Congress can levy taxes; the penalty for not having health
insurance is effectively a tax; ergo, Congress can pass that penalty.  In
essence, the Constitution is interpreted to allow the federal government to do
anything (or to require any behavior and then assess a draconian penalty for
not complying.)  States, the source of constitutional power, have become
little more than slavish appendages of the federal octopus.

Enumerated
powers, separation of powers, checks and balances, high thresholds for amending
the Constitution, and a system of co-equal state and federal powers – these
were the promises made to the people and to their sovereign states when the
Constitution was adopted.  Has any solemn promise not been broken? 
Federal offices swear to protect and defend the Constitution, but when is the
last time this sacred oath was taken seriously? 

What
Americans should do about our broken Constitution is hard to say.  The
reassertion of sovereign state power, which was an early constitutional
response to the Alien and Sedition Acts, is one answer:  if enough states
simply denied that the federal government had the authority to do what it was doing,
or that the Supreme Court had the ability to trump the Constitution and the
Bill of Rights, that might be hard to overcome.  A combination of a
president and Congress committed foremost to restoring the proper
constitutional roles of each part of our government would work, but it has been
decades since such political will has been manifested in our government. 
Finally, a genuine consensus in Congress and among states about what our
Constitution ought to say today – like how to interpret its provisions, something
silent in our Constitution and hijacked by the Supreme Court – could
work.   The only thing sure is that our Constitution today is badly
broken and desperately in need of repair – and that reform will not come
unless, We, the People, demand it.

                    © 2010 Bruce Walker — All Rights Reserved

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Bruce Walker is the author of two books:  Sinisterism:
Secular Religion of the Lie and The Swastika against the Cross: The Nazi
War on Christianity.

http://outskirtspress.com/swastika_against_the_cross 

 http://outskirtspress.com/Sinisterism