Over the past 18 months, the relationship of the American people with government has changed dramatically, as the failure of the Constitution to restrict federal and state governments and protect personal freedom has become evident.
We know that over the past 100 years the federal government has grown exponentially. And we know that while formally the Constitution still exists, functionally it has failed miserably, as the deterioration of individual liberty since the spring of 2020 has been as severe as the losses of liberty over the past 100 years.
I’m using 100 years as a benchmark because it marks the completion of the takeover of the federal government by Theodore Roosevelt’s Republicans and Woodrow Wilson’s Democrats, who collectively made up the Progressive Movement.
In just 15 years, this movement brought us the needless World War I, the destructive popular election of senators, the corrupt Federal Reserve, the theft of property known as the income tax, and the unconstitutional administrative state.
The war killed millions for nothing. The popular election of senators undermined state sovereignty. The Federal Reserve has destroyed economic freedom. Federal income tax legalized theft. And the administrative state created an unconstitutional fourth branch of government, “experts” answering no one.
Yet the iron fist of the totalitarian government that has befallen the American people in the name of COVID-19 has struck at the heart of the Constitution and dealt a heavy blow to average Americans in a much more acute and direct manner.
Here is the backstory.
When Thomas Jefferson wrote in the Declaration of Independence in 1776 that our rights come from God through our humanity, he and his colleagues set the 13 colonies on the path to limited government based on the consent of the governed. The Declaration proclaimed that the only moral function of government is to protect life, liberty and property.
Colonial governments in 1776 consisted of governors appointed by the British King and popularly elected legislatures chosen by adult, white, landowner males who bothered to vote.
I say “bothered to vote” because the settlers knew their legislatures were largely subject to governors. The same settlers who supported the idea of secession hated colonial governors because they most often bypassed legislatures and issued edicts which they then enforced as if they were laws.
The practice of issuing governors’ edicts became so unpopular that 10 of the 13 colonies amended their constitutions in 1776 and 1777 to further define the principle of the separation of powers. The history of the revolutionary period reflects two wars: a war of violence against the king’s soldiers and a war of ideas to persuade reluctant settlers of the value of personal freedom.
The main instrument of the war of ideas, and the one that James Madison enshrined in the Constitution in 1787, was the separation of powers.
The separation of powers, which the late Judge Antonin Scalia called the backbone of the US Constitution, states that only the legislature can make laws, only the executive can enforce them, and only the judiciary can interpret them.
The immediate goal of separation is to allow any one of the branches to be a brake on the other two so that by tension and even jealousy, no branch can exceed the powers conferred on it by the Constitution.
If the president wrote laws, the courts would strike them down; if Congress interpreted laws, the President and the courts ignored it; if the courts hired people to enforce the laws, Congress would not fund their salaries.
The ultimate goal of separation is to prevent tyranny and thus preserve freedom.
To ensure that the separation of powers works at the state level, Madison enshrined the guarantee clause in the Constitution. The Supreme Court ruled that it guaranteed the same separation of powers in states as that required of the federal government.
Now back to the horrors of the past 18 months. Meanwhile, hundreds of edicts have been issued by mayors and governors, and a few by former President Donald Trump and President Biden. None have the force of law, and each is a legal nullity for the simple reason that only legislatures can adopt standards of behavior that carry penalties for non-compliance, also known as “laws”.
What about the New York legislature, which has ceded some of its powers to the governor? This too is unconstitutional, because the Supreme Court has ruled that branches of government cannot cede or exchange powers; and when they do, it’s a legal nullity.
I am not surprised when the government thumbs its nose at the Constitution its agents and officers have sworn to uphold and the legal theories on which it is based. After all, the Constitution was written to keep government away from the people. No wonder the government hates it.
I am surprised – and terrified – when the great mass of people act like sheep when they reject the values of America’s founding documents, and they ignore the history and courage that supported personal freedom in our once society. free.
Let’s be clear: the executive branch of the federal government and almost every state has told Americans how to live, dress, work, travel, attend church, run their businesses, and control their bodies in defiance of the Constitution; and the people – yearning more for a false sense of security than for the reality of freedom – bowed down and said: Yes.
Is the government working for us, or are we working for the government? Do we still have a working Constitution? Can the freedom so bitterly fought and won so easily be dispelled?
The answers to these questions are too repulsive for this American who cries out for freedom to articulate.
• Andrew P. Napolitano is a former law professor and New Jersey Superior Court judge who has published nine books on the US Constitution.