Some Thoughts on Constitution Day

Some Thoughts on Constitution Day
September 18, 2013

David L. Applegate

David Applegate is a Chicago-based trial lawyer and partner at the law firm of Williams Montgomery... (read full bio)

Few people likely know or care that
yesterday was Constitution Day, and those who do have probably already been
audited by the IRS or had their 504(c)(4) applications denied.  But Tuesday, September 17, 2013, marked the
226th anniversary of the United States Constitution, one of the most
important documents in the history of human freedom and the foundation of the
last best hope on earth for government of the people, for the people, and by
the people.

Thinkers as diverse as fiction
writer Stephen King, Founding Father Benjamin Franklin, and the oft-misquoted
Alex de Tocqueville have ruminated on the origins and future of government, and
all but the most radical anarchists recognize the need for at least some.  How much government need or should exist
remains, indeed, the essential struggle of our time. 

Some of us, like Thomas Jefferson,
believe that government is best which governs least, leaving individual
citizens to pursue their own hopes and lives and dreams within a minimalist framework
that protects individuals from coercion by others.  Others, like Franklin D. Roosevelt and
Woodrow Wilson, believe that educated or cultural elites should nearly engineer
a “socially just” society through rules and regulations programs while
providing most people’s material needs as a matter of “right” at the expense of

Some will always criticize the U. S.
Constitution for providing too little government and others for providing too
much, but little doubt exists about what the Constitution was actually designed
to do.   Because – in the immortal words
of Lord Acton – power tends to corrupt and absolute power corrupts absolutely,
our Constitution divides power between the states and the national government,
and the power of the national government among three branches:  the legislative, the executive, and the
judicial, named in that order.  Its
genius is as simple as that – and all the rest is gravy. 

But the devil is in the details and,
like “free market” economics, the problem is not so much in the Constitution’s design
as in its execution.   Like a flag that’s
been flown far too long, over the past 226 years our Constitution has become
torn and battered, in some respects unrecognizable.  Some spots shine brightly while others are
faded; still others seem missing completely and, here and there, a patch has
been added on. 

Within fifteen years of the
Constitution’s ratification, a judiciary designed to be the “least dangerous” of
three co-equal branches by insulating it from politics asserted its superiority
over the other two branches in Marbury v.
(1804) and has since become overtly political – think Bush v. Gore, Roe v. Wade, or National Federation of Independent Business
v. Sebelius
(the case that gave us Obamacare). 

A legislature designed with two
houses specifically to help balance power between the states and the national
government – in which the people directly elect the members of one house but
not the other – has been turned on its head. 
Since the 17th Amendment the Senate has become a nominally
upper house with less turnover than the House of Lords while, in the supposedly
more populist House, members get to select their constituents by redrawing
districts to suit the party that controls the state. 

Meanwhile, a President whose very
title – “Mr. President” – signifies that he (or, from the looks of it, soon a she)
is but one of us has become increasingly imperial over time.  Today the White House occupant announces that
he’d prefer to wait for Congress but that in these “not normal” times he needs
to do things himself – much like the devious “Big Jim” in Stephen King’s “Under
the Dome.”

So where do we go from here?  Do we resign ourselves to the inevitable,
that the natural condition of humankind is not freedom but a short and brutish
life in which the common folk are ruled by others who enrich themselves at our
expense?  Do we give up on the dreams of
the Founders and their spiritual descendants, Abraham Lincoln and Martin Luther
King, Jr., to bestow the blessings of liberty on all God’s children?  Do we accept that the fundamental
transformation of America has not only begun but is finished? 

If not, how do we change things in a
positive direction?  In the wake of this year’s
Constitution Day we could do a lot worse than to study Mark Levin’s latest
book, The Liberty Amendments: Restoring
the American Republic (Simon & Schuster 2013), available at Wal-Mart
and wherever else fine books are sold.   
A trim 208 pages plus Appendix and footnotes, Mark’s book thoughtfully
proposes eleven amendments – a new Bill of Rights – that would restore the Constitution
to its original intent.

Odd though it seems that the Constitution
would need amending to return it to its roots, Mr. Levin’s proposed amendments
would do just that:  by establishing term
limits for congressmen and the Supreme Court, returning the selection of
Senators to the States rather than the people; limiting spending, taxing, and
the federal bureaucracy; promoting free enterprise and protecting private
property; granting the states authority to amend the Constitution directly and to
check the power of Congress; and finally, to protect the vote  by restricting the franchise to actual U. S.

 “We live in perilous times,” he says, and “the
challenges are daunting. …  This is our
generation’s burden.  We have our work
cut out for us.  But there is a way
forward.  The Constitution.”

Truer words were never spoken.

David L. Applegate

David Applegate is a Chicago-based trial lawyer and partner at the law firm of Williams Montgomery... (read full bio)