The Neo-Con Assault on the Constitution

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WorldNetDaily book editor Joel Miller recently authored one of the best common-sense constitutional arguments against the government’s failed u201Cwar on drugsu201D that I’ve seen (u201CAlan Keyes is Wrong!u201D, April 23). It was a response to neo-conservative Alan Keyes, who had written in support of U.S. Attorney General John Ashcroft’s use of the federal Controlled Substances Act to exert federal dominion over drug regulation by the states. Keyes was addressing Oregon’s u201Ceuthanasia lawsu201D that permit the dispensation of lethal drugs, and Miller agreed with him that u201Ckilling yourself . . . is not medically legitimate.u201D

The bigger issue, though, is what constitutional right the federal government has to exert such control over drug regulation — or any kind of regulation for that matter — by the states. As Miller pointed out, Article I, Section 8 of the U.S. Constitution, which delineates the legitimate appropriations of Congress, does not include regulating drugs (or the vast majority of what the federal government does today, for that matter). The Tenth Amendment, moreover, reserves such powers u201Cto the States respectively, or to the people.u201D

Miller interestingly quotes historian David Musto as having observed that until the late nineteenth century, the federal government laid no claim to such regulatory powers; such things were the responsibilities of the states, or the people. Miller is correct to invoke the Tenth Amendment in his argument, but this Amendment was all but destroyed during the War Between the States, after which federal political hegemony was established. As Dean Sprague wrote in Freedom Under Lincoln, u201CStates Rights, which prior to 1860 had been as important a part of northern political beliefs as southern, were overturned.u201D This includes, first and foremost, the Tenth Amendment.

Miller also correctly observed that the u201Cprogressive erau201D federal regulatory agencies u201Cwere profoundly unconstitutional and un-Americanu201D and are u201Cthe elder bedmates of the coercive, expansionist politics of modern-day liberalism.u201D Exactly. This, however, is exactly the position that neo-conservatives like Alan Keyes hold.

There is a method in the neo-con assault on the Constitution: They routinely invoke the part of the Declaration of Independence about u201Call men are created equal,u201D but not the rest of the document, as our u201Cnational creed,u201D even if the policies they advance in the name of that creed are in deep conflict with the Constitution itself. For example, in Keyes’s article he bases his argument in support of federal drug regulation on the equality principle of the Declaration. He claims that the Constitution supposedly creates a u201Cfederal regime of ordered libertyu201D by which democratic mobs supposedly u201Cgovern themselves in dignity and justiceu201D (I’m not making this up, honest).

To neo-cons like Keyes, the Constitution supposedly prohibits the interpretation of federal law by anyone but the federal government itself because the people of individual states are supposedly incapable of doing so; only u201Cthe people of the whole nationu201D are u201Ccompetentu201D to perform this task. But his makes no sense, for there is no such thing as u201Cthe people as a wholeu201D acting on this or any other issue. The fact that a small percentage of us votes every four years or so does not imply that we are acting with competence as u201Ca whole peopleu201D on this or any other issue. A state referendum on a specific issue, on the other hand, is much more meaningful in terms of citizen participation.

Keyes barely ever makes a speech or writes a column anymore where he does not invoke the Declaration and make a not-too-subtle comparison between himself and Abraham Lincoln. Indeed, he frequently states that his main passion, the pro-life movement of today, is the equivalent of the abolition movement of the nineteenth century. (This comparison is not entirely accurate, however, if one acknowledges Pulitzer Prize winning Lincoln biographer David Donald’s statement that u201CLincoln was not an abolitionistu201D).

The link between Lincoln and neo-con ideology is clear: Lincoln falsely claimed that the Union preceded the states, and was therefore not subject to their sovereignty. The neo-cons make the exact same argument in advancing whatever policy cause they happen to be involved in, whether it is drug regulation, abortion, censoring of television, waging war, etc. This is why so many neo-cons, such as the ones associated with Keyes and the Claremont Institute, are such slavish idol worshippers when it comes to Lincoln. They use his martyred u201Csainthoodu201D to promote their political agenda through an ever more powerful federal government. That’s why they’re described as u201Cneo-consu201D and are not a part of the Old Right tradition: They are comfortable with Big Government, as long as it fights their wars and enacts their social and regulatory programs. This is one reason why there is such a large u201CLincoln Cultu201D among conservative (but mostly left/liberal) academics and think tank employees.

But the alleged supremacy of the federal government over the states is a lie. It was established by the most violent means, a war that killed the equivalent of more than 5 million Americans (standardizing for today’s population), not logic, argumentation, or even legal precedent. It is a lie because:

  • Each American colony declared sovereignty from Great Britain on its own;
  • After the Revolution each state was individually recognized as sovereign by the defeated British government;
  • The Articles of Confederation said, u201Ceach state retains its sovereignty, freedom, and independenceu201D;
  • The states then decided to secede from the Articles and dropped the words u201CPerpetual Unionu201D from the title;
  • Virginia’s constitutional ratifying convention stated that u201Cthe powers granted resumed by them whensoever the same shall be perverted to their injury or oppression.u201D This right was also asserted for all other states;
  • In The Federalist #39 James Madison wrote that ratification of the Constitution would be achieved by the people u201Cnot as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong,u201D flatly contradicting the contrary assertions of Keyes and other neo-cons;
  • The Constitution always speaks of u201Cthe United Statesu201D in the plural, signifying that the individual states were united in forming the federal government as their agent while maintaining their sovereignty over it;
  • The Constitution can only be amended with the authority of the states;
  • Until 1914 U.S. Senators were appointed by state legislatures so that the states could retain a degree of sovereignty over federal u201Cofficials,u201D who now have carte blanche to rule over us as they wish.

Only by endlessly repeating what Emory University philosopher Donald Livingston calls Lincoln’s u201Cspectacular lieu201D that the federal government created the states (and not the other way around), and that the nation was supposedly founded by u201Cthe whole peopleu201D and not the people of the states in political conventions can the neo-cons continue to champion the further centralization of governmental power to serve their own political ends, whatever they may be.

Of course, it’s not only the neo-cons who perpetuate this lie. Liberals and other assorted leftists do so as well. The left-wing journalist Garry Wills, for example, praises Lincoln’s u201Copen air sleight of handu201D in effectively rewriting the true history of the founding (not unlike so many of the former communist governments rewrote their own histories during the twentieth century) because it enabled us to embrace u201Cegalitarianismu201D and the massive welfare state in whose name it has been advanced (Lincoln at Gettysburg).

Columbia University law professor George P. Fletcher echoes the neo-con mantra in Our Secret Constitution, where he celebrates the fact that the centralized state that was imposed on the nation by the Lincoln administration has led directly to the adoption of myriad u201Cwelfare programs,u201D u201Caffirmative action measures,u201D the New Deal, modern workplace regulation, etc. He is quite gleeful in his description of the Gettysburg Address as u201Cthe preamble of the second American constitution.u201D This is not necessarily a written constitution, however, but one that has been imposed by federal policy.

This transformation of American government from one in which federalism, states rights, and the rights of nullification and secession allowed the citizens of the states to retain sovereignty over the federal government to a consolidated, monolithic Leviathan, means that Americans now live under what historian Clinton Rossiter called a u201Cconstitutional dictatorship.u201D He used this phrase in a book of the same name which appropriately featured an entire chapter on the u201CLincoln Dictatorship.u201D

Thomas J. DiLorenzo [send him mail] is the author of the LRC #1 bestseller, The Real Lincoln: A New Look at Abraham Lincoln, His Agenda, and an Unnecessary War (Forum/Random House 2002) and professor of economics at Loyola College in Maryland.

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