Clauses, Constitutional Disarray, and the Preservation of Liberty

by Harry Goslin
by Harry Goslin

At some point every semester I am forced to instruct my students in the dangers of reducing the content and context of the Constitution to an array of "clauses" established nowhere in the documents’ text. Reducing the Constitution to a Reader’s Digest version of itself only facilitates the ability of government to enslave the individual, take his property "legally," and if necessary in the eyes of the state, to murder the individual.

School textbooks echo the same mantra beat into the minds of the masses by pundits, politicians, the media, and academia. Thanks to this group of historical and linguistic pied pipers, the entire working text of the Constitution has been reduced to a handful of "clauses" bearing no resemblance to the document drafted by the Founders.

The substance of the First Amendment is overshadowed by the "establishment clause." The "equal protections clause" of the Fourteenth Amendment is a federal veto power over all State-level laws. A power-hungry federal bureaucrat and a willing "victim" is all that’s needed to initiate this process. The "commerce clause" allows Congress to control the property of every business and individual in this country with onerous regulations. If that isn’t enough to secure a fascist state, there’s always the "necessary and proper clause." The permanent damage to freedom wrought by its application should be self-explanatory.

In the Fifth and Fourteenth Amendments you find the "due process clause." Due process is a long-established legal protection, very important to the life, liberty, and property of the individual, but its viability has been compromised by the judicial branch of government. Due process dates back to Magna Carta and requires that government treat the accused fairly and according to established rules. From arrest and seizure of property, to trial, detention, appeal, and punishment, government must ensure that the rights of the accused are not violated. That is the essence of due process.

In the hands of the judiciary, though, due process has been mongrelized. The fundamental issue of fairness inherent in due process has been applied to the legislative process through judicial interpretation. The logic? Since "we" choose our representatives through democratic elections, whatever laws they pass once in office must be a reflection of the "people’s will." That’s fairness in the minds of judicial activists. What it really means is that one more than half of the less than fifty-percent who participate in the sham called Election Day condemn every American to the oppression of one political party or the other.

According to modern judicial interpretation, when your taxes are raised by the legislative branch, or more regulatory burdens are placed upon the operation of your business, or the executive branch snoops into your private affairs and banking practices, due process has been served because the permitting authority was really the American people, by virtue of them choosing their representatives in "fair" elections. How appropriate. Because of the "dangerous" world we live in, coupled with the idiocy of so many Americans, we all must be assumed "criminals" in some way, and have our property and liberty confiscated accordingly. That’s due process in twenty-first century America.

Besides the "due process clause," the Fifth Amendment also contains the "takings clause." According to interpretation charlatans and their legions of idiot followers, the relevant phrase of the Fifth Amendment is, "nor shall private property be taken for public use without just compensation." Supposedly this phrase implies that the federal government can take private property for whatever "public use" it deems necessary so long as the owner is given "just compensation."

In contemporary terms, this has meant that ranchers, farmers, and property owners in general, have had their land and possessions taken by government in order to provide habitats for bacteria, bugs, and birds. Personal property has been seized and its use curtailed by socialist bureaucrats intent on forcing all Americans to conform to the social agendas of numerous special interest groups tethered to government.

"Just compensation" might still mean the market value, but only after government has used legal threats and the application of unconstitutional laws to depreciate the value of property to be seized. Recalcitrant owners are then forced to essentially give the property to the government, since no sane buyer will take interest in property under the greedy gaze of bureaucratic criminals.

If more people would just study the Constitution, the Fifth Amendment, and the history of the early American republic, they would be forced to recognize that the "takings" power of the government is extremely limited and narrowly defined.

According to Article I, section 8, the "takings" power of Congress, and thereby of the federal government, extends only to the "Authority over all Places purchased by the Consent of the Legislature of the State in which the same shall be, for the Erection of Forts, Magazines, Arsenals, dock-yards and other needful Buildings" (emphasis added). Stated in more simple terms for the functionally illiterate, the federal government can never take the property of an individual for any purpose. All appropriations of property by the federal government for any other reason and by any other means than those stated above are illegal and unconstitutional.

The invention of the "takings clause" has been a favorite method of the government to steal the property of Americans to further the cause of environmentalism. Goaded on by adherents to this crackpot religion, government has continuously reinterpreted the Fifth Amendment, turning it on its head to legalize what is referred to as theft when committed by an individual.

In an article titled, "The Original Understanding of the Takings Clause," analyzing the relevant component of the Fifth Amendment, William Michael Treanor states that "the only time when government must compensate the property owner is when it physically seizes property. The text does not require compensation when regulations diminish the value of property. Indeed, the clause does not even mention regulations."

Indeed. Such fanciful and deceitful interpretations of Constitutional text ignores the interpretive belief of the Founders that whatever powers the Constitution is silent on can in no way be read into the powers of government at some future date for reasons of expediency, environmental protection, or anything else. Even that great monarchist-at-heart, Alexander Hamilton, emphasized this on several occasions in the Federalist Papers. Government cannot regulate how a person goes about using his property because it has no enumerated authority to do so.

If what Mr. Treanor says is true, then government can effectively and Constitutionally regulate the use of all property in the United States. There is a term describing such a doctrine of uncompensated seizure and control of private property by government that Mr. Treanor advocates, but it is found nowhere in the Constitution. It was a political doctrine popularized in Germany and Italy during the 1930s, better known as fascism. As Friedrich Hayek correctly argued in The Road to Serfdom, although the Axis Powers were defeated in World War II, fascism survived and now thrives in the "free" democracies of the West.

Perhaps, if only to make the clause crowd happy, we should ascribe a proper clause to the Fifth Amendment, one that summarizes the amendment’s text accurately without diminishing its protections to individual liberty, it would be the "No person shall be screwed by the government clause." Therein would succinctly clarify the purpose of the Fifth Amendment and end the chaos and confusion caused by all other government-empowering clauses.

March 27, 2004

Harry Goslin [send him mail] lives in the Arizona high country.

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