On a discussion email list to which I subscribe, it was stated, facetiously, of course: “Warren thinks he’s the foremost Constitutional expert in the US.”
About which I’d like to say a few things.
There are many people who know more about the Constitution than I do.
There are many, many people who know less about the Constitution than I do.
There are a great many very learned people whose knowledge of the Constitution is rooted in the fiction that the founders, brilliant as they obviously were, nonetheless gave FedGov the power to determine the length and strength of the chains binding it. Everything they know about “constitutional law” is premised on the (mistaken) belief that SCOTUS is the sole and final arbiter of what is and is not constitutional.
The entire foundation of “Constitutional Law”, as we know it, is a lie.
Yogi Berra was quoted as having once said: “You can observe a lot by just watching.” Indeed. So too can you learn a lot about the Constitution just by reading it. It’s there for all to see. What I know about the Constitution, I “got” primarily by just reading it and pondering.
For example, wherein is the power to regulate education granted by the states to FedGov? Wherein is the power to own land for national parks, forests, recreation areas and such granted by the states to FedGov? Please point out the Article and section.
But the Biggee is this: Where in the Constitution did the states grant to FedGov the power to decide what is and is not constitutional? My detractor quoted one line of Article III to me but apparently didn’t read it first as it nowhere mentions, much less conveys such a power to the federal judiciary. Like others, he’s been hoodwinked by SCOTUS.
Everything that we as a country know about the constitution is based on the fallacy that the FedGov judiciary was granted this power by the states. Yet is it nowhere in evidence within the Constitution. This is a power invented by SCOTUS and, as explained in Marbury, is not actually in the Constitution but is to be found in the “phraseology” of that document; they read between the lines and decided, “Yeah, we have that power.” And having situated themselves to rubber stamp vast expansions of FedGov power, have been approving an unending list of new powers found between the lines for more than two centuries. SCOTUS has erected myriad barriers to challenging laws in the way they invented and tipped the rules in favor of FedGov with bias built into the federal judiciary itself.
I posit that this is wrong. I have several web sites, with which readers here are likely familiar: Constitutionality.us and TakeBackThePower.us, where I make my case that The States, as FedGov’s boss, are the rightful arbiters of what is and is not constitutional. I welcome my detractor and others to point out any inaccurate statements made on my sites. (FYI, there have been some, which I caught myself and corrected.) I welcome criticism and correction of inaccuracies because correcting errors makes my sites that much better. I would especially appreciate my detractor pointing out inaccuracies because he would have to read my sites to find the errors, if any. In reading, he may just learn a thing or two. Will he refute any statement I’ve made? Not likely.
But I very much would like to address any issues others have with my sites. Note to my detractor: You needn’t mention what Google analytics has to say about visits to my sites. I have my own counters and I have feedback from others who, once or twice a week, stumble across one or another of my sites and write to urge me on. I’ve never had one person comment that I’m wrong. There are Tea Party folks in two states (of which I’m aware) that use my sites in their teaching and presentations. He may opine that my sites are inconsequential or ignored but, as usual, he is wrong. I am reaching more people than Google analytics can possibly know. Would I like to be on Google’s first page for “Constitutional Law” queries? Of course. But I’m not losing sleep because I’m harder to find.
The biggest problem is getting people to understand. With more than 200 years of SCOTUS deciding what is and is not constitutional, we believe that that’s how it should be. We believe that FedGov may own vast stretches of the western states even though that power is nowhere granted to FedGov within the Constitution. We believe these things because that is what we have been taught. We have been taught these things because law schools teach “what the law is” (as defined by SCOTUS). The game is rigged.
I concern myself not with what the law “is” but with what the law should be and what it could be if people just understood.
SCOTUS may have decreed that constitutional challenges must be via means of lawsuits in federal court, but that is nowhere to be found in the Constitution. SCOTUS came up with that.
These are the facts. (Feel free to correct me if I make a misstatement.)
1) The States created FedGov to serve them; the States are FedGov’s “boss”.
2) As the boss of FedGov, the States have a duty to hold FedGov to its constitutionally enumerated powers. (“Leash your dog!” “Control your child!”)
3) The power to be the sole or final arbiter concerning which FedGov acts are and are not constitutional is nowhere mentioned in the Constitution itself.
4) Number (3) above means that: The power to determine which FedGov acts are and are not constitutional is not a power granted to FedGov by the States nor is it a power denied by the Constitution to the States.
5) The Constitution says of this situation: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
So, the power to determine which FedGov acts are and are not constitutional is, per the Constitution itself, a power “reserved to the States respectively, or to the people.” The five facts above lead inexorably to this conclusion. The only way the logic breaks down is if one or more facts are wrong. So let’s examine any about which you have doubts.
The fact that the States have been derelict in their duty for two centuries does not excuse FedGov’s action (or the States’ inaction). Unconstitutional acts do not get grandfathered in just because we’ve been lax and haven’t actually enforced the Constitution.
So, it’s not that I’m some kind of Brainiac where the Constitution is concerned, it’s that I am not handicapped by a formal education in Constitutional law. Like another Yogi, I’m “smarter than the average bear” but it doesn’t require a Juris Doctor to understand the five simple, easily verifiable facts above. An education in law may even be a handicap.
It isn’t that I have such a great understanding of the Constitution, it’s that others have such a flawed understanding. And that is the work of the federal judiciary, work that began even before Marbury and has been on-going ever since.
So, is mine a hopeless cause? Possibly, but I’d like to stick to the facts (1-5) as enumerated above. I invite anyone to discuss any of (1-5) above with which they are not in full agreement. Let me hear your reasoning and I’ll provide mine.
Anyone take exception to any part of (1-5) above?