A Post-Constitutional United States


Eternal vigilance is the price of liberty — power is ever stealing from the many to the few. . . . The hand entrusted with power becomes . . . the necessary enemy of the people. ~Wendell Phillips

Imagine for a moment a state where your home can be seized and sold to another private entity, and the central government has the power to decide who you as a community will do business with — a place where your movements are tracked and recorded and your conversations recorded. Imagine one man with the power to order mass surveillance, start wars, and execute citizens without trial anywhere in the world, including on American soil. The state that I am describing is the United States of America in 2013.

Individuals across the ideological spectrum have recognized this crisis for US freedom and have described it with a variety of terms: soft-totalitarianism, fascism, and anarchotyranny, to name a few. Needless to say, this is a far cry from what the founders of the United States had in mind when the Constitution was drafted and ratified in 1787.

The steady erosion of freedoms in the United States did not begin with the election of Obama in 2008, or with Bush in 2000, or even the September 11, 2001, terrorist attacks. The latter did, however, accelerate the process with the war on terror and the cover of permanent interventionism abroad.

This is the first in a series of reflections that seek to understand what happened that led us to this lamentable state of affairs. In learning how we arrived here, the goal shall be to figure out how to carve a path back to a free society.

Let’s go back a generation and consider the role of the judiciary.

At one time, US Americans in their local communities and at the state level had the power to decide whether or not they wanted to do business with repressive regimes. In the 1970s and 1980s, the anti-apartheid movement sought to obtain boycotts from local and state governments doing business with South Africa. This was at a time when the White House was advancing a policy of constructive engagement with the apartheid regime in South Africa. Over the long-run, successes at the local and state level translated into a policy change at the federal level. It was a classic bottom-up approach to governance.

Today, however, an anti-apartheid campaign like the one designed a generation ago would be impossible. In 2000 the Supreme Court in the Crosby versus National Foreign Trade Council decision stripped that power from states and localities and left it in the hands of the executive branch. Soon after, the Supreme Court forced Massachusetts to do business with companies that had done business with the military junta in Burma.

According to constitutional scholar Sanford Levinson in the Fordham Law Review, the Crosby decision compels state and local governments to cooperate with evil. It also concentrates power in Washington, D.C.

Then in 2005 the Supreme Court, in the Kelo v. City of New London case, stripped private property rights away from individuals and families. A majority of justices on the court claimed that cities and municipalities have the right to seize properties from private individuals in order to promote private development that could be put to “better” use to generate more tax revenue for their respective community.

In practice these local governments, often corrupt, declare good properties blighted and then seize them at bargain basement prices in order to sell them on to politically-connected parties. To make it a win for the local government, at the expense of the legitimate owner, these parties then redevelop the properties to provide a larger tax base.

Former Congressman Ron Paul (R-Texas) described the importance of the decision at the time:

The City of New London, Connecticut essentially acted as a strongman by seizing private property from one group of people for the benefit of a more powerful private interest. For its services, the city will be paid a tribute in the form of greater taxes from the new development. In any other context, what’s happening in Connecticut properly would be described as criminal. . . . The individuals losing their homes understand that stealing is stealing, even if the people responsible are government officials. The silver lining in the Kelo case may be that the veneer of government benevolence is being challenged.

In 2009, after the local government had the backing of the Supreme Court, they seized the property of private home owners and destroyed the homes — leaving empty acres where there was once a neighborhood. However, the company that was supposed to develop the property, Pfizer, then decided to walk away from the whole deal.

Susette Kelo’s former home in New London, Connecticut — before and after.

The misguided belief of government officials, that they could get more revenue, destroyed people’s homes and lives. They wound up destroying not just the community but losing even the prior tax revenue.

These Supreme Court decisions have two features in common. They (1) take power from a lower level and concentrate it the hands of fewer decision makers, who often impose unjust and immoral decisions, and (2) they allow a small group to profit from their contacts in government, to advance their economic self-interest.

Of course, these decisions were not shaped by national security issues but narrowly defined interests, seeking to use the state to take from others to enrich themselves. This is crony capitalism — or simply cronyism — and in other parts of the world it has led to rising poverty and less economic freedom. Not surprisingly, the United States is no longer the economically freest country in the world, and the severe plummet has followed these cases. According to the Fraser Institute, the United States has now fallen to 17th in the world.

The weakening of private property rights in the United States and the centralizing of the right to decide who to do business with in the federal government strikes at the heart of the US American tradition of liberty. The late conservative polemicist Joseph Sobran, who passed away in 2010, called the present system “Post–Constitutional America,” and went on to say that “the U.S. Constitution poses no serious threat to our form of government.”

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