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The constitution is not what it used to be

By Henry Lamb
web posted May 23, 2011

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When James Madison wrote "…nor shall private property be taken for public use without just compensation" into the Constitution, he really meant "for public use."   Over the years, the courts redefined "public use" to mean "whatever government wants to do with your land."  The Kelo v. New London decision drove the final nail into the idea of sacred private property.  Another Founder, John Adams, said: 

"Property is surely a right of mankind as real as liberty.…The moment that the idea is admitted into society that property is not as sacred as the laws of god, and that there is not a force of law and  public justice to protect it, anarchy and tyranny commence.  Property must be sacred or liberty cannot exist. "

Private property is no longer sacred. Government can take your land and give or sell it to another private individual.  Government can assume control of your land – which is the defining power of ownership – by simply declaring that a wetland exists, or that an endangered or threatened species may wish to use your land.  Government may prevent you from using your private property by simply drawing lines on a map and declaring that your land is in a "conservation" zone. 

The Fifth Amendment to the Constitution is not what it used to be.  But then neither is the Fourth Amendment, which says quite clearly that:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The Indiana Supreme Court doesn't understand this clear language. Writing for the court, Justice Steven David said:

"We believe ... a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence,"

What on earth is "modern Fourth Amendment jurisprudence" that completely upends the clear language and meaning for the Fourth Amendment?

Modern jurisprudence must mean that courts are no longer bound by the Constitution or the law, and can redefine the words to mean whatever the court wants them to mean at the moment.  This disease is not limited to the courts, however.  It has spread to the White House and to Congress.

Article 1, Section 8 clearly gives Congress the authority to declare war.  In its wisdom, Congress allowed the President to initiate war action in certain circumstances, defined in the War Powers Act.    Section 2(c) instructs the President in the use of War Powers:

"The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces."

Obama completely ignored this clear language of the War Powers Act when he introduced "United States Armed Forces into hostilities," by ordering the bombing of Libya.

Sadly, Congress has ignored this blatant violation of law.  Senator Lamar Alexander's staff was asked why Congress allowed the violation to go unchallenged.  The staff reply was a pitiful attempt to explain that the constituent didn't understand that the President could comply with the law by reporting his action after the event took place.  Of course, there is no such wiggle-room in the War Powers Act; the wiggle-room is in the mind of mischievous politicians.

When the President's action was challenged by the media, the excuse was that the action in Libya was not actually a war action; it was a limited police action of some sort.  Pitiful.   

This disease that destroys the clear meaning of the language in laws and the Constitution will only get worse.  ObamaCare has already been approved by two courts.  To do so, these courts have said that there is no limitation on the power of Congress.  They have said the Government can force an individual to purchase any product that the government decides its citizens should buy.

Fortunately, at least one court has held the opposite view; that the government cannot compel a private citizen to buy a product.  The regulation of commerce does not include the forced instigation of commerce.  This decision will ultimately be made by the U.S. Supreme Court, which has already decided, and upheld, that "public use" doesn't mean public use. 

Congress can control the courts in a variety of ways.  The Senate can strongly influence the courts through their advice and consent process.  Were Senators to reject those judicial appointees who believe that "modern jurisprudence" outweighs the clear language of the Constitution, this disease could be eliminated.

Congress can control the courts and the executive branch only if it is populated by individuals who know, and believe in the Constitution.  The people decide how Congress is populated.  It's up to us. ESR

Henry Lamb is the author of "The Rise of Global Governance,"  Chairman of Sovereignty International , and founder of the Environmental Conservation Organization (ECO) and Freedom21, Inc.


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