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A great week for liberty

By Mark Alexander
web posted December 20, 2010

The legacy of American Liberty enjoys eight dates of recognition every year, some better known that others. We begin with Patriots' Day in April, then Armed Forces Day and Memorial Day in May, Independence Day in July, Constitution Day in September and Veterans Day in November. Last week, we celebrated the last two Liberty anniversaries -- the Bill of Rights ratification this past Wednesday and the Boston Tea Party one day later.

Thus, it is notable that, in that same week, there was a rare victory in the federal courts upholding Liberty and Rule of Law enshrined in our Constitution and its Bill of Rights.

For many decades, the courts have been dominated by leftist jurists who subscribe to the errant notion of a "living constitution." These judges, who now populate what Thomas Jefferson predicted would become the "despotic branch," have amended by way of judicial diktat that venerable document beyond all recognition. Occasionally, however, a judge who takes his oath literally to "support and defend" our Constitution will rise above the robed despots and decide in favor of Rule of Law.

Last Monday, U.S District Court Judge Henry Hudson ruled that one of the key provisions in President Obama's 2,700-page health care law "exceeds the constitutional boundaries of congressional power."

A year ago, U.S. Sen. Jim DeMint (R-SC) raised a Constitutional Point of Order on the Senate floor as ObamaCare was being debated: "Forcing every American to purchase a product is absolutely inconsistent with our Constitution and the freedoms our Founding Fathers hoped to protect," he said, adding, "This is not Liberty, it is tyranny of good intentions by elites in Washington who think they can plan our lives better than we can." (Or as Jefferson put it originally: "Were we directed from Washington when to sow, and when to reap, we should soon want bread.")

Vindicated by Monday's decision, Sen. DeMint responded, "Today's decision makes it clear that Obama and Democrats overreached and violated the Constitution in their rush to pass a federal takeover of our health care system. Virginia Attorney General Ken Cuccinelli made a compelling case that ObamaCare violated the constitutional rights of Americans by forcing them into a government program against their will. The Constitution neither grants Congress nor the president the power to compel every American to buy government-approved health insurance. The unconstitutional individual mandate is the centerpiece of the health care takeover and today's ruling should signal the beginning of the end for ObamaCare. Congress must listen to the American people and fully repeal ObamaCare immediately."

The plaintiff in the case was Virginia Attorney General Ken Cuccinelli, who said of Judge Hudson's decision, "This case isn't about health insurance, it isn't about health care, it's about Liberty. ... If the feds win on appeal [to the liberal Fourth Circuit Court] it will be the end of federalism. Nothing the federal government does [would be] limited by enumerated powers. Today is a great day for the Constitution. Today the Constitution has been protected from the federal government, and remember, an important reason for the constitution in the first place was to limit the power of the federal government."

One Leftist commentator's response to the decision typifies the Leftmedia's profound ignorance in regard to constitutional Rule of Law. Slate's senior editor, Dahlia Lithwick, claims Cuccinelli has "an aspirational view of the Constitution. There's whole chunks of the Constitution that he wants to do away with. He's challenging the EPA's power to regulate. He's challenging the birthright, the citizenship provisions of the 14th Amendment. He has a sort of a cut-and-paste view of the Constitution."

I suspect Lithwick did not celebrate the 219th anniversary of the ratification of our Bill of Rights last Wednesday. In fact, I am sure that she and her Leftist colleagues have only the most profoundly adulterated understanding of what our Founders intended to convey in our Constitution's first 10 amendments.

At the time of its proposal, there was great consternation as to the need for the Bill of Rights. Some Framers argued that if enumerated, these rights might be construed as malleable rather than unalienable, as amendable rather than "endowed by our Creator" by way of the Constitution's superior guidance, the Declaration of Independence.

Alexander Hamilton wrote in Federalist No. 84: "I go further, and affirm that bills of rights ... are not only unnecessary in the proposed Constitution, but would even be dangerous. ... For why declare that things shall not be done which there is no power to do?"

Hamilton's concerns were both prescient and well founded. The "despotic branch" has, through successive generations of extra-constitutional rulings, treated our Constitution, and especially its Bill of Rights, as, in Jefferson's words, "a mere thing of wax which they may twist and shape into any form they please."

When read in the context in which they were written and ratified, our Bill of Rights is both an affirmation of innate individual rights and a clear delineation on constraints upon the central government, as specified in its Preamble: "The Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution..."

In Federalist No. 45, James Madison outlined the clear limits on central government power established in our Constitution: "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite." That firm belief served as the basis for the Bill of Rights' Tenth Amendment: "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."

In a letter to George Washington, Thomas Jefferson affirmed, "I consider the foundation of the Constitution as laid on this ground: That 'all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people.' To take a single step beyond the boundaries thus specifically drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible to any definition."

The Bill of Rights is the source of Attorney General Cuccinelli's references to "federalism" and "enumerated powers" which "limit the power of the federal government." It is, likewise, the basis of Judge Hudson's ruling. So much for the accusation by Lithwick and her club of talkingheads that Cuccinelli "has a sort of a cut-and-paste view of the Constitution."

Judicial and political despots, and their media minions, should take note of the other historic date this week.

December 16 was the 237th anniversary of the Boston Tea Party, when "radical" members of a secret organization of American Patriots called Sons of Liberty, boarded three East India Company ships and threw 342 chests of tea into Boston Harbor in protest of unjust taxation and tyranny. Of this event, the Men from Marlborough wrote, "Death is more eligible than slavery. A free-born people are not required by the religion of Christ to submit to tyranny, but may make use of such power as God has given them to recover and support their ... liberties."

Three years later, in 1776, this rebellion had grown to such extent that our Founders were willing to give up their lives and fortunes, and to attach their signatures to our Declaration of Independence.

That iconic event in Boston Harbor is the inspiration for the Patriot Tea Party movement that is sweeping the nation today, a renewed quest to restore Essential Liberty and Rule of Law.

The second Tea Party is now well underway, and this generation of Patriots has armed themselves with the most powerful of weapons -- Truth, and a steadfast commitment to our Declaration and Constitution, as bequeathed to them by generations of Patriots gone before. ESR

Mark Alexander is the executive editor of the Patriot Post.

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