CONTENTS
CHAPTER ONE : Is Homework Constitutional?
The Living Constitution vs. the Naked
Constitution
CHAPTER TWO : We the People: Was the
Constitution Really Written to Protect Terrorists,
Illegal Aliens, and Chimpanzees?
CHAPTER THREE : Congress: Who Killed Our
Government of Limited Powers?
CHAPTER FOUR : The President: The Mouse That
Roared
CHAPTER FIVE : The Courts: Supreme Power
Grab
CHAPTER SIX : Freedom of Speech: Some Speech
Is More Equal Than Others
CHAPTER SEVEN : Religion: One Nation, Under
Never Mind
CHAPTER EIGHT : To Keep and Bear Arms: The
Right the Left Left Behind
CHAPTER NINE : Life, Liberty, and That
Other Thing: Property Rights Declare
Bankruptcy
CHAPTER TEN : Cruel and Unusual:
The Supreme Court Outsources the
Constitution
CHAPTER ELEVEN : Federalism: The Forgotten
Tenth Amendment
CHAPTER TWELVE : Come the Revolution: Time
for a New Convention
IS HOMEWORK
CONSTITUTIONAL?
Are you serious?
F ORMER H OUSE S PEAKER N ANCY P ELOSI
I N THE SPRING OF 2004 , a high school math teacher in Milwaukee named Aaron Bieniek gave his students three precalculus assignments that had to be completed over the summer vacation. Like students the world over, the kids in Bienieks classroom moaned and groaned about having to do work over vacation. But this was America, and so it was perhaps inevitable that one of the students would declare the assignments to be downright unconstitutional.
Seventeen-year-old Peer Larson had a summer job lined up and couldnt squeeze homework into his busy schedule. He turned the assignments in late and, as a result, got a lower grade than he would have otherwise. Outraged by the reduction in grade, Peer and his father sued everyone in sightBieniek, the high school, the principal, the superintendent, and several othersfor violating their constitutional rights. They argued that the math assignments violated both the Fourth and Fourteenth Amendments to the Constitution. The father-son team pushed their claim up to the Wisconsin Court of Appeals, which tossed out the lawsuit, explaining that even under the broadest reading of the Constitution, one could not derive a fundamental right to homework-free summers. The court scolded the Larsons for making a frivolous argument and held them liable for court costs and attorneys fees.
Personally, I think the court was too harsh on Peer and his dad. Who can blame ordinary citizens like the Larsons for trying to stretch the Constitution when Americas elites have been playing the same game for decades? Its called the Living Constitutiona theory that invites judges and politicians to rewrite the Founding Fathers words. You might think its absurd to say that the Constitution prohibits summer homework; but then, is that any more absurd than saying that the Constitution forbids the Pledge of Allegiance, or the death penalty, or voter identification laws? Under the Living Constitution, judges have sought to prohibit all those things.
The Living Constitution requires all sorts of policies that are not mentioned anywhere in the constitutional text: abortion on demand, gay marriage, school busing, and so on. Nothing, in fact, is more common than the spectacle of courts inventing constitutional rights that are not in the text, while disregarding those that are. The real Constitution is pass; the Living Constitution reigns supreme.
Politicians may swear to uphold the Constitution, but most of them dont seem inclined to read it. Doing so would only remind them that the federal government was meant to be one of strictly limited powers rather than the Leviathan weve ended up with. There is virtually no aspect of our lives, no matter how picayune, that isnt covered by some federal department, be it the Regional Fishery Management Council, the Indian Arts and Crafts Board, or the Marine Mammal Commission. Want to give a name to that creek in your backyard? Better run it past the U.S. Board on Geographic Names.
Liberals are not solely to blame for the growth of the federal machine; big-government conservatives have been willing collaborators. But with the election of Barack Obama and a strongly Democratic Congress (until 2010), the trend toward ever more centralized power went into high gear. In 2011 the federal government ran a budget deficit of about $1.3 trillion, or 8.5 percent of gross domestic product (GDP), as compared to the forty-year average of 2.8 percent. At the end of 2008, the national debt had reached an already-scandalous 40 percent of GDP. By the end of 2011, it had gone up to 67 percent of GDP, or about $15 trillion, give or take a billion.
Americas broke, but the federal government is living high on the hog. Hundreds of billions of dollars have been sucked out of the private economy and redirected to the federal government, to be doled out for purposes that are politically expedient but flatly unconstitutional. As of December 2011, the richest, fastest-growing city in the United States was Washington, DC. That city also led the nation in economic confidence. Whats not to be confident about?
The 2010 health care law (the Affordable Care Act) represents the perfect storm of the Obama era, bringing together the accumulation of federal power and the degradation of individual liberty. Supporters of the law, no doubt, would argue that it fulfills the Constitutions promise to secure the blessings of liberty to ourselves and our posterityit just happens to do so by threatening Americans with fines and imprisonment if they fail to buy federally approved health insurance. When asked about the constitutionality of that mandate, former House Speaker Nancy Pelosi replied with an incredulous Are you serious? Well, yes, actually, we are.
Where has the Supreme Court been? For the most part, rubber-stamping the excesses of big government. To be sure, each one of the nine justices knows the Constitution backward and forward; a few of them even venerate the document. But that doesnt mean theyre going to get all fanatical and Tea Partyish about it. Take Justice Stephen Breyer, who has argued that the Supreme Court should be free to ignore the Constitutions literal text whenever a majority of justices dislike the consequences of adhering to it. Justice Elena Kagan, in her confirmation hearings, made it clear that she would not vote to strike down a hypothetical law requiring Americans to eat their vegetables. In June 2012, Kagan would join the Courts majority in holding that the government can force you to buy health insurance.
IN DEFENSE OF ORIGINAL MEANING
This book is an attack on the mainstream notion that the Constitution is nothing more than a decorative parchment; a nifty relic that never gets in the way of politicians grand designs. It is also an argument in favor of originalismthat is, adhering to the original meaning of the Constitutiona concept derided by establishment figures such as former Justice David Souter (simplistic, he says), University of Chicago professor David Strauss (wrongheaded), and, well, virtually every opinion-maker you can shake a stick at.
Notwithstanding the barbs from the chattering classes, I aim to keep things cheerful. Our task is not an easy one, but it is relatively straightforward. The originalist approach I advocate builds on the following premises:
