Book Notes - Unlawful Government

Publisher's Description

Unlawful Government presents historical and legal evidence to argue that the federal government has utterly cast off its constitutional limitations, thereby transforming America from a voluntary, civil society into a compulsory, political one. Such massive concentration of political power in one entity’s hands contradicts both the law and the modern world, whose hallmarks are decentralization, competition, and individual freedom. The book ultimately recommends that States and local communities re-assert their independence, either immediately or incrementally, in order to unravel the illicit federal power and to allow diverse communities to pursue their priorities free from unlawful federal intrusion.

Author's Introduction

My parents taught me reverence for America, a reverence that I have spent my life exploring beyond the emotional realm and into the intellectual one. At the beginning I had only the vague notion that America was special – somehow different from earlier civilizations – and that I was privileged to have been born here. As years went by I studied our history and our system of law in order to grasp precisely what made America unique, a process that often made me wish I could travel back in time to witness the birth of our experiment in human liberty. Only amazing events could bring this most revolutionary principle into practice: that government’s sole mission is to preserve our rights, and that we may abolish government when it expands its reach beyond this modest role.

This is not so much a political philosophy as it is a moral philosophy, one that refuses to repeal the distinctions between right and wrong in the name of “good governance.” Other political philosophies justify coercion as a means to implement one grand vision or another, to bring about a “fair” society, or even to remake human nature itself. Such philosophies are often portrayed as more idealistic, innovative, or modern than our own, but they in truth represent an ancient scheme that the Founders wisely rejected. As the Founders rightly understood, such “creative” uses of coercive power not only constitute a moral affront, but they also smother the creativity that flourishes when the individual is free to pursue his vision of the good life, even though such vision may differ from that of his peers or of his supposed betters. Respect for the individual and for his unique faculty of reason lies at the heart of America’s dynamism and prosperity. America proved to the world what wonders man can achieve when not enslaved to other men.

While I was progressing through school and gaining a fuller appreciation for the genius and virtue behind our system, I also came to notice that today’s federal government differs starkly from the one described in the supreme law of our land, which is of course the Constitution. This began as little more than a puzzle for me to unravel. How does the federal government exercise so many powers, when the Constitution grants it so few? If the First Amendment says that Congress “shall make no law” restricting freedom of speech, how does Congress restrict certain language over the airwaves? Why does Congress no longer declare war? Why was a constitutional amendment necessary to enact alcohol prohibition in the early twentieth century, whereas today the federal government conducts a “war on ” without a similar enabling amendment? If the Constitution truly grants sweeping powers to the federal government, then why did such powers go ignored for the majority of our history?

These were only some of the questions I felt compelled to ask, and the more I thought about them, the more troubled I became. The Constitution dedicates the power of amendment to the people through our state and federal representatives, yet a panel of nine individuals on the Supreme Court had wrought seismic constitutional changes over the course of the twentieth century. To be sure, the Supreme Court wields the power of “judicial review,” whereby the Court nullifies a governmental action that conflicts with the Constitution so that the latter may prevail. Yet most of the modern landmark decisions made no attempt whatsoever to uphold the constitutional design; rather, these decisions altered the design so as to enshrine a personal concept of justice held by the individual members of the Court. In ruling after ruling the Court went about demolishing generations of jurisprudence and bypassing the amendment process, the only lawful method for adapting the Constitution to modern conditions.

Apart from this renegade reordering of the Constitution, the very nature of the changes worried me. These were no mere refinements to the government’s mission of protecting our rights; instead, the changes bespoke a rejection of the Founders’ vision of limited government and signaled the embrace of the very philosophy of vigorous governmental action that the Founders had labored to defeat.

I shared my concerns with other students in law school and, later on, with fellow members of the legal profession. What I encountered ranged from indifference to hostility. During such conversations my peers revealed a deep disregard for the constitutional design and for the American citizenry itself.

First and foremost, they told me that the Constitution reflected a bygone era whose philosophy carried no weight in modern America. Government must have broad powers to “run” society now, so my scruples about constitutional niceties amounted to a naïve and misplaced obsession. Of course this response overlooked that the Founders’ ideals endured the exact same criticism over two hundred years ago: the very notion that government should limit itself to core protective functions struck the Founders’ contemporaries as naïve, laughable, and unworkable as well. In point of fact, the Founders rejected eons of their ancestors’ apologetics and rationalizations for open-ended governmental power. On this score my friends’ retort was both historically ignorant and unoriginal. Even worse, my friends displayed no concern for the moral underpinnings of limited government, mainly that coercive power must be used only in the defense of life, liberty, and property, not as a tool for compelling our fellow man to conform to a “plan” dreamed up by the cognoscenti.

Setliff: Now, Mr. Strickland, you're a jurist, a member of the Florida bar, a graduate of the prestigious University of Virginia School of Law where you earned your Juris Doctor. You came to law like most people presumably — bright-eyed and idealistic, and possessed of an esteem for the rule of law. And yet after getting there, you found that the rule of law is an anomaly in this day and age. It seems that much of what a law student studies in constitutional law classes, might as well be dubbed unconstitutional law.

Interestingly, constitutional scholar Kevin Gutzman grumbles about how law is taught today:

Legal education today is much different from what it was in John Marshall's day, or even early in the twentieth century. When Thomas Jefferson and Edmund Randolph, John Marshall and Patrick Henry studied law, they did so by reading treatises in what was called the science of law. Common-law study was in its nature historical and theoretical, and familiarity with the history of England was essential to it.

Presently, American law students are almost universally subjected to the case method. Their texts are collections of judicial opinions, or in a few cases of statutes, with absolutely no historical context…. In short, if the judges make a particular false assertion about the Constitution in numerous cases, students reading those opinions have no way of recognizing that assertion's falsity. They are provided no tools for analyzing judges' claims – only with scads of the opinions incorporating those claims. You sir, seem to hold a similar line of reasoning.

Strickland: Indeed I do share that line of reasoning, but the problem is even worse than you might suspect. It’s not just that law students lack the tools to determine whether the Supreme Court is right or wrong, but that law students lack the desire to make that determination because they see it as pointless. To quote former Justice Robert Jackson, “We are not final because we are infallible, but we are infallible only because we are final.”

More recently, I heard an interview with retired Justice Sandra Day O’Connor in which she said that her opinion about constitutional issues “doesn’t matter,” simply because she no longer sits on the Court. If our most celebrated jurists view the Constitution through the lens of power rather than the lens of truth, it should come as no surprise when law students do so as well. So we find law students embracing a quasi-religious doctrine of infallibility by treating the Supreme Court’s pronouncements as holy writ, even when those pronouncements contradict the Constitution on its face.

The alternative – conducting an independent assessment of the Constitution’s meaning and purpose – requires additional mental effort that would cast doubt on a tremendous amount of modern federal activity. Asking law students to go to this much trouble for a task that brings little more than scorn is a tall order, especially considering that we inhabit a most anti-intellectual moment in history. It is far more appealing for law students to fall in line and agree that the Court may re-design the Constitution to the supposed needs of today, never subjecting that presumption to any critical analysis (which is reserved for things that pay). This has been going on long enough that America’s legal class does not believe in “law” as anything other than the whims of those in power, which is to say that there is no law.

My simple act of contrasting the Constitution as written with the Constitution as applied therefore strikes many as radical, and this is what made it so easy for me to write the book – all I had to do was summarize some of the most notable differences between what the Founders bequeathed us and what we are faced with today.

Sir, in your book Unlawful Government: Preserving America in a Post-Constitutional Age, you address the blatant unconstitutionality of the American system of government as it stands today. You point to ominous realities about our federal system as it stands today, and dare to decry much of the United States government’s day-to-day activities as unlawful. As the book description states, "Unlawful Government presents historical and legal evidence to argue that the federal government has utterly cast off its constitutional limitations, thereby transforming America from a voluntary, civil society into a compulsory, political one. Such massive concentration of political power in one entity's hands contradicts both the law and the modern world, whose hallmarks are decentralization, competition, and individual freedom." You don't seem to be alone in your concern. Supreme Court Justice Antonin Scalia quipped, "We live in an age of hair-trigger unconstitutionality."

Setliff: My question to you, sir, is as follows: What vital revelations can readers expect to find in your book?

Strickland: For the millions of Americans who respect the Constitution but know little about it, my book provides a helpful summary of some very complicated issues that normally occupy only a select few. The average reader will be surprised to learn that the “official story” of the Constitution is false in many respects, most notably with regard to the Bill Of Rights. Everyone grows up learning that the Bill Of Rights represents the most important check against governmental abuse, be it the state governments or the federal government. Yet for the majority of our history, the Bill Of Rights did not apply against the state governments at all, rather against only the federal government as a reminder of the latter’s limited and enumerated powers. Restrictions on the state governments appear elsewhere in the Constitution and are very few, thus leaving the States a great deal of leeway to experiment with different public policies. This ingenious arrangement restrained the abuse of power by way of interstate competition, as Americans could “vote with their feet” to greener pastures whenever necessary. It was only later that the federal government transformed the Bill Of Rights into a weapon with which to impose a stifling national conformity, all the while carving out numerous “exceptions” to the Bill of Rights that grossly inflated federal power beyond the Founders’ worst imagining.

Setliff: Your assertions that the American federal system as originally established is interesting. Ronald Reagan said the genius of federalism was that it allowed the citizen to vote with his feet too. But in an age of a top-down unitary state, it seems that virtuous prospect is a bit more dim. As you know, the States already had their own Bill of Rights prior to the ratification of the Constitution, and the founding generation rightly considered their rights antecedent to the adoption of the Constitution in 1787.

Strickland: Another likely revelation for the average reader concerns illegal immigration – a very hot-button issue these days – and the widely-held belief that any child born on U.S. soil to illegal-alien parents is automatically a U.S. citizen. This is absolutely false, as the drafters of the Fourteenth Amendment made clear when discussing the citizenship clause. Granted, the Supreme Court has ruled (erroneously) that children born on U.S. soil to legal immigrants are citizens at birth, but the Court never extended that rationale to illegal immigrants. This makes the federal government’s persistent bestowal of birthright citizenship on the children of illegal aliens quite offensive, especially considering that the federal government forces States and localities to subsidize all this. Sadly, many people have resigned themselves to believing that we have to amend the Constitution to fix this problem, when the burden to amend should fall on the federal government and the advocates of birthright citizenship, not on the rest of us.

In a certain sense, however, there is nothing new in my book at all, since most professors, lawyers, and law students admit that the federal government no longer functions according to the Constitution as written or intended. What sets them apart from me is their cavalier reaction to that fact, which can be summed up as, “So what?” In their minds, the Constitution is an outmoded hindrance to their personal vision of how society should function, so they feel fully justified in “re-interpreting” the Constitution for our supposed benefit. For example, in Chapter Two I reference a book called “Our Secret Constitution” by George P. Fletcher – a professor of jurisprudence, mind you – openly celebrating that the Constitution of the Founders is extinct. That elite attitude is the book’s biggest revelation for the average person, the revelation that America’s leaders know full well that they are operating beyond the supreme law of the land and feel entitled to do so.

Setliff: Jefferson eloquently proclaimed the necessity of limited government in the Kentucky Resolutions:

It would be a dangerous delusion were a confidence in the men of our choice to silence our fears for the safety of our rights... Confidence is everywhere the parent of despotism. Free government is founded in jealousy, and not in confidence. It is jealousy and not confidence which prescribes limited constitutions, to bind down those whom we are obliged to trust with power... Our Constitution has accordingly fixed the limits to which, and no further, our confidence may go... In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.

Sir, you like Thomas Jefferson, don't seem to be possessed of very much confidence in men or government? Why is that?

Strickland: First, we must remember that Jefferson and the Founders showed more faith in humanity than any other society before or since, in that they trusted us to run our own lives according to our own reason. Government’s role was therefore limited to the outer boundaries of human interaction, not only because this allows civil society to flourish, but also because the Founders had justifiable misgivings that government power would be abused whenever possible. A page of history is worth a volume of logic. Jefferson and his contemporaries were students of history, much more learned than I am, but even a superficial glance at history reveals that violence, cruelty, and poverty typify the human experience far more than peace, justice, and plenty do. In light of humanity’s proven tendency to abuse power, it would be sheer folly to craft a government on the assumption that its powers will be used wisely. Any serious undertaking to make a limited government must treat man as he is: imperfect.

The disappearance of this obvious truth from our collective consciousness lies at the heart of many of our problems today. We have upended the Founders’ understanding and decided that it’s better to trust government than ourselves to tackle our imperfections. People mistakenly believe that electing the “right” person or implementing the “right” governmental programs will provide our salvation, so they cheer on the federal government’s ceaseless expansion. In making this Faustian bargain, they forget that the more you allow government to do for you, the more you allow government to do to you. Perhaps it’s because we have discarded the concept of sin, or perhaps the incredible advances in technology have insulated us from the fact that tragedy rules the world -- I don’t know for sure. What I do know is that people no longer wish to work out their problems in a voluntary or civil manner, but rather demand that the government take care of it for them with the blunt instrument of . So I have little faith in improving a federal government that has run amok, and I believe instead that we must dismantle and decentralize its power so that any abuses are limited in scope and can offset one another.

Setliff: Being a part of the court's dissenting tradition on behalf of limited government and judicial restraint, Justice Antonin Scalia offered his own indictment of judicial activism:

What secret knowledge, one must wonder, is breathed into lawyers when they become Justices of this Court, that enables them to discern a practice which the text of the Constitution does not clearly proscribe, and which our people have regarded as constitutional for 200 years, is in fact unconstitutional? ... Day by day, case by case, this court is busy designing a Constitution for a country I do not recognize.

So, my next question to you: how did we reach the point where we are today? It didn't happen all it once it seems. Political scientist Gottfried Dietze observes, "[B]efore the Civil War… the nature of American federalism was still a subject of debate. The outcome of the Civil War ended that debate. The Nationalists emerged as victors. National power increased as the twentieth century approached [along with the corresponding] disappearance of states' rights." Though, former West Point Professor of History Wesley Riddle contends with some measure of plausibility, "While the Civil War may have altered the federal-state relationship, it did not justify social revolution beyond the terms of peace or actual Constitutional amendment. For instance, the Civil War did not change Natural Law, common American republican heritage (including the right to revolution), Founders' intent—nor most of the original compact." Also, the federal judiciary did not apply the Bill of Rights to States until the 1930s—and then only selectively through the Fourteenth Amendment's due process clause—indicates national judicial tion of the state is a more recent phenomenon. So, where did we err? Your thoughts?

Strickland: This is a big bone of contention among those of us who acknowledge that federal power has grown too great: some argue that the Constitution itself was the “wrong turn” away from the Articles of Confederation; others argue that the Civil War was the initial, mortal wound that really began to fester with the advent of the twentieth century; and still others claim that all was well until Woodrow Wilson hatched the Federal Reserve and beguiled us into World War One. My attitude is that the Constitution, for all its imperfections, can (and once did) provide us with the most free and moral nation that has ever existed on the face of the Earth. Yet Thomas Jefferson was correct when he observed that it is the natural tendency of power to accumulate at a central location, so it was only a matter of time until the federal government chafed at the Constitution’s restrictions and eventually snapped them. The Civil War, the Federal Reserve, the New Deal, the Great Society – these are not causes, but rather symptoms of any limited government’s inherent mortality. And I also believe that we, the American people, must bear some of the blame for this because we have tolerated it for far longer than our ancestors would have. We have allowed ourselves to believe the idealistic verbiage that always accompanies the latest power grab, thus embracing the immoral theory that ends justify means. Bottom line, there is no such thing as a perfect system immune from the depredations of the powerful. The best we can accomplish is to keep power fractured in competing sovereignties, so that the next idealistic scheme lacks the raw material to impose its will. As long as we perceive America as falling under a single government, our troubles will only continue.

Setliff: I see. As Jefferson said, "The natural progress of things is for liberty to yield and government to gain ground."

Setliff: Many conservative reactionaries have written books on the U.S. Supreme Court and judicial activism run riot. I like you share their concern, but I notice they have a marked tendency to deprecate the independent judiciary. You don't seem to take that approach, as you note, "The independent judiciary, insulated from the ever-changing winds of politics is vital to any society governed by the rule of law. The adjudication of cases and controversies in which the rights of citizens are at stake must remain beyond the sphere of politics, for if Lady Justice were to lose her blindfold then the scales would forever tip in favor of the powerful. Article III of the Constitution created such an independent judiciary in the Supreme Court (and in such lower federal courts as Congress may wish to establish,) whose judges received lifetime appointments and whose compensation can never decrease during their tenure" (p. 15) Federalist #78 declares, "The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGEMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body." With that in mind, what can we do effectuate limitation of judicial activism in blatant usurpation of the Constitution?

Strickland: At this stage of the game, I fear that things have gone too far for us to limit the Supreme Court in any meaningful way, since the Court has grown fully accustomed to brandishing powers well outside the legal realm. Today’s Court views itself as a type of “super-legislature” insofar as it reserves the right to invoke political philosophy, international consensus, and “fundamental fairness” to issue its opinions – considerations belonging to the political realm. And for its part, the public has been led to believe that any serious attempt to change this state of affairs would threaten the Founders’ legacy, which is of course false, but a falsehood with an iron grip on the public imagination nonetheless.

Assuming that I’m wrong, and that judicial salvage remains possible, one of the more popular proposals is the “exceptions clause” appearing in Article III, Section 2. This clause enables Congress to remove entire types of controversies from the Supreme Court’s appellate jurisdiction, and many people hope that some well-placed exceptions can curtail the Supreme Court’s reach and avert further madcap rulings. If Congress really wanted to get serious about this, it could curtail or even eliminate the multitude of lower federal courts, which are not constitutionally mandated and which generate a great deal of nonsense on their own. The downside to these kinds of plans is that Congress probably lacks the collective will to exercise its power in any meaningful way, and it’s also quite likely that state courts would stand in “solidarity” with their judicial brethren and continue to observe outlandish jurisprudence previously issued from on high.

Another, and perhaps better, tactic would be to promote an honest definition of “judicial review” as simply the Court’s right to refrain from applying laws that the Court feels are in conflict with the Constitution. In other words, “judicial review” is nothing more than the Court’s power to act or refrain from acting in a particular case and for a particular reason – it does not empower the Supreme Court to foist an altered Constitution onto the other political branches of government or onto the rest of us, which is our prerogative as consecrated in Article V. Andrew Jackson was absolutely correct when disregarding the Court’s jurisprudence, choosing instead to fulfill his independent duty to interpret and apply the Constitution as he swore to do upon assuming office. Modern politicians should do the same, even if their own interpretations are misguided, because that would create a healthy tension and deprive the Supreme Court of its misbegotten monopoly. After all, while lower courts are bound to follow the Supreme Court’s rulings as precedent, we do not share a similar duty to do so. Unless you are a party appearing before a court, or unless the court issues an order directly binding upon you, then you have no duty whatsoever to obey that court. Politicians could also attack popular misconceptions by harping on this point in populist terms, repeating over and over again that the power of amendment belongs to the public, not to nine elitists in black robes. Adopting that sort of approach could go a long way towards paring back all courts to their proper role.

Setliff: You also take aim at federal criminal law. We live in a nation where meaningful federal laws such as immigration restrictions are hardly enforced, and yet the federal government as you point out has over 4,000 federal crimes on the book. You point out with accuracy:

The Constitution grants the federal government power to criminalize only the following acts: counterfeiting, piracy, offenses committed on the high seas, violations of international law, and treason. Given that the federal government enjoys only powers that the Constitution enumerates, it follows that the federal government cannot criminalize any other type of behavior absent a constitutional amendment, such as in 1919 when the Eighteenth Amendment established Prohibition.

I am apt to concur with you, and if the Tenth Amendment didn't make the fact clear enough, Hamilton reminds us in Federalist #17, that "the ordinary administration of civil and criminal justice" is "the province of the State governments." So, why should we Americans question the propriety of so many federal criminal laws today, as you seem to do? The familiar argument goes, society is more complex today, and requires a strong, activist federal government.

Strickland: Try as it might, this popular question cannot dodge the amendment question: who has the right to determine whether the federal government requires more power to tackle the problems of modern society? Surely government must evolve as society does, but the procedure for such evolution is spelled out in Article V of the Constitution and requires legislative super-majorities. Assuming that we truly care about what society wants, there should be no problem in deferring to this procedure whenever an urgent necessity arises. However, the political elites loathe the amendment process because they know that most of their desired changes would never have stood a chance if submitted to full public scrutiny. So we have today a federal government whose massive and innovative powers were never approved by the very society for whose benefit these powers supposedly exist. To me, this counts as strong evidence that such powers are not, in fact, necessary.

Setliff: You know I study case law from time to time too, and come across a lot of ridiculous abuses and usurpations of the Constitution. A Roman historian once said, "The more corrupt the nation, the more numerous the laws." This seems to be true. One case that elicited my attention in particular was McNab v. United States (see case study at Overcriminalized.com), which was a case on appeal concerning an egregious federal prosecution of an importer of seafood. The man and his co-workers were prosecuted and sentenced to prison for among other things violated a foreign regulatory statute that was confirmed to be non-existent. In class warfare rhetoric, the Feds also accuse the man of not sharing his resources with the people of Honduras, as if the Sandinista Marxist ideology must be enforced by Uncle Sam too. How did we arrive at such a point where there is such a mania by the federal government with enacting and enforcing ridiculous laws like this? And to add insult to injury, legitimate laws like policing our nations borders are not adequately enforced.

Strickland: As I mentioned previously, I suspect that we Americans have lost a great deal of our ancestors’ fortitude. This leads us to tolerate the intolerable, especially when it involves someone else. People read about someone’s life being ruined by an inquisitorial prosecution, but they return to their comfortable cocoons on the belief that it was a freak occurrence of a type that happen only to others, who were probably up to no good anyway. In truth, there is no longer an American “nation” at all, since a nation would perceive itself as an organic whole and would feel immediate outrage upon learning that the government had wronged a countryman in such a grotesque manner. But that sentiment has vanished, and Americans are falling into a clannish spoils system lacking any of the “mystic cords of memory” that Lincoln alluded to. My writing about the crack-up of the United States is therefore not only a recommendation, but a prediction: a national government cannot long endure when the nation has evaporated out from under it. And ironically enough, the federal government is banking on the opposite presumption by opening the floodgates to illegal immigration, which the government sees as frustrating any organized opposition to its dreams of further hemispheric consolidation. This strategy of “divide and conquer” might have worked in earlier times, but people have more sovereignty of self than ever before, so I believe that the government has bitten off more than it can chew and will eventually find the people ungovernable.

Setliff: In your book, you seem to write with a remarkably crisp style of prose, and are straightforward. You put jurisprudential matters in terms easy to understand for laity. I compliment you in that regard. I highly recommend it to readers concerned about the future of limited government and those who seek the restoration of our constitutional republic today.

Strickland: I went to great effort to write clearly because it is impossible to mean what you say unless you say what you mean. My opinions might frustrate many of the people who choose to read them, but I am happy enough to be understood and, perhaps, to have contributed to a debate that Americans must engage in if there is hope for the future. It pained me when I reached my conclusion that the federal government is irretrievably outlaw and warrants disobedience, but I fear that there are no pleasant solutions at this point, even if different from my own.