October 24, 2010
The Constitution and PoliticsBy David McIntosh and Ralph Benko
The First Amendment to the Constitution of the United States explicitly and strongly protects the free exercise of religion from interference by Congress and, by implication and extension, other government agencies.
The Fifth Amendment unequivocally mandates that no person shall be deprived of life without due process of law.
The Constitution's due process clause, as interpreted by standing decisions of the U.S. Supreme Court (and as noted by Justice Kennedy, the First Amendment principles protecting freedom of speech, belief, and religion) protects the right to marry, to bring up and protect the innocence of children, and generally to enjoy all privileges recognized by common law.
The common law, very much neglected by the law schools but very much alive as part of our operative jurisprudence, gives the force of law to traditional practices...such as the six-thousand-year-old, worldwide tradition that marriage is exclusively recognized as uniquely between a man and a woman and is not extended to commitments exchanged by lovers of the same gender.
Although it is not often noted or advocated in this manner, religious liberty, the right to life, and traditional values such as classical marriage are clearly protected from unlimited government power by the U.S. Constitution. Moreover, as demonstrated by 33 (out of 33) referenda upholding the traditional definition of marriage, these are not only explicitly constitutional, but also popular, democratic values.
Traditional values are challenged, rather than cherished, by modern cosmopolitan elites who are disproportionately influential in the public discourse, policy, and legal processes. In the trampling of explicit constitutional rights and democratic sentiments, America's status as a liberal democracy is being badly eroded. The values of a new elitist social aristocracy are being imposed over the will of the people and the clear text, and history, of the Constitution itself. Severe erosion has taken place both in liberality -- the understanding of what rights are sacrosanct even from a majority -- and democracy -- "the consent of the governed."
Classical Liberalism may be summed up succinctly and definitively in the lucid words of the Declaration of Independence:
Democracy -- from French démocratie, via late Latin from Greek dēmokratia, from dēmos "the people" + -kratia "power, rule" -- thus connotes popular rule. This is translated into action by the U.S. Constitution as (small-r) republicanism, the election of representatives to carry out the will of the people.
Conjoined, the phrase "liberal democracy" holds that government is legitimate insofar as it reflects the will of the people in support of their self-evident rights. The Declaration forthrightly states that the government's fundamental mission -- and therefore the foundation of its legitimacy -- is to secure such rights. The Constitution defines them, clearly and unambiguously, but its text and historical meaning are being ignored by the new political class that sees itself as a group of leaders, rather than representatives, of the people.
Traditionalists, conservatives, and populists have the opportunity to make a compelling argument on behalf of the key issues of the day by direct reference to our clearly stated constitutional rights and the democratic process. A constitutional populist analysis brings with it the highest degree of legitimacy and effectively confounds elitists, who attack those whose civic vision is founded in religiously informed values.
The arrogance of the elites is provoking a "citizens' movement." The Tea Party Patriots -- the largest, most vital, and most generally respected association of the Tea Party (with 2,800 chapters and rapidly approaching half a million members on Facebook), defines itself as a non-partisan grassroots organization of individuals united by our core values derived from the Declaration of Independence, the Constitution of the United States of America, the Bill Of Rights as explained in the Federalist Papers. *** We hold that the United States is a republic conceived by its architects as a nation whose people were granted "unalienable rights" by our Creator. Chiefly among these are the rights to "life, liberty and the pursuit of happiness."
The black letter, as well as the spirit, of the Bill of Rights and other constitutional guarantees, plus the historical role of government in securing such rights by iconic figures such as Washington and Jefferson, makes the case for conservative, traditional, and populist values more persuasively, legitimately, and decisively than we poor moderns can.
As a thought experiment, consider this. Every member of Congress, upon being sworn in, takes this oath:
"I, Your New Congressman, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well faithfully discharge the duties of the office on which I am about to enter. So help me God." The president takes a similar oath.
Imagine approaching your elected Representative and asking her, or him, to sign a pledge that says, I shall not in any way support any bill or take any action prohibiting the free exercise of religion. So help me God.
Having already sworn to support the Constitution, there can be no principled opposition to reiterating support for a provision drawn literally from the First Amendment to the Constitution. This is exactly what a lawless federal judge did this summer when he struck down Proposition 8 -- the California referendum defining marriage as between one man and one woman. Turning the Constitution on its head, the judge took the law into his own hands and second-guessed the will of the majority of the people. He reasoned that the 52% of the voters who supported Prop 8 must have been animated by their private moral views. Precisely because the citizens were exercising their freedom of religion to vote on a public matter based on the tenets of their faith, the judge struck down the law. This type of reasoning is the greatest threat to religious -- and indeed all -- liberty in our country today.
A constitutional analysis which extends to our economic as well as moral rights is a very powerful one. Today we are being subjected to suppression of our constitutional liberties, often from a faction calling itself, Orwellianly enough, "liberals." For example, MoveOn.org, possibly the most savvy and principled liberal group active today, is actively attacking the ruling of the Supreme Court in Citizens United under the rationale that "corporations are not persons" and thus not entitled to freedom of speech.
MoveOn's argument sloppily, or perhaps cunningly, overlooks the actual words of the First Amendment, which plainly says, "Congress shall make no law abridging freedom of speech, or of the press." The First Amendment makes no mention of "persons"! What, one wonders, is there about "Congress shall make no law" that liberals are having trouble understanding? The plenary prohibition on Congress could not be plainer.
By relying on a rigorous constitutionalist perspective, conservatives, traditionalists, and Tea Partiers make the strongest possible -- and arguably bulletproof -- case for demanding that the values, including religious values, held by the majority of Americans -- and protected by the Constitution -- be reflected in our laws, honored by the executive branch, and respected by the judiciary.
Let us begin, then, by demanding that our officials restore our First-Amendment right to religious liberty. Let us demand that they uphold our Fifth-Amendment right not to be deprived of life without due process of law and the Due Process and First and Fifth Amendments' protections of marriage as understood by our common law, and common sense, as applying uniquely to a man and a woman. And let us further demand that they uphold our right to determine the upbringing and education, thereby guarding the innocence, of our children.
David McIntosh is a former congressman from Indiana. Ralph Benko, author of The Websters' Dictionary: How to Use the Web to Transform the World, was a deputy general counsel to two White House agencies under President Reagan and is an advisor to The American Principles Project.