When the Constitution Dies

I keep hearing Don Henley in my head singing, “What can you do when your dreams come true and it's not quite like you planned?”

I kicked a hornet’s nest with a couple of posts on Facebook related to President Trump and his recent statements that seemingly support ignoring inconvenient parts of the Constitution as a remedy for a corrupted 2020 election. Via the comments to those posts, I noticed many people making the argument that since Democrats continually shred the Constitution, conservatives and Republicans should also.

I can understand the various premises, most certainly it is an American principle that bad acts committed should nullify actions taken afterwards but I’ve never been one who was ready to go outside the boundaries of the Constitution because once you do, where does it stop? It is basically insane that the left is going all high dudgeon over President Trump’s comment about terminating certain parts of the Constitution when that is so common within the Democrat proposed and enacted legislation and executive orders that the don’t even think about it.

So, the questions would seem to be these: Do we even have a constitution? Did it die and we didn’t notice?

There are two ways to answer this question because the Constitution exists, as do most laws and regulations, in two forms. There is the “de jure” constitution, the constitutional practices that are legally recognized, regardless of whether the practice exists in reality. This can be defined as the laws, regulations and rights accorded the citizens by the controlling legal authority – this is the framework.

Then there is the “de facto” Constitution. A de facto constitution, or constitution in fact, is in distinctly different from the de jure constitution. This concept is concerned with whether control in fact exists. There are many corresponding pieces to de facto constitutions – cooperation and respect of the populace (or the opposite); means of enforcement and security; and ability to carry out various functions of state all represent measures of de facto constitutions.

Officially, the Constitution is still the supreme law of the land. The government the Constitution established persists in America, at least in structure but the Deep State regulates, taxes, coerces, steals, and strongarm the states – using any method at their disposal. Not a day passes that some government official (who has taken an oath to uphold the Constitution) doesn’t violate it with impunity and without recourse.

In the former sense, the Constitution is one of the most magnificent documents ever written, right up there with the Declaration of Arbroath and the Magna Charta but I the sense of the latter, the ability to constrain the humans who inhabit government, it has been a horrific and catastrophic failure.

Of course, this erosion of rights has been gradual, so much so that most people don’t realize what they have lost – but we got a hard dose of reality during the Covid-19 panic when state governors began to suspend basic, guaranteed individual rights at a whim. Without backing from medical science, these governors used “public health” as an excuse to file the Constitution away and simply forget it.

And, as is typical for tyrants, they never gave back everything they took, choosing to retain large portions of the power they illicitly took. Even when their own state laws limited the time period those powers could be exercised, these governors just claimed it was too dangerous to rescind their powers, so they didn’t. Law meant nothing at that point. “Public health” (protecting people from themselves) trumped individual rights and personal liberty they said.

In 2021, Judge Andrew Napolitano wrote:

“Government is essentially the negation of freedom. If the values underlying the Declaration of Independence, the Constitution and the Bill of Rights — maximum personal liberty and minimal government — are to be taken seriously, then we all know that government has gone so far astray as to make it unrecognizable to the revolutionaries who fought the British and the founders and framers who wrote and ratified the Constitution and its first 10 amendments.

[The Constitution and the Bill of Rights] was the theoretical basis and public understanding of the American experiment in the 1780s and 1790s. Of course, not all agreed with all this. Many classical liberals opposed the ratification of the Constitution for fear that a new central government would control economic activities with its own bank, fight needless wars, invalidate state sovereignty, and curtail civil liberties. Their fears are now reality.”

Recently, I wrote that the Constitution has value because we treat it that way. The flip side of that argument is that when it is not treated as having value, it has none.

So, if we assume the Constitution is dead, that it has been assassinated by the same anti-constitutional forces that have coexisted with the progressive movement for about 150 years, where do we go for recourse and for redress of grievances? When every constitutional avenue is blocked, where do we go for satisfaction?

I have proposed there are three options (some say four). Those are 1) live under a tyrannical status quo where the Constitution is inoperable, 2) a popular revolt (something the Democrats who destroyed the Constitution would call an “insurrection” or 3) secession of several states where the Constitution is both de jure and de facto.

Some have offered a fourth option, that an Article V convention of the state to amend the Constitution is an answer, but my reluctance to sign on to that is based on three things, 1) calling a convention of the states in these divided times is virtually impossible, 2) such a convention could go completely off the rails with the progressives ramming through changes we would never support and 3) if the government refuses to recognize the current Constitution, nothing stops them from continuing to ignore any changes.

Personally, I think secession is the most likely and effective remedy.

Judge Napolitano noted the first serious federal attack on personal liberty came in the Alien and Sedition Acts in 1798, which criminalized criticisms of the federal government and the administration of President John Adams. In response to those Acts, the two most prominent thinkers in America — Thomas Jefferson, who had written the Declaration of Independence, and James Madison, known as the father of the Bill of Rights — secretly authored the Virginia and Kentucky resolutions. These manifestations of the compact theory of the Constitution were enacted into law by the Virginia and Kentucky legislatures. They declared the Alien and Sedition Acts unconstitutional in their states.

The Virginia and Kentucky resolutions reflected the views of many ratifiers of the Constitution that the states that formed the federal government retained the power to correct it. By declaring the Alien and Sedition Acts (blatant violations of the First Amendment) to be null and void in Virginia and Kentucky reinforced the concept that the Constitution is a voluntary compact, and those states that formed it and joined it voluntarily have the sovereign power to leave it. Jefferson and Madison believed that the Constitution protects the right to leave the government whenever it interferes with or fails to protect fundamental liberties.

Of course, the ideas of nullification and secession as defenses of the states against federal tyranny were cast aside by the Supreme Court and the outcome of the American Civil War but as we have seen with the defeat of Roe via Dobbs, when something is right and true, it doesn’t just go away no matter how hard our governing bodies try to suppress it.

The people created the states, and the states created the federal government. It stands to reason the Tenth Amendment includes the rights of the states and the people to remove themselves in the same manner as the colonies declared independence from an English king.

One wonders if the GOP should adopt secession as platform plank for 2024 and beyond.