John Brewer

Urine Luck

By John Brewer on July 31, 2011 at 6:50 pm

While many of us persist to focus on the plankton–the incidental consequences–of issue after issue, we tend to ignore the provenance of waters which run deep. Okay, so maybe I’m not making much sense to you so far, but allow me a moment of your time to expound on a document I circulated a few weeks ago regarding the constitutionality of drug-testing welfare recipients. Although the points to counter my argument were compelling, sometimes poignant, it seems that a substantial amount of the counter-pointers live within ideologically fraught parameters. To a degree, the parameters encase a discombobulated “take” which may even, at times, include sub-parameters which cancel each other out. And yet, there they are, coexisting side-by-side with a crooked grin.

Okay, I’m still not making much sense. I understand…

So, I’ll just dive right in.

This is about a constitutional crisis, as it is within each of us as it pertains to the health of our nation. I could proceed with a breakdown of the constitutional crisis inherent in the debt-ceiling fiasco or the Patriot Act or Health Care, but issues like these are so vast and thick with constitutionally-combative components that I wouldn’t know where to begin or, for that matter, if I did know where to begin, I wouldn’t be able to assimilate it into a short and cohesive article. It would require years of painstaking and painful commitment to compose a book which would probably be released long after the issue was settled. My day job doesn’t afford me the time to delve that deeply. So, I’ll stick with the rather simple and small scope of drug-testing welfare recipients, as well as the arguments brought forth by those who oppose. The theme will be three-tiered: drug-testing, the welfare system, and the Constitution as a “living, breathing” document.

There are certainly some arguments to consider when it comes to the foes of drug-testing those receiving government assistance.

There is a mathematical issue to be noted. Drug-testing costs money, and if every welfare recipient was to be tested, this would lead to a new charge on all taxpayers to absorb. Some would say that the elimination of benefits for those who test “positive” would offset the new cost, but not likely. Why? Because those who test “positive” would lose their benefits yet, as they are allowed, designate another individual to receive those very same benefits on behalf of the children. In all likelihood, we’d absorb the costs of the drug-testing, and the same amount of benefits would continue to be provided. The only thing that would change is the name of the individual receiving the aid–”To a degree, the parameters encase a discombobulated ‘take’ which may even, at times, include sub-parameters which cancel each other out.”

The kids don’t choose who their parents are, and they certainly don’t make the decision for their parents to use drugs. That is a choice of which children should not be punished for.

But, then the argument against drug-testing traipses off into a constitutional stance which is feeble.

Many folks might insist that a line has been crossed. As in, where do we draw the line? Are those receiving Medicaid, State emergency relief, educational grants or loans next? Do we drug test everyone on the taxpayer payroll? Politicians, police, educators on all levels, students? Everybody? Is it urine today and genetics tomorrow? When are we safe in our own body?

Is being poor a justification for suspending someone’s civil rights?

And what about “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized?”

My question: if you’re participating  in an unconstitutional program, are you protected by the Constitution?

It seems like you may be asking a lot to be protected by something you’re not following…

Here stands the Leviathan, an empty cup grasped in it’s tentacle, waiting for your piss-essence…and you bring up the Constitution? And the Leviathan comes back at you with “is welfare constitutional?” And you say “that’s different. Times change,” and, somewhere along the line, you bring up the notion that the Constitution is a “living, breathing” document. And the Leviathan says, “Maybe the Constitution lived and breathed it’s way to a curiosity about your piss.” The “living, breathing” argument opens up an endless font of subjective babble which can never come to a clean consensus. Either it’s the Law of the Land, or irrelevant. You can’t pick and choose when it “lives” or “breathes” or defines your inalienable rights as a citizen. I, for one, would merrily piss away and ask the beast if it would like a stool sample as back-up.

Let’s address the constitutional argument before we proceed with the “living, breathing” slant.

If you’re going to laminate the Constitution over every crisis which comes your way, then you’d better know what it truly means. And, to understand the Constitution: you need to refer to the document itself, as well as comprehend the English Common Law terminology within it; you need to pick the Framers’ brains by reading “The Federalist Papers,” notes taken by James Madison at the Constitutional Convention, ratification writings, letters and journals written by the individual Framers, and background ideologies of the Framers as can be found in the works of Adam Smith, Voltaire, John Locke, and Thomas Paine; finally, you need to understand the Constitution during it’s “implementation” era between 1787 and 1834, by looking at the court cases of the era, such as Marbury v. Madison or McCulloch v. Maryland or Gibbons v. Ogden, by researching the Framers who served as President during the era such as George Washington or John Adams or Thomas Jefferson or James Madison, and by looking into all actions, conflicts, or debates which took place within Congress and the Supreme Court…during this time period, I repeat.

That is to say, if the Constitution truly means something to you, this is the way you should go about it; however, if the Constitution “lives and breathes” like a prospective suitor to be changed into the mate of your dreams, subject to a personality change here and there, vulnerable to the whims and bias of politicians who deem to dink it’s chain whenever it suits them, or you…well, then, your whole stance crumbles, and your argument wanders off onto uncharted and disorganized streams of thought.

For around the first 125-150 years, sidling up to it’s twilight during the Wilson-years and certainly coming to a halt during the FDR-years, the Supreme Court viewed the Constitution in the same way as Madison–a very defined and extremely straight forward text with many definitions inherent in the common logic behind it. But, times got tough. Times changed. Franklin Delano Roosevelt came in with a New Deal, the chain-dinking commenced, and the modern welfare state was conceived. Supreme Court Justices did their best to keep this “New” way in check, but ultimately failed. Roosevelt threatened to pack the court with justices whom considered the Constitution as “living” and “breathing.”

Thunderations, even after his second inauguration, Roosevelt remarked to one of his speechwriters, “When the Chief Justice read to me the oath and came to the words ‘support the Constitution of the United States,’ I felt like saying: ‘Yes, but it’s the Constitution as I understand it, flexible enough to meet any new problem of democracy, and not the kind of Constitution your Court has raised up as a barrier to progress and democracy.”

I thought we were a republic.

Anyway, the congressional hearings on the court-packing bill began…and the Supreme Court blinked, acquiescing to serve from that point forward as dinks on a chain.

But, what about welfare?

Let’s ask the Framers, some Presidents, and a couple of notable Statesmen…

With respect to the words ‘General Welfare’…

James Madison: “I have always regarded them as qualified by the details of powers [enumerated in the Constitution] connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proof was not contemplated by it’s creators…” and “…If Congress can do whatever in their discretion can be done by money, and will promote the general welfare, the Government is no longer a limited one, subject to particular exceptions.”

Thomas Jefferson: “Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated.”

Do we understand?

How about a little more on the authority and power of Congress?

James Madison: “[Congressional jurisdiction of power] is limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any…” and “…the powers delegated to the proposed Constitution to the federal government are few and defined, to be exercised principally on external objects, as war, peace, negotiation, and foreign commerce.”

Thomas Jefferson: “The Constitution allows only the means which are ‘necessary,’ not those which are merely ‘convenient,’ for effecting the enumerated powers. If such a latitude of construction be allowed to this phrase as to give any non-enumerated power, it will go to everyone, for there is not one which ingenuity may not torture into a ‘convenience’ in some instance or other, to some one of so long a list of enumerated powers. It would swallow up all the delegated powers, and reduce the whole to one power, as before observed.”

And, so it seems that the Father of the Constitution and the Father of American Independence, each, have a clear understanding of what is meant by ‘General Welfare,’ and what the Constitution specifies, where congressional powers are concerned; however, all things being fair, let’s look to the other side of the paternal spectrum.

Alexander Hamilton: “This specification of particulars [the enumerated powers of Article 1, Section 8] evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd as well as useless if a general authority was intended…” and “…No legislative act…contrary to the Constitution can be valid. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”

Hmmm, not only did Big-Government paterfamilias Hamilton acknowledge the limitations of congressional power, but he put forth that a power outside the enumerations without reasonable relation must be contrary to the Constitution and, thus, unconstitutional…kind of like the modern welfare state and all the programs within it!

But this really nails it!

James Madison: “I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents.”

Bam!

One of my favorites, as it applies here, is a story from the early 1830s, in which Congress was considering a measure to grant public money to the widow of a recently deceased veteran. It was expected to pass unanimously, until Davey Crockett came to the floor.

“Mr. Speaker, I have as much respect for the memory of the deceased, and as much sympathy for the sufferings of the living, as any man in this House. But we must not permit our respect for the dead or our sympathy for a part of the living to lead us into an act of injustice to the balance of the living. I will not go into an argument to prove that Congress has no power to appropriate this money as an act of charity. Every member upon this floor knows it. We have the right, as individuals, to give away as much of our own money as we please in charity; but as members of Congress, we have no right to appropriate a dollar of public money. Some eloquent appeals have been made to us upon the ground that it is a debt due to the deceased. Mr. Speaker, the deceased lived long after the close of the war; he was in office to the day of his death, and I have never heard that the government was in arrears to him. Every man in this House knows it is not a debt. We cannot, without the grossest corruption, appropriate this money as the payment of a debt. We have not the semblance of authority to appropriate it as charity. Mr. Speaker, I have said we have the right to give as much money of our own as we please. I am the poorest man on this floor. I cannot vote for this bill, but I will give one week’s pay to the object, and if every member of Congress will do the same, it will amount to more than what the bill asks.”

Crockett, the poorest man in Congress, followed through on his word and donated a week’s salary to the widow…more than any other member of Congress. You see, charity is always easy with other people’s money, and that is why Congress can never seem to prevent themselves from working outside the Constitution, to appropriate money other than their own, for the sake of charity, and for the sake of looking charitable.

In 1854, President Franklin Pierce was presented with a social welfare charity bill. He vetoed it…citing the Constitution.

In 1887, President Grover Cleveland was presented with a bill appropriating relief charity from public money. He vetoed it…citing the Constitution.

And, in 1930, the Governor of New York had this to say: “As a matter of fact and law, the governing rights of the States are all of those which have not been surrendered to the National Government by the Constitution or it’s Amendments. Wisely or unwisely, people know that under the Eighteenth Amendment Congress has been given the right to legislate on this particular subject [alcohol], but this is not the case in the matter of a great number of other vital problems of government, such as the conduct of public utilities, of banks, of insurance, of business, of agriculture, of education, of social welfare and of a dozen other important features. In these, Washington must not be encouraged to interfere.”

Well, it just so happened that, one day, this Governor of New York was elected President, after which he ushered in a New Deal that’d allow the federal government–”Washington”–the authority to oversee the conduct of “public utilities, of banks, of insurance, of business, of agriculture, of education, of social welfare and of a dozen other important features.” It was a flip-flop for the ages, followed by a court-packing scheme to emasculate justices averse to kissing his ring, followed by the transmogrification of our limited federal government into a hefty and sacrilegious cow of which the population, in mass quantities, to this day, remain “udderly” dependent on, sucking from the teat of an unconstitutional “right.”

And, according to FDR–the man who sought not to encourage Washington interference; the man who’d later cry “the Constitution as I understand it”–if the Supreme Court wouldn’t kowtow to his fancy, he’d pack the Court with Justices who would, the kind of Justices who shared his newfound, CFR-oriented belief that the Constitution suddenly sprang to life as something “living” and “breathing.”

Living and breathing? According to who? Franklin Delano Roosevelt? Woodrow Wilson? Oliver Wendell Holmes Jr.? Louis D. Brandeis? Howard McBain? Al Gore?

Who does it live and breathe for? You? Me? Does it live and breathe for the drug-screeners or the drug-takers? Is it okay to say that the Constitution “lives” and “breathes” right up to the moment someones wants your urine? Is it suddenly okay to invoke the Fourth Amendment as a specific definition of your “rights” ? At what point outside of the constitutional boundaries will you accept that you’re not protected anymore? If you participate in something unconstitutional, a constitutional argument is ridiculous. If the Constitution “lives” and “breathes,” if it is alive, perhaps it changed it’s mind…and wants your pee. Right? What kind of nonsensical road do we intend to travel down?

Hegelians from both sides are alluding to this “living and breathing” slant more and more. Why? Because they are the fly-by-night puppeteers.

And, this is unfortunate, as the Constitution is a set of rules meant to be strict and uncompromising. It doesn’t evolve with populism or moods.

Rules are rules—just like in football, which also has rules. Do the rules of football “live” and “breathe” as well? Can an activist referee decide that Chicago Bears kick-off returner, Devin Hester, is just too fast and difficult to bring down for the opposing team, and therefore must be restricted to a “fair catch” the whole “fair catch” and nothing but the “fair catch?” Can an activist referee decide that Larry Fitzgerald is just too good of a wide receiver to defend, too hard to cover, and limit his quarterback’s passes? Can an activist referee decide that it would be more fair to spot a last-placed team two-touchdowns when they come face to face with the defending Super Bowl champions? If the rules “live” and “breathe,” I suppose he could. But the real answer is no, no, and hell no. The referee would be out on his ear…as should any activist judge who deems the Constitution doesn’t really mean what it means, and subject to reinterpretation.

If a rule sucks, then team owners and officials and player representatives and NFL hotshots get together during the off-season to eliminate or alter the rule. In essence, they amend it.

The Constitution has an amendment process, and it is the amendment process which changes the Constitution, after which it becomes rigid and specific…like the Constitution itself. There is no “living” nor “breathing” by the whims and bilious bias of bleeding hearts.

Hegelian-minded politicians of the Left and Right have filled our capitol halls for many decades now, and they are not interested in Constitutional believers. They want Supreme Court Justices whom are flexible in their interpretations. They want Supreme Court Justices whom are savvy and silly enough to adapt 18th-century language to 21st-century populism. They want Supreme Court Justices whom are concerned less about “original intent” and more about “creative syncretism.” And they–the Hegelians–have cleverly employed a winning straw-man argument–a truism–in asserting that America should not be trapped in the days of yore. Of course, we shouldn’t. People from both sides have lapped this drivel up like starving animals…and anyone whom remains loyal to the Constitution, is considered a “barracks of back-looking ghosts.”

If we knew our history, we’d realize how wise our Framers were, and that we’ve departed from their model of governance at our own peril. Even the Framers themselves would stipulate to the Hegelian disclaimer that “times change” as well as constitutions, which is why a provision was included in the Constitution for “amending” it, not “reinterpreting” it–constitutional spoliations occur when ambitious, self-referential/reverential, impatient politicians appoint justices who willfully defy, disregard, and redifine the Constitution, rather than insist that it be changed lawfully through amendments.

Constitutionalists are correct in opposing such activism; however, they shouldn’t be so focused on trying to preserve an 18th-century worldview that–for all it’s wisdom–included treating women and racial minorities as substandard citizens. Constitutionalists, I submit, should argue that Supreme Court Justices uphold the principle that all laws and policies cling to the letter. If the 1780s phraseology is too obscure or ambiguous for modern times, and if modern minds are too lazy to research the intent, then utilize the amendment process to make the objective meaning explicit. Do not, by all means, insist that it’s okay for several people in black robes to divine implicit, subjective meanings to the Constitution as if it were a deck of tarot cards to be read, shuffled, re-read, re-shuffled, and re-read again. Judicial malfeasance from the “living and breathing” ilk has led to laws, policies, and government programs that clearly contradict our nation’s law.

For example…

The Tenth Amendment states, “The powers not delegated to the United States [the federal government] by the Constitution…are reserved to the States respectively, or to the people.”

Article 1, Section 8 enumerates the several powers of the United States government. No authority is given for government programs in agriculture, education, energy, health, housing, etc.. The Constitution was never amended to authorize these unconstitutional activities.

But, here we are, sucking the teat and protecting our piss.

The preamble and Article 1, Section 8, specify that the government is to perform only those few functions that provide for the ‘general welfare.’ And, it is pretty clear that the appropriation of public money for charity or redistribution was never, ever intended. There is no constitutional authority for “special interest” legislation.

But, here we are, sucking the teat and protecting our piss.

It’s obvious that the plain language within the Constitution hasn’t circumvented officeholders from expanding their power. They regard the constraints as inexpedient, and have simply ignored them. Any Democrat or Republican who values liberty should be alarmed. Any Democrat or Republican ensnared by the Hegelian dialogue needs to wake up and break out of the trap. If the Tenth Amendment can be bypassed today, so too will the First, the Second, and so on and so forth. It’s inevitable. The egregious train wreck of constitutional mutilations is the fruit of the Hegelian doctrine–that the Constitution “lives and breathes,” that the Constitution is apt to change it’s mind. The grim irony: treating the Constitution as such has reduced it to a dead letter. Any constitution whose provisions can selectively be ignored is hardly what I’d call a guarantor of anyone’s rights. Where at one time we were governed by the impartial, objective rule of law…we are now governed by partial, subjective, and capricious men and women–power-charting politicians who carry on with arguments less organized than a monkey fecal-flinging fest at the zoo. Justice has been shoved aside in favor of privilege, our republic has decayed into a pseudo-democracy, the primacy of individual rights has been supplanted by the primacy of government power.

And here we are, sucking the teat and protecting our piss.

The Constitution does not “live.” The Constitution does not “breathe.” The Constitution does not modify itself fast and loose with populist sentiments. It is what it has always been: the Law of the Land. If anything, it’s been jailed and forgotten about…at least it is forgotten about until the moment we need it, to provide cover for the excrement of those who unconstitutionally collect money.

Oh, please, settle down. I’m not implying that the sacrilegious cow needs to be slaughtered and chopped up instantaneously. Nor am I saying, “let them eat steak.” I’m not saying that we need to vaporize the modern welfare state in a swoop, where countless of individuals would be left holding their privates as their only claimable asset. I don’t even despise the officeholders; I simply scratch my head when they insist on empowering the problem. Nor do I despise the ones who claim the Constitution “lives” and “breathes”; I simply scratch my head when they invoke the Fourth Amendment as a way to protect their urine. Apparently, the Fourth Amendment doesn’t “live” and “breathe” quite yet. Apparently, the Fourth Amendment is still worthy of note; at least, it’s worthy of consideration when it matters. My “take” is that you’re either “for” it or “against” it. If you operate outside the Constitution, then your not protected by the Constitution. And, I believe, that is the Cream-cheese with your Hegel.

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One Response to “Urine Luck”

  1. Patty Ewing Robichaud Says:

    As usual, you hit this one out of the park!!