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Judge Andrew P. Napolitano is Fox News Channel's senior judicial analyst, currently seen by millions of viewers weeknights on The Big Story and The O'Reilly Factor. Napolitano is the youngest person in New Jersey history to receive a lifetime judgeship. He is bright (graduate of Princeton and Notre Dame Law School), articulate (four times voted most outstanding professor at the two law schools at which he taught), and broadcast-experienced (as a daily fixture on Fox News Channel since 1998). He is the author of Constitutional Chaos and The Constitution In Exile.

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The CONSTITUTION in EXILE

NELSON CURRENT

Contents

Preface..........................................................xiIntroduction: Roots of the Current Debate........................xv1. The Law of the Land...........................................12. The Rise of the Supreme Court.................................273. Congressional Power Grab......................................454. Dishonest Abe.................................................615. The Many Faces of Commerce....................................776. Unfree to Bind................................................897. Restraining Congress..........................................1038. The Last of the Good Old Days.................................1219. How Big Government Won........................................13110. Commerce, Commerce Everywhere................................14911. From Wheat to Weed...........................................16112. How General Is Your Welfare?.................................16913. Greasing the Government Skids................................18514. Big Government versus Individual Liberty.....................19515. After 9/11...................................................20916. The PATRIOT Act Is Coming....................................22117. Conclusion...................................................239Acknowledgments..................................................243Notes............................................................245The Declaration of Independence..................................251The Constitution of the United States............................257Index............................................................283

Chapter One

What the Constitution Really Says

After the Boston Tea Party, in which American colonists disguised as Mohawk Indians dumped a fortune of tea into Boston Harbor in protest of British economic policies, Parliament passed a series of heavy-handed laws to punish the colonies for their insubordinate attitude. The laws, dubbed the "Intolerable Acts" by the colonists, closed the port of Boston to trade, made public meetings illegal, and barred Massachusetts courts from exercising jurisdiction over British soldiers.

In response, the Continental Congress met for the first time in September 1774 in Philadelphia. Twelve of the original thirteen colonies sent delegates. Out of the bunch (Maryland, Delaware, Connecticut, New Jersey, New Hampshire, Massachusetts, New York, Pennsylvania, North Carolina, Virginia, Rhode Island, and South Carolina), only Georgia was not represented. After an unsuccessful attempt to smooth things over by petition to King George, it met again in 1775. By this time colonists were already fighting scattered battles against British soldiers. The Revolutionary War had unofficially begun.

It was clear by early 1776 that independence was the only option for the American colonists. In June 1776, the Continental Congress met in Philadelphia to write a document declaring independence. The result, the Declaration of Independence, was primarily penned by Thomas Jefferson and approved by the Continental Congress on July 3, 1776.

But independence was not enough to see them through the times ahead. The meeting in June 1776 had another purpose as well: to draft, as John Adams wrote, "the form of a Confederation to be entered into between these Colonies."

The American colonies had formed a union, but this union's only responsibility was to protect the independence of the colonies from the British. While each colony (now known as a "state") was free and independent, it was unclear just what the relationships and duties of the states would be to each other. Representatives from each state signed the Declaration of Independence, but the states were acting independently when they sent representatives to do this. The states were sovereign entities that the Continental Congress could not directly control. Essentially, there was no binding central national government.

Given their experience under British rule, the states were understandably reluctant to submit to any form of central authority. The document known as the Articles of Confederation was the first effort to set forth the nature and extent of the confederated relationship among the several states. It took longer to approve the Articles of Confederation than it had taken to adopt the Declaration of Independence. The Congress did not agree to conditions of the Articles of Confederation until November 1777, and the document was not formally ratified until 1781. When Maryland, the last state to approve, signed the document, "a firm league of friendship" was formed, and the Congress of the Confederation came into existence.

The loose group of states was now known as "the United States of America." The states were in complete control of all their affairs except for the powers specifically given by them to Congress under the Articles. "Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not expressly delegated to the United States," stated Article II. This language is similar (save for the word "expressly") to the principle of the Tenth Amendment of the U.S. Constitution.

The three branches of government as we know them today had still not been created. Under the Articles, Congress could create committees and appoint people to serve as necessary for managing the government. However, a large, centralized bureaucracy was out of the question. A president was elected by the Electoral College, which consisted of members of Congress, but he was limited to a one-year term and could only run once every three years. The president presided over a committee made up of one representative from each state. Congress controlled the president and his committee, and the president did not have much power by today's standards.

The new national government had few functions and little power. A national system of courts was not established. Congress could not tax the people of the United States. (Ah, the good old days!) It could ask the states for tax money, but this "as a practical matter, amounted to little more than a request for voluntary donations to the national treasury." Likewise, it could "coin money," but it never printed any. Entering into treaties with foreign nations and maintaining an army were solely the role of Congress, but for the most part the states maintained the real power under the Articles. The states could individually issue money, which some did recklessly. Each state could regulate trade, even if its laws contradicted the laws of other states. Congress could not effectively regulate trade, collect taxes, or rule on the validity of laws. Changes to this system of government were difficult because they required unanimous consent among the states, which meant that one state could hamstring the entire nation. Most historians believe that "this system quickly crippled the new nation's economic strength and proved untenable."

One of the most problematic things at this time was the fact that Congress could not regulate the movement of goods between merchants across state borders. When Virginia and Maryland allowed only ships registered in their respective states to trade in Virginia and Maryland, Congress could do nothing more than suggest other options. Several states, including New York, Pennsylvania, and South Carolina, "taxed and irritated the adjoining States trading through them." The commercial conflicts among the states would soon become ruinous.

BACK TO THE DRAWING BOARD

By 1787, Congress realized that it needed to resolve the commercial problems caused by the Articles of Confederation. The Constitutional Convention of 1787 was held in Philadelphia to amend the articles. But instead of proposing amendments which would have required unanimous consent, a new Constitution was drafted, which would become effective once it was ratified by only nine states.

When the convention started, the delegates recognized that all the states shared two common goals:

1. To form a representational democracy, which is a republican form of government. 2. To create a limited central government, which is a government with express written powers and limitations.

The problem was that, while the delegates may have shared these goals, they represented different areas of the United States with different beliefs concerning centralized government. In other words, they were on the same page, but had different ideas about what they were reading.

The delegates were eventually able to compromise on most issues. The debates were particularly heated between free and slave states, large and small states, and Northern and Southern states. In order to minimize their differing opinions, the delegates conducted their meetings behind closed doors. We have, of course, detailed notes of what was said, but the first great debate over American values-perhaps the most significant in all our history-excluded the public and the press.

Most of the delegates were or would become notable figures in American history. George Washington was the chairman of the convention. Alexander Hamilton, James Madison, and Benjamin Franklin actively participated throughout the convention.

The debates continued for over four months. The delegates finally reached the "Great Compromise" under which a new national government with three branches, legislative, executive, and judicial, was formed. The legislative branch would consist of a House of Representatives representing the people and a Senate representing the states as sovereign entities. Each state would have an equal number of representatives in the Senate, but representation in the House of Representatives would be based on population.

SEPARATING THE POWERS

Madison believed that a large, centralized government would become tyrannical. "The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny," Madison wrote in Federalist 47. One way to limit this threat was to separate powers and divide the duties of government, so that one branch becomes a check on the power and encroachment of the others.

While each branch of the government must check the power of the others, Madison did not think that they must be completely separate. He wrote that the branches could interact "unless these departments be so far connected and blended as to give to each a constitutional control over the others...." However, Madison believed that each branch of the government should only exercise those powers granted to it under the Constitution.

Under the new Constitution, the executive branch was to include a president and vice president. The president would serve a term of four years. He would be the commander in chief of the armed forces and have the power to appoint a variety of officials, including justices to a newly created Supreme Court. An electoral college would elect the president, and the citizens would elect the members of the electoral college.

Relatively few specific powers were given to the judicial branch. The Supreme Court would be the highest court of the United States, and it could exercise both original and appellate jurisdiction, depending on the case.

Delegates from each state approved the Constitution, although some were disturbed that a Bill of Rights had not been included. In July 1789, the Constitution became the supreme law of the land of the United States of America.

The U.S. Constitution is now the oldest continuously effective written constitution in the world. Before it was drafted, a system of checks and balances was unheard of in any country. Through vision, hard work, fear of recent history, perseverance, and fidelity to the principles of Natural Law, the delegates were able to create a successful written Constitution that would stand the test of time.

But that's not entirely correct, is it?

THE SLAVERY COMPROMISES

Not every part of the new Constitution was consistent with Natural Law. Even though the states had been able to agree on a Constitution, there were still unresolved issues. There were at least five hundred thousand slaves in the United States at this time. Even my hero of the era, Thomas Jefferson, owned more than one hundred.

Slavery had been an issue during the Constitutional Convention. Regrettably, the issue was political, not moral. Because representation in the House of Representatives was based on population, states in the South would gain an advantage if slaves were included when calculating their population. Northern states adamantly opposed this since the slaves were denied virtually every liberty recognized by the Constitution; they were not citizens and, obviously, could not vote. Hypocritically, the "rulers" of the Southern states wanted their slaves to "count" where it helped them, but not to count when it really mattered-i.e., in terms of humanity and liberty. The compromise reached was that each slave would be counted as three-fifths of a free person when determining population. Both sides were able to agree to this unfortunate "three-fifths compromise."

Fugitive slaves who escaped to free states were also a point of contention. Regarding this debate, Madison wrote in Federalist 54, "We must deny the fact, that slaves are considered merely as property, and in no respect whatever as persons. The true state of the case is, that they partake of both these qualities: being considered by our laws, in some respects, as persons, and in other respects as property." Ouch!

Southern states were concerned that fugitive slaves would not be returned. Northern states wanted to see the slaves freed. In another unfortunate compromise that was necessary to assure agreement among the states, the Constitution provided that fugitive slaves were to be returned to their "owners." This was horrific.

CHECKS, BALANCES, AND POWER GRABS

The Constitution established a system of checks and balances to distribute power. The executive, legislative, and judicial branches can all exercise certain powers over the other branches. This system is designed to avoid tyranny by one branch over the other and thus over the people.

For example, under the Constitution the president can veto congressional legislation. Congress can override the president's veto, but only by a two-thirds vote of each house, then pass legislation into law. The judicial branch can subsequently declare the law unconstitutional and void. Members of the judicial branch are appointed by the president and confirmed by the Senate. If judges act improperly, then Congress can impeach them and remove them from office. But these checks and balances have not always worked as planned.

Ever since the Civil War, Congress has usurped powers that the Constitution left to the states, often with the approval of the executive and judicial branches. Congress has not hesitated to apply its powers broadly under the Commerce Clause. This clause gives Congress the power "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes." When the Constitution was written, interstate commerce was minimal. Today, nearly every manufactured good, or one of its components, travels across a state line at some point. The simple act of a component crossing a state line from one merchant to another is the constitutional basis Congress claims to impose limitless regulations on the conditions of manufacture and use of the product of which the component becomes a part.

By defining interstate commerce so broadly, Congress has claimed the power to regulate almost anything. During the past century, Congress has regulated, among other things, homegrown agricultural and medicinal products, pornography, violence, and illegal guns simply by calling them all "commerce." Occasionally, the Supreme Court will strike down a law and limit the extent of Congress's regulatory power. Since the presidency of Franklin D. Roosevelt, however, this has been rare.

By regulating everything from wheat to water, Congress has infringed on the rights of the states and individuals. Even activities taking place entirely on private property or inside someone's home have not escaped congressional regulation. Where the executive and judicial branches have failed to check and balance these congressional power grabs, new spheres of federal power have been created, and state and individual rights have been unjustifiably and unconstitutionally curtailed. This is a direct assault on the individual liberties that our tripartite federal government was designed to prevent.

BUYING OFF FEDERALISM

In addition to the three branches of the central government, the Founders also envisioned strong state governments that would both supplement federal regulations and serve as a check on them. Powers not delegated to the federal government were retained by the states. This system, known as federalism, preserves the autonomy of the states and, as a consequence, contains the spread of federal power-a pressing concern of the Founders following the colonial period.

In recent times, however, Congress has intruded upon areas that had been left to the states for two hundred years. There is, for instance, no federal police power in the Constitution. The "police power" is the right and obligation of the states to legislate for the health, safety, welfare, and morality of persons present in the states. But now federal agents can arrest people for crimes related to drugs, the environment, car theft, domestic violence, and other things that Congress considers to have an aggregate effect on interstate commerce. This intrudes upon the police power that the Constitution has left entirely to the states.

(Continues...)

Excerpted from The CONSTITUTION in EXILEby ANDREW P. NAPOLITANO Copyright ©2007 by Andrew P. Napolitano. Excerpted by permission.
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