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Let's First Restore Our Constitution

Let's First Restore Our Constitution
(Onur Ersin/Dreamstime)

Friday, 13 July 2018 01:14 PM Current | Bio | Archive

We are in the midst of a constitutional crisis. Put more gently, we are witnessing an effort to restore the original understanding of the Constitution itself, after years of erosion of its protections.

The genius of the United States Constitution is that it reflects the Framers’ astute understanding that power inevitably corrupts, and the only way to prevent such dishonesty is by erecting structures within the government to counter power with power — that no one person or group is able arbitrarily to control the state in their own interest.

There were at least three ways in which the Constitution sought to accomplish this restraint of power in the interest of promoting the sovereignty of the American people themselves.

As the Constitution explained its preamble: to form a more perfect union, and to secure the blessings of liberty.

These three were the separation of powers, dual state, and federal governments, and the maintenance of the rule of law itself.

By creating separate legislative, executive, and judicial branches, the Constitution sought to ensure that each branch would, because of its distinct function, check and balance the activities of the other two branches. Just to give some examples, Congress, the federal legislature, was given the power to investigate the activities of the other two branches, and to pass new laws to ensure that basic liberties were preserved.

The executive (the president) was given the power to veto congressional acts going beyond what the Constitution permitted, and the judiciary, by clear implication, was granted the power of judicial review, to nullify such legislation.

The executive was given the power to appoint federal judges and other officials, but Congress was granted the ability to remove them if they corruptly failed to carry out their duties or, as the Constitution put it, engaged in "treason, bribery, or other high crimes and misdemeanors."

The federal government created by the Constitution was not supposed to be all-powerful. The brilliance of the system of dual state and federal sovereignty (what we call "federalism") was that the governments closest to the people, the state and local officials, were supposed to be the ones charged with the responsibility of regulating most domestic matters — including the family, property, business, and the prevention of crimes.

This is evident from the 10th Amendment to the Constitution which seeks to make clear that the federal government is one of limited and enumerated powers, and that what is not granted to the federal government is retained by the states, or the American people.

The third key restraint is the rule of law itself, which dictates that courts shall follow precedents (unless those precedents are not properly grounded in the Constitution), that executives and their subordinate officials shall follow existing rules limiting and specifying their discretion, and that the legislature shall be diligent in its carrying out of its legislative and oversight responsibilities.

Simply to lay out these basic constitutional truths suggests how far we have strayed from the Framers’ design. We now have a federal government far more powerful than originally conceived, one willing to intrude into all aspects of national life.

Even more disturbing, we now have one of our political parties, the Democrats, committed to the expansion and the augmentation of the powers of that government. Thus, in the Obama administration, not only was the nation’s healthcare system essentially nationalized, but individuals were compelled to participate in it in an unprecedented manner.

Indeed, President Obama’s administration proudly boasted, in essence, that the federal government would take care of its citizens from cradle to grave. Congress, then controlled by the Democrats, allowed this to happen. The courts, because of the reluctance on the part of Chief Justice John Roberts to embroil the court in partisan politics, allowed this usurpation of power to remain on the books.

Donald Trump ran for president opposing this general aggregation of federal power, which he called "the swamp. Hillary Clinton, clearly a creature of that swamp, was, in his view, seeking to maintain it.

This week, in the hearings in the U.S. House of Representatives, involving the testimony of Peter Strzok and Lisa Page, following on the firing of FBI Director James B. Comey, and the report of Inspector General Michael Horowitz, we are learning that rogue elements in the Justice Department, most likely in coordination with the campaign of Mrs. Clinton, sought to favor her and to injure the campaign of Mr. Trump and also prevent his carrying out his goal of draining the swamp.

In his testimony, FBI agent Strzok maintained "In the summer of 2016, I was one of a handful of people who knew the details of Russian election interference and its possible connections with members of the Trump campaign. This information had the potential to derail, and quite possibly, defeat Mr. Trump. But the thought of exposing that information never crossed my mind."

Strzok sought to paint himself as a patriotic public servant, but the Republicans at the hearings were clearly beginning to understand that the idea of effective Russian interference in our election, the justification for the Mueller investigation, and the excuse for resisting the Trump administration, was a hoax.

The hoax was perpetrated by operatives in the Clinton campaign and others,  like Mr. Strzok, whose clear bias against Trump and in favor of Mrs. Clinton, finally led to his being removed from the Mueller investigation.

His bias, and that of others, we are now beginning to understand, undermined the FBI investigation of Mrs. Clinton’s compromised and unsafe e-mail server system, and similarly tainted and undermined the FBI’s investigation of purported Russian interference in our election — which Mr. Strzok also led.

Perhaps the most egregious abuse on the part of Mr. Strzok and the FBI, though, was the FBI counsel (who accompanied Strzok and his personal lawyer to the hearings) who sought to bar Strzok from answering many questions directed to him on the grounds that answers might undermine purported FBI investigations of criminal matters.

Just as Strzok actually testified that he viewed himself as "the government," the FBI’s counsel apparently believed that the agency’s own judgement of what was appropriate was able to control the activities of the legislative branch.

Thus did the FBI, a creature of Congress, sought to control its creator. This was not separation of powers, this was clear defiance of Congress, and ought to have resulted in holding Strzok and perhaps the FBI counsel in contempt.

That should be only the beginning. Strzok should not, as one Democrat suggested, be given a purple heart; that honor goes to those in the military wounded in the performance of their duties.

Instead Strzok, and many others in the Obama administration who sought wrongly to preserve their powers, to aggrandize the federal government, and to use the means of government, which belong to the people, to push the agenda and shield from prosecution the criminal behavior of Mrs. Clinton, ought to be exposed and punished.

Similarly, the outrageous suggestion that Democrats ought to resist the judicial appointments of the Trump administration (appointments of judges and justices committed to the interpretation of the Constitution according to its original understanding) because Trump is "under investigation," by an obviously tainted independent counsel, should be revealed for the pernicious nonsense that it is.

Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern’s Pritzker School of Law, the Legal Affairs Editor of Chronicles: A Magazine of American Culture, and a contributor to The University Bookman. He graduated from Harvard College and Harvard Law School, and has taught at Rutgers University, the University of Virginia, and University College, London. He has often testified on constitutional issues before committees of the United States Congress, and is the author of "Recapturing the Constitution: Race, Religion, and Abortion Reconsidered" (Regnery, 1994) and "Law Professsors: Three Centuries of Shaping American Law" (West Academic, 2017). Presser was recently appointed as a Visiting Scholar in Conservative Thought and Policy at the University of Colorado's Boulder Campus for 2018-2019. To read more of his reports — Click Here Now.

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How far we have strayed from the Framers. We have a federal government far more powerful than originally conceived, one willing to intrude into all aspects of life. Even more disturbing, we now have one of our political parties, the Democrats, committed to the expansion of the powers of government.
fbi, framers, mueller, page, roberts, strzok
Friday, 13 July 2018 01:14 PM
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