America Must Restore the
Foundations of Freedom

Thomas L. Jipping


December 9, 1999

A recent poll by Harvard University's Kennedy School of Government found that nearly two-thirds of Americans already believe the presidential campaign is boring. More ominous signs came during the Republican candidates' December 2 debate in New Hampshire. When even Senator Orrin Hatch complains that things are stilted and boring, you know you're in trouble! But things could change if the campaign becomes a real debate about the fundamentals of freedom.

Some campaigns focus on the particulars of specific policy proposals. Since Bill Clinton and Al Gore have done so much damage to the very foundations of American freedom, this campaign should stick to the basics. Psalm 11:3 provides the perfect banner: "If the foundations be destroyed, what can the righteous do?"

Three of these foundations are a restrained judiciary, the separation of governmental powers, and federalism.

America's founders said, in the system of self-government they crafted, that the judiciary must be the "weakest" and "least dangerous" branch of government.

In fact, Alexander Hamilton responded to concerns that judges would be too powerful by saying: "Here, sir, the people govern." President Abraham Lincoln later warned that allowing judges to decide "the policy of the Government upon vital questions affecting the whole people" would mean that "the people will have ceased to be their own rulers."

Yet Clinton and Gore have appointed 334 activist judges who believe they can change the law made by the people. One controversial nominee has written that judges may use a made-up "discretionary Constitution" instead of the real one to achieve their desired results. By the way, presidential candidate Hatch voted for 331 of those Clinton appointees, including this one.

Mr. Gore has pledged to continue this assault on freedom. He recently said on Face the Nation, if elected president, he will appoint judges who will "breathe into" the Constitution new meaning they discover. It makes little difference what elected representatives do under such activist judicial rule.

So the debate in this campaign should be about whether the people or the judges should run the country.

Another foundation of freedom is the diffusion of governmental power between separate branches. While the Constitution gives the power to make laws to the legislature, Clinton and Gore have found ways to legislate without the legislature.

One of these is ordering executive branch agencies to issue rules that go beyond Congress' legislative mandate. The Department of Defense, for example, issued regulations creating the more permissive environment for homosexuals that Congress legislated in 1993.

The Supreme Court is considering the claim by Mr. Clinton's Food and Drug Administration that it can regulate tobacco products without congressional authorization. Mr. Clinton has ordered the Labor Department to issue new rules allowing federal funds intended for unemployment insurance to be used for paying employed persons who want to stay home with a newborn child.

Mr. Clinton has also tried to legislate through executive orders. While these are properly used only to enhance administration of the executive branch, he has tried to change the law in areas only Congress may legitimately address. These include civil rights and labor policy, where even increasingly liberal courts have ruled that Mr. Clinton has exceeded his authority.

Mr. Clinton has also tried to change domestic legislative policy through international agreements. Even when no formal treaty exists, as in the case of the Beijing Women's Conference, Mr. Clinton has worked to conform domestic policy to international opinion. As the disastrous World Trade Organization meeting recently concluded, he sought to introduce labor and environmental issues into the international body's deliberations.

The president has also abused his appointment power to install extremists in key positions with Senate approval. Though America's founders limited presidential power by conditioning certain appointments on Senate approval, Mr. Clinton last summer appointed homosexual activist James Hormel as ambassador to Luxembourg without such approval.

Before Congress adjourned in early December, Clinton announced his intention to similarly appoint others, including radical quota advocate Bill Lann Lee as the Justice Department's civil rights chief, while the Senate is out of session.

So the debate in this campaign should be about the fundamental question: Should the people still have the authority to run the country through their elected legislators?

A third foundation of freedom is the division of government between the federal and state governments. As James Madison described it, the federal government has "few and defined" powers while the states and the people have the "numerous and indefinite" remainder. These days, however, federal legislation seems to be the response to every tragedy.

Supreme Court Chief Justice William Rehnquist has warned against federalizing matters traditionally in the states' hands. This trend, in fact, confounds the problem of a too-powerful judiciary by giving federal judges jurisdiction over more and more areas of social, cultural, political, and economic life.

In the end, it makes little difference whether a congressional or presidential candidate supports parental choice in education, school prayer, or even abortion, because federal judges decide these issues.

A congressional candidate's position on a range of issues makes little difference, if a president can set policy on these issues directly through executive orders or indirectly through faceless bureaucrats.

Many Americans already believe their vote does not count. Their vote will not count until the foundations of freedom are restored. These include a restrained judiciary, as well as the separation of government power and federalism, steps the Supreme Court recently described as "adopted by the Framers to ensure protection of our fundamental liberties."

That's what will breathe life and meaning into this boring presidential campaign.


Thomas L. Jipping, J.D., is Director of the Free Congress Foundation's
Judicial Selection Monitoring Project.
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