from the Congress Action newsletter

Tyranny By Usurpation

by: Kim Weissman
November 7, 1999

"It is important, likewise, that the habits of thinking in a free Country should inspire caution in those entrusted with its Administration, to confine themselves within their respective Constitutional Spheres; avoiding in the exercise of the Powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create whatever the form of government, a real despotism. …The necessity of reciprocal checks in the exercise of political power; by dividing and distributing it into different depositories, and constituting each the Guardian of the Public Weal against invasions by the others, has been evinced by experiments ancient and modern…. If in the opinion of the People, the distribution or modification of the Constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed."
—George Washington (Farewell Address; September 19, 1796)

What did Washington mean? That the Constitution establishes a separation of political power; that it is vital to maintain that separation of power in order to prevent tyranny; and that the usurpation of power by any branch of government is a certain road to tyranny and despotism.

The Constitution is a compact among the States establishing the form of central government – a federal Republic – which would govern over all. As such, it is binding on the central government thus created, as well as on the States within that federal Republic. But there is no living entity called "government". The federal government is made up of people, selected by various methods to serve in the government. They all serve the Constitution, and are bound to obey it. Before assuming their office, they swear an oath to support and obey the Constitution.

As a Constitutional scholar at the Cato Institute wrote,

"Most Americans have become so accustomed to our Bill of Rights and other legal limitations on political power that they do not fully appreciate how fragile our constitutional system really is. The Constitution…is incapable of defending itself. There is no constitutional police force that deters potential offenders and brings perpetrators to book. …Once in office…officials are essentially ‘on their honor’ with respect to their constitutional responsibilities. …The primary purpose of the oath of office is to provide some measure of assurance…that the executive power would not be wielded outside the framework established by the Constitution. The Constitution expects the chief executive of the nation to effect change cautiously and to respect constitutional procedures and the limitations on his office."

President Grover Cleveland, in his first inaugural address in 1885, noted that,

"He who takes the oath…only assumes the solemn obligation which every patriotic citizen…should share with him. The Constitution which prescribes his oath, my countrymen, is yours; the government you have chosen him to administer for a time is yours. ….Every citizen owes to the country a vigilant watch and close scrutiny of its public servants and a fair and reasonable estimate of their fidelity and usefulness."

Since our Constitution was ratified, there has been a blurring of the lines separating the powers and duties of the various branches of our federal government. There has been a steady erosion of those "reciprocal checks in the exercise of political power" described by Washington – that separation of powers which was so important to the Founders. All branches of the federal government are guilty of this usurpation of power.

Congress meddles in State and local, even personal, affairs. The judiciary, not content with its Constitutionally defined role of interpreting the laws, is filled with activists who think their role is to change society and who are willing to legislate from the bench to do so. And never in the history of this republic has there been a Chief Executive who so brazenly disregards those checks and balances by which his legitimate power is confined.

This usurpation – theft – of power by the various branches is what Washington described as leading to "a real despotism…the customary weapon by which free governments are destroyed." Judge Frank Easterbrook wrote, "Separation of powers – the inability of any one person or branch to have its way…was thought to be an essential component of a free republic, not a hindrance to good government."

"…democracies have displayed a distressing tendency…to deteriorate into despotism. … majorities, no less than individual rulers, want to have their own way and can be as tyrannical as a dictator – which is what their excesses will ultimately produce. …it ought to be profoundly distressing to hear Americans complain generally about legislative "gridlock" in Washington. The structure was designed to make legislation difficult, which is ultimately the most significant protection of minority views against the majority will." —Antonin Scalia, Associate Justice of the U.S. Supreme Court.

What should be "profoundly distressing" to Justice Scalia, indeed to all Americans who still believe in self government and the continuation of our Constitutional republic, is a president who so cavalierly ignores the Constitutional restraints on his power as does this president. His blatant disregard for the Constitution provides a sure sign that we are moving dangerously toward the despotism against which Washington warned. The catalogue of Constitutional transgressions by this president grows almost daily, so that in the last year of his reign it can be said that he views himself less an elected leader of a free republic, and more as an inheritor of the Divine Right of Kings.

Article I, Section 1: "All legislative Powers herein granted shall be vested in a Congress of the United States…".

The Chief Executive – the president – was not granted the power to legislate by our Constitution. It is his duty to enforce the laws enacted by the Congress, not to write the laws himself. Yet presidents have usurped the legislative power of Congress for generations by means of Executive Orders, and this president has not been reticent to exercise that stolen legislative power. One of this president’s top aides summed up the situation: "Stroke of the pen, law of the land. Kind of cool." —Paul Begala.

Cool, perhaps; unconstitutional, definitely. Congressman Ron Paul has introduced The Separation of Powers Restoration Act HR 2655) which would prohibit most Executive Orders from attaining the force of law; and Congressman Jack Metcalf introduced a House Concurrent Resolution (H.Con.Res.30) "To express the sense of the Congress that any Executive order that infringes on the powers and duties of the Congress under article I, section 8 of the Constitution, or that would require the expenditure of Federal funds not specifically appropriated for the purpose of the Executive order, is advisory only and has no force or effect unless enacted as law." Both would attempt to restore some semblance of Constitutional balance in this one area, but neither is ever likely to become law.

Article II, Section 2: "The President shall…have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur…".

The issue is the Comprehensive Nuclear Test Ban Treaty (CTBT), to which two thirds of the United States Senate did not concur, in fact, which the Senate rejected by a wide margin. Under the Constitution, that treaty should be null and void, of no force or effect whatsoever. Is it?

Writing to the heads of various foreign governments, Clinton’s Secretary of State, Madeline Albright, stated, "I want to assure you that the United States will continue to act in accordance with its obligations as a signatory under international law…". Albright apparently needs reminding that she owes her duty to the U.S. Constitution, not to her ideas of "international law".

Whether or not the CTBT was a good treaty (and there were an extraordinary number of experts who concluded that it was a terrible treaty) is not the issue. Under the Constitution, that treaty was submitted to the Senate to ratify or reject, and the Senate rejected it. It is now the duty of the Executive Branch, which includes the Secretary of State, to abide by that verdict of the Senate. Even those who believe the CTBT should have been ratified must be wary of Washington’s admonition of the precedent which is being established: "…usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed."

Article II, Section 2: "The President shall…nominate, and by and with the Advice and Consent of the Senate, shall appoint…all other Officers of the United States…".

The issue is Bill Lan Lee, nominated by President Clinton as head of the Civil Rights Division of the Justice Department. Lee’s appointment was rejected by the United States Senate, he was then appointed to that post in an "acting" capacity during a congressional recess, and he continues to serve in his post for more than a year longer than permitted by law for a "temporary" recess appointment. And because the Senate has refused to confirm many of his pending nominees, Clinton is threatening to circumvent the Senate entirely and make as many as 220 recess appointments en masse when the Senate adjourns.

First Amendment: "Congress shall make no law…abridging the freedom of speech."

The issue is campaign finance reform. Despite this president’s abysmal record in complying with existing campaign finance laws, this administration has pushed strongly for even more laws, the inevitable effect of which would be to stifle speech and debate about the political issues of the day. It was precisely to promote such open debate that the Founders believed so strongly in freedom of speech.

At the same time, this administration staunchly supports continued federal funding for the National Endowment for the Arts, despite its record of funding offensive, and at times obscene, "art"; and the congress has continued to fund the NEA. Continued NEA funding is grounded, according to the Clinton administration, in the First Amendment and freedom of speech for the "artists". So according to President Clinton, the First Amendment does protect obscenity, but does not protect political speech and debate.

The Founders of this nation would be stunned at such a perversion of their work, even more stunned to learn that any president, sworn to uphold the Constitution, would advance such a spurious argument and actually gain the support of the majority of the United States Congress.

Second Amendment: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

The issue is this administration’s dangerous scheme to totally disarm law abiding citizens, while simultaneously flooding the streets with armed felons and the blood of innocent victims. Prosecutions of violations of existing firearm laws has fallen 44% under Clinton/Gore, and the median jail sentences served by people convicted of firearms violations has fallen nearly 20% in just the past 3 years. Clinton claims that 250,000 felons were refused a gun purchase by the Brady Bill, yet the "Justice" Department admits to prosecuting only 1% of those who lied on their application forms, a violation which carries a 10 year prison term.

Rather than a usurpation of the power of other branches of government, this is an attack against the safety and security of the people themselves, who are the only people hurt by this administration’s scheme.

"This administration, as a policy, is putting gun-toting felons on the streets in record numbers. Why does the President ask for more federal gun laws if he's not going to enforce the ones we have? When political hot air is turning into cold blood ... when duplicitous spin is becoming lethal ... somebody's got to speak up". —Charlton Heston, President, National Rifle Association.

The Constitutional scholar above referred to elected officials who are, in the last resort, on their honor to obey the Constitution. The honor and integrity of public officials was certainly important to the Founders. But what happens when public officials have no honor? It is true that there is no constitutional police force, but there is a judge, and that judge is the People. Because it is our government, it is our Constitution, and in the end, it is our freedom which is at stake. And We, the People, have failed miserably to protect our Constitutional heritage. And our freedom.

The above article is the property of Kim Weissman, and is reprinted with his permission.
Contact him prior to reproducing.


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