Our Crisis of Faith on Constitution Day

Not long after the ratification of our Constitution, the great Justice Joseph Story marveled “How easily men satisfy themselves that the Constitution is exactly what they wish it to be.” The Constitution is designed to be a type of waltz with a three rather than six-step pattern in our tripartite system of government. Many today however treat it more like an interpretative dance, an invitation for expressive individual moves.  Indeed, in the last few months, President Joe Biden often seems to be dancing alone. The improvisational element to constitutional interpretation reflects more than mere political opportunism. It reflects a crisis of faith on the Constitution Day.

            Most politicians enter office sounding like ballroom dancers and end up as break dancers. When you are out of office, the structural limits of the Constitution are hugely important as you seek to force the other party to justify actions or seek compromises. Once in power, the shield afforded by the Constitution seems more like a shackle. Every president in my lifetime has found achieving his agenda at some point to be more important than complying with the Constitution. Whether it is the circumvention of Congress or launching unilateral wars, presidents dance to their own tune to the gleeful applause of their supporters.

            Take the series of losses recently by the Biden Administration in areas like immigration. The Administration lost a number of unilateral moves by Biden on the basis of the Administrative Procedures Act (APA), a law requiring the government to consider objections and countervailing facts before making final decisions. For example, in terminating policies like Trump’s “Remain in Mexico” policy, the Supreme Court ruled that Biden acted in violation of the federal law. It should sound familiar. During the Trump Administration, Democrats denounced the failure by Trump to satisfy the same statute. At the time, I noted that Democrats would likely find themselves on the wrong side of that precedent when the next Democrat came to power. Right on cue, Biden immediately to did exactly what Trump did in discarding the federal law. Indeed, Biden has been accused of pushing knowingly unconstitutional provision like one in the pandemic relief bill declared to be racially discriminatory.

            The greatest departure from the constitutional framework came recently in Biden’s call for the Centers for Disease Control and Prevention (CDC) to reimpose a nationwide moratorium on the eviction of renters. The CDC previously claimed the authority to control all of the rental agreements across the country under a vague federal law. So, according to this interpretation, a small agency could cite a concern over a possible disease in taking over a huge part of our economy without any consultation, let alone approval of Congress.

            Not surprisingly, a majority of justices said that no such authority existed. In its 5-4 decision in Alabama Association of Realtors v. Department of Health and Human Services, the Supreme Court kept the CDC moratorium in place. However, five justices indicated that the CDC order as unconstitutional.  Yet, Justice Brett Kavanaugh who agreed that no such authority existed, still voted with the majority because the CDC’s original order was about to expire anyway. He allowed the law to simply expire and thereby enable an “additional and more orderly distribution of the congressionally appropriated rental assistance.” Putting aside the curious position of Kavanaugh, five justices clearly stated that no authority existed for the CDC to issue the order and it was only allowed to expire because it was about to expire anyway.

            When Democrats pushed Biden to reinstate the moratorium despite the views of the majority of the Court to the contrary, Biden was told by his White House Counsel and an array of legal experts that the order would clearly be found unconstitutional. That is when Speaker Nancy Pelosi reportedly told Biden to just call Harvard Professor Laurence Tribe, who predictably gave Biden the green light.

             In one of the most chilling press conferences by a president, Biden admitted to the press that it was still probably unconstitutional but he hoped to get billions of dollars out the door before the new order could be struck down. When confronted on the fact that five justices already said that the CDC lacked this authority, Gene Sperling, a senior advisor to Biden, declared his willingness to act without legal authority is a measure of his empathy and greatness:  “This is a president who really understands the heartbreak of eviction. The reason why he is pressing and pressing, even when legal authority looks slim, is because he wants to make sure we have explored every potential authority.”

            Despite Tribe’s assurances, the order was declared invalid.

            Indeed, on this Constitution Day, it seems like the Constitution itself and its supporting institutions are under unprecedented attack. When the Court refused to enjoin the Texas abortion law, various figures immediately renewed the call for court packing in install an instant liberal majority. While the number of justices is not set by the Constitution, the move reflects the same impatience with constitutional provisions or institutions that stand in the way of political demands.

            The Constitution remains a leap of faith for citizens. We agree to live within its confines despite the fact that it may slow or frustrate our efforts to achieve our immediate goals. It has served us well through rageful times and reckless leaders. It was designed by Madison to be idiot-proof and every president in my lifetime has put that design to its test.

             Not much has changed over the centuries. The Constitution was written not just for times like this, it was written in times like this. The Federalists and Jeffersonians were actually trying to kill each other. Yet, here we remain. We are no more united than we were. Indeed, the only essential thing we have in common is the Constitution itself. It is a covenant of a common faith that unites us and protects us . . . despite our best efforts to the contrary.

112 thoughts on “Our Crisis of Faith on Constitution Day”

  1. “Indeed, in the last few months, President Joe Biden often seems to be dancing alone.”

    +++++++++++++++++
    You mean dancing on the end of a Puppenmeister’s strings? I don’t believe any Ludlum or Le Carré plots were as frightening as the reality of having a stand-in president with people who would love nothing better than see this great nation be a one-party dictatorship calling the shots.

    1. President Susan Rice serves at the pleasure of Secretary General Obama, under the dominion of the global communist Deep Deep State.

  2. The entire communist American welfare state is unconstitutional including, but not limited to, matriculation affirmative action, employment affirmative action, quotas, welfare, food stamps, rent control, social services, forced busing, minimum wage, utility subsidies, WIC, SNAP, TANF, HAMP, HARP, TARP, HHS, HUD, Agriculture, Commerce, Education, Labor, Energy, Obamacare, Social Security, Social Security Disability, Social Security Supplemental Income, Medicare, Medicaid, “Fair Housing” laws, “Non-Discrimination” laws, etc.

    Article 1, Section 8, provides Congress the power to tax ONLY for “…general Welfare…,” omitting and, thereby, excluding any power to tax for individual or specific welfare, redistribution of wealth or charity. The same article provides Congress the power to regulate ONLY money, the “flow” of commerce and land and naval Forces. Additionally, the 5th Amendment right to private property is not qualified by the Constitution and is, therefore, absolute, allowing Congress no power to claim or exercise dominion over private property, the sole exception being the full taking of property under the principle of eminent domain.

    Government exists, under the Constitution and Bill of Rights, to provide maximal freedom to individuals while it is severely limited and restricted to merely facilitating that maximal freedom of individuals through the provision of security and infrastructure.

    That’s the Constitution; distinctly not the Communist Manifesto.

  3. “The Constitution is designed to be a type of waltz with a three rather than six-step pattern in our tripartite system of government.”

    – Professor Turley
    _______________

    The American “system of government” is bipartite consisting of a Congress of the people and an ancillary entity for execution of the will of the Congress, contributing with a veto or approval. The judicial branch constitutes corrective action and exists solely to “declare all acts contrary to the manifest tenor of the Constitution void,” having no power or authority to legislate, modify legislation or modify legislation through “interpretation.” The judicial branch has egregiously and criminally usurped power it does not possess in order to diminish the Constitution and America, and further the efforts of global communism.

    The Constitution is the set of inviolable rules of the game, not dissimilar to the rules of the board game, Monopoly, under which players must void all acts contrary to those bylaws and regulations without variance, lest they be found cheating other participants. The Constitution is not the “Suggestion” or the “Guidelines.” The Constitution is not a “living, breathing document” and the smallest modification is admonished against and extremely difficult to accomplish, by design. God does not allow amendments to the Ten Commandments. The singular American failure has been and continues to be the judicial branch, with emphasis on the Supreme Court, which must “declare all acts contrary to the manifest tenor of the Constitution void.” America must be placed back on course by first impeaching then convicting the largest portion of the judicial branch and Supreme Court.

    The nullification of the Constitution began with “Crazy Abe” Lincoln whose illicit actions should have been immediately struck down by the Supreme Court beginning with the unconstitutional denial of secession and the deployment of a military force inside the territory of a sovereign foreign nation, not to mention compelling a draft to prosecute an unconstitutional war, suspending habeas corpus in a condition of secession not invasion or rebellion, denying freedom of speech and press, issuing an unconstitutional proclamation, confiscating legal, deeded private property, failing to terminate mass illegal immigration and deport freed slaves under the Naturalization Act of 1802, etc. Without the unconstitutional acts of “Crazy Abe,” America would be a much different nation, a nation under God and the “manifest tenor” of the Constitution and Bill of Rights. Voidance of the Constitution was furthered by “Crazy Abe’s” successors who improperly and forcibly ratified the “Reconstruction Amendments” with a gun to America’s head under the duress of brutal post-war military occupation, which is not described as an integral part of the amendment process by the Constitution. It has been downhill into the depths of communism ever since.

    Slavery must have been terminated by legal means such as advocacy, boycotts, divestment, the overwhelming dominion of the will of the people, etc., simultaneous with compassionate repatriation for the good of its victims.
    ________

    “…courts…must…declare all acts contrary to the manifest tenor of the Constitution void.”

    “…men…do…what their powers do not authorize, [and] what they forbid.”

    “[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”

    – Alexander Hamilton
    ________________

    “…amendments desired, of such a nature as will not injure the constitution,…”

    ” And if there are amendments desired, of such a nature as will not injure the constitution, and they can be ingrafted so as to give satisfaction to the doubting part of our fellow citizens; the friends of the federal government will evince that spirit of deference and concession for which they have hitherto been distinguished.”

    – James Madison, Proposed Amendments to the Constitution, June 8, 1789

  4. (OT)

    Durham Indictment

    The indictment lists an “unnamed tech executive #1” and an “unnamed university” — as both being involved in the Trump-Russia hoax.

    Anybody have a reasonable speculation about the identity of #1 or of the university?

    Apparently, the hoax was engineered by DC’s prevalent mindset: The ends justifies the means.

    We need “evidence’ of server communication [the ends]. So let’s fabricate it [the means].

    We need “documentation” of bank transactions [the ends]. So let’s doctor some [the means].

  5. We agree to live within its confines despite the fact that it may slow or frustrate our efforts to achieve our immediate goals.

    The constitution is a legacy barrier to the political class. They make promises to their constituents to get elected and then they are on the clock to justify their vote. The constitution doesn’t care about their clock or their legacy. It doesn’t care about the millions of things that voters want. It doesn’t care about foreign or domestic policy. It doesn’t care about debt ceilings or unalienable rights. It doesn’t argue in court or grandstand behind a microphone. It is what is was from the beginning, an obstacle to human nature, created by a generation of people that by and large honored the accomplishment. That is until they discovered the average citizen was too busy and with “needs”, to care “how” things got done. It’s been fairly effective at keeping Democrats and Republicans in check, despite the demands of their liberal and conservative constituents. For 200 years our common enemy existed outside our borders. Or so we thought. The Communist/Socialist/Marxist enemy we were united against wasn’t just outside this country. They had already established roots in our country and were hard at work demoralizing the next generations of Americans. This cancer on the United States has metastasized into nearly every public/private institution in this country, including our military. We need a new color to identify its influence. Red for conservative (Republican), blue for liberal (Democratic) and black for this cancer. Our constitution has no defense for this cancer. It just sits there, at the ready, waiting to be used to remove this scourge. For the politicians and other public servants, isn’t that a legacy worth fighting for?

    1. “The Communist/Socialist/Marxist enemy we were united against wasn’t just outside this country”

      And the country hasn’t ever been united against its white supremacist enemies, who have been in the country since our founding.

      “This cancer on the United States has metastasized into nearly every public/private institution in this country, including our military.”

      And that’s even more true for the white supremacist enemies.

      “black for this cancer”

      Or white. Or gray, as an indication that there are domestic enemies on both sides.

  6. “The Constitution is designed to be a type of waltz with a three rather than six-step pattern in our tripartite system of government. … The improvisational element to constitutional interpretation reflects more than mere political opportunism. It reflects a crisis of faith on the Constitution Day.”

    There is a “crisis of faith” in all 3 branches and their commitment to upholding the Constitution, including a lack of faith that the judicial branch will act in a nonpartisan way in its rulings.

    The Constitution is itself a flawed document, and it is purposefully difficult to improve it.

    “The greatest departure from the constitutional framework came recently in Biden’s call for the Centers for Disease Control and Prevention (CDC) to reimpose a nationwide moratorium on the eviction of renters.”

    What is “the greatest departure from the constitutional framework” is a matter of opinion. In my opinion, the January 6 insurrection and Trump’s ongoing efforts to reject the election results are a MUCH bigger departure.

    1. The Constitution is itself a flawed document, and it is purposefully difficult to improve it.

      True enough.

      The constitution is just better by orders of magnitude than anything anybody has ever proposed.

      1. You are free to have that opinion. Others are free to disagree. The very fact that it has been improved over time tells us that the original document certainly was not “better by orders of magnitude than anything anybody has ever proposed.”

        It can still be improved, and people have suggested improvements. Personally, one improvement I’d like to see is the elimination of felony disenfranchisement unless the felony is knowingly and willfully committing voter fraud or election fraud. Of course, I recognize that people may well disagree about what constitutes an improvement.

      2. Fortunately the framers knew that there was the potential for flaws or as they called them defects to be discovered over time. And they added the amendment process to correct those defects. George Washington said in his farewell address:

        “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.”
        https://newswithviews.com/what-the-framers-really-said-about-the-purpose-of-amendments-to-our-constitution/

        The very fact it has been improved over time informs us of the wisdom and humility of those that created it. The fact it has withstood generations of assault and that we have continually moved forward towards a more perfect union is as you put it better by orders of magnitude than anything anybody has ever proposed. The assault on it today is not much different than what the Green New Deal is to our energy independence. Scrap everything and suffer until something better comes along. Even the framers weren’t so stupid as to scrap the Articles of Confederation before the Constitution was ratified.

  7. Turley is not helping matters with our so-called “crisis of faith” when he ignores or deflects anything that has to do our voting rights and republican “voting integrity laws”.

  8. Who are Tech Executive 1 and Tech Company 3?

    Have you even read Special Counsel Durham’s indictment?

    Professor Turley, was the name of George Washington University changed to Karl Marx University?

  9. Speaking of constitutional abuses by the Biden administration.
    Biden has banned drone filming of the tens of thousands illegals streaming unimpeded by an overwhelmed boarder patrol. Reporting facts on the ground silenced by the federal government.

  10. If the Constitution is not a binding standard – strictly upheld by SCOTUS – then the Bill of Rights is up for abusive interpretations. I look forward to progressives going apoplectic over a right wing president using the 2A as an excuse to federally fund gun ownership and the organization of local militias as the federal government does with abortions

    1. “as the federal government does with abortions”

      What does that mean?

      With few exceptions, all of them written into law by Congress, the federal government is proscribed by law from funding abortions.

      1. Except for the millions given to planned parenthood, etal,

        Before you start, remember that money is fungible.

        1. “money is fungible.”

          Sometimes. Other times it isn’t, because the monies are kept in different bank accounts with no transfers allowed between them.

      2. The Constitution does not speak to abortion, homicide or murder.

        Relevant statutes are left to the states, or to the people, or to the States, or to the people, or to the States, or to the people, etc., ad infinitum.

        For example, individual healthcare and vaccinations are left to individual people because only people can make personal healthcare decisions, while statutes prohibiting assault, battery, mayhem, rape, abduction, murder, property damage, etc., can only be generally effected by States.

        If people can’t do it, it devolves to the State; that’s the essence, the nature of self-governance.
        __________________________________________________________________________

        10th Amendment

        The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

    2. “…courts…must…declare all acts contrary to the manifest tenor of the Constitution void.”

      “…men…do…what their powers do not authorize, [and] what they forbid.”

      “[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”

      – Alexander Hamilton

  11. Ya think this could also have anything to do with Trump supporters trying to violently install him as an unelected President and the bulk of the Republican officials being ok with that?

    1. 320+ million people in this country. Roughly 70 million voted for Trump. An effort was made through every available legal process to challenge alleged voting irregularities. Thousands and thousands of supporters were in the Capitol on January 6th to hear President Trump. A “mob” rioted at the Capitol and out of the millions that voted for him and of the thousands that were in the Capitol on January 6th, 640 or so were arrested on what amounts to disorderly conduct and trespassing charges (no weapons). Do the math: .000009% of those that voted for Trump were arrested for their activities on January 6th. Given what we’ve seen over the last 8 months and especially in light of the border crisis, the Afghanistan disaster and the revelation of the Milley/Pelosi coup, 640 unarmed rioters as a constitutional crisis is a joke. That number would be a slow morning for the border patrol.

      1. “640 or so were arrested on what amounts to disorderly conduct and trespassing charges (no weapons)”

        Quite a number used weapons and have been charged with weapons violations, as is clear from the charges: https://www.justice.gov/usao-dc/capitol-breach-cases
        You can even search on “weapon” to identify them.
        You can also read the other charges, many of which are more serious than “disorderly conduct and trespassing.”

        1. Assuming my .000009% is fairly accurate, then what percentage of voters supporting President Trump ended up rioting with “weapons” they brought to the Capitol? In other words, how many or what percentage of Trump supporters tried to “violently” install him as President? Hint: <.000009%. Wow, that's some insurrection. Lock up the football!

          1. Oralloy didn’t claim it was all or most Trump supporters, only that it was “Trump supporters trying to violently install him as an unelected President and the bulk of the Republican officials being ok with that.”

            Do you disagree that hundreds of Trump supporters violently interfered with a joint session of Congress in which Congress was certifying the EC vote?

            Do you disagree that a lot of Republican officials seem unconcerned and that the Republicans in the Senate refused to OK a bipartisan congressional investigation?

            1. Context matters. It’s not much different from throwing out a 3/5th’s number without it. I’ll wait for Oralloy to provide the context. You can rest your brain.

              1. My brain doesn’t need rest, thanks though. Perhaps yours does, if you’re having difficulty with the questions I asked.

  12. “Car 54, Where Are You?”

    “[Professor Turley], Where Are You?”
    ___________________________

    “Durham grand jury indicts lawyer whose firm represented Hillary Clinton’s campaign”

    – Washington Post

      1. “We will stop him.”

        – Peter Strzok to FBI paramour Lisa Page
        —————————————————-

        “[Obama] wants to know everything we’re doing.”

        – Lisa Page to FBI paramour Peter Strzok
        _________________________________

        The Obama Coup D’etat in America is the most egregious abuse of power and the most prodigious crime in American political history.

        The co-conspirators are:

        Kevin Clinesmith, Bill Taylor, Eric Ciaramella, Rosenstein, Mueller/Team, Andrew Weissmann,

        James Comey, Christopher Wray, McCabe, Strozk, Page, Laycock, Kadzic,

        Sally Yates, James Baker, Bruce Ohr, Nellie Ohr, Priestap, Kortan, Campbell,

        Sir Richard Dearlove, Christopher Steele, Simpson, Joseph Mifsud,

        Alexander Downer, Stefan “The Walrus” Halper, Azra Turk, Kerry, Hillary,

        Huma, Mills, Brennan, Gina Haspel, Clapper, Lerner, Farkas, Power, Lynch,

        Rice, Jarrett, Holder, Brazile, Sessions (patsy), Nadler, Schiff, Pelosi, Obama,

        Joe Biden, James E. Boasberg, Emmet Sullivan, Gen. Milley et al.

      2. “Durham’s case looks awfully weak.”

        Really?

        You’ve read the Grand Jury testimony, seen the evidence and documents presented? (Not the indictment.)

        If so, someone’s in a world of hurt.

        1. No, I’ve read the indictment and analyses of the indictment, and those make Durham’s case look awfully weak, both in terms of being able to prove that Sussman lied and in terms of proving that it was a material lie. Would you like to discuss the evidence for both presented in the indictment?

  13. Inspiring!
    Yes, patience is a virtue and we Americans fall very short when it comes to the rule of law set by our brilliant Constitution.
    God bless!

  14. Faith in government only exists when all citizens respect each other and the constitution…that’s been over for many years. Did anyone notice the very loud cheering that went on in almost every SEC stadium this past weekend. FU*K JOE BIDEN!!! The left just said OMG they are not social distancing and wearing masks. OMG they are breathing on each other! While the world watches Biden call the leader of Australia my friend from down under…has no idea what his name is or where he is? France was left out and very angry. But at least AU,UK and the US have formed some coalition. But Biden had nothing to do with that folks and finally Milley committed treason. Of course nothing will happen.

      1. “the left seems more concerned about breaking the rules of Covid-19 behavior than anything else.”

        No doubt that’s why the Democrats in Congress are focused on other things, like the infrastructure and voting rights bills.

        1. Interesting you include federal voting legislation, in a post about the federal govt exercising power not enumerated in the constitution. It is very clear the constitution specifically states elections shall be conducted in a manner directed by the States.

          1. “the constitution specifically states elections shall be conducted in a manner directed by the States”

            Actually, it says “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”

            As the Supreme Court noted, “The Framers understood the Elections Clause as a grant of authority to issue procedural regulations, and not as a source of power to dictate electoral outcomes, to favor or disfavor a class of candidates, or to evade important constitutional restraints.”

            There are other places in the Constitution that discuss voting. If you want to discuss one or more of them, perhaps you’ll quote what you want to discuss.

            1. And the Texas voting law disfavors no class of candidate, or evade any constitutional restraints. Federal election law would violate the word and intent of the constitution.
              SCOTUS ruling in Shelby gutted the DoJ meddling in the States Power run elections.

              1. “Federal election law would violate the word and intent of the constitution.”

                Depends on the content of the federal election law. I literally quoted the congressional enforcement sections of the 14th and 15th Amendments to you. Whether you can admit it or not, those are part of “the word and intent of the Constitution.”

          2. This afternoon, a NC state court struck down a GOP passed voter ID law, ruling that it “was motivated at least in part by an unconstitutional intent to target African American voters.”

            In terms of your claim about “the federal govt exercising power not enumerated in the constitution,” perhaps you’d also like to reread these parts of the Constitution:

            “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. … The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

            “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. The Congress shall have the power to enforce this article by appropriate legislation.

            Care to tell us what parts of the voting rights bills are unconstitutional?

  15. Once again, Dr. Turley is spot on. I can only hope that one day he runs for President. I don’t care which party he runs from, I would vote for him. The Turley Party!

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