Saturday, October 21, 2017

How the Constitution Has Been Twisted to Undermine the Free Market

 Judge Andrew P. Napolitano was the opening night speaker of the Mises Institute 35th Anniversary Celebration.  The YouTube video of his speech is 52 minutes long and I recommend that you take the time out of our schedule to view all of it.

  Video of speech

The full transcript of the speech (that is auto generated by YouTube) is available at this link:

If you do not watch the entire speech you are doing yourself a great disservice.  But if that is your decision, then please at least read these highlights:


... when Jefferson writes in the Declaration of Independence that all men are created equal and endowed by their creator with certain inalienable rights the reference to "by their creator" and "the inalienability of rights" is the recognition of the natural law, that our rights come from our humanity ... our rights come from our humanity and not from the government.  This is the theory of the natural law.


We fought a revolution and won the revolution and wrote the constitution, the purpose of which was to define the government and confine the government.  Define and confine at the same time.  There was of course in Philadelphia in 1787 a lot of disagreement over what the Constitution was going to look like.  In fact if you recall your history and I'm sure you do the delegates were sent to Philadelphia in 1787 not to write a constitution but to offer amendments to the Articles of Confederation.



The Commerce Clause [of the Constitution] which permits the government the federal government the Congress to regulate commerce among the several states is the favorite hook for the Congress today and the courts today to hang their hat on when they want to engage in expansive federal authority ... the original meaning of the Commerce Clause was to regulate the movement of goods between merchants as that crossed state lines stated differently to get rid of state tariffs.



Madisonian government ... that concept is that the federal government can only do what is specifically authorized to it in the Constitution.  Justice Scalia put a sort of tail on that with his theory of originalism, which means that the Constitution, if it is the supreme law the land, can't change with the passage of time and it must mean the same thing today as was the original public understanding of it at the time it was ratified.   If Little Jimmy [James Madison] and big Nino [Justice Scalia] had their way then the Commerce Clause would have its original public meaning which was giving only to Congress the power to regulate the movement of goods between merchants as they cross the interstate lines.




... a famous farmer named Roscoe Filburn in an infamous [supreme court] case during World War II decided that all the wheat in his backyard would not be sold, it would be ground by Mrs. Filburn into flour and she would bake it into baked goods for your family.  Can that be regulated by the federal government?  Answer, yes.  Because by not putting that wheat into interstate commerce there was theoretically an effect on Interstate Commerce and since Congress can regulate anything that affects interstate commerce and can regulate what Roscoe Filburn does with his wheat in his backyard.




Woodrow Wilson turned Madisonian democracy on its head.   [in the] Madisonian [theory] the government the federal government can only do what it is expressly authorized to do in the Constitution.  Wilsonian the federal government can do whatever it needs to address a national problem and for which there is political will except that which is expressly prohibited to it in the Constitution.  So these are really polar opposites and I'm sorry to tell you that every president of the United States since Woodrow Wilson no matter what the president has said, no matter what the times required, no matter what war was being fought, no matter how prosperous we may have been at the moment, has been a Wilsonian.




I expect that I will die, when I do, faithful to my first principles to our first principles in my bed in my house surrounded by people that love me.  But not all of you particularly the young people will have that luxury.  Some of you will die in a government prison faithful to first principles and some of you may die faithful to the first principles in a government Town Square to the sound of the government's trumpets blaring.  When the time comes to make that horrible decision, stay faithful to the first principles or give in to the government, you will know what to do because freedom lies in the human heart and while it is there, no tyranny of the majority and no tyrant can take it away, but you must exercise, it it must do more than lie there.

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