The Patriot Judge Speaks: Can Congress write any laws it wants?

by Andrew P. Napolitano

“Some men think the Earth is round, others think it flat… But, if it is flat, will the King’s command make it round? And if it is round, will the King’s command flatten it? … NO."

When Robert Bolt wrote that truism in his play A Man For All Seasons, his protagonist, Thomas More, was attempting to persuade the jury at his trial for high treason that all governments have limitations, and that the statute he was accused of violating was beyond Parliament’s lawful authority to enact. Sir Thomas was there appealing to the natural law as well as to the common sense of his jurors: The government can’t change the laws of nature. As we know, he fared no better than those who today argue that Congress is not omnipotent, has natural, moral, and constitutional limitations on its power, and every day fails to abide them.

Jefferson wedded the natural law to American law in the Declaration of Independence when he wrote that our rights are “inalienable” and come to us from “Our Creator.” Not only does federal law recognize that, but the whole American experience recognizes the natural law as the ultimate source of our freedoms and as a restraint on the government. Thus, the traditional panoply of American rights is ours by birthright and cannot be interfered with by an act of Congress or order of the president, but only after due process.

Two of those rights are speech and contract. A law enacted by Congress punishing speech (such as the USA PATRIOT Act provision that declares to be felonious speaking about the receipt of certain search warrants) is no law at all, since the law itself violates the natural right to speak freely, which is expressly protected in the Constitution. The Framers fully understood this as they wrote in the First Amendment: “Congress shall make no laws … abridging the freedom of speech.” I have italicized the word the to make my point. The framers accepted the natural law premise that freedoms come with and from our humanity. The freedom of speech obviously preexisted the constitutional amendment insulating it from government abridgement, and the Framers’ use of the article reflects their unmistakable acceptance of that truism.

Similarly, a law changing the terms of a private contract is no law since it violates the natural right to make binding agreements. The Framers knew that as well. The Constitution specifically forbids the states and, by requiring due process and expressly forbidding taking property without just compensation, the federal government, from “impairing the Obligation of Contracts.” This, too, is a personal natural right that pre-existed the constitutional clauses that bar the government from interfering with it.

The Constitution sets forth just 17 discrete delegated powers on matters like currency, interstate commerce, the post office, the judiciary, and national defense. The Constitution also interposed two precise brakes on all federal powers: The Ninth and Tenth Amendments together state that the powers not enumerated in the Constitution as given to the federal government are retained by the people and the States.

The whole purpose of the Constitution is, was, and has been to define the government, to impose restraints on the government, and to guarantee personal freedoms. It specifically diffused power between the States and the central government and, within the federal government itself, it separated powers among the three branches.

It is elementary to state that the Constitution mandates that Congress writes the laws and decides how to spend tax dollars, the president enforces the laws as Congress has written them, and the courts interpret the laws as they have been written and enforced to assure their compliance with the Supreme Law of the Land.

As elemental as this sounds, it is hardly recognizable today. After 230 years, we have come to a point where a president declines to enforce laws he has himself signed, directs his Treasury Secretary to make laws interfering with private contracts, and signs executive orders that invade privacy, restrict speech, and appropriate property. Today, we have a Congress that delegates to the president its power to spend taxpayer dollars and money borrowed in the taxpayers’ names, has written laws regulating the air you breath, the water you drink, the words you speak, and relieving the persons with whom you have contracted or to whom you have loaned money from complying with their agreements. And our courts from time to time have raised taxes, run prisons, re-cast the boundaries of school districts, and declined to right obvious constitutional wrongs committed by the other branches.

The oath to uphold the Constitution that everyone in government takes, though solemnly delivered and publicly sworn to, like an oath to tell the truth in Court, is simply not taken seriously. Notwithstanding the plain language of specific grants and general restraints, notwithstanding a careful compromise between the Hamiltonians who wanted all power to be in the federal government and the Jeffersonians who wanted all power in the States, and notwithstanding our inalienable rights from our Creator, the federal government today simply recognizes no limits on its power.

But the Constitution is the Supreme Law of the Land. We will have chaos if those in whose hands we repose it for safekeeping intentionally violate it with impunity. A government that violates its supreme law becomes arbitrary, and arbitrary rule becomes authoritarian, and authoritarian rule will trample our freedoms. Just six weeks into its four-year term, the Obama administration and its allies in Congress, just like the Bush administration and its allies, have acted like they never heard of the Constitution. They have attempted to control salaries of private banks, change the terms of private mortgages, enter the marketplace by nationalizing banks and the world’s largest insurer, and investing taxpayer dollars in companies whose products consumers reject and investors eschew. This is theft of liberty and theft of taxpayer property.

Is freedom a reality or a myth? Are the rights guaranteed in the Constitution real or just a pretense? Isn’t the whole purpose of government in a free society to uphold rights rather than interfere with them? If the answers to these questions are no longer obvious, it is because we have a central government whose only self-acknowledged limitation is whatever it can get away with.

Andrew P. Napolitano, who was on the bench of the Superior Court of New Jersey between 1987 and 1995, is the senior judicial analyst at the Fox News Channel. His newest book, coming in April, is Dred Scott’s Revenge: A Legal History of Race and Freedom in America, (Nelson, 2009) His previous books are A Nation of Sheep, The Constitution in Exile, and Constitutional Chaos: What Happens When the Government Breaks Its Own Laws.

Copyright © 2009 Andrew P. Napolitano