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The Unrepentant Traditionalist
April 21, 2009

Our Forgotten Constitution
by Frank Creel

If one listens, Lent reveals much. We are reminded, for example, that God is a deus absconditus, a hidden God.

In the liturgical readings leading up to Easter, the Lord repeatedly “hides himself” from or “escapes from the power” of those seeking to kill him, because his hour has not yet come. The reason they seek to kill him, of course, is that they do not believe him when he claims to be God’s son, that, as he puts it, when Abraham came to be, “I AM.”

We have thus revealed to us that God places a premium on faith. In another context, Jesus stated that those who made a show of their piety “already have their reward.” Just so, we, too, would already have our reward if we had the satisfaction of knowing for sure that God exists, or that Jesus is truly divine, or that our prayers are always heard.

This is not the state of affairs as God has it. God will remain hidden, utterly beyond our empirical certitudes. The only certainty is that he will continue to demand we believe.

In our secular doings, we have comparable inexactitudes. In the sphere of constitutional interpretation, for instance, the argument between advocates of original intent and those who propound a living constitution is as predictable as cherry blossoms in the Tidal Basin.

Some might say the tension between the two sides yields a beneficial dynamic of progress and continuity, allowing our basic law to adapt to changing conditions without slaying its spirit. Others — myself among them — would maintain that, without deference to the intent of the Founders, the Constitution cannot long remain basic, adaptable only through the amendment process it itself prescribes.

The camp I am in, unfortunately, has suffered some of its most serious reverses as the result of sloppy thinking by some of its zealots.

The Philadelphia Convention’s inspired contrivances mean little, for instance, without the emphasis on checks and balances and the separation of powers — not only among the branches of government at the federal level but also between the central government and the sovereign states. Our constitutional arrangements will have no power to protect us from abusive power if the central government is forever aggrandizing itself at the expense of its constituent sovereignties.

Despite the centrality and obviousness of this truth, the chief advocates of “states’ rights” have allowed their constitutional cause to be sullied by association with the moral low ground in the nation’s long struggle over slavery and racial segregation. Had the Civil War somehow been avoided, had Jim Crow laws and racist lynchings not been chosen as popular responses to the humiliations of Reconstruction, had churches and schools been opened to all God’s children — it would be a lot easier to defend states’ rights, original intent, and the “federal laboratory.”

It fell to Earl Warren’s Supreme Court to desegregate the schools because families, schools, churches, cities, towns, states and the U.S. Congress, in that order, all failed in their responsibilities toward their fellow citizens. Bad law (and almost all federal statutes in the area of “police powers” reserved by the Constitution to the states are bad laws) is invariably the result of personal or political failure at lower levels.

The problem is on full display at the moment. Congress is trying to give the District of Columbia voting representation, even though the Constitution quite clearly provides such representation only to states. It also very clearly describes the seat of government of the United States as a “district,” a choice of words obviously made to separate it from the states.

On the other side, opponents of the bill are using the District’s severe gun laws as an excuse to delay or prevent enactment. Gun owners in the District have long claimed those laws were unconstitutional. Recently, the Supreme Court partly agreed with them.

Both sides, the advocates of voter representation for the District and the opponents of the District’s gun laws, are in error. Yes, the Supreme Court is also in error.

Back to original intent. The intent of the Framers for the District of Columbia has already been made clear. With respect to the Second Amendment, the language of the Framers, and thus their intent, could hardly be more clear: “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” (italics added). The first phrase in italics makes clear that the entity being prohibited from infringement is the lawmaking body of the government being constituted by the document, i.e., the United States Congress. The second phrase shows that the prohibition is absolute.

Therefore, all federal statutes related to possession of weapons are constitutionally illegitimate. The Supreme Court has been wrong to tolerate them.

The corollary, unsavory to sloppy thinkers like the National Rifle Association (NRA), is that the Second Amendment does not apply at all to cities and states, which are free to outlaw any and every lethal weapon. This is especially true of the District of Columbia, with receives all its legislative authority directly from Congress, as the Constitution prescribes.

Anyone truly devoted to the Constitution our Founders gave us must begin with the recognition that the greatest injury to its spirit was the Supreme Court’s “doctrine of incorporation” under the patina of the Fourteenth Amendment. Under that doctrine, the Bill of Rights (intended by the Founders as the bulwark of the sovereign states and of the people against federal encroachments) was transformed into a bludgeon against the states and their citizens. It is under the pernicious influence of that doctrine that the rights of pre-born citizens have been obliterated, that prayer in the schools has been outlawed, that pornography is protected, that marriage is undermined, and that assaults on the Second Amendment will continue until Judgment Day.

The NRA has been validating the doctrine of incorporation for more than 30 years, ever since its lawsuit against the Morton Grove ordinances. It continues doing so today with its ill-advised palpitations over District gun laws.

Pea-shooters in the states and localities are no real threat to American liberties. The Founders, writing the Second Amendment, took no note of them. They were aiming at the central government they were cautiously setting up.

We are throwing caution to the winds. The federal government, especially under this president, it itself something of a deus absconditus, demanding our complete fealty and unquestioning faith.

But it is a false god. And the NRA is a false prophet.

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The Unrepentant Traditionalist is copyright (c) 2009 by Frank Creel and the Fitzgerald Griffin Foundation. All rights reserved.

Frank Creel, Ph.D., has been a columnist for the Potomac News, Woodbridge, Virginia. His op-ed articles have been published in the Northern Virginia Journal, the Washington Examiner, The Washington Times, and the New York City Tribune. In 1992, his A Trilogy of Sonnets was published pseudonymously by Christendom Press.

See a complete biographical sketch.

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