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Did you know that we have a gravely ill Constitution? Garrett Epps does, and he wants to tell us all about it in The Atlantic. Of course, you know there is going to be a convenient explanation for all this:

“Political correctness” is out of favor, so I won’t pretend that “both sides” bear responsibility. The corrosive attack on constitutional values has come, and continues to come, from the right. It first broke into the open in 1998, when a repudiated House majority tried to remove President Bill Clinton for minor offenses.
— Epps, “Trumpism Is the Symptom of a Gravely Ill Constitution”

I did just discuss the price to be paid for trying to nullify an election.

According to his bio, Epps teaches constitutional law and creative writing at the University of Baltimore. Obviously, his article owes more to the creative writing side than the constitutional law side. Can Epps really be that ignorant of history? Or is he hoping to put one over on us unenlightened rubes? We can’t settle that question, but we can review some history. Here are some years to remember from a constitutional perspective.


The Sixteenth Amendment is adopted, which strikes out the wording in Article I, Section 9 that:

No Capitation, or other direct, Tax shall be laid, unless in proportion to the Census or Enumeration herein before directed to be taken.

The framers of the Constitution inserted that because they feared a mob would use the police power of the state to steal from a minority of the people. But, hey, nothing to worry about now!

As if that weren’t achievement enough, the Seventeenth Amendment follows three months later. This establishes direct election of Senators, thus eroding the status of States as mediators between the Federal Government and the people. The Senate becomes an Upper House with really expensive seats.


In A.L.A. Schechter Poultry Corp. v. United States [295 US 495], the Supreme Court for the last time throws out delegation of lawmaking by Congress to the executive branch, holding:

A delegation of its legislative authority to trade or industrial associations, empowering them to enact laws for the rehabilitation and expansion of their trades or industries, would be utterly inconsistent with the constitutional prerogatives and duties of Congress. P. 295 U. S. 537.

Congress cannot delegate legislative power to the President to exercise an unfettered discretion to make whatever laws he thinks may be needed or advisable for the rehabilitation and expansion of trade and industry. P. 295 U. S. 537.

The sitting president was Franklin Delano Roosevelt, and his response was to threaten to pack the Court. Did it work? Nobody will say, but since then no court has had the insolence to make Congress do its job.


In Susette Kelo, et al., v. City of New London, CT [545 US 469], the Supreme Court ruled that a municipality could use its eminent domain powers to force the transfer of land from one private owner to another. This is the “Kelo” case and the source of the questions about eminent domain that Donald Trump artlessly glossed over earlier this year.

What’s not to like about this? The dissent of Justice O’Connor explains it:

Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result.

Either Garrett Epps is stupid or he believes we are; more likely than not the latter. The Constitution has been in real trouble for my entire life. Where was his impassioned defense of the Tenth Amendment? Now that the chickens are coming home to roost, he wants to start worrying about process. It’s a little late.


Written by srojak

September 22, 2016 at 10:18 pm

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