Many people agree with me that this election is a matter of electing “the lesser of two evils” and not so much about electing the right man for the job. Many, however, do not; they mistakenly believe that electing the greater evil is electing the right man for the job.

In this article, I’m going to argue that electing the lesser of the two evils facing us in this election is electing the right man for the job.

The reason for this is that the real job — or perhaps I should say the real work — of fixing America cannot be done by the President. It must be done by the People (for those who have forgotten, that’s us; it includes most readers of this blog). And we cannot do our job effectively if George Bush is re-elected.

The purpose of this article is to explain why neither George Bush nor John Kerry are right for the Presidency, but I hope to convince you that we must, for our own sakes, elect John Kerry; and not, by the way, because Kerry deserves your vote.

Gist of the Argument

As I said, I’ve written much about the original intent of the Constitution. In the course of that writing, I’ve frequently lambasted conservatives for ignoring the constitutional intent to protect our “unalienable rights.” (Among which are “Life, Liberty, and the pursuit of Happiness”; see the Declaration of Independence of the United States.) This is not because only conservatives misunderstand, ignore, or abuse the Constitution. Liberals do so as well. It is even arguable that liberals do it more often and with express intent, whereas the conservatives are just stupid.

Be that as it may, the conservative approach to the interpretation of the Constitution is the more dangerous. This is true not only because of the damage it wreaks on our nation, but because it makes the work of fixing things that much harder for those with whom the responsibility really lies: the People, the citizens of the United States of America.

It is for this reason that I say we must not re-elect George Bush. For our own benefit and to maintain the ability to fix things after we elect “the lesser of two evils,” we must elect John Kerry.

That is the gist of my argument. I hope you’ll read the explanation below. Because if you don’t, I can only hope you’ll trust me when I say that George Bush is more dangerous to us than John Kerry. And I don’t expect you to trust me on that, so I’ve given a detailed explanation below.

The Devil Is In The Details

The Constitution of the United States of America was a deliberate attempt to create the institutions that would govern — that is, those that would make up the government — of the United States of America. And what type of government was that?

According to the authors of the Federalist Papers, it was to be “a limited government.” For this reason, the Constitution of the United States specifically spells out “the enumerated powers” of the various branches of government. And, in particular, the Congress of the United States starts off by saying,

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. U.S. Const. art. I, section 1 (emphasis added).

Anyone who knows how to read can see that the Constitution expressly states that Congress only has those powers which have been “herein granted.” “Herein” — for those speakers of English who do not know the word, means,

in this: a : in this place <herein were many vaulted … walks hewn out of the rock — John Ray> <enclosed herein you will find my check> b : in this passage, book, or document <all legislative powers herein granted — U.S.Constitution> c : in this fact or particular <herein you war against your reputation — Shakespeare> “herein.” Webster’s Third New International Dictionary, Unabridged. Merriam-Webster, 2002. http://unabridged.merriam-webster.com (1 Nov. 2004).

In other words, within the document called the “Constitution of the United States” the People of the United States “granted” the government certain powers. And it’s worth noting that these powers were granted, or given, to the government because, unlike the People, the government has no unalienable rights. Governments are artificial creations. People create governments. But the People themselves are born with these rights.

To make this point even clearer, Article I, section 8, the Constitution spells out exactly what powers are “herein granted.” The laundry list of powers delineated there is not exactly short, but it is finite.

Whatever powers we did not specifically give to Congress were not intended to be available to Congress. It may surprise you to know that, long ago, in spite of the Constitution, the Congress of the United States exceeded these powers. And they did so with the help of the Supreme Court, driven by liberal justices.

Denial and Disparagement

The Constitution of the United States was written after lengthy arguments, disputation and compromises were hashed out during the Constitutional Convention of 1787. It did not become law until 1789, when it was finally ratified by enough of the original colonies, after the people who lived in those colonies approved it by a vote.

During the battle — and it was a battle — to get the Constitution of the United States approved after it was written and submitted to the People in 1787, two groups (essentially) formed. One was against approving the Constitution; the other was for it.

And the group that was against it offered one significant argument against it: There was no Bill of Rights. They feared that if the Constitution did not include a Bill of Rights, the government would — if not immediately, then eventually — overpower the People and obliterate their heretofore unalienable rights.

The other side, sometimes called “Federalists,” argued against a Bill of Rights. They pointed out that the Constitution limited the government’s powers. They gave arguments similar to the one I outlined above — the Constitution specifically spells out what Powers Congress has and they have no more than that. Their fear was that if we created a Bill of Rights, the government — if not immediately, then eventually — would take that to imply that the People had only those rights that were spelled out in the Constitution. Their fear was that this would virtually turn the Constitution upside-down. Instead of a limited government, we would end up with a limited citizenry. When it became clear that the Constitution would not be approved without a Bill of Rights, the Federalist-minded group tried to protect against the danger that government would misinterpret the Constitution and limit the rights of citizen by including the Ninth Amendment.

The enumeration in the Constitution, of certain
rights, shall not be construed to deny or disparage others retained by
the people. U.S. Const. amend. IX.

In spite of these words, Republicans — and particularly the Bush Administration — have consistently eroded the rights of the People. They have done this directly, when they develop unconstitutional laws such as the USA PATRIOT Act; they have done this indirectly when they elevate the rights of artificial persons (corporations) above the rights of real persons (individual human beings).

Of course, they could do neither of these things without the assistance of the courts — and that is not limited to the Supreme Court. Whereas the original intent of the Constitution, spelled out in Article III, was that courts would interpret the law according to the Constitution, “the rule of law is now largely the rule of politics.” Roger Pilon, Symposium on Ideology in Judicial Selection: How Constitutional Corruption has Led to Ideological Litmus Tests for Judicial Nominees (2002/2003) 15 Regent U.L. Rev 41. (A version of this is available here.)

Roger Pilon believes that in the attempt by liberals to use the courts to push a “welfare state” during the New Deal Era, they cowed the Supreme Court and conscripted it to the work of social activism. In reaction against this, the conservatives failed to point out the error of the meta-theory of constitutional interpretation that allowed this. Instead, they did the same thing, but used this new meta-theory to constrain heretofore unalienable rights.

(This goes a long way towards explaining the bugaboos that plague Constitutional Law students: low-level, mid-level and high-level scrutiny; rational basis, strict scrutiny, minimal scrutiny, heightened scrutiny and so on. As Pilon puts it,

Does anyone know what any of that means? One is reminded of nothing so much as medieval geocentric Ptolemaics drawing epicycle upon epicycle to ward off the onslaught of the heliocentric Copernicans. Pilon, supra, at p. 55.

Eventually, this scheme, too, will have to collapse.)

As Pilon notes,

Both sides in [the battle over the interpretation of the Constitution] are wrong. Liberals are wrong to have unleashed the political branches originally, right to turn to the courts for protection from the ensuing majoritarian tyranny, but wrong to ask them to consult anything but law, anything but the theory of rights that informs the Constitution. Liberals are wrong, that is, to ask the courts to ignore rights plainly in the Constitution, yet find rights [for the government] nowhere to be found, even among the enumerated rights. But conservatives too are wrong for buying into the New Deal Court’s machinations, right to criticize the Court for its subsequent rights activism, but wrong to limit constitutional rights to those fairly clearly in the document. Conservatives, after all, can hardly ignore or disparage the Ninth and Fourteenth Amendments, as many do, and still call themselves “originalists.” As for legislatures creating rights against majoritarian tyranny, neither history nor the theory of the Founders supports that belief. It falls to the judiciary, as Madison said, to be “an imprenetrable bulwark against every assumption of power in the legislative or executive.” Pilon, supra, at pp. 60-61. (Underline mine; italics in original.)

Don’t think, therefore, that in all this, “activist judges” are only found in the camp of the Democrats.

How Republicans Are Bankrupting America

Prior to the year 2000, there was only one easily-recognizable reason for believing the Republican Party was dangerous. Today, the reasons are two-fold. (This, by the way, doesn’t even count the theocratic drive of Republicans. I consider that danger to actually be just a matter of the method used to achieve their goals, rather than one of the goals itself.)

Prior to 2000, Republicans were already responsible for placing conservative Justices on the Supreme Court who — equally as “activist” as liberal Justices — repeatedly interpret the Constitution as providing limited rights to the People. Whereas our Nation was founded on the idea that some few, specific, “enumerated” rights were given to the government we, the People created and that all other rights were retained by the People, conservatives have repeatedly interpreted the Constitution as providing unlimited power to government and placing limitations on the rights of the People. They have flipped the Constitution on its head.

The Democrats did not challenge the underlying concepts that allowed for misinterpreting the Constitution — after all, they invented the mistake. Instead, they used those same concepts to expand social programs. Consequently, they were for years rightly known as the “tax and spend” party.

After 2000 — particularly after September 11, 2001 — that moniker rightly belongs to the Republican Party. By engaging “the war on terrorism,” they have, in actuality, initiated a war on our pocket books. Throwing people in jail for the rest of their lives, maintaining unlimited detention camps in Guantanamo Bay and fighting endless wars against people who never will give up — do you really think that Muslim extremists will cease to exist or ever cease to attack the nation they feel wants to destroy them? — is expensive. As with all bills, sooner or later this one will have to be paid.

And by simultaneously reducing taxes on the richest one-percent of our population, the government has virtually ensured that the rest of us — the other 99% — will suffer for it. After all, someone is going to have to pay for it.

Why Vote For Kerry?

If both sides are wrong, if both sides abuse the Constitution in this fashion, then what makes the Bush Administration more to be feared? Why is Kerry the lesser of two evils?

Simply put, it’s this. The Democrats pervert the Constitution to the goal of expanding social programs. Rather than working through the political process defined by the Constitution and getting people, via state governments, to support social programs, they have conscripted the Courts. But (so far) Democrats seldom utilize the courts to expressly suppress the rights of the People delineated in the Bill of Rights. So the actions of the Democrats may unjustifiably pick our pockets, but our freedom to protest that theft is left unchecked.

The Republican Party, on the other hand, is not against a welfare state. Their programs just have different beneficiaries, such as Enron, Halliburton, Bechtel, Worldcom and so on.

And the danger of the Republican Party is that because they aim to benefit artificial persons (corporations) over real persons (human citizens), there is more resistance on the part of the People. Or at least some of them.

Consequently, to effect their reverse-robin-hood goal of picking the pockets of the poor (or, more correctly, the middle class) to give to the rich, they must stop the exercise of those rights. They must silence dissent. They must prevent citizens from finding out who sits on the Energy Task Force. They must refuse hearings for “enemy combatants” because we might find either find out that they aren’t really enemy combatants or we might learn why they are enemy combatants. And if Americans got the whole story about why there are enemy combatants — if we understood the real reasons we are hated by so much of the rest of the world, both Muslim and non-Muslim countries alike — we might vote the bastards out of office. We would put a stop to their shenanigans.

And we can’t have that. How nice then that their primary goal of benefiting artificial persons (and thus enriching the owners of those artificial persons) dovetails so well with silencing opposition and, simultaneously, any possibility of people being informed about what’s happening: The government simply changes the laws so that one or three Republicans can own all the television stations.

This is why we must elect Kerry. This is why we must not re-elect George Bush.

Because if we re-elect him, we move that much closer to the days of the old line of King Georges and their corporate sponsors against whom we originally rebeled in the mid-1770s. And the American Revolution — at least the one that lead to our independence and freedom in 1776 — is probably not a repeatable event.

But if we elect John Kerry, our freedoms remain intact.

And we can use those freedoms to do the real work of our nation, which is re-adopting the true intent of the Constitution: establishing a limited government which does only so much as is required to allow us “to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.” U.S. Const. para. 1.