By Douglas V. Gibbs
"Law of the Land" is a term Rush Limbaugh uses often on his radio program. I appreciate Rush Limbaugh. He has done wonders for informing the public on the issues, and articulating the principles of conservatism. He provides a great service, and though I am not a die-hard fan, I am a fan. That said, as a constitutionalist, he drives me nuts because daily I pick up on his lack of knowledge of originalism. He does not have a detailed understanding of the Constitution as he should, yet he puts himself out there like he does.
Hillsdale College is a huge advertiser on Rush Limbaugh's show, and he respects the institution a lot. I respect them too. I have not watched their Constitution series lessons, so I have not garnered my opinions about the college based on that. I have, however, spent time talking to Dr. Larry Arnn, the President of Hillsdale College, and I do base my opinion largely on those conversations.
Two Septembers ago I had Dr. Larry Arnn on my radio program, Constitution Radio with Douglas V. Gibbs on KCAA 1050AM, as a guest, and once we wrapped up the pleasantries, we spent the entire hour arguing over three constitutional issues where he and I disagreed greatly - and it is from these disagreements I learned what kind of constitutionalist Dr. Arnn is, and it has helped me understand why Rush struggles with the Constitution.
The three issues Dr. Arnn and I argued over was Judicial Review, Nullification, and Implied Powers.
Larry Arnn, like may academics and political hacks, puts a lot of faith in the courts, and accepts the idea that judicial rulings, which makes up the web of Case Law, are the final determination of what is, and is not, constitutional. The federal courts, however, do not have that authority. Nothing in the Constitution grants to the courts that power. In fact, it was the courts, themselves, that gave themselves that power (John Marshall in his opinion of the Marbury v. Madison case in 1803).
To his credit, I heard Rush once make that observation, and for just a moment, he questioned the validity of Judicial Review. However, that was a brief moment in time I have not seen him revisit.
Dr. Arnn paused when I presented my case. I told him two things. First, in today's world, we see a lot of 5-4 Supreme Court decisions, with Justice Kennedy more often than not being the deciding vote. What that means is the Constitution has been hanging in the balance because of the vote of one man. Did the founders really want one person to have that much power?
The other thing I said to him, and Dr. Arnn did not have an answer for this, is that the Constitution was written to create the federal government, but limit the new central government's powers as much as possible. Judicial Review says that it is up to the federal courts, if a law is challenged, to determine if it is constitutional. But the federal courts are a part of the federal government, and for them to determine if something is constitutional is to decide if the federal government has the authorities in regards to the law in question. In other words, through the courts, the federal government is deciding its own powers for itself.
When I questioned Dr. Arnn regarding where in the Constitution the power of Judicial Review lies, he replied, "It is implied."
Round 2.
When one studies the United States Constitution, and also studies the various opinions regarding the U.S. Constitution, two schools of thought exist regarding the authorities of the federal government. One contends that all federal powers are expressly given, or enumerated, by the U.S. Constitution (primarily in Article I, Clause 8, and all subsequent Amendments). The second school of thought recognizes two different types of powers in the Constitution: Expressed powers and implied powers.
Expressed powers include the power to tax, maintain a military, coin money, establish post roads and post offices, and to establish uniform rules of naturalization.
Those that do not agree with the strict constructionist view of the U.S. Constitution will argue that there are more powers granted to Congress that you can find within the body of the Constitution and its amendments. These are implied powers, which means that there are powers beyond those enumerated that are given to Congress so that they can write laws to make sure what needs to happen happens. In other words, those that believe in the existence of implied powers argue that such powers add to Congress's expressed powers.
Implied powers, according to those that support this concept, relate specifically to the Legislative Branch, but actually all branches have some form of implied powers.
Any laws passed by the federal government must be in line with their authorities from the Constitution itself, which means they cannot possess any implied powers that do not find their foundations in the express powers granted.
Thomas J. DiLorenzo, in his book "Hamilton's Curse," explains that implied powers were an invention of Alexander Hamilton, a federalist that believed in a more centralized governmental system. DiLorenzo wrote:
Hamilton also invented the myth that the Constitution somehow grants the federal government "implied powers." "Implied powers" are powers that are not actually in the Constitution but the statists like Hamilton wish were there. As Rossiter pointed out, "One finds elaborations of this doctrine throughout his writings as Secretary of the Treasury." The most notable articulation of this idea can be found in Hamilton's Opinion on the Constitutionality of the Bank of the United States. He wrote this report in 1791, while serving as treasury secretary. President Washington had asked both Hamilton and Jefferson for their opinions on the subject. In his opinion, Hamilton wrote that "there are implied, as well as express powers [in the Constitution], and that the former are as effectually delegated as the latter" . . . He added, "Implied powers are to be considered as delegated [to the federal government] equally with express ones." A nationalized bank, he went on to argue, was one of those implied powers.
Jefferson vehemently disagreed, arguing that the express powers delegated to the federal government in Article I, Section 8, of the Constitution (providing for the national defense, coining of money, etc.) were expressly stated because they were the only powers delegated to the federal government by the sovereign states that ratified the Constitution. Any new powers, Jefferson believed, could be delegated only by a constitutional amendment. He realized that such a doctrine as "implied powers" would essentially render the Constitution useless as a tool for limiting government if the limits of government were simply left up to the imaginations of ambitious politicians like Hamilton. . . the shock troops of the Federalist Party - federally appointed judges - would use Hamilton's arguments to essentially rewrite history and the Constitution. Thus was "liberal judicial activism" born.
. . . George Washington had condemned the notion of a "living constitution" in his Farewell Address (which, oddly enough, is said to have been at least partly ghostwritten by Hamilton). In that address President Washington said, "If in the opinion of the People, the distribution of modification of the Constitutional powers be in any particular wrong, let it be corrected by an amendment in the way the Constitution designates. But let there be no change by usurpation . . . the customary weapon by which free governments are destroyed." Hamilton's theory of implied powers ignored this warning, laying the template for generations of lawyers who would use the courts, rather than the formal amendment process, to essentially render the constitutional constraints on government null and void.
Not only were there supposedly "implied" powers in the Constitution that only the wise and lawyerly like Hamilton recognized (but that were foreign to James Madison, who like Jefferson was a strict constructionist) . . . unconstitutional powers would magically become constitutional, in Hamilton's opinion. Taken to logical ends, this argument implies that any action of the government would be de facto "constitutional" by virtue of the fact that the action occurred. This is how Hamilton viewed the Constitution - as a potential blank check for unlimited powers of government. (Thomas J. DiLorenzo, Hamilton's Curse, New York: Three Rivers Press, 2008, pages 26-29.)
Finally, we discussed nullification, which ties into our first argument, Judicial Review.
Round 3.
If, as I discussed earlier in this article, the courts are not the final arbiters of the Constitution, then who is? After all, in Jefferson's draft of the Kentucky Resolution he articulates that all unconstitutional federal laws are null and void. If that is the case, that would mean that the States, whose delegates framed the Constitution, as the final arbiters of the Constitution, can nullify unconstitutional laws. In other words, when faced with illegal federal laws that exist outside of the authorities granted to the federal government, the States have a right to refuse to implement them. Dr. Arnn quoted to me a section of one of Madison's Federalist Paper essays to prove his point, but what he said did not discount nullification in my opinion. We have to remember, the federal government was designed to serve the States, not rule over them.
Which brings us back to Rush Limbaugh. His constitutional opinions, I believe, are largely influenced by those of Dr. Larry Arnn. Dr. Arnn is a learned man, and I am in no way trying to belittle him. All I know is that on those three issues, his findings are in error, which influences a number of overall opinions regarding the United States Constitution. His opinions gives the federal government more power and authorities than was originally intended, and those beliefs existing in the minds of the folks in the general population is a large part of the reason progressivism has risen in the way it has.
So, when Rush Limbaugh calls laws by the federal government the Law of the Land, it makes me cringe.
In a nutshell (a pistachio nutshell, at that), the Law of the Land is a term from Article VI. of the Constitution, which reserves that title to the Constitution, laws made in pursuance of the Constitution, and treaties made and ratified. So, Mr. Limbaugh, I ask, how can laws like Obamacare be the law of the land, as you keep referring? By calling them the Law of the Land, it validates them, in a sense. Unconstitutional laws are illegal laws, and therefore should not be called the Law of the Land.
Until Rush Limbaugh, and others, understand this, we will be stuck in battle mode, and will be unable to make advances against modern American liberalism.
We have to understand "what" our system should be in order to make advances toward "where" it should be.
-- Political Pistachio Conservative News and Commentary
The "Law of the Land," Mr. Speaker? - Rush Limbaugh
Jefferson's Draft of the Kentucky Resolutions, October 1798 - Avalon Project
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