Principles of Constitutionalism: The Primacy of the Constitution

Written by Tim Dunkin on . Posted in Guest Articles

Publisher's note:  This is the first in a series of discussions on the State of America and the mis-application of the U.S. Constitution.  Tim Dunkin has done an amazing job of spelling it out so that even liberals will get it.

Tim Dunkin:  The United States of America are in a bad way.  All around us we are seeing the fruits of a people who have forgotten the first principles that gave our nation that it had originally.   We were founded as a constitutional republic.  What this means is that our entire political system, in which we participate indirectly, is supposed to be governed by the Constitution.  Yet, we have strayed from this, and many, many people in this nation do not even really understand either the purpose or the workings of that document, because they have never learned them, nor even thought about them.

One of my desires is to increase awareness of what the Constitution means, and how it is to be rightly applied.  As such, I have conceived of the idea of trying to present a series of articles devoted to explaining the principles which underlie our constitutionalism, that effort to regain and then maintain our nation's traditional adherence to the Constitution and the liberty worldview which flows from it.  

To begin this series, I want to begin at the beginning (of course).  If we as conservatives and liberty lovers, people who want to educate those around us back toward a more constitutional view of our political system, are to succeed in this goal, then we need to have a firm grasp of the fundamentals of our own philosophy.  

So before anything else is said about the Constitution or how to apply it or what any of its particular parts mean, we must first firmly settle in our own hearts and minds upon the principle of the primacy of that document in the earthly laws and organization of government in these United States. 

Simply put – there is nothing in any subsidiary law made by Congress, in any executive agency, in any executive order which the President may wish to make, that overrules the Constitution.  From an under the sun perspective, in the United States the Constitution is THE standard against which everything aspiring to the status of law must be measured.  In 1886, the Supreme Court plainly stated this principle,

“An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed." (Norton vs. Shelby County, 118 US 425)

Bluntly, if a law or other act of government contradicts the Constitution, then that act, law, statute, regulation, or whatever else is null and void.  

Let's think a little bit about how that applies.  Obviously, an act of Congress that contradicts the plain wording of the Constitution is a dead letter on its face.  So should an executive order from the President.  So should administrative rules made by federal agencies.  That much is easy to understand.

But what about when we get around to dealing with actions by public officials?  For instance, what about when the police perform a warrantless search in violation of the 4th amendment, or when officials in federal agencies such as the BATFE misuse their powers to harass and punish gun owners and gun sellers, contrary to the 2nd amendment?

Morally, it is right to resist those usurpations, even with deadly force.  Practically, of course, that is easier said than done because of the tendency of many police and regulatory agencies to use force to protect their own usurpations against our liberties.  But yet, morally, the one who resists is in the right, because he or she is actually on the side of the law.  The authority that police and regulatory agencies have is statutory, and derives FROM the institutions established under the Constitution, which in turn derive their authority FROM that document.  In short, the police do not have the authority to overrule our founding document.  When they do so, it is the police themselves who are engaging in sedition and treason.

Now, one might argue, the police are allowed to do many of these things because the courts have ruled that they can.  The courts have essentially gutted the 4th amendment protections we used to enjoy, such that police agencies can do all kinds of things at which the Founders would be aghast.  So the next question to ask is – does the fact that the courts have ruled this way suddenly make it alright?  Do the courts overrule the Constitution?

Absolutely not!

As late as 1968, Justice Hugo Black observed, 

"The public welfare demands that constitutional cases must be decided according to the terms of the Constitution itself, and not according to judges' views of fairness, reasonableness, or justice. I have no fear of constitutional amendments properly adopted, but I do fear the rewriting of the Constitution by judges under the guise of interpretation."

Certainly, there is a constitutional role for the courts to play, otherwise that document would not have provided for their institution.  Nevertheless, simply because a court rules a certain way does not make the court's decision – even from the Supreme Court – constitutional.  If a court rules, to use a hypothetical example, that the police can take random DNA swabs from citizens without a warrant and without even probable cause (itself a non-constitutional legal construct), then that court has ruled against the plain reading of the Constitution's language.

Which makes that court's judgment unconstitutional, and null and void from its inception.  

This is the great stumbling block in the minds of even many conservatives when it comes to addressing the out of control judges in this country – the unwarranted deference to judicial authority even when that authority has clearly and unambiguously overstepped its constitutional boundaries.  The American people need to start realizing once again that simply because a court rules a certain way, the Constitution doesn't suddenly change to accommodate this new understanding when this understanding goes against the plain wording of the text.  If you want to amend the Constitution, then use the amendment processes provided within the document itself. Courts can't amend the Constitution of their own initiative.  When courts do so, they act unconstitutionally.  We need to accept and acknowledge that court rulings themselves can be unconstitutional.  

What it all boils down to is this: we need to get back to a firmly held grammatical-literalist approach to the Constitution.  Words mean things.  The Founders who wrote the Constitution put certain words in, and left other certain words out, because they wanted our foundational law to do certain things, and not do other certain things.    It is incumbent upon us not to try to “work around” the plain wording of the Constitution, but to simply learn, apply, and abide by that wording.  If such a need should arise to change it, then amend it the right way – through the amendment process, not through inaction or unconstitutional usurpation, which does nothing but generate disregard not only for the founding law, but for all just and right law that is created under its auspices.

As we will see in upcoming installments of this series, the principle of constitutional primacy will color everything that follows.  It is vital that we come to a real and true grasp of the Constitution as non-negotiable, and start demanding this from those who are privileged to represent us in government. Every area of political life, if it is to be rightly conducted, rests on this principle.