Friday, November 16, 2018

Is the Constitution of Any Value?

By Robert Wenzel

At the post, DISAPPOINTING Judge Napolitano Blasts DOJ Decision Defending Whitaker Appointment, a commenter writes:
I am certainly not an advocate for the Constitution but maybe the Judge wants to follow it at all times rather than flip-flopping to the advantage of freedom. This gives the other side an excuse to do the same against freedom.
Let's face it, the US Constitution is a pretty bad document. It is poorly written with much ambiguity so that all kinds of interpretations can be made from various clauses that are not clearly expressed.

At its foundation, it is a document about how government should rule us rather than an anti-state document. And in a very important way, it is a document that has, as part of its DNA, a driver for an almost always expanding government. The Bill of Rights may have put some speed bumps in the road to the expansion but it hasn't stopped the process.

You ask me for proof of this perspective on the Constitution. I simply say, just look at modern day America. The land where the people hold the Constitution as part of the American core and which has been the guiding document since the inception of the nation.

We have fiat money, massive taxes, limitations on gun ownership, so many regulations that it is argued that every individual commits on average three felonies a day, and standing armies that roam the world. And it is getting worse by the day.

As such, the libertarian should never use the Constitution as a guiding light. It has provided us, for a while, with limited freedoms at best. But there is no reason to genuflect in front of it. Liberty should be our guiding light.

The Constitution is a slowly tightening vice on liberty.

There is no reason to "protect" the Constitution by using it as a method to limit freedom or individuals who are attempting to advance freedom.

Napolitano's use of the Constitution, in the Matthew Whitaker situation, falls into the genuflection category above advancing freedom.

Of course, it can be used as a weapon against the state when that is possible.

But it should, only, be considered a tool that should be used only when it benefits liberty. Just the way a hammer is a wonderful tool to pound nails into wood but it is not recommended that hammers be used to bang ourselves in the head.

Only use the Constitution, when applicable, like a hammer but never treat it like a sacred chalice.

Robert Wenzel is Editor & Publisher of


  1. Before the ink had hardly dried on the Constitution, the founders had passed the Alien and Sedition Acts limiting free speech and founder of the country had raised an army to put down a tax rebellion in Western Pennsylvania. It was directly downhill from there.

  2. And how long do you think he'd be allowed to stay on the air, with that approach? As a senior judicial analyst on a semi-neocon network. Realpolitik - he's a secondhand dealer in ideas in his day job, working within the confines that keep him employed/dealing.

  3. Spooner long ago eviscerated the notion that the constitution is beneficial. There's really not much more to be said.

    However, I think it is valid, as Tom Woods sometimes does, to point out that the state does not even follow IT'S OWN rules, and therefore has zero credibility when it demands that its subjects follow them.

    1. Agreed in all respects, with one additional point. It's also worth studying colonial America, the Articles of Confederation, and the 1787 Constitutional Convention to gain a fuller appreciation for the dangers of, and to advocate against, holding another constitutional convention, as some are calling for. It today's anti-liberty, pro-centralization climate, any such convention is likely to result in an adverse re-write of the current document (including, but not limited to, codification of the worst Supreme Court decisions and legislative wandering).

      The route to constitutional correction is for the states to grow spines and start to fight back, secede, nullify, etc. As Brion McClanahan always says, "Think locally, act locally."

  4. As the one who wrote the comment referred to, I want to make it clear that other than, “Napolitano's use of the Constitution, in the Matthew Whitaker situation, falls into the genuflection category above advancing freedom.” I agree with what RW says in this post and Evan Smiley’s comment.

    To paraphrase Scott Horton referring to the (Un)patriot Act and similar violations of the Bill of Rights, “Go ahead and get rid of the Constitution, just don’t get rid of the best part first.”

    The comment by Badley makes a good point. After all Napolitano is the Senior Judicial Analyst at Fox News. His analysis from a judicial viewpoint is valid. Should he have he have backed Whitaker’s view on nullification and gold from a judicial stance? Yes. But Fox may not have allowed it or given the segment enough time.

    The Judge does much more good than harm as the Senior Judicial Analyst at Fox News. His comments and lack of comments on the Whitaker matter are not disappointing to me.

  5. The interesting thing is no one holds up a crafted alternative to rally around. I somehow always expected someone to be inspired and bold enough to say "here is the alternative to the aged constitution"