Monte Kuligowski
Out with central control, in with constitutional liberty
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By Monte Kuligowski
November 5, 2010

We have a systemic problem in the country and electing a wave of conservatives to federal office is a start, but will not sweep away the predicament. The country's ills are beyond the remedy of ordinary governance.

Central control of acceptable moral instruction in education via the federal courts has produced a pervasive new morality. The old religion-based morality of the localities has been replaced with the morality of the state.

Using the 14th Amendment to exploit the First Amendment, approximately 50 years ago, the U.S. Supreme Court kicked through the doors of the public schools under the guise of Establishment Clause doctrine. That move, which halted the transmission of religion-based morality in the schools was perhaps the greatest constitutional sham in the country's history.

The state-based morality fills the divinity void with its own faith and "creation" story. Matter and energy somehow appeared. We somehow created ourselves via the wonder of natural selection. No intelligence was required for the transformation of inanimate matter into breathing, thinking people with consciousness and conscience. The postmodern student may believe in God but the premise of God is not necessary for the miracles of "science" and, in fact is excluded from "real science."

After many decades and billions in taxpayer dollars for evolution research, together with the censoring of opposing viewpoints, a consensus amongst scientists has been reached. Surprise: evolution is no longer a theory; it has been proven true.

The idea from the Declaration of Independence, that we've been endowed by our Creator with rights the state cannot take away is sort of outdated when viewed through the lens of postmodern thinking.

And it's not surprising that creation has unseated the Creator for due allegiance, respect and obedience. Students are taught they must "go green" to save the planet. People must live and behave a certain way. The new morality says if we use too much of the earth's energy we are greedy. If the rules set by the priests of the ruling class are not obeyed we will suffer the earth's wrath in the form of global warming. The oceans will rise; volcanoes will rain down fire and brimstone; the crops will dry up and so forth.

After billions in taxpayer dollars for worldwide climate change research, together with the censoring of opposing viewpoints, a consensus amongst scientists has been reached. Behold: manmade climate change is no longer a theory; it has been proven true. And most of the ruling class elitists in the venues which influence public opinion — education, media and central government — happen to believe it's true.

Because of the central government's overreaching in education, diversity among the states of the United States is effectively nonexistent. Young people are growing up with groupthink worldviews. After high school, many head off to college with their state- fashioned mindsets to be stretched even further in the dogma of the left. The really "smart" among us graduate from our elitist universities and take key positions in education, media and government. With little exception they share a united sense of right and wrong which happens to mirror the tenets of progressivism (the new morality).

Because we have systemic problems in the three venues that influence public opinion, the passing of ordinary laws will not restore the system. Cutting taxes here or there or shrinking this or that federal program or bureaucracy will leave in place the perpetual transmission of the groupthink morality. Unfortunately, the new morality is a vital aid to collectivism, central control and dependence on government.

Presently, the country is still center-right but time is quickly running. If the country is not on the road to the diversity that the actual U.S. Constitution defines and protects, before the rise of the next generation, it likely will be too late for ballot box restoration.

If the country is to be restored via the ballot box, conservatives will need to be elected in large numbers in consecutive state and federal elections. Once the numbers are reached, conservatives will need to take the federal government back to its constitutional boundaries. That will require unflinching courage, extraordinary legislation and constitutional amendments. There is no alternative if liberty is to be restored.

The most important debates on the horizon will center on the specifics of getting the federal government back to its constitutional boundaries.

One topic of debate is that the jurisdiction of the federal courts may be limited and regulated by the Congress. The feds may be extricated from certain local and state affairs by legislation. The illicit practice of using the 14th Amendment to regulate the local schools, e.g., may be remedied via jurisdictional limitations.

When it is argued by the left that the Supreme Court has jurisdiction over all constitutional questions, the reply should be that the doctrine of incorporation (use of the 14th to use the Bill of Rights against the states) does not apply.

Regarding the Establishment Clause, no personal liberty right is at issue under the 14th to trigger a constitutional question. Barring the states from establishing religion has nothing to do with due process and individual liberty. That's Justice Thomas' argument and it's a sound one. Another reply might be that the word, "Congress" in the Establishment Clause does not equate to "public school" under any reasonable interpretation. "Congress" might equate to a state's congressional body under incorporation doctrine but cannot be stretched indefinitely. Same with the clause's words, "establishment," "law," and so on.

Of course, the better route would be to eliminate the judicially-created doctrine of incorporation altogether. The context of the Bill of Rights was to control the federal government; not the states. Eliminating the doctrine may be achieved by enough conservative judicial appointments to the Supreme Court or preferably, by constitutional amendment.

And, of course, the federal government has a repertoire of abuses which do not involve incorporation doctrine. Regarding the misuse of other constitutional provisions such as the Commerce Clause, et al, and the federal practice of coercing the states with their own money to do this or that, constitutional amendments need to be passed.

Amendments can be passed the traditional way and the Constitution also seems to expect that, from time to time, two-thirds of the states will call Amendment Conventions. Interestingly, the semi-sovereign states have the power to amend the Constitution with or without federal legislators.

Mr. Obama's despotic rush to unprecedented central control has revived an interest in constitutional liberty. More than that, Obama has created en masse demand for constitutional liberty. We have a tremendous opportunity to begin the journey back to the Constitution; but if not acted upon it will pass.

© Monte Kuligowski

 

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Monte Kuligowski

Monte Kuligowski is an attorney and writer whose legal scholarship, including "Does the Declaration of Independence Pass the Lemon Test?" (Duke Journal of Constitutional Law & Public Policy), has been published in several law journals... (more)

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