Anti-Constitutional Law

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Are our constitutional rights being denied in favor of politically created privileges?

For more than two centuries, the U.S. Constitution has served as the contract between the governed, and the government. It grants certain governing powers to the latter, but also expressly limits the power of government by granting certain civil rights to the governed. These civil rights are enumerated in the Bill of Rights, and subsequent amendments. The Constitution is described as the supreme law of the land, and any law or judicial decision in contravention of the constitution is invalid.

But the actual text of the Constitution is now frequently disregarded. Words with clear meaning are often given a very different meaning by the courts, by the president, or by politicians in Congress. Powers never granted to the federal government and rights never granted by the Constitution are now periodically “discovered”, as if some long lost treasure.

The result: a chaotic state of affairs making it increasingly difficult to determine what rights we possess under the Constitution. Judicial and governmental edicts that have brought us to this point are anti-constitutional in nature, defeating the whole purpose of a written constitution.

As a result, civil rights granted to us all by the actual Constitution have been systematically weakened. Less well understood is that the weakening of our constitutionally enumerated rights is often due to governmentally created extra-constitutional privileges (misnamed “rights”) without any basis in the actual constitution. These “rights” are simply designed to benefit politically favored constituencies.

How, you might ask, can the creation of “rights” weaken our constitutionally enumerated rights? Consider just three examples: affirmative action, gay marriage, and transgender “rights”.

Affirmative action programs require that certain individuals be given preferential treatment based upon their race, while discriminating against the disfavored race. You will search the Constitution in vain for any provision that grants government this power. At a huge cost in lives and treasure, our country fought a civil war over the issue of slavery – the ultimate in discrimination. Amendments passed in the aftermath of the civil war very clearly were designed to prohibit such racial discrimination.

These amendments were designed to protect all Americans from racial discrimination. However, those rights have repeatedly been weakened by the Courts through its granting of extra-constitutional privileges to certain groups of individuals because of their race, privileges not accorded to those not members of the favored race. Such privileges have then been used to nullify the constitutional right we all have to be free from racial discrimination.

With gay marriage, you will again search the Constitution in vain for any provision that grants one the right to marry a member of the same sex. And yet, not only has the Supreme Court created a new extra constitutional privilege for individuals to marry members of the same sex, but certain States have now made it illegal for you to refuse to associate, on religious grounds, with individuals who engage in conduct to which you object.

The First and Fourteenth Amendments deny the federal and state governments the power of “prohibiting the free exercise” of your religion. Nevertheless, the extra constitutional gay marriage privilege created by the Supreme Court is now being used to violate rights granted to you by the First Amendment — your right to refuse to associate, on religious grounds, with individuals who engage in conduct to which you object.

Even more recently, a heretofore unknown right, the “right” to enter the public bathroom or locker room of the opposite sex, has been discovered by the Obama Administration. Again, you will search the Constitution in vain for such a right. Again, there is a right grounded in the Constitution and long recognized – the right of privacy. The government has decided your right to privacy must be sacrificed, so that it can grant to a favored political constituency the extra-constitutional privilege to enter the public bathroom or locker room of the opposite sex.

Moreover, opposition to such extra-constitutional privileges is increasingly under attack. Such opposition clearly constitutes “political speech”, a form of speech protected by the First Amendment. Opposition to state sponsored discrimination (aka affirmative action) is already attacked as racial discrimination. This has created a truly Orwellian state of affairs where racism is treated as not racism and opposition to actual racism is treated as racial discrimination.

Unless halted and reversed, the likely next step in this process will be that opposition to all extra-constitutional privileges created in favor of special interest groups will be prohibited as unlawful discrimination. That will be the tipping point, and the Left knows it. The silencing of dissent is one of its cherished goals. Once dissent can be silenced, there will be no turning back.

Soon, we will once again head to the polls to elect a President. The next President is likely to appoint at least two, and perhaps as many as five justices to the Supreme Court. Of the two principal nominees only one has promised to appoint justices that will follow the Constitution. In November, he will have my vote.

Jeffrey D. Salzer, Esq, is an attorney who is one of the founding members of Kelliher & Salzer, LLC, a law firm with offices in New Orleans, Louisiana, and Columbia, Maryland. He specializes in commercial real estate transactions, corporate law, and tax law. He is also an Adjunct Professor of Business and Law at the A.B. Freeman School of Business at Tulane University.