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Governmental Practice Often Ignores the Constitution

Updated: Dec 4, 2020

History confirms the keen insight of James Madison’s warning in No. 51 of the Federalist Papers that the greatest challenge confronting the republic is persuading the government to obey the law. Governmental practice and sweeping, unfounded claims to power, reveal officials’ frequent indifference to the Constitution.

The observation of a 17th Century English jurist that “the practice of government is but feeble proof of its legality,” may be a bit cynical, but it nevertheless illuminates the temptation to abuse power, which often leads to the violations of the rights and liberties of the people.

Governmental practice reflects violations of the constitutional allocation of power and the Bill of Rights across a vista of two centuries. Consider a laundry list that discloses a checkered past, despite the fundamental principle that governmental officials have no authority to violate the Constitution.

In times of crisis--real or imagined--government officials have lost their Constitutional Compass. In 1798, Congress, caught in the heat of war with France, enacted the infamous Sedition Act, which made it illegal to criticize certain officials, including President John Adams, in a manner that would cause their reputations to fall into a state of disrepute. The statute was passed despite the fact that the First Amendment, ratified in 1791, guaranteed freedom of speech, which protected citizens’ right to criticize the presidential policies. Rep. Mathew Lyon of Vermont, a loyal Jeffersonian newspaper editor, accused Adams of having “an unbounded thirst for ridiculous pomp.” For these harsh words, Lyon was arrested, convicted and imprisoned for violating the Sedition Act.

But the stout, independent voters of Vermont rejected the blanket suppression of freedom of speech and elected Lyon to a second term in the U. S. House of Representatives while he was behind bars. The best psychological explanation for the repressive Sedition Act, which violated the very spirit and purpose of freedom of speech, is that governmental representatives temporarily lost their minds.

That congressional loss of understanding, call it, temporary insanity, would reemerge on various occasions in our history, leading to violations of power and the rights and liberties of Americans. Presidents, too, could act unwisely.

On February 19, 1942, President Franklin D. Roosevelt issued Executive Order 9066, which, accompanied by a statute, provided for the forced removal of Japanese-American citizens from their homes on the West Coast and the placement in internment camps. The U.S. Supreme Court, to its shame, upheld the executive order and statute based on a fraudulent, racist military report that suggested Japanese-American citizens would be loyal to the Japanese Empire, rather than to the United States. There was no reorded evidence of disloyalty among the 125,000 citizens who suffered grievous violations of their right to due process of law. The flagrant violation of the rights of Japanese-American citizens led Congress, in 1988, to issue an official apology and grant reparations to those who had been interned.

No account of civil rights violations is complete without critical commentary on the systematic denial of the rights of Black Americans. The Supreme Court, in the Civil Rights Cases of 1883, struck down the Civil Rights Act of 1875, which prohibited private acts of racial discrimination. In 1896, in Plessy v. Ferguson, the Court upheld racial segregation when it introduced the doctrine of “separate but equal,” despite the fact that the 14th Amendment guaranteed equal protection of the law. The systematic and continued violation of Black Americans’ 15th Amendment right to vote, through voter suppression, disenrollment and voter ID laws, remains one of the most tragic practices in our nation’s history.

The broad, historic racism inflicted by officials at all levels of government against Native Americans, moreover, reflects another deeply painful chapter in our nation’s story. The Supreme Court, despite powerful dissenting opinions from Justices Ginsburg and Kagan, refused recently to prevent the State of North Dakota from enforcing a voter ID law that required proof of a street address to exercise the franchise. This law essentially disenfranchises some 75,000 Native Americans.

The many violations of the constitutional rights of our citizens could fill up stadiums, and while they are prominent in the minds of Americans, there is a compelling civics education need for greater public awareness of the scores of violations by governmental officials of the constitutional allocation of powers. Violations of the allocation powers have been frequent and momentous. Indeed, they have included acts of surpassing importance to the nation, including critical national security matters. We turn to these issues next week.


David Adler is President of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection of the law and gender equality. He has lectured nationally and internationally on the Constitution, the Bill of Rights and presidential power. His scholarly writings have been quoted by the US Supreme Court, lower federal courts and both Republicans and Democrats in Congress.

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