It amazes me how often I hear people calling themselves Liberty activists referring to some action by the government being “Constitutional” or “Unconstitutional” as if this has some relevance to freedom. The United States Constitution has nothing to do with a free society. It is merely a set of rules that the government is required to follow. And even at that it is an incredibly flawed document.
So many people seem to believe that the Constitution “grants”, “protects”, or “defends” our rights when a simple reading of the Constitution itself shows that it doesn’t aspire to any such lofty goals, with a single exception. The only time the word “right” appears in the Constitution is in Article I, Section 8 in regards to intellectual property: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;“.
Of course, I have no doubt your immediate response to my last paragraph is to point to the Bill of Rights. But no rights are granted there either. The various Constitutional Amendments that make up the Bill of Rights merely lays out rules against the government abridging, infringing, or violating rights that we already possess. Again, there is a single exception: The Sixth Amendment reads: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.” Which grants people a right only within the framework of the government itself. The 15th, 19th, 24th, and 26th amendments also grant the right to vote to various peoples. But again, these aren’t true “rights”, but rather permission to act a specific way in regards to the government itself.
So, setting aside the fallacy of rights and the Constitution, we’re left only with the questions of whether or not it is possible for the government to act in an unconstitutional manner and how the document itself is flawed.
The flaw in the document is that it creates rules that the people serving in the government must follow, but then sets up people in that very same government as arbiters of whether or not a specific action follows those rules. Under the structure created in the Constitution the Legislative and Executive branches may act however they desire. Should someone believe they are not following Constitutional rules that person’s only recourse is to ask the Supreme Court (a body created by and defined by the Constitution as part of the government itself) to rule such action as Unconstitutional. However, until the Supreme court rules otherwise, all actions are deemed to be to be Constitutional.
In other words, the government isn’t breaking any rules until the government says it is breaking the rules. The Supreme Court’s word is final on all matters regarding Constitutionality, regardless of what the original document (and its amendments) have to say on the matter at hand, and completely independent from any opinions or concerns “We The People” may have. Even when the Supreme Court rules some action to be Unconstitutional, the rest of the government is free to continue that action without repercussion until yet another case winds its way to the Supreme Court as there are no repercussions on the Government itself for violating any rulings. However, the people in the other branches of government are seldom so brazen. Instead, they’ll simply create themselves a new rule or law granting them the ability to do essentially the same thing they were doing before, but in a slightly different manner, knowing that it will take years for the matter to reach the Supreme Court once again (if it ever does). And, should the Court rule against them once again, they merely have to return to the drawing board again, ad infinitum.
Every year the United States Congress passes tens of thousands of new laws. Other government agencies (IRS, FDA, FCC, USDA, etc, etc) creates literally millions of new rules each year. The Supreme Court has never heard more than 100 cases in a single year. This means that 99.999999% of government actions never even have their Constitutionality tested in the first place. They are, therefore, Constitutional by default.