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  • Jonathan Emord

The Constitution’s 13 Defenses Against Socialism and Communism


The Constitution contains numerous defenses against authoritarianism.  If given its plain and intended meaning, the Constitution prevents socialists and communists from holdingelective office on the federal and state levels, guarantees a republican form of government, and protects people from having their lives, liberties, and property taken away without due process of law.


Since before the Constitution’s inception in 1787, the Founding Fathers feared it would be corrupted and potentially defeated unless a virtuous and vigilant public exercised the franchise to ensure full protection for their own unalienable rights.  Sadly, as recent American history bears witness, circumstances have repeatedly arisen in which the Republican form has been twisted, bent, and broken by those in government in pursuit of their own self-interest at the expense of the public, from the Progressive Era to the present. Madison anticipated the harms to constitutional order that would arise from corrupt politicians.  He did so in a letter to Jefferson dated October 17, 1788, writing of his fear that the Bill of Rights would be but a “parchment barrier” against officeholders whose desire forpower and control would overcome their respect for the Constitution’s limits.


But if the Constitution’s limits were honored in our time, they would indeed stand as a bulwark against the new Marxist authoritarians, like AOC, who seek to supplant our republic with socialism or communism.  The Constitution contains at least 13defenses against that happenstance.

  

If honored in observance, these constitutional defenses would deny 38 self-avowed Democratic Socialists the right to serve in Congress; 50 self-avowed Democratic Socialists the right to serve in state legislatures; and 106 self-avowed Democratic Socialists the right to serve in local government.  Moreover, it would require the federal government to intervene and prevent the states from altering their republican forms of government into socialist or communist states. It would also require the federal government to protect the nation’s borders against invasion from those intent on destroying our republic and American lives, liberties, and property.  It would allow the states to exercise war powers to guard against invasion.  Finally, it would compel an end to the two-tiered administration of justice in favor of equal justice under law, forbidding the kind of political prosecutions common in socialist and communist regimes.


Consider the Constitution’s prohibitions against authoritarianism, including communism and socialism:


(1) The Vesting Clauses of Art. 1, Sect. 1; Art. II, Sect. 1; and Art. III, Sect. 1.  Communist and socialist governments depend on a union of legislative, executive and judicial powers in the hands of a brutal dictator, like Xi Jinping, or in an all controlling administrative state that directs the economy and private action.  The Vesting Clauses grant exclusive separate powers to each of the three branches of the federal government. The power to make federal law is exclusively vested in the Congress of the United States.  The power to execute federal law is exclusively vested in the President of the United States, and the power to adjudicate cases and controversies arising under federal law is exclusively vested in the Supreme Court and the lower federal courts.  Consistent with the non-delegation doctrine, the Founding Fathers meant for these vested powers vested to be non-delegable, a doctrine violated with the birth of the federal Administrative State in 1886.  The sovereignty of the people who voted in favor of the Constitution’s delegation of powers into the three branches is violated by the further delegation of those powers into hands unaccountable to the people.  The Founders relied on Locke for this understanding.  In his Second Treatise on Government (1690), Locke wrote, concerning the legislative power: “The Legislative cannot transfer the Power to Make Laws to any other hands.  For it being but a delegated Power from the People, they, who have it, cannot pass it over to others.”  Madison underscored this conception when he wrote in Federalist No. 47: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . . may justly be pronounced the very definition of tyranny.”  When constitutional vesting is respected, the Supreme Law forms a bulwark against authoritarianism, communism, and socialism.  If the vesting clauses were honored in strict observance, socialism and communism dependent on totalitarian forms of government would be forbidden.


(2) The State Self-Defense Clause, Art. 1, Sect. 10, Clause 3. Under this section, if a state is “actually invaded,” as occurs daily due to the Biden Administration’s refusal to defend our borders, the state may assume war powers, including the power to arrest, detain, and eject illegal entrants.

 

(3) The Guarantee Clause, Art. IV, Sect. 4. Under this section, the federal government is required to guarantee to every state “a Republican Form of Government,” thus guarding against authoritarian forms like socialist and communist states, and to protect each state against invasion (violated with impunity by the Biden Administration’s abandonment of border protection).  Moreover, the federal government, upon application of a state legislature or the Governor, must protect the state against domestic violence.

 

(4) The Supremacy Clause, Art. VI, Clause 2. Under this section, no state can act in violation of the Constitution, including its protections against authoritarianism, because each state is bound by the Constitution and any contrary act is void.

 

(5) The Oath or Affirmation Clause, Art. VI, Clause 3. The Democratic Socialists who have been elected to federal, state, and local office are ineligible to serve under this section.  Likewise, all officers, such as the Soros-backed prosecutors who profess to be Democratic Socialists or otherwise refuse to fulfill their oaths of office are forbidden from serving by this section.  Rather, all federal and state elected officials and executive and judicial officers are ineligible to hold office unless “bound by Oath or Affirmation to support this Constitution.”  By its very definition, socialism—by which God given individual rights to life, liberty and property are not recognized (rather, all rights are said to be collective and bestowed by the state)—is antithetical to the Constitution.  Thus, only a fraud could at once proclaim him or herself a Democratic Socialist and at the same time swear an oath in support of the Constitution.


(6) The Constitution’s first, second, fourth, fifth, ninth, tenth, thirteenth, and fourteenth amendments.  The Constitution delineates some of unalienable rights retained by the people, but only a subset.  Socialist and communist regimes start with the proposition that rights are not from God and are not birth rights of the individual but are instead defined by and bestowed by the state for the collective.  The conception of collective rights is rejected by the Constitution which recognizes individual rights to freedom of speech, assembly, religion, to bear arms, against general warrants, and in defense of life, liberty and property and due process.  The Ninth Amendment makes clear that pre-political rights not enumerated in the Constitution are nevertheless retained by the people against government disparagement.  The Tenth Amendment makes clear that powers not delegated to the United States are retained by the states and people.  This ensures individual sovereignty and rights are wedded together in our republic and are paramount; that is the opposite of socialist and communist regimes where rights are definable and fungible by the state and are alienable at the whim or caprice of government.


If then, our courts and our legislative bodies insisted on implementation of the Constitution’s plain and intended meaning, the socialist resurgence now well underway would be repulsed and the republic, including its vital separation of powers and non-delegation doctrines, would be restored.



This article was written on April 20, 2023, and published on Townhall


Jonathan Emord is a leading constitutional law and litigation expert, the author of five critically acclaimed books, and a Candidate for the US Senate.

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