The U.S. has major problems, and many of them trace down to the application of the Constitution. The chances that the United States of America can establish again a limited government, in the spirit of the framers of the Constitution, are slim. Ben Franklin said, when asked what the Constitutional convention had come up with, “A Republic, if you can keep it.” We did not keep it.
Educate, Amend, Rewrite or Let it Crash?
The chances that the United States of America can establish again a limited government, in the spirit of the framers of the Constitution, are slim. Ben Franklin said, when asked what the Constitutional convention had come up with, “A Republic, if you can keep it.” We did not keep it. If we want to regain the Republic, but would keep the Constitution as it is, and is now mis-interpreted, we have a tough fight ahead. We need to re-establish an understanding of natural law and natural rights , on which our Constitution was originally based.
To try to re-establish the original public meaning any other way would be like the appreciation of flowers by cutting off flowers and pressing them in a book. Most people of this age are too devoted to a relativist world-view and to a fuzzy sense of fairness. The Constitution had much more robust principles behind it.
Let us face it, if the George W. Bush administration was ruling from London , England , we would have an easy time mounting a full-scale revolt. That would remain true a year from now with a Hillary Clinton, Barack Obama or John McCain administration. Our weapons production, national guard and well-equipped individual citizens would make a war too expensive for an offshore administration to succeed.
However, we have to live with the fact that the power that taxes us and threatens to harm every natural right we have is right here within our land. It is right here among us. We are stuck with very limited choices.
The Four Alternatives
- We can try and educational effort to influence congress and/or the courts to apply the Constitution by the original public meaning. That seems to be what Ron Paul and scholars like the late Friedrich Hayek, Murray Rothbard, Randy Barnett and Bruce Benson, as well as judge Andrew Napolitano suggest. (There are now many Libertarian teachers in our colleges and universities.) This also appears to be the direction being taken by the libertarian-conservative think tanks the Institute for Justice and the Center for Individual Rights are taking in their court case work for people whose rights are under attack. Education might in the long run change the interpretation of the Constitution by the congress and by the courts. However congress sees all possible powers they can imagine in the Constitution and the courts are constrained by precedent, regardless of who we could get appointed as judges.
- Another approach is the amendment process, which has always been open to us to bring us back to the original public meaning of the Constitution, filling in gaps, correcting its errors and contradictions, all the while retaining the core parameters of the governance of our Republic. We have not used it well.
- A third way is a new Constitutional convention, but most political leaders fear the possibility of losing control. The establishment would fight tooth and nail to avoid a convention to write a new Constitution.
- Perhaps we need to let go of it, watch it all crash and …
Where am I coming from?
The impetus for this article is the need for a follow-up to a 10-part series on the topic of Troubling Clauses in the U.S. Constitution. It was clear all along that the series of 10 articles would not do the job.
There it was argued that several Constitutional clauses were written in such a loose form that permitted construing regulation of commerce to be much wider than over just what actually moved between states, contract protection of some kinds of contracts was lost, the “due process” envisioned by the founders was watered down, the definite wide meaning of “privileges and immunities” went up in thin air, the “equal protection of the laws” was bent and twisted to only protect minorities, the general welfare became all manner of specific welfare, the conditions of “necessary and proper” became “convenient,” the supremacy clause elevated the supreme court and treaties to a higher level than all other laws, the restricted ability to tax turned into massive, destructive taxation, and the ninth amendment became an ink-blot. “ The power to tax involves the power to destroy,” Supreme Court Chief Justice John Marshall said. So does the power to regulate.
More could be added about troubling clauses in the Constitution, which were either poorly written, or written in English that no longer conveys the public meaning it once did, or which have been twisted from their original public meaning to serve modern welfare concerns. Moreover, the new interpretation ignores the fact that resources must first be expropriated from those who produce them, before being used for welfare. This is a basic violation of natural law.
Many more clauses present problems, and this writer promises more on these in the future. The people of the United States might want to correct these, if only they were aware of them. How could they do that?
To repair these problems, one amendment at a time, would take a huge concerted effort and might take too long a time. After fighting many administrations and congresses, the movement could run out of gas. The educational process touched on above would also be a very long process, not likely to stay on track. Is there a better way? Here are the present options (based on article V):
1. Propose An Amendment
Either Congress or the States can propose an amendment to the Constitution.
- Current method: Both Houses of Congress can propose the amendment with a two-thirds vote.
2. Ratify An Amendment
After the amendment is proposed, it must be ratified by the States.
- Three-fourths of the State legislatures can approve of the amendment proposed, or
- Three-fourths of the states can approve the amendment via ratifying conventions. This method has only been used once, to repeal Prohibition (21st Amendment).
Only 33 amendments have received a two-thirds vote from both Houses of Congress. Of those, only 27 have been ratified by the States.
3. Call a Constitutional Convention:
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress. . .
A rather thoroughgoing rewriting is not very likely to happen. It has the proverbial snowball's chance in hell.
Moreover, There are obstacles.
- The voters or citizens may not yet be sufficiently tired of the government we have, and of other aspects of life due to the neutering of the original Constitution.
- Politicians will not be interested; in fact, they will be fearful of any serious attempt to restore the Constitution. This is due to the above, and to the power of their constituents within government, the bureaucracy.
- The power of the bureaucracy and its labor unions.
The opposition that we face is daunting. That is, the democratic political approach does not seem to make it possible to re-establish the original public meaning of the Constitution. Large voting blocks tend to vote to empower government to enact great favors, not to do a better job as a limited government.
The steps outlined above boil down to an approach of cooperation with the enemy. Why do we do that? Why do we keep voting and expect a different result each time? Our choices at the polls are really just two faces of the same statist party. Why do we go along with it? Why don't we insist on a real choice?
Why aren't the citizens tired of it?
( It being the degraded general liberty in our lives due to government encroachment on our rights and its growth in power – details to follow)
Étienne de la Boétie understood this best of all. In his Discourse on Voluntary Servitude, or, Against the One , written in 1548, he presented a powerful essay laying out the various reasons.
Governments ordinarily do not rule by brute force. In an open conflict, it would quickly become clear that the citizens outnumber the government forces. La Boétie asserts that if enough people would realize this and simply stop cooperating, the authority of the State would collapse. Non-cooperation and civil disobedience would work.
Why do people keep cooperating?
First: The main reason people obey is, simply, habit. They grow up not knowing how things could have been better. And like a rape victim, they sympathize with the aggressor and believe they deserve no better. Being ruled harshly becomes part of their identity. (Jeff Snyder explains la Boétie quite well in There is No President ) The people are not just taxed, punished and overworked: for good behavior (loyalty and obedience) is rewarded. This soup of a package deal eventually begins to feel as if it is “normal life.” The latest is the president's warning that an attack many times worse than 9/11 which could happen any day.
Second , governments provide diversions. There are national holidays, parades, NASA rocket launches, wars, rumors, scandals, and things to titillate, disgust or scare you. The brutal truth has a premium price, better replaced by attractive pretensions. They take a kernel of truth, and then wrap it in the Big Lie
Third , governments provide welfare. The State buys our allegiance and our votes. Major political parties take turns promoting slightly different versions of the same. One may offer more welfare to the workers or the poor while the other favors business. Divisive issues are used by each to strengthen the support of their membership, but the shared mission is what they really jointly work for: growing the power of government. Each will use any catastrophe, natural, economic or political, to increase government power. They take turns working to increase the power and enjoying the result in an evil leapfrog game.
Fourth , governments provide defense. They maintain order and fend off attacks from abroad. They act to defend you even when there is no real threat here at home. Wars are provoked so that the military can spring into action to prove that government defends you.
Fifth, rulers remain apart from the citizenry, showing themselves on occasions when good news is likely to be associated with their exalted positions.
Sixth : However, in the final analysis, the strongest source of power is the gathering of friends who seek to share in the power. There is the inner circle, who obtains nearly absolute power, and larger groups who seek to enter that circle. Thousands execute their orders, seeking promotions and gaining influence by their beastly behavior towards the electorate.
As mentioned above, la Boétie's discovery explains that non-cooperation is the answer. This explains the power of Gandhi, Dr. Martin Luther King Jr., and Poland 's Solidarity and the Velvet Revolution in Czechoslovakia . Non-violent resistance undermined tyrannical governments rather than drawing their military wrath. People woke up to the simple lack of legitimacy of their political systems. It is now our time to wake up.
Time to Stop Consenting
It is therefore time to withdraw our consent to our government. It is time to take back our pledge of allegiance, to stop voluntarily joining the military or working for government and its contractors, convince civil service employees to get honest jobs in the private sector.
It is time to start doing business in the black and grey markets, to make sure we pay as little tax as possible.
Write all of your elected state representatives, congressional representatives and senators, governors, president and vice-president to tell them that they no longer represent you. Tell them that they no longer have authority to act in your name or on your behalf, that you no longer want any of their services or protection. Ask them to get out of the way. Ask them to resign.
What happens then?
The statists are not likely to give up easily, to step aside, and to get out of the way. Rather than capitulate, the bungling increases, the government abuses continue and worsen. A looming crisis for the monetary system brings desperate moves. More citizens will be jailed for victimless crimes and “thought crimes.” They make it illegal to own gold The beast goes into contortions.
Attempts at forcing return to “normalcy” bring us to the brink of martial law. However, token compliance does not restore the order that they want. The State seeks the wisdom of the smartest citizens, but no one steps forward to help the State. The real economy is finally the black market. Real trade begins to use gold and foreign hard money. Inflation hits the paper dollars. Taxes dry up. The government payroll fails. The military refuses to take orders against what is called anarchy. Maybe the State collapses? Shades of L. Neil Smith!
There are some who deal in conspiracy theories who claim that the government has plans laid for the day when they have no choices left. See the 2002 paper by former Iran Contra insider Al Martin . The government could annource that it cannot service the debt, declaring a force majeure. . It would take several days for the people to figure out what that would entail. There would be an extended bank holiday. Foreign governments would freeze the assets of all Americans. A national emergency would be announced, martial law, troops guarding the gold, the oil, the food supplies of the country. This is unthinkable.
If the Government Falls , do we Start Over?
A new Constitution might not work any better than the original one. In the space of one or two hundred years a new Constitution might be just as misunderstood and twisted as the old one. Putting effective limits on government may be very difficult. It would be impossible without a foundation of a common commitment to natural rights. Moreover, we might do better if we abandoned the single-power principles altogether. We do have the option of a poly-centric constitutional order .
Individuals can join in protective associations, can own and maintain streets and highways, can create mediation systems to extract restitution for acts that damage the life or property of members. Voluntary contributions and protective services companies can even fund manufacturing of weapons and hire soldiers for defense. Do we need government? If voluntary efforts fail, can we trust government? Only if it is truly limited.
Can Government be Limited?
Whatever limits we can place on government they will have to be implemented by a Constitution. I cannot say at this point (but will research it in the future), whether natural law can be enforced in such a way as to accomplish these limits, yet a foundation must be laid based on natural law to establish a Constitution that will be limited and which will protect the rights of the people.
From Roderick T. Long's “ The Natural Law ” at Libertarian Nation:
Natural Law and Human Law
My account of the traditional conception of Law proper might suggest that the content of this Law is entirely independent of human will. Some legal philosophers in this tradition have indeed thought this. Lysander Spooner, for example, insists that human legislation can neither add to nor remove from the true Law a single provision.
The more common view historically, however, has been that of the great mediæval philosopher Thomas Aquinas. Aquinas held that the content of true Law included not only Natural Law — that is, the principles of justice requisite to genuine human well-being, and inherent in human nature as created by God — but also Human Law. By Human Law Aquinas does not mean what I have been calling positive law. His idea is rather the following:
Some of the provisions of Natural Law, while absolute and binding, are often lacking in specificity. For example, it might be a provision of Natural Law that cars going in opposite directions on a highway should drive on opposite sides of the highway — but the Natural Law might be silent on the question of whether cars should drive on the left or on the right. Any decision on this latter question is a matter of indifference, from the standpoint of Natural Law, and may be left up to human convention. All the Natural Law requires is that there be some decision on the matter, and that whichever convention is adopted should then be obeyed. Thus if a particular nation adopts the rule of driving on the right, this latter provision then acquires the force of Law, and so is morally binding. The rule "Drive on the right" is not part of the unchanging Natural Law, but is rather a provision of mutable Human Law. Mediæval jurists spoke of such rules as reducing (that is, as making more specific ) the provisions of Natural Law; but they denied that Human Law could ever contradict the Natural Law. Law in the strict sense, then, covers both Natural Law and Human Law, the latter being subordinate to the former; but Human Law is narrower than positive law, since only those provisions of positive law that are consistent with justice are to be counted as Human Law. The legislator may have some creative freedom, but only within the bounds of the Natural Law, and it is his or her task to discover those bounds, not to stipulate them by fiat.
From our own experience, we can list other examples of such “human laws” or establishment of conventions, which do not interfere with natural law. Natural law is not as exact in its details as physical laws, such as the law of gravity. However, one may not violate it with impunity. The lesser exactness is similar to the difference between physics and architecture, construction, or agriculture.
Natural Law as the Core and Foundation of the Constitution
Our opening gambit is to posit the concept of explicitly declaring natural law, with no particular restatement, to be the ground law in the form of a Constitution. No laws may be enacted which contradict or restrict people's rights under natural law. This would be followed by a principle that all other rules or laws would be either explications or clarifications of natural law in very general terms and conventions, starting with Gordon Long's example.
For example, one can imagine that there is in natural law a principle that all people in a given geographical area must drive on the same side of the road. In order that all people's rights to safety are protected, a common rule of the road is needed. Natural law does not tell us right or left. That remains to be established by human convention.
Drive on the right
At intersections, yield to oncoming vehicles from the right
Never cut into line ahead of others when forming a queue
Pedestrians cross the street only at intersections and marked crossings
Vehicles must yield to any pedestrian who has already taken at least one step into the street before the vehicle
Such situations may seem trivial compared with what the judgment should be for murder. It ought to have a consequence for the murderer just as much as for a case of theft. A law can be enacted to implement the natural law here also, requiring a life sentence or a death sentence, or, preferably, restitution through payment of a large sum to the victim or her survivors.
No human laws need to be any more intrusive on rights. All laws can be of the kind that protects rights, if they merely apply the element of convention to a principle of natural law.
Note that elsewhere in the Long essay disparaging remarks are made about natural law, in the belief that if it does not have divine authority to back it up, it lacks a metaphysical basis. This could be remedied by tying it in to Ayn Rand's Objectivist formulation of ethics. See her essay “The Objectivist Ethics” in The Virtue of Selfishness .
This article reviewed what I believe is the root cause of our condition, our being crushed by an over-weight government, and showed the great difficulty of taking action by educating everyone to return to the original public meaning of the Constitution, changing or replacing the Constitution.
People get used to being oppressed. They don't think they have any hope of escaping the cruelty of Leviathan. However, in reality, if enough of us just stopped consenting it would collapse. If we stopped filing 1040s in large enough numbers and marched peacefully, carrying banners demanding that they privatize every agency and resign as government employees, it would fall.
If that does not happen, then what government is doing to the monetary system will wreck its means of financing. However, those among us who accumulate enough hard assets can then begin afresh.
The chance to right this disaster may require, instead of Constitutional change or outright revolt, that the government be helped to fall, to continue its maddening policies until the economy crashes. Is a crash possible in the near future?
According to LEAP/E2020, the end of the third quarter of 2008 will be marked by a new tipping point in the unfolding of the global systemic crisis. At that time indeed, the cumulated impact of the various sequences of the crisis (see table below) will reach its maximum strength and affect decisively the very heart of the systems concerned, on the frontline of which the United States, epicentre of the current crisis. In the United States , this new tipping point will translate into a collapse of the real economy, final socio-economic stage of the serial bursting of the housing and financial bubbles (1) and of the pursuance of the US dollar fall. The collapse of US real economy means the virtual freeze of the American economic machinery: private and public bankruptcies in large numbers, companies and public services closing down massively (2),...
The GlobalEurope Anticipation Bulletin
If such a monetary system crash brought the government down, then we would have the great opportunity. We would then be faced with the difficult task of starting over, but without having found ways to prevent it from happening again. And we should consider a poly-centric Constitutional order.
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