Constitutional Convention

The Constitution: Original Meaning, Corruption, and Restoration

The Constitution of the United States was born as a contract among nine States. Each of the nine States was authorized to join the new union by a convention of “the people” of their State.

In joining the new union, the people of nine States voluntarily created the central government and, at the same time, voluntarily granted certain, limited powers to it. The people of the original States understood that the central government would exercise its limited powers for their benefit. Every State subsequently admitted to the union has entered into the same contract with the central government.

The central government has breached its contract with the States by exceeding the powers granted to it. In fact, the central government’s abuse of power has been so persistent and egregious that a reasonable remedy on the part of the States — individually or severally — is to declare the Constitution null and void.

The immense, illegitimate power that has accrued to the federal government cannot be found in the Constitution. It arises from the cumulative effect of generations of laws, regulations, and court rulings — each ostensibly well-meant by its perpetrators.

The habit of recourse to the central government has become a destructive cycle of dependency. Elected representatives and non-elected élites have vested unwarranted power in the federal government to deal with problems “we” face — problems the federal government cannot, for the most part, begin to solve and which it demonstrably fails to solve many more times than not. The conditioned response to failure has been to cede more power (and money) to the central government in the false hope that the next increment will get the job done.

There has been bold talk at times about making the central government smaller and devolving its power to the States. The bottom line is that the executive branch still regulates beyond its constitutional license, Congress still passes laws that give unwarranted power to the central government, and the central government’s spending consumes a growing fraction of the nation’s economic output.

To break out of this cycle of addiction, it is necessary to restore the constitutional contract to its original meaning.

THE CONSTITUTIONAL CONTRACT: ITS SCOPE AND PRINCIPLES

The Preamble lists the States’ reasons for entering into the constitutional contract, which are “…to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.” These are ends desired, not outcomes promised.

To further these ends, the Constitution establishes a government of the united States, and authorizes it to enact, execute, and adjudicate laws within a delimited sphere of authority. The Constitution not only delimits the federal government’s authority but also diffuses it by dividing it among the central government’s legislative, executive, and judicial branches.

The Framers knew what we are now only re-learning: A government is a power-hungry beast — even a representative government. More power in the hands of government means less power for individuals. Individuals are better off when they control their own lives than when government, directly or indirectly, controls their lives for them.

Thus the limited scope of the constitutional contract provides for:

  • primacy of the federal Constitution and of constitutional laws over those of the States (This primacy applies only within the limited sphere of authority that the Constitution grants to the central government. The central government was not intended to be a national government that supersedes the States.)
  • collective obligations of the States, as the united States, and individual obligations of the States to each other
  • structure of the central government — the three branches, elections and appointments to their offices, and basic legislative procedures
  • powers of the three branches
  • division of powers between the States and central government
  • rights and privileges of citizens
  • a process for amending the Constitution.

The principles embodied in the details of the contract are few and simple:

  • The Constitution and constitutional laws are the supreme law of the land, within the clearly delimited scope of the Constitution.
  • The central government has no powers other than those provided by the Constitution.
  • The rights of citizens include not only those rights specified in the Constitution but also any unspecified rights that do not conflict with powers expressly granted the centrall government or reserved by the States in the creation of the central government.

THE LIMITS OF THE CENTRAL GOVERNMENT’S POWER

The Constitution may be the “supreme law of the land” (Article VI), but as the ardent federalist Alexander Hamilton explained in Federalist 33, the Constitution “expressly confines this supremacy to laws made pursuant to the Constitution.”

Thus the authority of the central government — the government formed by the united States — enables the States to pursue common objectives. But that authority is limited so that it does not usurp the authority of States or the rights of citizens.

Moreover, the “checks and balances” in the Constitution are meant to limit the central government’s ability to act, even within its sphere of authority. In the legislative branch neither the House of Representatives nor the Senate can pass a law unilaterally. In his sole constitutional role — as head of the executive branch — the president of the United States must, with specified exceptions, sign acts of Congress before they can become law, and may veto acts of Congress — which may, in turn, override his vetoes. From its position atop the judicial branch, the Supreme Court is supposed to decide cases “arising under” (within the scope of) the Constitution, not to change the Constitution without benefit of convention or amendment.

The Constitution itself defines the sphere of authority of the central government and balances that authority against the authority of the States and the rights of citizens. Although the Constitution specifies certain powers of the executive and judiciary (e.g., commanding the armed forces and judging cases arising under the Constitution), the central government’s power rests squarely upon the legislative authority of Congress, as defined in Article I, Sections 8, 9, and 10. The intentionally limited scope of  that power is underscored by Amendments IX and X, which can be summarized as follows:

The rights of citizens include not only those rights specified in the Constitution but also any unspecified rights that do not conflict with powers expressly granted to the central government or reserved to the States in the creation of the central government.

THE RISE OF UNCONSTITUTIONAL LAWS AND REGULATIONS

The generations of laws and regulations that have seized the powers and rights of States and citizens are, to put it plainly, unconstitutional; for example:

  • The phrase “promote the general Welfare” in the Preamble refers to a desired result of the adoption of the Constitution. It is not an edict to redistribute income and wealth.
  • The phrase “general Welfare” in Article I, Section 8, is meant to place a further limit on the specific powers granted to Congress in the same section of the Constitution. Congress is supposed to exercise those powers for the benefit of all citizens and not for the benefit of the citizens of specific States or regions.
  • The power of Congress to tax is granted in Article I, Section 8, to enable Congress to execute its specific powers. This limited power has been aggrandized into a general power of taxation for any purpose, constitutional or unconstitutional.
  • The power of Congress “to regulate Commerce … among the several States” — also granted in Article I, Section 8 — is meant to prevent the States from restricting or distorting the terms of trade across their borders, not to grant the central government the unlimited statutory and regulatory authority that it now has, thanks to the Supreme Court.
  • In Article I, Section 8, the authority of Congress “[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof” has been distorted out of all recognition. The words “necessary and proper” are meant to apply to the exercise of Congress’s specific powers, not to grant it unlimited legislative authority.
  • The “equal protection” clause of Amendment XIV — “…nor shall any State…deny to any person within its jurisdiction the equal protection of the laws” — is meant to secure the legal equality of those former slaves whose freedom had been secured by Amendment XIII. Amendment XIV has became, instead, an excuse for legislation, executive orders, and judicial decisions that grants special privileges to specific, “protected” groups by curtailing the liberty of those who cannot claim affiliation with one or another of the “protected” groups.

RESTORING THE CONSTITUTIONAL CONTRACT

The constitutional contract is a limited grant of power to the central government, for the following main purposes: keeping peace among the States, ensuring uniformity in the rules of inter-State and international commerce, facing the world with a single foreign policy and a national armed force, and assuring the even-handed application of the Constitution and of constitutional laws. That is all.

It is clear that the constitutional contract has been breached. It is clear that the Constitution’s promise to “secure the Blessings of Liberty to ourselves and our Posterity”  has been blighted.

Desperate times require desperate measures. I suggest that we begin at the beginning, with a new Declaration of Independence, and proceed from there to a new Constitution.

Related posts:
The State of the Union: 2010
The Shape of Things to Come

Secession
Secession Redux
A Declaration of Independence
A New, New Constitution

On Liberty
Parsing Political Philosophy
The Indivisibility of Economic and Social Liberty
Greed, Cosmic Justice, and Social Welfare
Positive Rights and Cosmic Justice
Fascism and the Future of America
Inventing “Liberalism”
Utilitarianism, “Liberalism,” and Omniscience
Utilitarianism vs. Liberty
Beware of Libertarian Paternalists
Negative Rights, Social Norms, and the Constitution
Rights, Liberty, the Golden Rule, and the Legitimate State
The Mind of a Paternalist
Accountants of the Soul
Rawls Meets Bentham
Is Liberty Possible?
The Left
The National Psyche and Foreign Wars

The Commandeered Economy
The Price of Government
The Mega-Depression
Does the CPI Understate Inflation?
Ricardian Equivalence Reconsidered
The Real Burden of Government
The Rahn Curve at Work

A Declaration of Independence, Updated

If you haven’t read “A Declaration of Independence,” or haven’t read it since I revised it, I recommend a first or second look.

A Declaration of Independence

REVISED, 04/02/10 and 04/03/10

A note to Tea-Partiers. It is time to channel your outrage, constructively and nonviolently. My suggestion: hold a convention in each State; adopt — in the name of the people of each State — a declaration of independence from the unconstitutional acts of the government of the United States; engage the millions of silent but equally outraged Americans who share your views by asking them to join you in signing the declarations. An articulate declaration that is joined by millions of Americans should cause many politicians — even Democrats — to rethink their allegiance to the politics of pork, regulation, and taxation. A declaration of independence from unconstitutional acts might look like this:

The people of the State of _______________ declare to the people of the United States and to their governments that

The Constitution of the United States and all laws made in accordance with it are the supreme law of the land. The ratification of the Constitution resulted in the establishment a government of the United States (the central government) for the purposes of making, executing, and adjudicating laws. But the acts of the central government are valid and binding only when they are in accordance with the Constitution.

In fact, the legislative, executive, and judicial branches of the central government have abused their powers by making, executing, and upholding laws contrary to the Constitution; for example:

A decennial census is authorized in Article I, Section 2, for the purpose of enumerating the population of each State in order to apportion the membership of the House of Representatives among the States, and for no other purpose.

Article I, Section 1, vests all legislative powers in the Congress, but Congress has authorized and allowed unelected, executive-branch regulators to legislate on myriad matters affecting the liberty and property of Americans.

Article I, Section 8, enumerates the specific powers of Congress, which do not include such things as establishing and operating national welfare and health-care programs; intervening in the education of America’s children; regulating interstate commerce beyond ensuring its free flow; regulating intrastate commerce and private, non-commercial transactions; lending money and guaranteeing loans made by quasi-governmental institutions and other third parties; acquiring the stock and debt of business enterprises; establishing a central bank with the power to do more than issue money; requiring the States and their political subdivisions to adopt uniform laws on matters that lie outside the enumerated powers of Congress and beyond the previously agreed powers of the States and their subdivisions;  and coercing the States and the political subdivisions in the operation of illegitimate national programs by providing and threatening to withhold so-called federal money, which is in fact taxpayers’ money.  (The notion that the “general welfare” and/or “necessary and proper” clauses of Article I, Section 8, authorize such activities was refuted definitively in advance of the ratification of the Constitution by James Madison in No. 41 of the Federalist Papers, wherein the leading proponents of the Constitution stated their understanding of the Constitution’s meaning when they made the case for its ratification.)

One of the provisions of Article I, Section 10, prohibits interference by the States in private contracts; moreover, the Constitution nowhere authorizes the central government to interfere in private contracts. Yet, directly and through the States, the central government has allowed, encouraged, and required interference in private contracts pertaining to employment, property, and financial transactions.

Amendment I of the Constitution provides that “Congress shall make no law . . . abridging the freedom of speech.” But Congress has nevertheless abridged the freedom of political speech — our most precious kind — by passing bills that have been signed into law by presidents of the United States and, in the main, upheld by the Supreme Court of the United States.

Amendment IX of the Constitutions provides that its “enumeration . . . of certain rights, shall not be construed to deny or disparage others retained by the people.” But Congress, in concert with various presidents and Supreme Court majorities, has enacted laws that circumscribe one of our time-honored freedoms: the freedom of association.

As outlined above, the central government routinely and massively violates Amendment X, which states that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Legislative, executive, and judicial acts of the central government have perverted the meaning of Amendments XIII, XIV, and XV — which properly abolished slavery and outlawed racial discrimination by government — to require discrimination on behalf of certain “protected groups” designated by law, to the detriment of groups not thus favored.

These and other abuses of power by the central government are grounds for civil disobedience, at the least, and secession, in the extreme.

With regard to secession, there is a judicial myth — articulated by a majority of the United States Supreme Court in Texas v. White (1868) — that the union of States is perpetual:

The Union of the States never was a purely artificial and arbitrary relation. It began among the Colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests, and geographical relations. It was confirmed and strengthened by the necessities of war, and received definite form and character and sanction from the Articles of Confederation. By these, the Union was solemnly declared to “be perpetual.” And when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained “to form a more perfect Union.” It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual Union, made more perfect, is not?

The Court’s reasoning — if it may be called that — is born of mysticism, not legality. Similar reasoning might have been used — and was used — to proclaim the Colonies inseparable from Great Britain. And yet, some of the people of the Colonies put an end to the union of the Colonies and Great Britain, on the moral principle that no person or people is obliged to remain in an abusive relationship. That moral principle is all the more compelling in the case of the union known as the United States, which — mysticism aside — is nothing more than the creature of the States and the people thereof.

It was only by the grace of nine States that the Constitution took effect, thereby establishing the central government. Those nine States voluntarily created the central government and, at the same time, voluntarily granted certain, limited powers to it. The States understood that the central government would exercise its limited powers for the benefit of the States and their people. Every State subsequently admitted to the union has entered into the same contract with the central government.

But, as outlined above, the central government has breached its trust by exceeding the powers granted to it. In fact, the central government’s abuse of power has been so persistent and egregious that a reasonable remedy on the part of the States — individually or severally — is to declare the Constitution null and void. Each and every State, in other words, has the right to secede from the union and to withdraw from the central government its support and the support of the people.

Two facts militate against secession as a remedy for the central government’s abuse of power. First, the States have much to gain by remaining joined in union: mutual defense and the free movement of people, goods, and services among the States. Second, because the central government has acquired overwhelming might, and because that might would no doubt be used to suppress secession, it would be sheer folly to secede — despite the moral and legal rightness of doing so.

The only practical alternative to secession is civil disobedience. Accordingly, the people of ______________ do solemnly state the following:

We reaffirm our allegiance to the Constitution of the United States, and hereby pledge to preserve, protect, and defend it against all its enemies, foreign and domestic. The central government of the United States, through prolonged and egregious abuses of its delegated powers, has proved itself an enemy of the Constitution.

Having assembled peacefully to consider the remedies available to us, we petition the central government to honor the Constitution by negating and reversing all of its unconstitutional acts within a reasonable period of time, which shall be no more than five years. If the central government fails to negate and reverse all of its unconstitutional acts within five years, it will be within the moral and legal rights of the people of this State to sever the ties of this State to the central government, to refuse all services and emoluments that may be offered by the central government, to withhold all services and payments to the central government, and to reclaim — for the benefit of the people of this State — any and all parcels of land and bodies of water within the boundaries of this State that are (or may be) held in the name of the central government.

The foregoing notwithstanding, the people of this State — despite their moral and legal rights to sever this State’s ties to the central government — shall not withdraw from the community of States which is known as the United States, and shall not take up arms against the central government to enforce their rights. But the governments and people of this State may refuse peacefully to comply with the unconstitutional laws, regulations, executive orders, and judicial holdings of the central government. Such refusals shall lead to violence only if the central government uses force to exact compliance with its unconstitutional laws, regulations, executive orders, or judicial holdings, thus requiring the people to act in self-defense.

Done, on this day of ______________________________, by the people of _______________ in convention, and subscribed to by the delegates to the Convention and other citizens of _______________, whose signatures are appended hereto.

Attest:

_______________, President of the Convention

_______________, Vice President of the Convention

_______________, Secretary of the Convention

P.S. The foregoing makes a legal case for secession. A different case, which I make here, is that secession is valid because the Constitution did not bind the whole of “the people” when it was ratified, and could not have bound future generations.