The “rule of law” is a joke when the President make laws by Executive Order, when Congress tries to outdo the President by making laws that are not within its power to make, and when the Supreme Court turns a blind eye to both forms of lawlessness.

Government today: a small minority of the populace which presumes to tell the vast majority how to live.

The Constitution’s promise of a federal government with limited powers has been broken by extra-constitutional means. Congress and the President have asserted powers not granted by the Constitution; the courts have changed the meaning of the Constitution instead of applying its intended meaning.

Legislation: the usually misguided effort to deal with uncertainty by dictating to nature and human nature.

Most government programs are founded on two illusions: first, that the voluntary transactions of individuals and businesses often yield “bad results”; second, that the government can reverse those “bad results” without also undoing all the “good results” that seem to go unnoticed by the proponents of government action.

It is a short — very short — step from “hate crimes” to “thought crimes.”

Laws against such instruments of abuse as alcohol, cigarettes, drugs, and guns arise from legislative pandering to moral zealots, closet dictators, and those who are frightened easily by media hype. Such laws undermine respect for the law by penalizing the vast majority for the anti-social acts of small minorities. The only laws we should have to rely on for our self-protection are those that hold each and every one of us — young or old, sane or insane, non-white or white, female or male, heterosexual or homosexual — individually responsible for the consequences of our actions. Acceptance of individual responsibility cannot be imposed by the law; it must be learned within the family circle.

The government that was formed to protect citizens from the tyranny of arbitrary power has become the embodiment of arbitrary power.

Old saying: Those who can, do; those who can’t, teach. New saying: Those who “can’t do” make laws so those who “can do” have to work harder to make less money.

Twentieth Century American statism — the concentration of vast power in the hands of the federal government in the name of “good” — is authoritarianism in a Santa Claus suit.

Rhetoric about an end to “big government” is clearly just that, rhetoric. The federal government remains able and more than willing to intrude into the business of the States and the lives of the people. Because of the cancerous growth of big government, whatever liberty and prosperity we enjoy is a pale shadow of the ideals and promises of the Declaration of Independence and Constitution.

Some of the cancer can be excised simply by repealing two Twentieth-Century amendments to the Constitution. Anything approaching a cure will require delicate surgery to the text of the Constitution, to preserve its spirit while making its meaning clearer and thus more difficult to abrogate in future generations.

Promises Blighted

James Madison and Alexander Hamilton — who with John Jay propounded the new Constitution in The Federalist Papers — would be chagrined by the present state of federalism:

“It will always be far more easy for the State governments to encroach upon the national authorities than for the national government to encroach upon the State authorities, ” wrote Hamilton in Number 17. He wrote not idly, for he said again in Number 31 that “there is greater probability of encroachments by the members upon the federal head than by the federal head upon the members.”

Madison took up the refrain in Number 45:

The State governments will have the advantage of the federal government, whether we compare them in respect to the immediate dependence of the one on the other; to the weight of personal influence which each side will possess; to the powers respectively vested in them; to the predeliction and probable support of the people; to the disposition and faculty of resisting and frustrating the measures of each other.

He continued in Number 45:

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

And he concluded Number 46 by saying that

the powers proposed to be lodged in the federal government are as little formidable to those reserved to the individual States as they are indispensably necessary to accomplish the purposes of the Union….

The ironies are great, and bitter.

And so it is that the authors of the Declaration of Independence, if they were writing it today, would be able to list “a long train of abuses and usurpations” by the federal government against the States and the people. Their list could rightly include these charges, once levelled against the British monarch:

…erected a multitude of new offices, and sent hither swarms of officers to harrass our people and eat out their substance….

…combined with others to subject us to a jurisdiction foreign to our Constitution and unacknowledged by our laws….

…[took] away our [State] charters…and alter[ed] fundamentally the forms of our governments….

Two Causes and a Partial Cure

Although it flared sporadically in the Nineteenth Century, the cancer of federal statism spread virulently in the Twentieth Century, feeding on misplaced faith in the federal government and distorted readings of the Constitution. (See Restoring the Constitutional Contract for a detailed analysis.) The cancer spread all the more rapidly because Amendments XVI and XVII — both ratified in 1913 — destroyed two vital constitutional anti-bodies.

Amendment XVI enabled the federal government to tax incomes, that is, to feed directly on the nation’s life-blood. Per-capita federal receipts, in dollars of constant purchasing power, grew about 1.5 times between the abolition of the Civil War income tax and the ratification of Amendment XVI. Since the ratification of Amendment XVI, per-capita, constant-dollar federal receipts have grown more than 200 times. The absolute power to tax is absolutely addictive.

Amendment XVII eliminated an important check on federal power by requiring the direct election of Senators instead of their appointment by State legislatures. Before Amendment XVII, Senators were more tightly bound to the interests of their respective States and thus more likely to resist encroachments on the States’ constitutional prerogatives. And because Senators were further removed than Representatives from the passions of the day, they were better able to resist legislative fads and follies.

Clearly, the passions of the day were too much even for the Senators who collaborated in the passage of Amendments XVI and XVII. (A lesson here is that the Constitution should be amended to make it more difficult to amend.)

In any event, the prescription for Amendments XVI and XVII is simple: Excise them from the constitutional body by repealing them.

Radical Surgery Required

But we mustn’t stop there, for the constitutional body is riddled with a more virulent cancer, namely, the blatantly unconstitutional and extra-constitutional aggrandizement of federal power that has persisted for generations. This insidious malignancy has taken root and spread in spite of the language of the Constitution and the intentions of the Framers, and with the complicity of Congress and the courts. (Again, see Restoring the Constitutional Contract for a detailed analysis of the Framers’ intentions and the bases of federal aggrandizement.)

The cure — if there is a cure — will require radical surgery: revising the Constitution to preserve its spirit while sharpening its meaning and making it more difficult to abrogate. A Restored Constitutional Contract offers such a revision. Article V of the Constitution tells us how to proceed:

The Congress,…on the application of the legislatures of two-thirds of the several States, shall call a convention for proposing amendments, which,…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 Congress….

The way would be tortuous and treacherous, but so was the the way to the Constitution that we have nearly lost to federal aggrandizement. Let us begin before it is too late.

Crime, like charity, begins at home, and home is therefore the first line of defense against crime.

A second line of defense is necessary and — in these times — essential to the general welfare. That line of defense is justice, administered by the community through the state.

The linch-pin of justice is punishment by law. The operative word is “punishment” — not “correction” or rehabilitation.” Crime is not deterred or prevented by the promise of rehabilitation. (Who commits a crime in the hope or fear of being rehabilitated?)

What if deterrence does not always work, as those who are opposed to capital punishment like to point out? For sociopaths and psychopaths who are undeterred by the concept of punishment, the answer is punishment of a kind that will ensure that they can no longer do harm to others: life in prison or death at the hands of the state.

There are those who equate death at the hands of the state with murder. This is nonsense and sentimental clap-trap on a par with counseling unilateral disarmament or pacifism in the face of an invading horde. By such reasoning, we would not have (finally) risen to the task of removing Herr Hitler from the scene. How many sob-sisters (of whatever gender) would wish that we had stayed on the sidelines while Hitler applied the “final solution”?

Justice — when served — serves civilization and social solidarity. First, of course, it deters and prevents wrong-doing. Second, it meets the deep, common need for catharsis through vengeance, while protecting the innocent (and all of us) by replacing mob rule with due process of law.

The Social Contract

Laws tend to reflect social standards of civility, that is, the tenets of acceptable behavior or ethics, if you prefer. Social standards of civility foster the general welfare of a society by creating a “social contract” or understanding among its members that encourages constructive behavior and discourages destructive behavior.

The essence of the social contract is captured in the admonition to “do unto others as you would have them do unto you” (the Golden Rule) and its corollary to “mind your own business.”

Erosion of the Social Contract

Laws that violate the social contract breed contempt for the rule of law, and thus undermine social cohesion, in three ways. First, such laws are often flouted or not enforced consistently (e.g., Prohibition and euthanasia). Second, when such laws are enforced rigidly (e.g., affirmative action) the result is heightened tension between those who stand to gain from their enforcement and those who stand to lose from it. And, third, such laws conflict with and undermine the moral force of accepted social standards.

The written Constitution embodies the social contract. It does not, for example, favor a particular race, gender, or economic class. Rather, it gives individuals enough room in which to pursue their own aims without trampling on the hopes of others.

In spite of the written Constitution, we have come to live under governments — federal and State — that do unto us what we would not do unto others and which mind our business for us. The price of such paternalism is paid not only in high taxes and intrusive regulations but also in the loss of social cohesion and civility. Laws made in Washington and the State capitals through the collusion of special interests undermine the Golden Rule, breed contempt for the rule of law, contempt for lawmakers, and contempt for the special interests they favor. Contempt spills over into incivility and, from there, into unlawfulness.

The Consequences

Is it not mere coincidence that life in this century has become less civil and more dangerous as “activist” governments have sundered the social fabric. We have gone from double-entendres on radio to explicit sex on TV; from dirty election campaigns to perpetual political rancor; from the law as a last resort in disputes to the law as the first resort; from welfare as a disgraceful state to the welfare state; from fifteen minutes of sanitized news to twenty-four hours of salacious speculation; from lyrics you could sing to noise that hurts your ears; from suits, ties, and polished oxfords to tank-tops, shorts, and no shoes at all; from Sunday dinners after church to lost Mondays after drug- and booze-filled weekends; from juvenile delinquency to “routine” rape and murder by juveniles….

And, oh yes, how are racial relations today compared with what they were, say, fifty years ago?

Is There No Balm in the Law?

There are some who believe that government can impose civility, or that it should do so in some circumstances, without heed for the social cost. Well, if government could impose civility, the Civil War and the Civil War amendments would have done the job. As Mr. Lincoln might have said, you can impose civility on some of the people, some of the time, but you can’t impose civility on all of the people all of the time.

Isn’t involuntary civility (e.g., affirmative action) better than voluntary barbarity? The question overlooks the proper role of law, which is not to impose a certain type of civility (e.g., “equality” of the races) but to deter and, if necessary, to punish specific acts of wrongdoing (e.g., murder). The question also overlooks the corrosive effects of coercive laws on the social order.

But isn’t it wrong and uncivil, for example, to refuse a person “a place at the inn” because of his or her color? Answer: It is no more wrong than the refusal to grant a person a place at the inn because he or she is “improperly” attired. The government that may dictate the color of the inn-keeper’s guests and employees is a government that may force the inn-keeper to admit the unkempt and unshod. Discrimination solely on the basis of race is, and was, uncivil and shameful, but the inn is the inn-keeper’s, not society’s and certainly not the government’s.

It is right and civil for the law to say that one person may not kill another person with impunity. Period. Any reference to the color of the victim is gratuitous. Murder is murder. Why should the punishment for murder be tied to the characteristics of the victim? Is it somehow less of a crime to murder a white male than, say, a black female? If it is a capital offense, in some States, to kill a police officer, why is it not a capital offense to kill an “ordinary” citizen?

Re-declaring Independence

When the law was based on social standards of civility, we understood it and respected it. Turning the law on its head by attempting to dictate social standards has had the doubly destructive effect of corrupting our standards and eroding our respect for the law.

This diagnosis points to the remedy, which many have already adopted: a re-declaration of independence. Instead of violently overthrowing the existing order, there is a growing tendency to opt out of it by become less dependent on those institutions that have been corrupted by government. Thus we see more home schooling and private schools in lieu of public schools, just as we see more law-abiding citizens flock to enclaves where they find security and traditional values: rural communities where crime remains relatively rare, “magnet” communities that attract persons who share certain religious or social views, and gated communities with their own security forces.

Government tries to thwart such efforts because they are a threat to its legitimacy and, more importantly, to its ability to collect taxes. Without tax revenues, government cannot support its bloated bureaucracies and the welfare-state junkies (of all economic classes) who cling to it because they have nothing else in which to believe.

The official argument against re-declarations of independence is that they undermine society. The truth is that government has undermined society by undoing the terms of the social contract. Declarations of re-independence are our best hope for restoring the social contract and rebuilding society.

Let us take heart from the closing words of Lincoln’s first inaugural address:

We are not enemies, but friends. We must not be enemies. Though passion may have strained it must not break our bonds of affection. The mystic chords of memory, stretching from every battlefield and patriot grave to every living heart and hearthstone all over this broad land, will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angels of our nature.

The Constitution’s Purpose Perverted

The Constitution of the United States of America is a contract in which the States establish a federal government with clearly delineated powers, for specified purposes: “…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 desired ends, not promised outcomes.

In the constitutional contract, the States cede certain of their own powers and grant limited powers to the federal government. In Section 10 of Article I, for example, the States voluntarily deny themselves certain powers that in Section 9 they vest in Congress — creation of money, regulation of trade among the States and between the States and other nations, conduct of foreign relations, and conduct of war.

The Constitution, in turn, authorizes the federal government to enact, execute, and adjudicate laws within a limited sphere of authority. The Constitution not only limits the federal government’s authority but also diffuses it by dividing it among the federal government’s legislative, executive, and judicial branches.

The federal government is the creature of the States, not their master. And the creature, like Frankenstein’s monster, has taken on a destructive life of its own.

Beginning at the Beginning: the Terms of the Constitutional Contract

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 federal government. The federal government is not, and 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 federal 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 federal government

• rights and privileges of citizens

• 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 limited scope of the Constitution.

• The federal 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 federal government or reserved by the States in the creation of the federal government.

In sum, the constitutional contract charges the federal government with 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.

Federal Aggrandizement and Its Consequences

But the great national crises of the Twentieth Century — especially the Depression and World War II — fostered the habit of giving illegitimate power (and money) to the federal government. Thus the constitutional contract and the pillars of the Constitution — the States and citizens — have been undermined.

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 federal government has become a destructive cycle of dependency. Elected representatives and unelected elites 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 federal government in the false hope that the next increment will get the job done.

There has been much bold talk in recent times about making the federal government smaller and devolving federal 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 federal government, and federal spending still consumes about the same fraction of economic output that it did two decades ago.

The Unconstitutional Bases of Federal Aggrandizement

To break out of this cycle of addiction, we must restore the constitutional contract and thus free the States and citizens — especially citizens — to realize their economic, social, and spiritual potential.

The Constitution may be the “supreme law of the land” (Article VI), but as the ardent federalist Alexander Hamilton explained, the Constitution

…expressly confines this supremacy to laws made pursuant to the Constitution…[Federalist number 33].

Thus the authority of the federal government — that creature of the 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 limit the federal 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 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 federal government and balances that authority against the authority of the States and the rights of citizens. Although the Constitution specifies certain powers of the federal executive and judiciary (e.g., commanding the armed forces and judging cases arising under the Constitution), federal power rests squarely and solely upon the legislative authority of Congress, as defined in Article I, Sections 8, 9, and 10. The intentionally limited scope of federal authority is underscored by Amendments IX and X; to repeat, in plain words:

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 federal government or reserved by the States in the creation of the federal government.

The generations of laws and regulations that have seized the powers and rights of States and citizens are, to put it plainly, unconstitutional. Most such laws and regulations rest on these weak foundations:

• the phrase “promote the general welfare” in the Preamble. This was a desired result of the adoption of the Constitution, not an edict to redistribute income and wealth.

• the power of Congress “to regulate commerce…among the several states [Article I, Section 8].” This power was meant to prevent the States from restricting or distorting the terms of trade across their borders, not to enable the federal government to dictate what is traded, how it is made, or how businesses operate.

• 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 [Article I, Section 8].

The words “necessary and proper” have been wrenched out of their context and used to turn the meaning of this clause upside down. It was meant to limit Congress to the enactment of constitutional legislation, not to give 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.

Amendment XIV was meant to secure the legal equality of those former slaves whose freedom had been secured by Amendment XIII. Amendment XIV became, instead, the basis for Supreme Court decisions and federal laws and regulations that have given special “rights” to specific, “protected” groups by curtailing the constitutional rights of the many who cannot claim affiliation with one or another of the “protected” groups. As the proponents of such groups might ask, is it fair?

The Price of Federal Aggrandizement

It is fitting that today’s “liberals” — who invoke unreasoning fear of less government — are the intellectual descendants of Franklin Roosevelt, the architect and progenitor of policies that have eroded civility, stifled initiative, and bled the nation’s wealth. Yes, the federal government — as it has become — incubates incivility, suppresses individual initiative, and brings about more economic distress than it can ever hope to alleviate.

The incivility of racial tension, for example, has been heightened by the affirmative-action policies of the federal government, which favor classes of people because of their race and gender. It is right, and constitutional, for blacks to have the same access to the ballot box as whites. It is wrong, and unconstitutional, for blacks to be favored over whites because of their color.

The tax code that punishes initiative, to take a second example, rests on the presumption that a person who makes more money should pay not only more taxes than a person who makes less money, but pay disproportionately more taxes. Who is to say that Ms. X, who put herself through graduate school, deserves to pay a higher fraction of her income in taxes than Mr. Y, who chose to drop out of high school and pursue a career in the fast-food business?

Finally, the intervention of the federal government is responsible for exacerbating, if not causing, the great economic disasters of the Twentieth Century — including the Great Depression of the 1930s and the double-digit inflation of the late 1970s and early 1980s. The great bull market of 1974 to 1998 will come to an end — if it hasn’t already — regardless of (if not because of) the great god Greenspan. Expecting the federal government to contain and control fundamental economic forces is like expecting a surfer to tame a tsunami.

It becomes increasingly evident that the Framers knew what we have been re-learning in recent years: A government, even a representative government, is a power-hungry beast. More power in the hands of government means less power for individuals.

Restoring the True Constitution: The Only Thing We Have to Fear Is Fear Itself

The constitutional contract has been breached. Only by restoring it and reversing generations of federal encroachment on the rights and powers of the States and people can we “secure the Blessings of Liberty to ourselves and our posterity.”

The Constitution itself contains the restorative remedy:

[O]n the application of the legislatures of two thirds of the several States, [Congress] shall call a convention for proposing amendments, which …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 the conventions in three fourths thereof…

Congress has in hand the requisite number of applications for a constitutional convention but has resisted calling one. If pressed, the leaders of Congress would invoke the specter of the rabble rescinding the Bill of Rights. But what the professional politicians in Congress (and their allies in the executive branch and community of special-interest groups) truly fear is the reassertion by the citizens and States of their constitutional rights and powers.

What would happen? Would “society” disintegrate and incivility reign? Would the rich get richer as the poor get poorer? Would we experience wild swings of prosperity and poverty? To ask these questions is to acquiesce in the “liberal” myth that it is government — in particular, the federal government as it has become — that stands between us and a state of incivility, that enables the skilled and determined to get ahead in our positive-sum economy (your gain is not my loss), and that stands between all of us and the specter of another Great Depression.

We are paying (and paying and paying) dearly for our pact with the devil — the promise of an eternal “free lunch” in exchange for control of our own lives and livelihoods. Do we have the collective guts to tear up the pact and reclaim our liberty? Or, as FDR said, will we be bound by “nameless, unreasoning, unjustified terror which paralyzes needed efforts to convert retreat into advance”?