Article Three

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April 18, 2007

There is a rich variety of reasons why a "minimal government" cannot work, starting with the entirely sufficient one that since every human owns his own life, any interference with his exercise of that fundamental right imposes a negative effect upon his wellbeing.

Here, though, I offer a consideration I think to be new, and of interest to those minarchists who believe that the US Constitution would form an ideal basis for a limited-government society. Their reasons are, I understand, that (a) human nature is flawed and so eradication of criminal behavior (that which overrules somebody's self-governance right) is impossible, (b) that unavoidable degree of criminality is best minimized by an elected government with powers limited by a written Constitution, and (c) the US Constitution and especially its Bill of Rights form such a sublime example of that needed limitation as to be beyond improvement and probably God-given.

I deny all three of those reasons, and the logical contradiction in (b) - that criminal behavior is best minimized by instituting an organization whose very nature is criminal from tip to toe--is especially absurd. But I want to focus here on (c). "Patriots" and other admirers of the Constitution see it as so close to Holy Writ as to need no serious differentiation, and in particular that the men who drafted it were uniquely eager to do their utmost to establish a government unfortunately necessary (for example, to provide an efficient, socialized defense system lest the British return for a second round) but whose powers were soundly and tightly limited. In current terms, those drafters are seen by those admirers as Libertarians or Classical Liberals, and their sincerity is not doubted.

I have for quite a while perceived the Founders as mistaken, but for many years I shared that belief in their sincerity--that they were mistaken to suppose that any slight degree of government was required, but sincere in their wish to maximize individual self-ownership in practice by setting tight limits on its powers. I think now that I was wrong to suppose that they were sincere--and so that their work should not be admired in any degree.

My first doubts about their sincerity were expressed here and pointed out that the Preamble to the US Constitution is a pack of lies. The further doubts expressed here derive from Article Three--and it's worth digressing via that link to read it now. It's very short--which ought at once to arouse suspicions.

Notice, if you will, what this Article does. Like numbers One and Two, it sets up a branch of the new Federal Government--the "Judicial" one. It says "the judicial power shall be vested in "an arrangement of courts, at whose apex lies the Supreme Court. It specifies the types of case that this Branch shall hear, and states that in criminal cases, trials shall be by jury. It warns that judges must remain of "good behavior." And that's about it. The whole thing is done, in a mere 390 words.

The wording completely fails to spell out what the phrase "judicial power" means or includes--and does not include--or how many shall sit on the required "jury" or what its powers shall be, relative to the judge's. It completely fails to define what "good behavior" means or who shall determine it. In effect, Article Three is a carte blanche. It's a delegation of presumably enormous power but with no stated components or limitations at all.

It stands in stark contrast with Article One, which uses 2,268 words to specify in much detail not just how Congress is to be elected and operated, but exactly what its (few) powers shall be and shall not be, and with the 1,025 words in Article Two, which details how the Executive Branch shall take office and what its powers shall and shall not be. How are we to interpret this astonishing contrast, this massive change of pace and lack of oversight concern; and in particular how can it square with a belief in the sincerity of the writers?

One possible answer is that everybody knows what "judicial power" does and doesn't include, and what juries can and cannot do, and what "good behavior" is all about--and so it wasn't necessary for Article Three to spell out such matters. This is in summary the argument used by Professor Randy Barnett in an interesting paper about one important component power--the one given the Supreme Court to nullify laws that it finds unconstitutional. Because that wasn't spelled out, it's been controversial ever since; Barnett argues persuasively that the "public meaning" of the phrase "judicial power" certainly included that one, and so the Founders did not need to spell it out.

Barnett may well be right. Notice though what follows, if he is:

• ' * Since "everybody knows" what legislatures and executives do as well as courts (respectively, they write and execute laws), there would be little if any need to detail what they, too, were to be and do; therefore Articles One and Two are superfluous or at any rate far too long. And yet, there they are.
• ' * In order to know in full detail what powers courts possess under the Constitution, we need to know in equal detail what was the "public meaning" of the phrase "judicial power" back in 1787. Barnett's research gives good reason to agree that it did include a nullification power; but what else? After 220 years, how can anyone possibly find out?
• ' * The power to nullify unconstitutional laws means that courts must have the power to interpret all laws--if only so as to separate sheep from goats. And if they can say what any law means, then in effect the Judicial Branch and not the Legislative Branch is the one that actually determines what is and is not the law of the land. In court, the "law" is whatever the judge says it is; he may be made of tin, but he certainly is a god.
• ' * Then if courts (judges) can properly define what is and is not law, it follows that they can properly instruct juries about the applicable laws in any case, and prohibit any power of jury nullification; yet when juries were set up in 1215, the power of nullification was their primary purpose; the English Peers established them as a way to prevent King John continuing as an absolute monarch. If the Constitution by Article Three cancelled that vital jury power, we're well on the way back to being an absolute monarchy--or at least to an oligarchy of lawyers. Maybe that was no accident.

So the other possible answer is that the 55 men who convened to draft the US Constitution, all of them being politicians and 35 of them being lawyers, knew perfectly well that Article Three would provide the new government with powers that, over time, would break through all supposed limits and deliberately designed it so--that is, they were no more "sincere libertarians" than your run-of the-mill legalized crook in Congress today. They presented the new government as being limited and constituted of, by and for "The People" (a clear fraud anyway, as Spooner has proven) but in reality it was set up of, by and for themselves, as lawyers--in such a way that lawyers could drive a coach and four through the supposed limits any time they saw fit. Let's give that possible answer the whistle test.

The 39 signers did their work in full knowledge that a mere half-century earlier, Peter Zenger had been acquitted only after some persistent advocacy by Andrew Hamilton and a very courageous jury insistence on nullification, in the teeth of directives by the NY judge that he was clearly guilty and must be found guilty, of besmirching the Governor's good name. This was a famous case, and it's not credible that it was not very well known to all present in Philly as well as virtually all of "the public." At that time, therefore, the "public meaning" of the phrase "judicial power" certainly included the power to treat juries as if they were a minor nuisance in court. Therefore, in proposing to grant "judicial power," that case alone cried out for specific clarification at least about whether judges had the power to instruct juries on what the law says, and whether juries have the power to overturn any they think bad. And yet, as we've seen, the 39 were silent. To call that careless is not credible. They must have omitted such wording on purpose, so as to give judges the greatest possible latitude.

The 39 also knew perfectly well that they met in the very State named after William Penn, whose Westward migration followed his harrowing experience with the justice system in London; he had preached in the street contrary to law, and was acquitted only after his jury nullified that law despite vicious and repeated instructions from the judge to "hurry up and find him guilty"--they were imprisoned in the jury room for several days without food or toilets. Again, when setting up a new government and granting a "judicial power," it is simply not credible that the Founders would omit all guidance about this crucially important allocation of power unless they intended to--leaving the matter vague on purpose so that most courts would bring verdicts in accordance with the judge's wishes--something that happens today with sickening regularity, notably in cases relating to drugs and taxes.

That is my case for suggesting that the Founders knew very well what they were doing when they left Article Three wide open to interpretation and placed no limits on the judicial power. I say they carefully crafted a Constitution that appeared to give only specific and limited powers to the central government, while providing an escape route through which, in the generations following, any edict could be enforced in total disregard of those limits. The end result was a charter that would appeal to most Americans as giving them power over their own government, while in practice and with effect increasing over time, it would ensure the government had absolute power over the people. What we see all around us today is exactly what was planned.

This has, I hope, removed all remaining grounds for a naive belief in the goodness of Government Man--which in any case flatly contradicts the minarchist's other belief, that all humans have a bias towards evil. The Founders weren't sincere but mistaken minarchists--they were not minarchists at all; they met to establish a government, they established one good and hard without any effective limit on its powers, and they did that by deception, and the open ends of Article Three are the smoking gun.

I shall no longer refer to them with a capital "F".