Constitutional Rule

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November 26, 2007

Imagine the Feds were to obey and be limited by the US Constitution. Would that produce a free society?

As a stick with which to defend oneself against government people, the Constitution is a lot better than nothing. They invade your privacy without "probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized," and you can throw back at them that Fourth Amendment, noting the word "particular."

The problem is that if you're in court accusing the snoop of violating that useful limitation, the judge would be in the pay of the very same people who sent him on his mission; for government has monopolized the courts even though Article Three doesn't actually say it can--for it doesn't say it can't, either. Even so, the Constitution can provide useful comfort while rotting in a government jail and may, on a rare occasion, actually do the job it is generally imagined to do.

Amendment Nine, likewise, looks great for keeping the Federal Government small and humble: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The People are said to have a vast range of rights, via-a-vis government, beyond the ten just listed. And in case that's not clear enough for a government judge, Amendment Ten follows with "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"--so if the People haven't given government a specific power, government can't legally do it. Those two together are pretty good! One of the most wonderful fairy tales ever written, and never honored in practice since the day it was written.

The trouble comes when a speaker like Ron Paul, whose sincerity I don't doubt but the clarity of whose thinking I do, proposes to take the country back to Constitutional rule. Firstly, there never was a time when government said to itself, "Oops! We mustn't do that, for it's not expressly authorized in the Constitution." And secondly, even if some magic wand were waved to cause every Pol and B-rat living at taxpayer expense to say exactly that several times a day, it still wouldn't be anywhere close to good enough, because of the things the Constitution does authorize government to do (or does appear on its face to authorize). Let's take a look; they can be found in Article 1, Section 8. In reality, The People never authorized government to do anything; the opening three words of the Constitution are a lie. Any doubts on that would be removed by an unhurried read of Spooner.

Here then are all the powers that are, apparently, granted to Congress by the Constitution:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States. Oops! the very first phrase is the killer, and it goes downhill from there.

To "lay and collect taxes" means that the FedGov was empowered to commit theft and get away with it. That is the ugly foundation of every government on Earth, and is 100% incompatible with the individual freedom and self-rule that is the birthright of every human being. True, it sets alleged limits on the power (the taxes had to be "uniform" and, elsewhere, "apportioned" if direct), but the principle is that the new government was to be handed the right to steal with impunity, and that completely negates the function of a free market and so condemns the society to suboptimal standards of life.

Worse, it was to communize "Defence." Socialism doesn't work in any other activity, but the founders saw fit to apply it to what was arguably the most important one of all. Worse yet, it was to be handed the open-ended power to act for the "general Welfare" of the country, which can be (and has been) interpreted every which way to allow the FedGov to do virtually anything it thinks might win it votes.

To borrow money on the credit of the United States (not to lend it, just to borrow). So if (scratch that; when) it's short, it can borrow more on the basis of "its credit"--meaning, its power to steal from you and me or our grandchildren, for it has no other kind of "credit." Accordingly, to lend government money is to take part in a contract to steal, and so is morally void, and yet the temptation to earn interest on that basis is such as gravely to distort the capital market, the source of economic growth, as well as corrupting the morals of the lender.

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes so that freely negotiated contracts--the very hallmark and centerpiece of a free market--are forbidden outright from the get-go. I want to sell you a gizmo across a state line, or deposit gold in a Native American bank, or buy opium from an Afghan farmer, and this alleged power tells me the transaction may be "regulated." Y-u-c-k. In 1783, perhaps most purchases were made intra-state, but not any more. This affects virtually everything we buy. Austrian economists like Ron Paul know this perfectly well, yet still he confuses Constitutional rule with "freedom."

To establish an uniform Rule of Naturalization... so immigrants are un-natural, until a government b-rat "naturalizes" them, I suppose. Yuck, again. At the very foundation of the American State comes here the concept of citizenship; if a human being is not a "citizen" of some state, he is a non-person and can travel nowhere, and certainly not across the Rio Bravo del Norte in search of honest work.

...and uniform Laws on the subject of Bankruptcies throughout the United States so if a debtor hits a tough spot, his creditors are forbidden to negotiate a way out but forced to submit to an uniform government rule. And this is "freedom"?

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures - but why? Why should those useful functions be performed by government, whose performance at money management over all of recorded history has been one of coin-clipping and metal-alloying, of deception upon deception? To "regulate the value" of a coin is in any case impossible; the market would determine what an ounce of gold would buy, however much a Treasury b-rat might huff and puff. This provision suggests the Framers had very little grasp of economics, certainly none of a free market. Or perhaps they had some, and wanted the new American government to be a fox in charge of the henhouse.

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States - like the bumper sticker so elegantly says, "Don't counterfeit. Government hates competition."

To establish Post Offices and Post Roads - so instead of leaving the development of communications to the free market as demand developed, the FedGov was given here an edge, to lead the market with stolen capital--and to lead it in a direction necessarily political, responding to political stimuli instead of those of economic demand and profit opportunity. Never mind that there is no whisper here of monopoly, such as has actually been taken; this purportedly grants government the "right" to enter commerce as a player; and that camel's nose alone is totally incompatible with a free society. The focus on post is ominous; it gave the new FedGov the ability to spy on every letter sent by every citizen. Sound familiar?

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries - so preventing the market deciding that difficult question for itself; once again, an express denial of liberty. And this is confused with "freedom"?

To constitute Tribunals inferior to the Supreme Court - so that hierarchy of US court districts is the work of Congress, not of the Judicial branch. I hadn't noticed; one learns, every day. Nor had I noticed the ominous use of the word "tribunal" rather than a jury-based "court." I wonder whether our future would see substitution of a three-lawyer panels for 12-laymen juries.

To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations - whoa, would the powers never stop? Is the FedGov's jurisdiction to be worldwide? That's what this seems to say. Perhaps it's the theory behind today's American Empire. A ship at sea is properly under the command of its captain, who is also responsible for its defense. Failure to maintain this time-honored principle led directly to the War of 1812, when the FedGov treated British piracy against American merchant ships as an excuse for war.

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water and here's a power that Congress has seemed in recent years reluctant to use. No shortage of recent wars, but a dearth of declarations, since 1941--which speaks volumes to the respect with which the Constitution is held in DC. But let's again focus on the power itself, here allegedly granted: It says that Congress, by the vote of a few hundred Pols, can plunge the entire nation into war. Such is the logical but repugnant consequence of the collectivization of "defense," which was probably the strongest reason why the States set up the FedGov at all.

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years ... To provide and maintain a Navy ... [and] To make Rules for the Government and Regulation of the land and naval Force - here is the excuse for the creation of the American military state. War is the business of government, and here are the roots of Bush's "endless war." Too bad he didn't read the bit about "two years."

To provide for calling forth the Militia to execute the Laws of the Union , suppress Insurrections and repel Invasions - okay, so where is the "Militia"? It actually consists of every able-bodied male resident, so I hear, but whatever it is, here the FedGov appears authorized to call it forth and, presumably, direct its operations. So if ever it were thought necessary (as in 1776) for men to take arms against the government, here the government is to do the calling-forth. What a neat way to disarm all possible opposition forever and perpetuate itself.

The three final Powers granted concern administration; the new FedGov was to have a home (D.C.) and the right to write laws to implement all the above.

That's it; that's all the power they have. So when a Ron Paul proposes to cut the FedGov down to the size permitted by the Constitution, we must concede that the result would be an enormous reduction, and that indeed our society would be vastly improved as a result. But my point here is that that reduced size and scope of government would still be absolutely unacceptable and repugnant to freedom; for the above list of Constitutional powers is infinitely too great and is added to the huge piles of powers claimed and exercised by each state and town, presumably unaffected by his cut.

Here, then, is the kind of society we'd have if governed faithfully under the terms of the Constitution, even in the hypothetical case that no state or local government existed: Its members would suffer the legalized theft of their property and be denied the prosperity that results only from an unfettered market. They'd be forced to provide all needed resources for a socialized defense against any external enemy, whose odds of winning would be 50%. Their rewards and incentives would be distorted by wealth redistribution on the basis of voting power. They would be forced to pay what previous governments overspent. Nearly all their sales and purchases would be at suboptimal prices. They could attract and hire immigrants, but only under terms set by the government. They could lend money in commerce, but could recover bad debts only under terms set by the government. Their correspondence would be vulnerable to government scrutiny. If they had a dispute with government, a government court would pick the winner. And if they even thought of calling out the militia to overpower the government, they would be clean out of luck.

Constitutionalists like Ron Paul say that kind of society is "free." I doubt if they even understand the word.

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Jim Davies's picture
Columns on STR: 243

Jim Davies is a retired businessman in New Hampshire who led the development of an on-line school of liberty in 2006, and who wrote A Vision of Liberty" , "Transition to Liberty" and, in 2010, "Denial of Liberty" and "To FREEDOM from Fascism, America!" He started The Zero Government Blog in the same year.
In 2012 Jim launched , to help lead government workers to an honest life.
In 2013 he wrote his fifth book, a concise and rational introduction to the Christian religion called "Which Church (if any)?" and in 2016, an unraveling of the great paradox of "income tax law" with "How Government Silenced Irwin Schiff."