Category Archives: Constitution

The Constitution is Dead

The Constitution is dead!  Meaningless!  Useless!   A bunch of unenforceable, misunderstood words on parchment.

The precise date of its demise is debatable and I’ll leave that to historians to ascertain.  However, it’s crystal clear the Constitutional objectives started to fray within a couple years of its enactment.  The decay and rot has worsened over the decades and centuries.

The primary objectives of the constitution were; to define a structure of government and define the specific powers delegated to the government.  Demonstrably, the framers and those in the state ratifying conventions understood the new government ordained by the Constitution was one of limited powers.  The three branches were intended to be co-equal where no one branch can control or dominate the other two branches.

Furthermore, the Bill of Rights was intended to further restrict the powers of the federal government and explains those rights not enumerated rights were retained by the people and that many powers were retained by the states or the people.  Thomas Jefferson said, “In questions of power, let no more be heard of confidence in man but bind him down by the chains of the Constitution.”

Unquestionably, the constitution has failed to meet its two primary objectives.  The chains are broken and the inmates are running the asylum.  The powers delegated to each branch respectively are gone, blurred by sophistry and judicial interpretation, usurped by other branches, or relinquished knowingly by one branch to another.  Likewise, the government was intended to be one of limited enumerated powers.  Today, the government is unlimited in its power.

There are no effectual checks of power in the Constitution.  It is not a self-enforcing document.  Words do not enforce themselves.  Absent are powers to restrain the federal government.  The creation is the arbiter of its own powers.  The creation is the usurper.  The creation is an entity with arbitrary and capricious power.

The creator – the people of the free, independent, and sovereign states – has been neutered.  The creator has been castrated, defanged, and declawed.  The creator is defenseless against the Goliath.  The people are at Goliath’s mercy.  The Goliath can destroy the people at any moment with overwhelming force.  Resistance is futile.  Compliance is demanded.  Questioning authority is nearly criminal.

The Constitution only means what nine people in black robes say it means.  The peoples’ political power has been marginalized by nine people out of 310 million.  More often than not, it is one person that decides everything for 310 million.  Nine unelected, unaccountable people that serve life terms without any limits on their power decide the peoples’ fate.  Nine people that believe their discretion and judgment are more accurate, wise, and insightful than those they lord over.  Nine omnipotent judges can supplant the political will of the people.

In reality, these are just nine people – nine human beings – out of 310 million.  Their opinions are not more insightful or binding when it comes to political will or political questions.  Their personal policy preferences and penumbras carry no more weight than any nine people chosen at random.  The very idea that the personal preferences of these nine people are better than any other nine people is ludicrous.  To believe nine people can decide political questions is asinine.  To believe nine people are the brain trust and the mouth piece of the people is absurd.

Consequently, consent of the governed has been obliterated.  Consent of the governed now means consent of the judges.  We are not a democracy.  We aren’t even a republic.  We are an oligarchical empire ruled by a few hundred people generally and nine people specifically.  Stick that representative, limited government in your pipe and smoke it.

Most issues are elevated to the national level either through legislation or the judiciary.  The omnipotent federal government decides everything.  Naturally, yet unsurprisingly, half the country is angry when the Democrats are in power and the other half are angry when the Republicans are in power.  Every issue is divisive.  The ruling class thrives on divisiveness.  Issues on race, gender, sexual orientation, defense, rights, taxing, spending, and immigration, etc. are divisive. The ruling class wants the people divided against one another because that ensures the ruling class remains in power.

The consequence of nationalism is a one-size fits all policy for 310 million diverse people.  Nationalism creates divisiveness.  It pits brother against brother and neighbor against neighbor.  This is not how free people in a free society are supposed to live.  Not that we are free, but we are supposed to be free.

Our moral document, The Declaration of Independence, is alive and breathing.  All the fundamental principles upon which government is instituted are elucidated in the Declaration.

The entire purpose of government is to better secure our unalienable rights.  To secure these rights government is instituted among men deriving their just powers from the consent of the governed.  Whenever any form of government perverts or destroys these ends and liberty is manifestly endangered, and other means of redress of grievances are ineffectual, the people may, and of right ought to alter or reform the old Government or institute new Government, laying its foundations on such principles and organizing their just powers in a form and manner that is in accordance with how the people wish to be governed and for their good and their happiness.

In other words, the people create their political societies.  Government is nothing more or nothing less than the people exercising their right of association to create a political society.  The people define the government’s structure and the powers delegated to the government.   The people are the sovereigns.  The people are the source of political power.

Imagine if there was a national policy on the flavor of ice cream.  Congress passes a bill that mint chocolate chip is the only legal flavor of ice cream.  The President signs the bill into law.  A case is adjudicated by the Supreme Court and in a 5-4 ruling opines that the only flavor of ice cream is mint chocolate chip.

Contrast that with choice in governance.  Today there are fifty states.  The least populous state is Wyoming with 570,000 people and the most populous state is California with 38 million people.  Imagine 100, 200, or 500 states.  Some states may be “far left” on the political spectrum.   People that prefer to be governed that way would freely choose to live in one of those states.  Likewise, some states may be “far right” on the political spectrum.  Those states may be very limited in government authority.  People that prefer to be governed that way would freely choose to live in one of those states.  There would be hundreds and hundreds of states in between those two extremes.

This is the Baskin-Robbins of governance.  Instead of a one-flavor system of governance there are hundreds of flavors.  You live in a state that governs in accordance with your wishes and views.  Likewise, I’ll live in a state that governs in accordance with my wishes and views.  You don’t force your governance on me and I don’t force my governance on you.

This is precisely how 310 million diverse people live in a country together without the dividing them.  The incessant bickering, fighting, acrimony, and animosity is mind-numbing.   People are sick and tired of being sick and tired.  Most people simply want to live with minimal government intrusion in their lives.

This was the intent of the American system of federalism.

Nationalism is a disease.  Federalism is the cure.

The Constitution is dead.  The Declaration lives on.

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Rebuttal to Cato Institute’s Bob Levy on NY Times Nullification Article

(Note, my rebuttal was published on the Tenth Amendment Center website.)

Robert Levy’s recent article, “The Limits of Nullification” is nothing less than an amalgamation of revisionist history covered in judicial fairy dust.  His assertions are premised upon a flawed understanding of certain fundamental principles and constitutional history.  Levy conveniently ignores them and, consequently, draws inaccurate conclusions.

Let’s dissect this piece by piece.

Levy implies the Constitution was ratified by the people acting in their aggregate political capacity – a single unitary body politic.  In fact, many people believe this falsehood because they rely on the words “We the People of the United States” in the Preamble.  The initial drafts of the Constitution named each and every state.  They said, We the People of Maryland, Virginia, Delaware, etc.  But, Article VII of the Constitution states, “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same”.

Each state is independent, free, and sovereign.  The ratification happened within each State by the people acting in their highest political capacity.  Each state voted up or down on the ratification.  There was no popular vote across all thirteen states.  There was no majority of people (50%, 75%, or 95%) of the people that could ratify the Constitution.  The people of each free, independent, and sovereign State ratified the Constitution independent form every other state.

Moreover, New Hampshire was the ninth state to ratify the Constitution.  The nine states ratifying the Constitution could not bind any of the remaining states.  In fact, the Virginia and New York ratification conventions were aware that New Hampshire had ratified thus putting the Constitution into effect for the states so ratifying.  Both states continued their conventions and proceeded with their votes for or against the Constitution.

The first government under the Constitution was comprised of only eleven states.  North Carolina and Rhode Island had not ratified the Constitution when the first President was elected.  Neither state had electors to vote for the President nor did they appoint Senators to the Senate or elect Representatives to the House.  Both states were not part of the Union formed by the Constitution because they had not ratified it.

Demonstrably, the people of each free, independent, and sovereign state ratified the Constitution, not the people acting as one body politic.  On June 6, 1788, James Madison addressed the Virginia Ratification Convention.  Madison said, “Who are parties to it? The people — but not the people as composing one great body; but the people as composing thirteen sovereignties. Were it, as the gentleman asserts, a consolidated government, the assent of a majority of the people would be sufficient for its establishment; and, as a majority have adopted it already, the remaining states would be bound by the act of the majority, even if they unanimously reprobated it”.  [Emphasis added.]

Madison wrote in Federalist #39, “Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act.  In this relation, then, the new Constitution will, if established, be a federal, and not a national constitution.”

Madison wrote, in the Report of 1800 to the Virginia General Assembly, “That this Assembly doth explicitly and peremptorily declare that it views the powers of the Federal Government as resulting from the compact to which the states are parties, as limited by the plain sense and intention of the instrument constituting that compact; as no farther valid than they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto have the right, and are in duty bound, to interpose for arresting the progress of the evil and for maintaining within their respective limits the authorities, rights and liberties appertaining to them.” … “The resolution declares, first, that “it views the powers of the Federal Government as resulting from the compact to which the states are parties,” in other words, that the federal powers are derived from the Constitution, and that the Constitution is a compact to which the states are parties.”  Madison went on to say, “It is indeed true that the term “States” is sometimes used in a vague sense, and sometimes in different senses, according to the subject to which it is applied. Thus it sometimes means the separate sections of territory occupied by the political societies within each; sometimes the particular governments established by those societies; sometimes those societies as organized into those particular governments; and lastly, it means the people composing those political societies in their highest sovereign capacity.”  [Emphasis added.]

The basis for nullification is founded in the people of each State through each state convention ratifying the Constitution.  The compact is a fact, not a theory.  Therefore, the creation of the people of the States was the federal government.  The Constitution established the structure of the government; a legislative branch to make law, an executive branch to execute law, and a judiciary to adjudicate the law.  Each branch is limited to specific enumerated delegated powers. Further restrictions were placed upon the federal government when the Bill of Rights was ratified.

Levy’s lynchpin in his argument is the Supreme Court.  Levy said, “In assessing constitutionality, our system of governance recognizes one Supreme Court, not 50 individual states.”  This is partially true.  There is only one Supreme Court.  That’s the true part.  The part Levy ignores is the Supreme Court is only supreme over the inferior courts that Congress may establish.  The Supreme Court is not supreme over the other branches nor is it supreme over the states or the states’ courts.

In properly assessing constitutionality one cannot brush aside the fact that each branch is co-equal with every other branch.  One branch cannot dictate how the other two branches can act.  The order in which each branch deals with a law doesn’t change the constitutionality of a law.  More importantly, the judiciary is not supreme over the other branches or over the constitution itself.  The judiciary is beneath the Constitution.

Levy’s asserts “states cannot impede federal enforcement of a federal law merely because the state deems it unconstitutional. That is up to the federal courts.”   This is pure fantasy as it completely ignores the supremacy clause found in Article VI of the Constitution.  The supremacy clause is a rule of construction on interpreting the powers delegated to the federal government in the Constitution.  The supremacy clause does not declare the federal government supreme in all matters.  The supremacy clauses establishes Supremacy of Law; meaning that in areas where the federal government was delegated power to act and a law is passed in pursuance of those powers the federal law is supreme.  In all other cases State law is supreme.

This also raises the question whether Levy grasps the ideal of American federalism.  Under the Constitution, all powers must fall into one of three categories; those exclusive to the federal government, concurrent powers where both the federal and state government can act, and by default everything else falls into those powers reserved to the states or the people.

Since the constitution only delegates powers… all other powers not delegated are reserved and this was re-enforced by the ratification of the tenth amendment. The constitution does not delegate any power to the federal government to modify the constitution through the judiciary. In other words, the judiciary is not and was not empowered to amend, modify, change, alter, or reform the constitution. Whenever the constitution is silent on an issue/power it is reserved to the people or the states. The argument by the Federalist against a Bill of Rights was premised primarily on the fact that whatever was NOT delegated was reserved and off-limits to the federal government; thus there was no need to protect any rights or privileges because they weren’t delegated in the first place.

While Levy doesn’t make this assertion I want to address a common misconception that is germane to this topic.  People say the constitution doesn’t authorize a state to nullify a federal law.  I completely agree.  The constitution doesn’t authorize a state to do anything.  The constitution was not intended to define state powers.  State powers were “numerous and indefinite” as Madison said in Federalist 45.  The constitution doesn’t state that local police powers, sumptuary laws, power over marriage and family affairs,  intestate distribution of property, religion, education, social services, etc. are all state powers.  But, because they are not delegated under the Constitution they fall, by default, into the third category of powers which are reserved to the states or the people.

If as Levy assets the Supreme Court is supreme over the other branches, supreme over the states, and supreme over the constitution itself then Levy must concede that the constitution is a dead letter as what it truly established is a federal government with unlimited powers.  If the judiciary can define what the constitution means and the meaning is left to the discretion of nine lawyers then the Supreme Court has been running a 220+ year continuous constitutional convention.

This also raises some other important questions.  First, the constitution reflects the political will of the people of each of the free, independent, and sovereign states.  Why should one person on the Supreme Court (in a 5-4 ruling) decide a political question for 310 million people?  Secondly, where and how did these nine people on the Supreme Court gain such insight and understanding to truly know the political will of the people?  How can the Supreme Court overrule the political will of the people; the people of each state being the sovereigns?  If the Supreme Court can overrule the political will of the people then our entire form of governance is farcical.  We are truly ruled by an oligarchical regime limited by absolutely nothing.

Furthermore, is it not the least bit ironical that if you were to steal $1,000 worth of goods from Walmart and are on trial, you have to be convicted unanimously by a twelve person jury (in most cases).  But, one person (in a 5-4 ruling) can decide everything and anything that impacts your life, liberty, and property.  Levy cannot seriously believe the founding generation declared their independence from Great Britain, fought a war to gain their independence, just to establish a government of unlimited powers.   This is the essence of Levy’s assertion and it is nonsense on stilts.

As Jefferson said in the Kentucky Resolution of 1798, “[a]nd that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.”  [Emphasis added.]

Consequently, nullification has been used by northern and southern states throughout the history of the Union.  While Virginia and Kentucky first used nullification in 1798, northern states nullified federal laws enacted under the Jefferson administration.  For instance, Rhode Island legislature resolution of 1809 nullifying the Force Act; “ [t]hat the people of this State, as one of the parties to the federal compact, have a right to express their sense of any violation of its provisions.”  Northern states nullified the Fugitive Slave Act of 1850.

I suppose if Levy were alive in the 1850s and living in a northern state he would have fully complied with the Fugitive Slave Act of 1850 because the Supreme Court rendered an opinion that the Act was constitutional.  Let’s take this one step further.  Suppose the Congress passes the following bills, the President signs them into law, and the Supreme Court upholds them.

1)      A law that forces sterilization upon men and women.

2)      A one-child policy law that either forces a woman to get an abortion if pregnant with a second child or if a second child is born alive the child is removed from the home.

3)      A law that forces citizens to buy government securities.

4)      A law that forbids any criticism of the federal government in any form including verbally, in writing, e-mails, etc.

5)      A law that taxes 100% of your income and the government decides what job(s) you may perform.

6)      A law that states the government can detain an individual indefinitely, without cause, and without any due process.  My mistake, that’s already in place through an executive order.

The question is would Levy comply with these laws?  And, if Levy concedes these are “valid” laws then how does this square with a federal government with enumerated powers?

Levy’s argument is really one for a government with unlimited powers.  Naturally, this implies the constitution is a dead letter and we truly are at the mercy of the benevolence of our elected officials and nine unelected, unaccountable judges.

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The Right of Self-Determination

The proper question in any political system is who are the sovereigns?  Is the President the Sovereign?  Is Congress the Sovereign?  Is a King the sovereign?  Are the people the Sovereigns?  Why is there so much confusion over the question of whether the Union is a democracy or a republic?  These questions purposely ignore military dictatorships and totalitarian regimes legitimized by state sponsored violence or military power as sovereigns is a foreign concept under those political systems.

The answers to those questions seem to puzzle many commentators.  Though the Union is a constitutional republic, for arguments sake, let us assume the Union was a democracy.  It doesn’t alter the fundamental truth regarding sovereignty.  The people are the sovereigns and the people are the source of all power in our political system.  However, the system is not majority rule, nor it is a system of absolute power where might makes right.  Our entire political system rests on a single fundamental principle — the consent of the governed; the right to self-governance and self-determination.

Self-determination means the right of the people to decide upon their own political status or form of government without outside influence.  Consent of the governed is a phrase based upon the principle of self-determination.  Any political society – government—that prohibits self-determination explicitly rejects popular sovereignty, and whether the form and style of government is a republic or a democracy is, therefore, completely irrelevant and inconsequential.

States were our initial political societies.  The people of each state, through independent acts and without any outside influence, created a State.  The people delegated certain powers to their State.  Thirteen of these states were formally recognized as of July 4, 1776.  In modern contemporaneous definitions states are countries or nations.  The term, State, may have several definitions but for purposes of our governing documents and historical understanding it means “the people composing those political societies in their highest sovereign capacity”.

The people of each free, independent, and sovereign state organized their political society according to a written constitution.  The people of each state decided which powers to delegate and which to retain.  Thus, the principle of self-determination was firmly established in each and every state.

Likewise, both the Articles of Confederation and the Constitution were compacts amongst the States.  Both formed a federative union with the goal of the latter to “form a more perfect union”.  The differences between the two Constitutions are the powers delegated and the structure of the government itself.     Neither was a consolidation of the states into a single unitary national state.

The Constitution was not ratified by the people of all the states as one body politic.  Nor was a majority or super-majority vote of the people stipulated as the process for ratification.  The Constitution was acceded to by the free, independent, and sovereign states (the people of those specific political societies acting in their highest sovereign capacity).  Neither a majority of people as one body politic nor a majority of states could bind another state whether they acceded to or rejected the Constitution.  It was the voluntary act of the people of each State to determine whether to join together in a federative union with the people of other States so disposed to do so.  The Constitution was clearly a federal compact amongst the states that so ratified the document.

In practice, the new government under the Constitution was established and put into effect by only eleven states.  The States of North Carolina and Rhode Island had not ratified the Constitution and were excluded from the operations of the new government under the Constitution.  The other eleven states could not compel those states to accede to the Constitution, nor could the newly formed federal government coerce those states through the use of force.  The process was voluntary not coercive.  It was the sovereigns exercising their right of self-determination.

Demonstrably, the accession to join the Union through ratification was never done by one body politic but by thirteen free, independent, and sovereign bodies politic known as States.  Article VII of the Constitution is clear; the votes of nine states (the people or their delegates) would serve to put the Constitution into effect.   The historical record has no reference to a majority of states obligating other states to join the Union.  That point was proven beyond any doubt when the new government went into operation.  Neither Rhode Island nor North Carolina had any Electoral College votes when it came to electing George Washington as the first president.  Likewise, neither state appointed Senators and neither state held elections for the House of Representatives.  Congressional laws had no authority over these two states.

Established in the Declaration of Independence and embodied in both federal constitutions political power is based upon the consent of the sovereign people; initially through forming political societies known as states, and the people of each State – independent from every other state – forming a federative Union with the people of other States under a written Constitution.  The federal government was the creature created by the act of the States.  The federal government was not a party to the Constitution as it was the result of the Constitution.  Thus, the Union, under the Articles of Confederation or the Constitution was birthed from an act of the States (the people of those specific political societies acting in their highest sovereign capacity).

Remarkably, the historical record is abundantly clear on this issue, yet some believe the Union pre-dated the States, the States are administrative units (like counties to a State) to the federal government, and the Constitution established a consolidated national government.   This assertion is nothing more than what the Tenth Amendment Center calls it; a crackpot post-antebellum theory.   The theory was espoused by those like Supreme Court Justice Joseph Story, Senator Daniel Webster, and President Abraham Lincoln.  Generations of people now view this crackpot theory as historical fact.  In reality, it is a historical lie.

Does it matter if the prevailing orthodoxy is considered the truth?  Indeed it does.

If viewed hierarchically, the people formed the States, than the people of the States formed the Constitution which formed the federal government consisting of three branches which are governed by the rules set forth in the Constitution.  The elected and appointed officials are beneath each of the three branches.

The crackpot post-antebellum theory posits that the federal government created the States and that the federal government is supreme in everything it does.  Implicit in this theory is that the government itself is the sovereign, not the people.  If this were true the entire political society is not based upon self-determination (consent of the governed).  Paradoxically, it turns self-determination on its head and supplants it with absolute rule and power by government as the source of all political power and rights.  This was Lincoln’s belief and his justification for war to preserve the Union.

Ironically, the federal supremacists purposely refer to the union as a nation, and the republic as a democracy, and often refer to the government as one that is by the people, of the people, and for the people.  The federal supremacists even reference the Constitution’s preamble “We the people of the United States” to reinforce the idea of national democracy.  Furthermore, the federal supremacists reference the Supremacy Clause to support the assertion that the federal government is supreme in everything it does.  These are the arguments of tyrants and despots.

First, the original Constitution says “We, the people of the United States,”.  The commas are generally not included any longer in the text of the Constitution.  Secondly, the term United States is used to refer to each of the several states without explicitly naming them.  The first two drafts of the Constitution said “We, the people of Maryland, Virginia, New Jersey, etc.”  The states were enumerated.  However, the Committee on Style modified this to the United States primarily to avoid embarrassment.   The drafters did not know which states would ratify the Constitution and which states would not.  If all thirteen states were enumerated and only nine states were required to put the Constitution into effect what would they have done to eliminate the names of the States that did not ratify the Constitution.  The term “United States” is shorthand for all the several States ratifying and acceding to the Constitution.  Lastly, the term does not refer to any one body politic nor does it mean the consolidation of the States.  If the states were intended to be consolidated the preamble would say “We, the people of a United State,” and the ratification process would have been by all the people as one body politic where the minority could be bound by the majority.

The Supremacy Clause does not establish the federal government as supreme.  In fact, the Supremacy Clause establishes Supremacy of Law.  The federal government is one of few and defined powers.  All powers under the Constitution fall under one of three categories; those exclusive to the federal government (or prohibited to the States), concurrent powers (both federal and state can exercise the power), or everything else.  We know through the historical record the federal government is one of limited powers.  The proponents for ratification (the Federalists) gave explicit guarantees at the state ratifying conventions that the powers delegated are limited to those enumerated.  In fact, in many cases, the Federalists said any law made that was not in pursuance of the Constitution was null and states were not obligated to abide by any law afoul of the Constitution.

A few powers fall into the first category – those exclusive to the federal government or prohibited to the States.  Even less powers fall into the second category of concurrent powers. Typically, taxation and commerce are the two powers referenced in this category.  Finally, the third category encompasses all other powers.  All other powers are too numerous to document or enumerate.  Those powers are reserved to the states or the people.  Supremacy of Law dictates that if a power is a state power then the State power is supreme.  Likewise, if a power is exclusively a federal power then the federal power is supreme.  Only those laws made by Congress that are in pursuance of the Constitution (meaning within the powers in the first two categories) are supreme.

Any law passed by Congress is not in and of itself supreme.  Even a law that is upheld by the Supreme Court doesn’t make the law supreme.  The Supreme Court is not the sole and final arbiter of the Constitution.  If that were true it would make the judicial branch supreme over the other two branches and violate the principle of co-equal branches, and it would place the Supreme Court above the Constitution itself.   Since the Constitution and the three branches are creatures of the states (the people of each state) it is the people of the States in their political sovereign capacity that are above the Constitution not the Supreme Court.  If the Supreme Court were the sole and final arbiter then any law could be, in theory, constitutional including the most absurd laws one could dream up.  The people of the States did not create a federal government to then empower it to judge its own powers.  The people of the States did not agree to unlimited submission to a central power.  The States, as parties to the compact that created the Constitution and the federal government, have the power to judge for themselves whether a law is constitutional or not.

Some people argue the States adjudicating a law as constitutional or not would result in chaos and anarchy.  Undoubtedly, there could be differences amongst the states.  However, under federalism, the character of each state was never intended to be uniform or held to a national standard.  Conversely, to believe in the Supreme Court as the sole and final arbiter places power in the hands of the creation not the creator.  And, under this situation any law upheld by the Supreme Court would be constitutional.

Historically, there have been terrible rulings from the Supreme Court.  The Dred Scott case, the Fugitive Slave Law of 1850, the Legal Tender Cases of the 1860s and 70s, the Wickard Case and the separation of church and state case in the 1940s are examples of cases where the Supreme Court declared something that was unconstitutional, constitutional.  In theory, the most heinous laws could be enacted such as forced sterilizations, a one child per couple law, a tax on 100% of your income, a law declaring a single national religion, a law putting disabled or handicapped children to death, etc. Any law could be constitutional under this system.

The federal supremacists are the ones promulgating the idea we are a democracy and it is a country by the people.  The very same people deny the right of self-determination through coercion and violence.  The very same people then point to the Supreme Court as the politically appointed guardians of the prevailing orthodoxy to subvert the right of self-determination.  The contradiction is astounding.  If the people are the sovereigns why do so many support the federal supremacists who assert one person can decide anything and everything that is lawful.  If the Supreme Court rules 5-4 on any case, no matter how heinous or repulsive, then one person rules over 310 million people.  If the people are sovereigns, how can the will of the people be supplanted by the will of one person?  If government is based upon self-determination (consent of the governed) how can one person’s (a judge) decision be authoritative and binding over the sovereigns?  If mankind is incapable of governing himself then why would anyone believe man is capable of governing other men?

Lastly, as our political societies are based upon self-determination violence cannot be used to force compliance against the will of the people.  Might makes right annihilates consent of the governed.  As the people of the States each acceded to the Constitution, the people of the States can secede from the Constitution.  If you reject this idea then you reject self-determination and your embrace the federal supremacist’s position that might makes right and absolute power is the basis for all political societies.  That means you believe this question is only answered on a battlefield rather than a peaceful resolution based upon the self-determination of the people.  If you believe your view and your opinion is right then you’ll use violence to validate it.  And that very belief and the subsequent use of violence to enforce it is the antithesis of self-determination.

When push comes to shove and the people of one or more states exercise their right of self-determination, will you use violence against them and force them to remain in a political society against their wishes?  Will you ask the government to call out the military to kill your fellow citizen because they simply want to exercise their most basic fundamental right of self-determination?   If so, then you support the totalitarian regimes under Lenin, Stalin, Mao, Pol Pot, and Hitler as their entire political system was diametrically opposed to self-determination.  Those political systems were based upon state sponsored violence and military domination over the people.

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Virginia, Popular Sovereignty, and the Federal Supremacists

This May, one hundred and fifty two years ago, Virginia seceded from the Union.  Historically, April 1861 is considered the official date when Virginia seceded, but that date represents the vote of a special convention on the topic of secession.  By early March 1861 seven states seceded from the Union. Virginia’s special convention was convened in February 1861 and two votes for secession failed.  The second vote failed by a 2/3rd to 1/3rd margin. It wasn’t until the third vote that the Virginia convention voted to secede.  What changed their minds?

The third vote occurred on April 17, 1861 exactly two days after Lincoln’s proclamation calling for 75,000 volunteer troops to invade the south.  It was the threat of federal coercion and invasion by Lincoln that persuaded convention delegates to vote 88-55 in favor of secession.  However, the secession vote was not binding on the people and the issue went to referendum.  On May 23, 1861 the referendum took place and the citizens of Virginia voted overwhelmingly to secede from the Union.

The vote was 125,970 to 20,373.  To deem this a landslide would be an understatement.

Let’s pause here and recall events from 1776 through the late 1780s.  Virginia seceded from Britain in June 1776 before the Declaration of Independence was signed.  Virginia, like every other state, was a free, independent, and sovereign state.  Each of the thirteen colonies seceded from Great Britain.  The Declaration stated, “That these United Colonies are, and of Right ought to be Free and Independent States; that they are absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.”

In other words each state was a country.  Notice Great Britain is referred to as “the State of Great Britain”.  All thirteen states were free and independent States (countries).

The Declaration of Independence also established certain fundamental principles:

  • All men are created equal.
  • They are endowed by their Creator with certain unalienable rights.
  • The purpose of government was to better secure these unalienable rights.
  • Government gets its power from the consent of the governed.  This is the basis for self-governance and self-determination.
  • The people always possess the Right to alter, reform, or abolish government when it no longer serves the purpose for which government was instituted.  This applies to all governments (state and federal).
  • The States are sovereign.  The States are free and independent.  In modern terms, the States are countries.

The second secession occurred when states ratified the Constitution.  The states seceded from The Articles of Confederation and Perpetual Union (one form of government) and created another form of government under the Constitution.  This was a peaceful secession.  The people of each state acted independent from the people of every other state.  A vote by the people of New Jersey had no binding impact on the people in any other state.  We, the people of the United States, simply meant the people of Virginia, and the people of New Jersey, and the people of New York.  There was no single body politic referred to as “the people”.  There was no vote of all the people of all thirteen states.  The method of ratification was not based on a majority vote of people or even a majority vote of delegates across all the States.  The method of ratification was an up or down vote on a state by state basis.

Recall, the Constitution went into effect once the ninth state ratified it.   The states remained free, independent, and sovereign.  Each state remained a country.  The Union created by the States ratifying the Constitution did nothing to change this fact.  The Constitution delegated limited powers to the new government, established the structure of the new government, and reserved all other powers to the States or the people.

Federal supremacists such as Supreme Court Justice Joesph Story, Daniel Webster, and Abraham Lincoln maintain a diametrically opposing view on this issue.  The federal supremacists believe the states were created by a national government and were nothing more than counties or administrative units to the national government.  In other words, states were no longer sovereign, free, or independent.  Instead, the federal supremacists believe the states are subordinate to the national government as mere administrative units or counties.

There is much debate on whether the Constitution created a confederated Union or a consolidated Union.  Federal supremacists believe the latter in all cases.  The answer is the Constitution created a primarily confederated union with some consolidated features.  I believe it is best described as a consolidated union when dealing with external issues such as war, relations with foreign countries, and international commerce; and a confederated union when dealing with internal issues.  James Madison echoes these sentiments in Federalist 51.

Another way to view the issue of confederated versus consolidated Union is in the study of the powers delegated.  All powers fall into one of three categories; those powers exclusive to the federal government (and those prohibited to the States), concurrent powers (where both federal and state governments have powers), and everything else is retained by the States (or the people of each State).  It is beyond any reasonable doubt that the powers delegated to the federal government are limited to those enumerated.  The documentation from the state ratification conventions proves demonstrably this to be true.  In every state where documentation is available the proponents for ratification repeatedly stated that the new government is one of limited and enumerated powers.  It was the proponents of ratification that insisted the Constitution would be strictly constructed.  These assurances regarding the meaning of certain phrases and the new government’s strict adherence to enumerated powers are the authoritative sources for understanding the original meaning of the Constitution.  Lastly, the proponents repeatedly state that what wasn’t delegated was reserved.  In other words, if the Constitution is silent on a power or an issue that means it wasn’t delegated to the new government.

In their ratification documents several states also included statements to the effect, “the state reserves the right to withdraw or rescind any delegated powers if it deems it is best for the people of the State”.  Furthermore, many states insisted on a Bill of Rights as part of their ratification.  Opponents of ratification were concerned that even with the assurances made by the proponents of ratification, that they wanted further restrictions and declaratory clauses secured in a Bill of Rights.   So, the Bill of Rights was passed as restrictions on the federal government or declaratory clauses regarding rights not enumerated and powers not delegated are reserved.

Fast forward to modern times and too many people believe the federal government is supreme in anything it does.  People also believe we are a nation instead of a union, and a democracy instead of a constitutional republic.  What’s more astounding is the contradiction between those that believe we are a democracy and the idea that nine people in black dresses can override the popular sovereignty of the people.  If the people are the sovereigns and the government is our agent then it is the people that sit above the Constitution.  If you believe we are a Democracy – where the majority of the people rule – it contradicts the very premise that one person in a black robe can rule over everyone else (in a 5-4 decision it is the opinion of one person).  How could one judge know better than the majority of people?  How can one judge’s opinion outweigh the will of the people for whom that judge serves?  The three branches are subservient to the Constitution including all the judges.  This means the judges serve the people.  Whenever the people acquiesce to allow nine judges to decide everything on their behalf and blindly believe it is binding upon them, the people wittingly (or not) surrender their popular sovereignty – their ability for self-governance and self-determination — to nine other human beings with deleterious and calamitous consequences.

This mindset is the antithesis of federalism and republicanism.  This mindset transforms the people from citizens with all the political power to subjects begging the very government they instituted for their life, liberty, and property.  It would be hysterical if it weren’t so perilous.

Now, let’s return to Virginia seceding from the Union in 1861.  The question of secession remains unsettled to this day.  There have been three secessions in our history.  Though I don’t believe secession is a legal question, for those that do the legal question has never been adjudicated.  There were no trials, court hearings, or rulings by the courts on the question of secession.  The federal supremacists believe the Constitution empowered them to preserve the Union though this power was never delegated in the Constitution.  Moreover, the federal supremacists do not believe in the founding principles established by the Declaration of Independence.  In fact, since the federal supremacists do not believe the people have the power or right to secede, why aren’t they fighting for reunification with Great Britain?  For those that don’t believe in secession, why do you celebrate Independence Day every Fourth of July?  You are celebrating secession.

The southern states did precisely what the colonies did… they seceded.  They seceded based on the will of the people in the State, not as one large body politic (across the entire Union).  What Virginians did in 1861 is precisely the same thing they did in June 1776.  The first time they seceded from Great Britain.  The second time they seceded from the Constitution and the government formed by it.  The result of the Virginia referendum of 1861 was an overwhelming statement that the people are exercising their right of self-governance and self-determination.  The people were exercising their right to alter or abolish their government.  This right is a political right that the people reserve (to alter or abolish their government).  This is not a legal question, for if it were, then one person would be empowered with all the political rights of the people of a state.  That power was never delegated nor was the Constitution established to elevate one person to such a prominent role over the will of the people.

Today, too many people believe the government can compel, through violence and force, people to remain within a political society against their will.  How is this any different from slavery where people are forced to work for others against their will?  How can the people who retain the Right to alter or abolish their government expect to exercise that right if government refuses to recognize the popular sovereignty of the people and use violence against them to force compliance?   That’s not freedom.  That’s not liberty.  Freedom and liberty loving people would never subject the people of a State to remain in a Union against their wishes.  On the other hand, federal supremacists reject the idea of self-governance, freedom, and liberty and will use all force necessary against the will of the people.

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Do we have Constitutional Rights?

The idea that we have constitutional rights relies upon faulty logic and makes a mockery of unalienable rights and other rights antecedent to the Constitution.   It is common to hear someone utter the term “constitutional rights”.  The term is nothing more than a colloquialism just as states’ rights is a colloquialism for states’ powers.

The formative thoughts and ideas to develop a written Constitution are encompassed in the Declaration of Independence.  The reason for government is to better secure our unalienable rights.  People exercise their unalienable right of association to form political societies.  The transition from a state of nature to a civil society creates what we know as government.  This transition requires that people give up some rights to better secure the remainder that they retain.  Typically, the rights relinquished relate to interpersonal adjudication.

The founders were studious guardians of their unalienable rights as well as their rights as Englishmen.  Over the period of several centuries Englishmen had secured certain rights under the Anglo-Saxon legal system known as common law and they had an unwritten constitution.  It is important to note that Britain did not have a written constitution but used a common law system that was supplemented by equity law over time.  Rights to due process, rights to property, rights to bear arms, rights to a trial by jury in the vicinage of the crime are a few examples of the rights of Englishmen.

As a point of distinction, common law is essentially judge-made law.  The two functions performed by a judge under a common law system are; 1) judge the facts of the case and 2) to make the law.  Common law relies upon the principle or doctrine of stare decisis – which is that a decision in one case will be followed in the next case.  In other words it is based upon precedence and precedence must be adhered to.  All thirteen colonies adopted common law as the basis of their legal system when they declared independence from Britain.  Today, every state except Louisiana has common law (as well as equity law).

The Constitution is based upon a civil law system which means that laws are written and codified.  There wasn’t a concept or idea that there was one federal or national common law system.  Those involved in writing, debating, and ratifying the Constitution understood this distinction.  Moreover, in structuring the federal government and distributing the power amongst the three branches the power to make law was placed with the legislative branch, whereas the power to judge was placed in the judiciary.  In Federalist 47 Madison said “Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator.”  The main point to take away from this – there is no such thing as common law in the federal government.

In examining the Constitution there is not a single so-called constitutional right granted to the people.  I challenge anyone to point out where the Constitution has created a right and granted that right to the people.  If the Constitution did create and grant a right, it is fair to assume that a textual analysis of the Constitution and the Bill of Rights would lead to the discovery of words, clauses, sentences, or paragraphs that, indeed, do grant some sort of right.  However, in my textual analysis of the Constitution I fail to find a single right “created and granted” by the Constitution.

Article 1 defines the Legislative branch, the powers delegated to it, prohibitions against certain laws, and prohibitions placed on the States.  Nowhere within Article 1 is any right granted to the people.

In Article 1, Section 9, Clause 2 says the privilege of the writ of habeas corpus shall not be suspended.  Did the Constitution grant the privilege of habeas corpus?  No.  Habeas corpus was established long before the Constitution and was a privilege that was recognized through common law.  The framers and the ratifiers of the Constitution thought it was such an important privilege that it was called out within the Constitution itself to ensure the federal government could not infringe upon it.  By no means did the Constitution create or grant the privilege of habeas corpus.  To the contrary, they prohibited suspending it except under the provisions stipulated in the Constitution itself.

Article 2 defines the powers of the Executive branch.  No rights are granted in this Article.

Article 3 defines the powers of the Judicial branch.  No rights are granted in this Article.

Article 4 generally deals with issues regarding federalism.  Section 2, clause 1 is the privileges and immunities clause (a.k.a. the Comity Clause).  This clause is only saying that if a citizen of one state is in another state that the state they are in must grant them the same privileges and immunities that their own citizens receive.  For instance, if a citizen from Virginia goes to Maryland, while in Maryland the Virginia citizen must be extended the same privileges and immunities as a Maryland citizen.  This is not a grant of rights for there is no such thing as a “federal” set of privileges and immunities.  Instead, privileges and immunities are a state power and varied from state to state.

Article 5 defines the process to amend the Constitution.  No rights are granted in this Article.

Article 6 deals with the debt under the Articles of Confederation, includes the Supremacy clause, and oaths of office.  No rights are granted in this Article.

Article 7 defines how the Constitution would be ratified.  No rights are granted in this Article.

The Bill of Rights are declaratory laws (statements) and restrictions placed upon the federal government.  Certain unalienable rights and other rights of Englishmen were further protected by the Bill of Rights.  The rights of the people are stated through these declaratory laws as they do not give to the people something they did not have before, rather they assert and assure the rights they already possess.

The preamble to the Bill of Rights says, “THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution.”

1st Amendment – Protects certain unalienable rights and restricts Congress from establish a religion or prohibiting anyone from exercising their religious beliefs, from abridging freedom of speech or assembly, and protecting the right to petition for a redress of grievances.  None of these can be construed as rights being granted.  Demonstrably, these are rights being protected from government interference.

2nd Amendment – Protects a person’s unalienable right to self-defense and to bear arms.  It is a complete prohibition on the federal government from “infringing” upon those rights.   The right to self-defense is unalienable and to bear arms is an extension of that.  That is not a right granted by government, rather it restricts government.

3rd Amendment – Prohibits the government from quartering troops in a person’s home.  No right is granted in this amendment.

4th Amendment – Protects certain rights of Englishmen that were secured over several centuries through common law, Magna Carta, or the English Bill of Rights.  These were not “new” under the Constitution as Englishmen already had these things.   No rights are granted in this amendment.

5th Amendment – Protects certain rights of Englishmen that were secured over several centuries through common law, Magna Carta, or the English Bill of Rights.  These were not “new” under the Constitution as Englishmen already had these things.   No rights are granted in this amendment.

6th Amendment – Protects certain rights of Englishmen that were secured over several centuries through common law, Magna Carta, or the English Bill of Rights.  These were not “new” under the Constitution as Englishmen already had these things.   No rights are granted in this amendment.

7th Amendment – Protects certain rights of Englishmen that were secured over several centuries through common law, Magna Carta, or the English Bill of Rights.  These were not “new” under the Constitution as Englishmen already had these things.   No rights are granted in this amendment.

8th Amendment – Prohibits the government from imposing certain “cruel or unusual” punishments on citizens.  No rights are granted in this amendment.

9th and 10th amendments – Both are amendments of construction.  In other words, both are meant to guide and instruct a person on how to read and understand the Constitution in regards to both powers delegated and reserved, and rights (enumerated or not) reserved.

Future amendments to the constitution do not grant rights either.  For instance, nowhere in the Constitution is there a political right to suffrage.  Suffrage is a power reserved to the States.  Amendments 15, 19, and 26 do not grant a right to vote for blacks, women, or those over the age of 18.  Those amendments prohibit discrimination on account of race, gender, or age, respectively.  States retain the power to define the qualifications for voters.  Today, a state could enact a law that says only those citizens of the State that own real property and have a net worth greater than $1 million can vote.  Assuming that law doesn’t violate the State’s Constitution only those people meeting that criterion can vote.  Since the law does not discriminate based on race, gender, or age the law is valid.

In conclusion, the Constitution doesn’t grant rights.  The very idea is a fallacy and a dangerous assertion.  If the Constitution granted rights to people it implies that either the people of the States or the government is granting those rights.  The people aren’t granting themselves rights as they already possessed those rights and declared them so through the Bill of Rights.  Likewise, if the government grants rights to men then government can abridge, deny, infringe or revoke those rights.  To believe or concede that government grants rights means government decides what rights you have and do not have, which rights you can and cannot exercise and under what circumstances, and that government can rescind or revoke those rights at any time.  At best it is wrong-headed and makes a mockery of unalienable rights and the long history of the rights of Englishmen.  At worst it endangers the very lives, liberty, and property of all members of society to concede government has this power of the people.

The Constitution protects rights  that already existed before the document was even drafted.  The right to trial by jury, the right to due process, the right to bear arms, the right of conscience to worship as one desires (or not), etc.   People should refrain from using the term constitutional rights and supplant it with the term rights protected (or secured) by the Constitution.

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Do we Need a Bill of Rights?

The Bill of Rights is often misconstrued by many people claiming to understand rights and the Constitution.  On numerous occasions I’ve discussed and debated the BOR with people that believe either the Bill of Rights was intended to apply to the States or that the 14th amendment was originally intended to incorporate the Bill of Rights on the States.  Both views are demonstrably wrong.  Unfortunately, nearly everyone that argues one or both of those points basis their argument on Supreme Court rulings.  Rulings that were made decades or even centuries after the Bill of Rights or the 14th amendment were ratified.

More importantly, do we even need a Bill of Rights and why is there a Bill of Rights?  According to advocates in favor of ratification the answer was emphatically, NO!  That is correct.  The proponents did not feel it was necessary to include a Bill of Rights and this article explains why that was the case and why there is a Bill of Rights.  I agree with the Federalists on this issue with one caveat.  That caveat is, if the Constitution was constructed precisely how the Federalists represented it to the state ratification conventions then there would be no need for a Bill of Rights as future generations would follow the identical understanding and know the federal government is very limited in its powers.

The Constitution was drafted by delegates at the Philadelphia convention in 1787.  They produced a document that was merely a proposal.  The document had no force and no authority in the United States. 

How was the Constitution ratified?  It was ratified by State ratifying conventions.  Delegates were selected by the people to represent them at these conventions.  Each state considered and assessed the Constitution independent of all other States.  One state could not bind another state or the people of another state to their decision.  The debate over We, the people of the United States, rages on because of the word people in the preamble.  The term “the people of the United States” means the people of the state of Virginia, the people of the state of New York, the people of the state of Maryland, etc.  In other words, there wasn’t a national vote that transcended state boundaries nor was there a majority vote of the people of the thirteen states.  It was an act of the people of each free, independent, and sovereign state to decide on assenting to the Constitution. 

This point is essential to any original understanding of the Constitution.  Since the people of each state independently assented to and ratified the Constitution, they are the bodies that put the instrument into effect.  To properly understand what the Constitution meant, we must look to the understanding of those that ratified the document.  Those are the delegates at the State ratifying conventions.  At those conventions there were proponents and opponents to ratification.  The former called The Federalists and the latter called The Anti-Federalists.  In a very general sense, The Anti-Federalists believed certain Articles, Sections, or Clauses of the Constitution were deficient because:

 

1)      The delegation of powers could be construed to be vast and beyond the enumeration.

2)      The new Constitution would consolidate the States into one national government rather than confederate the States into a federal government.  In other words the Constitution would annihilate the State governments and State constitutions.

3)      That essential rights and liberties of freemen were not protected under the Constitution by a Bill or Declaration of Rights.

The focus of our examination will be on the third item; the essential rights and liberties of freeman were not protected under the Constitution by a Bill or Declaration of Rights. To do so also brings into explanations regarding the first two items.  In totality, these three items provide an original understanding of the powers of the general government as opposed to those powers retained by the States or the people.

Massachusetts, Virginia, New York, North Carolina, New Hampshire, South Carolina, and Rhode Island all submitted amendments to the Constitution as part of their ratification document.  Maryland proposed amendments but they were not submitted as part of their ratification.  The other states, all early ratifiers of the Constitution, did not submit amendments. 

Of this list the largest and more important states were Massachusetts, Virginia, and New York.  These three states represented 40% of the population.  If Pennsylvania were included, those four states represented 54% of the population.  The focus of the arguments will come from those states that insisted upon a Bill of Rights, as well as writings from the Federalist Papers and additional commentary from the 1st Congress that proposed and debated amendments to the Constitution. 

Proponents for ratification of the Constitution insisted a Bill of Rights was unnecessary.  Some commented that the inclusion of a Bill of Rights was actually dangerous.  On what grounds did they make these assertions?  The prevailing arguments set forth by the Federalists were:

1)      The powers delegated by the Constitution to the federal government were expressly defined.  What was not given was retained; therefore the federal government cannot abridge or deny your unalienable rights such as your right to speech, to associate, to contract, to self-defense, to conscience, etc.  Likewise, certain civil rights such as trial by jury in the vicinage of the crime, due process, etc. could not be denied or infringed.

2)      The rights retained by the people are so expansive that an attempt to enumerate rights that are protected implies those not listed are implied to be given to government. 

Below are numerous excerpts made at State Ratification Conventions:

North Carolina Ratification Convention:

Mr. Maclaine:  The gentleman has wandered out of his way to tell us — what has so often been said out of doors — that there is no declaration of rights; that consequently all our rights are taken away. It would be very extraordinary to have a bill of rights, because the powers of Congress are expressly defined; and the very definition of them is as valid and efficacious a check as a bill of rights could be, without the dangerous implication of a bill of rights. The powers of Congress are limited and enumerated. We say we have given them those powers, but we do not say we have given them more. We retain all those rights which we have not given away to the general government… ? If they can assume powers not enumerated, there was no occasion for enumerating any powers. The gentleman is learned. Without recurring to his learning, he may only appeal to his common sense; it will inform him that, if we had all power before, and give away but a part, we still retain the rest.

Governor Johnston:  But the gentleman says that a bill of rights was necessary. It appears to me, sir, that it would have been the highest absurdity to undertake to define what rights the people of the United States were entitled to; for that would be as much as to say they were entitled to nothing else. A bill of rights may be necessary in a monarchical government, whose powers are undefined. Were we in the situation of a monarchical country? No, sir. Every right could not be enumerated, and the omitted rights would be sacrificed, if security arose from an enumeration. The Congress cannot assume any other powers than those expressly given them, without a palpable violation of the Constitution… The rights of the people, in my opinion, cannot be affected by the federal courts. I do not know how inferior courts will be regulated.

Mr. Iredell:  Of what use, therefore, can a bill of rights be in this Constitution, where the people expressly declare how much power they do give, and consequently retain all they do not? It is a declaration of particular powers by the people to their representatives, for particular purposes… A bill of rights, as I conceive, would not only be incongruous, but dangerous. No man, let his ingenuity be what it will, could enumerate all the individual rights not relinquished by this Constitution. Suppose, therefore, an enumeration of a great many, but an omission of some, and that, long after all traces of our present disputes were at an end, any of the omitted rights should be invaded, and the invasion be complained of; what would be the plausible answer of the government to such a complaint? Would they not naturally say, “We live at a great distance from the time when this Constitution was established. We can judge of it much better by the ideas of it entertained at the time, than by any ideas of our own. The bill of rights, passed at that time, showed that the people did not think every power retained which was not given, else this bill of rights was not only useless, but absurd. But we are not at liberty to charge an absurdity upon our ancestors, who have given such strong proofs of their good sense, as well as their attachment to liberty. So long as the rights enumerated in the bill of rights remain unviolated, you have no reason to complain. This is not one of them.” Thus a bill of rights might operate as a snare rather than a protection. If we had formed a general legislature, with undefined powers, a bill of rights would not only have been proper, but necessary; and it would have then operated as an exception to the legislative authority in such particulars. It has this effect in respect to some of the American constitutions, where the powers of legislation are general. But where they are powers of a particular nature, and expressly defined, as in the case of the Constitution before us, I think, for the reasons I have given, a bill of rights is not only unnecessary, but would be absurd and dangerous.

Mr. Maclaine:  The gentleman surely must know that, if there be certain rights which never can, nor ought to, be given up, these rights cannot be said to be given away, merely because we have omitted to say that we have not given them up. Can any security arise from declaring that we have a right to what belongs to us? Where is the necessity of such a declaration? If we have this inherent, this unalienable, this indefeasible title to those rights, if they are not given up, are they not retained? If Congress should make a law beyond the powers and the spirit of the Constitution, should we not say to Congress, “You have no authority to make this law. There are limits beyond which you cannot go. You cannot exceed the power prescribed by the Constitution. You are amenable to us for your conduct. This act is unconstitutional. We will disregard it, and punish you for the attempt… Shall we give up any hing hut what is positively granted by that instrument? It would be the greatest absurdity for any man to pretend that, when a legislature is formed for a particular purpose, it can have any authority but what is so expressly given to it, any more than a man acting under a power of attorney could depart from the authority it conveyed to him, according to an instance which I stated when speaking on the subject before.  As for example: — if I had three tracts of land, one in Orange, another in Caswell, and another in Chatham, and I gave a power of attorney to a man to sell the two tracts in Orange and Caswell, and he should attempt to sell my land in Chatham, would any man of common sense suppose he had authority to do so? In like manner, I say, the future Congress can have no right to exercise any power but what is contained in that paper. Negative words, in my opinion, could make the matter no plainer than it was before. The gentleman says that unalienable rights ought not to be given up. Those rights which are unalienable {167} are not alienated. They still remain with the great body of the people. If any right be given up that ought not to be, let it be shown. Say it is a thing which affects your country, and that it ought not to be surrendered: this would be reasonable. But when it is evident that the exercise of any power not given up would be a usurpation, it would be not only useless, but dangerous, to enumerate a number of rights which are not intended to be given up; because it would be implying, in the strongest manner, that every right not included in the exception might be impaired by the government without usurpation; and it would be impossible to enumerate every one. Let any one make what collection or enumeration of rights he pleases, I will immediately mention twenty or thirty more rights not contained in it. In my opinion, there is no man, of any reason at all, but must be satisfied with so clear and plain a definition. If the Congress should claim any power not given them, it would be as bare a usurpation as making a king in America. If this Constitution be adopted, it must be presumed the instrument will be in the hands of every man in America, to see whether authority be usurped; and any person by inspecting it may see if the power claimed be enumerated. If it be not, he will know it to be a usurpation.

Governor Johnston:  When Congress makes a law in virtue of their constitutional authority, it will be an actual law. I do not know a more expressive or a better way of representing the idea by words. Every law consistent with the Constitution will have been made in pursuance of the powers granted by it. Every usurpation or law repugnant to it cannot have been made in pursuance of its powers. The latter will be nugatory and void. I am at a loss to know what he means by saying the laws of the Union will be unalterable.

South Carolina Ratification Convention

Gen. CHARLES COTESWORTH PINCKNEY:   With regard to the liberty of the press, the discussion of that matter was not forgotten by the members of the Convention. It was fully debated, and the impropriety of saying anything about it in the Constitution clearly evinced. The general government has no powers but what are expressly granted to it; it therefore has no power to take away the liberty of the press. That invaluable blessing, which deserves all the encomiums the gentleman has justly bestowed upon its is secured by all our state constitutions; and to have mentioned it in our general Constitution would perhaps furnish an argument, hereafter, that the general government had a right to exercise powers not expressly delegated to it. For the same reason, we had no bill of rights inserted in our Constitution; for, as we might perhaps have omitted the enumeration of some of our rights, it might hereafter be said we had delegated to the general government a power to take away such of our rights as we had not enumerated: but by delegating express powers, we certainly reserve to ourselves every power and right not mentioned in the Constitution.

Charles Pinckney:  No powers could be executed or assumed [by the federal government], but such as were expressly delegated.

Charles Pinckney address to the South Carolina House of Representatives defending the proposed Constitution said, “The distinction which has often been taken between the nature of a federal and state government appeared to be conclusive:  that in the former no powers could be executed or assumed, but such as were expressly delegated; that in the latter, the indefinite power was given to the government, except upon points that were, by express compact, reserved to the people.”  In Massachusetts, newspapers published Pinckney’s “Observations on the new federal Constitution” where he said “The powers vested in the federal government are particularly defined, so that each state still retains its sovereignty in what concerns its own internal government, and a right to exercise every power of a sovereign state not expressly delegated to the government of the United States.”

Virginia Ratifying Convention

James Madison:  In some respects it is a government of a federal nature; in others, it is of a consolidated nature. Even if we attend to the manner in which the Constitution is investigated, ratified, and made the act of the people of America, I can say, notwithstanding what the honorable gentleman has alleged, that this government is not completely consolidated, nor is it entirely federal. Who are parties to it? The people — but not the people as composing one great body; but the people as composing thirteen sovereignties. Were it, as the gentleman asserts, a consolidated government, the assent of a majority of the people would be sufficient for its establishment; and, as a majority have adopted it already, the remaining states would be bound by the act of the majority, even if they unanimously reprobated it. Were it such a government as is suggested, it would be now binding on the people of this state, without having had the privilege of deliberating upon it.

If Virginia was separated from all the states, her power and authority would extend to all cases: in like manner, were all powers vested in the general government, it would be a consolidated government; but the powers of the federal government are enumerated; it can only operate in certain cases; it has legislative powers on defined and limited objects, beyond which it cannot extend its jurisdiction.

Mr. Lee of Westmoreland:  I say that this new system shows, in stronger terms than words could declare, that the liberties of the people are secure. It goes on the principle that all power is in the people, and that rulers have no powers but what are enumerated in that paper. When a question arises with respect to the legality of any power, exercised or assumed by Congress, it is plain on the side of the governed: Is it enumerated in the Constitution? If it be, it is legal and just. It is otherwise arbitrary and unconstitutional. Candor must confess that it is infinitely more attentive to the liberties of the people than any state government… [b]ut that, in the federal government, the rulers of the people were vested with certain defined powers, and that what were not delegated to those rulers were retained by the people. The consequence of this, he said, was, that the limited powers were only an exception to those which rested in the people, and that they knew what they had given up, and could be in no danger. He exemplified the proposition in a familiar manner. He observed, that, if a man delegated certain powers to an agent, it would be an insult upon common sense to suppose that the agent could legally transact any business for his principal which was not contained in the commission whereby the powers were delegated; but that, if a man empowered his representative or agent to transact all his business except certain enumerated parts, the clear result was, that the agent could lawfully transact every possible part of his principal’s business except the enumerated parts; and added, that these plain propositions were sufficient to demonstrate the inutility and folly (were he permitted to use the expression) of bills of rights.

Mr. George Nichols:  But it is objected to for want of a bill of rights. It is a principle universally agreed upon, that all powers not given are retained. Where, by the Constitution, the general government has general powers for any purpose, its powers are absolute. Where it has powers with some exceptions, they are absolute only as to those exceptions. In either case, the people retain what is not conferred on the general government, as it is by their positive grant that it has any of its powers… In disputes between Congress and the people, the reverse of the proposition holds. Is the disputed right enumerated? If not, Congress cannot meddle with it… Which is the most safe? The people of America know what they have relinquished for certain purposes. They also know that they retain every thing else, and have a right to resume what they have given up, if it be perverted from its intended object.

It is agreed upon by all that the people have all power. If they part with any of it, is it necessary to declare that they retain the rest? Liken it to any similar case. If I have one thousand acres of land, and I grant five hundred acres of it, must I declare that I retain the other five hundred? Do I grant the whole thousand acres, when I grant five hundred, unless I declare that the five hundred I do not give belong to me still? It is so in this case. After granting some powers, the rest must remain with the people.

But the gentleman says that, by this Constitution, they have power to make laws to define crimes and prescribe punishments; and that, consequently, we are not free from torture. Treason against the United States is defined in the Constitution, and the forfeiture limited to the life of the person attainted. Congress have power to define and punish piracies and felonies committed on the high seas, and offences against the laws of nations; but they cannot define or prescribe the punishment of any other crime whatever, without violating the Constitution.

James Madison:  [w]as surprised that any gentleman should return to the clauses which had already been discussed. He begged the gentleman to read the clauses which gave the power of exclusive legislation, and he might see that nothing could be done without the consent of the states. With respect to the supposed operation of what was denominated the sweeping clause, the gentleman, he said, was mistaken; for it only extended to the enumerated powers. Should Congress attempt to extend it to any power not enumerated, it would not be warranted by the clause. As to the restriction in the clause under consideration, it was a restraint on the exercise of a power expressly delegated to Congress; namely, that of regulating commerce with foreign nations.

Governor Randolph:  Let me say that, in my opinion, the adversaries of the Constitution wander equally from the true meaning. If it would not fatigue the house too far, I would go back to the question of reserved rights. The gentleman supposes that complete and unlimited legislation is vested in the Congress of the United States. This supposition is founded on false reasoning. What is the present situation of this state? She has possession of all rights of sovereignty, except those given to the Confederation. She must delegate powers to the confederate government. It is necessary for her public happiness. Her weakness compels her to confederate with the twelve other governments. She trusts certain powers to the general government, in order to support, protect, and defend the Union. Now, is there not a demonstrable difference between the principle of the state government and of the general government? There is not a word said, in the state government, of the powers given to it, because they are general. But in the general Constitution, its powers are enumerated. Is it not, then, fairly deducible, that it has no power but what is expressly given it? — for if its powers were to be general, an enumeration would be needless.

But the insertion of the negative restrictions has given cause of triumph, it seems, to gentlemen. They suppose that it demonstrates that Congress are to have powers by implication. I will meet them on that ground. I persuade myself that every exception here mentioned is an exception, not from general powers, but from the particular powers therein vested. To what power in the general government is the exception made respecting the importation of negroes? Not from a general power, but from a particular power expressly enumerated. This is an exception from the power given them of regulating commerce. He asks, Where is the power to which the prohibition of suspending the habeas corpus is an exception? I contend that, by virtue of the power given to Congress to regulate courts, they could suspend the writ of habeas corpus. This is therefore an exception to that power.

But the rhetoric of the gentleman has highly colored the dangers of giving the general government an indefinite power of providing for the general welfare. I contend that no such power is given. They 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.” Is this an independent, separate, substantive power, to provide for the general welfare of the United States? No, sir. They can lay and collect taxes, &c. For what? To pay the debts and provide for the general welfare. Were not this the case, the following part of the clause would be absurd. It would have been treason against common language. Take it altogether, and let me ask if the plain interpretation be not this — a power to lay and collect taxes, &c., in order to provide for the general welfare and pay debts.

The honorable gentleman has praised the bill of rights of Virginia, and called it his guardian angel, and vilified this Constitution for not having it. Give me leave to make a distinction between the representatives of the people of a particular country, who are appointed as the ordinary legislature, having no limitation to their powers, and another body arising from a compact, and with certain delineated powers. Were a bill of rights necessary in the former, it would not be in the latter; for the best security that can be in the latter is the express enumeration of its powers.

Virginia went on to propose amendments to the Constitution that encompassed representations made by The Federalists that the general government is limited to powers expressly delegated.  The 1st amendment read  “1st. That each state in the Union shall respectively retain every power, jurisdiction, and right, which is not by this Constitution delegated to the Congress of the United States, or to the departments of the federal government.”

Connecticut

Roger Sherman – Member of the Philadelphia Convention in a letter published December 25, 1788 in the New Haven Gazette written under the title “A Citizen of New Haven II”.  Sherman said, “The powers vested in the federal government are clearly defined, so that each state still retain its sovereignty in what concerns its own internal government, and a right to exercise every power of a sovereign state not particularly delegated to the government of the United States.”

The Federalist Papers

Federalist 39 – But it was not sufficient,” say the adversaries of the proposed Constitution, “for the convention to adhere to the republican form. They ought, with equal care, to have preserved the FEDERAL form, which regards the Union as a CONFEDERACY of sovereign states; instead of which, they have framed a NATIONAL government, which regards the Union as a CONSOLIDATION of the States.” And it is asked by what authority this bold and radical innovation was undertaken? The handle which has been made of this objection requires that it should be examined with some precision.

On examining the first relation, it appears, on one hand, that the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but, on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State, the authority of the people themselves. The act, therefore, establishing the Constitution, will not be a NATIONAL, but a FEDERAL act.

That it will be a federal and not a national act, as these terms are understood by the objectors; the act of the people, as forming so many independent States, not as forming one aggregate nation, is obvious from this single consideration, that it is to result neither from the decision of a MAJORITY of the people of the Union, nor from that of a MAJORITY of the States. It must result from the UNANIMOUS assent of the several States that are parties to it, differing no otherwise from their ordinary assent than in its being expressed, not by the legislative authority, but by that of the people themselves. Were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the United States would bind the minority, in the same manner as the majority in each State must bind the minority; and the will of the majority must be determined either by a comparison of the individual votes, or by considering the will of the majority of the States as evidence of the will of a majority of the people of the United States. Neither of these rules have been adopted. Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a FEDERAL, and not a NATIONAL constitution.

Federalist 41 – Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the power “to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,” amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.

Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms “to raise money for the general welfare.

For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars.

Federalist 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.

The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States.

June 8, 1789 – Madison proposes amendments to the Constitution

But whatever may be form which the several states have adopted in making declarations in favor of particular rights, the great object in view is to limit and qualify the powers of government, by excepting out of the grant of power those cases in which the government ought not to act, or to act only in a particular mode.

It has been said that in the federal government they are unnecessary, because the powers are enumerated, and it follows that all that are not granted by the constitution are retained: that the constitution is a bill of powers, the great residuum being the rights of the people; and therefore a bill of rights cannot be so necessary as if the residuum was thrown into the hands of the government. I admit that these arguments are not entirely without foundation; but they are not conclusive to the extent which has been supposed.

It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the 4th resolution.

I wish also, in revising the constitution, we may throw into that section, which interdicts the abuse of certain powers in the state legislatures, some other provisions of equal if not greater importance than those already made. The words, “No state shall pass any bill of attainder, ex post facto law, &c.” were wise and proper restrictions in the constitution. I think there is more danger of those powers being abused by the state governments than by the government of the United States. The same may be said of other powers which they possess, if not controlled by the general principle, that laws are unconstitutional which infringe the rights of the community. I should therefore wish to extend this interdiction, and add, as I have stated in the 5th resolution, that no state shall violate the equal right of conscience, freedom of the press, or trial by jury in criminal cases; because it is proper that every government should be disarmed of powers which trench upon those particular rights.

Conclusions

The Federalists made numerous representations emphatically declaring that the powers delegated to the general government were limited and enumerated at the State Ratifying Conventions, in writings in the New York Papers that eventually became known as The Federalist Papers, during the debates in Congress when amendments were proposed and debated, and even after the Bill of Rights were adopted.  Those Federalists that opposed a Bill of Rights argued that because the powers were enumerated that no others could be assumed without resulting in a usurpation of power.   According to The Federalists the maxim “what was not given was retained” governed construction of the Constitution.  It was The Federalists that insisted the Constitution would be constructed strictly and in accordance with the understandings provided at the State Ratifying Conventions. 

Likewise, the Bill of Rights was seen as a dangerous and unnecessary proposition.  The Federalists argued that because the powers delegated were limited and enumerated, and the Constitution would be constructed strictly according to the understandings they provided, any attempt to enumerate a vast number of rights retained by the people would be dangerous.  The danger perceived by The Federalists was those rights not explicitly protected under a Bill of Rights would be assumed to be given up to the general government.  The challenge facing Madison and others in Congress when proposing amendments was to further restrict the powers delegated or to protect the rights.  The Bill of Rights is a blended solution where powers over certain rights and objects were further restricted and rights were enumerated to ensure their protection.

Demonstrably, the amendments that became known as the Bill of Rights applied to the federal government.  The style of the document and the amendments is consistent.  When prohibitions were made against the states such as those in Article I Section X, those prohibitions say “No state shall”.  In cases where Madison proposed amendments to Congress he also proposed some that restricted states and in all cases the style was “No state shall”.  In future amendments the same style, or one nearly identical, to “No state shall” was used. 

Finally, the two most important amendments in the Bill of Rights are arguably the only two that are necessary.  They are the ninth and tenth amendments.  Both are amendments of construction and go hand in glove with each other.  The ninth amendment is meant to protect the vast number of rights not otherwise enumerated in the Bill of Rights.  Future generations would not be able to use sophistry or construction to abridge or deny other rights not enumerated.  The amendment addressed the concerns of those that feared any rights not included in the enumeration would be given.   This amendment protects those rights and acts as a further restriction on enumerated and delegated powers to ensure laws are not passed that violate all rights – enumerated or not.  For instance, if there was no second amendment restricting the federal government from infringing upon the right to bear arms, that right would still be protected under the ninth amendment.

The tenth amendment was meant to ensure that future generations did not use sophistry or construction to enlarge the powers enumerated in the Constitution.  In other words, if the power was not delegated or the Constitution remained silent on a power – delegated or reserved – that the power was reserved to the States or the people.  Given the Federalists representations that the powers delegated were enumerated, few and defined, and that was reason enough to not require a Bill of Rights, then anyone attempting to understand the constitutional powers delegated should easily determine what was delegated and in the multitude of cases where power wasn’t delegated or the Constitution remains silent, the powers are reserved to the people or the States.

 

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Society is a Blessing so Let us Try Liberty

Society in every State is a blessing, but government, even in its best state, is but a necessary evil; in its worst state, an intolerable one.  Thomas Paine penned these eternal words over two hundred years ago.

Man, by his very nature, is a social being.  His wants are greater than his capability to provide for himself without the aid of society.  Beyond the basic need for food, shelter, and clothing a man’s wants are diverse and those wants are present in every man.  Thus, man’s very nature impels him to society where all men interact to satisfy their own self-interests.

Indeed, man is a self-directed, autonomous being with certain desires, interests, needs, and wants.  Just as each man has a diversity of desires, interests, and wants each man also has a diversity of talents and abilities.  In his pursuit of happiness man freely chooses to interact with others to fulfill his interests.  Others in society reciprocate as they pursue their happiness.  Thus, the need to fulfill one’s self-interest acts like a gravitational force resulting in social interaction for the mutual benefit of all.

Consequently, given the diverse interests of man, his talents and abilities, there is a corresponding diversity in outcomes.  Some men are more intelligent than others.  Some men are more capable of producing certain goods or providing certain services.  Some men are more motivated and ambitious.  Some men are more innovative and ingenuous.  The wants and needs of others may also compel man to direct his interests to meet the wants and needs of others.

All these factors create a society where the reciprocity of man towards other men is based upon the self-direction and self-interest of every individual.  What society needs or wants is based upon this bottom-up approach.  This societal interaction amongst men occurs naturally and freely.  One man cannot compel or force another man to produce a good or provide a service, nor can one man compel or force another man to engage in the exchange of goods; whether directly through barter or indirectly using a common medium of exchange.

The free and natural exchange of goods and services forms free markets.  Man’s foremost duty and responsibility is preserving his own life.  Man uses his reason, talent, and ability to ensure his own survival, and by doing so he exercises his unalienable right to liberty.  In society, rightful liberty is the unobstructed action according to your will with limits drawn around the equal rights of others.

Society can function without the imposition of government.  Government is not necessary to ensure society functions, rather government is instituted to better secure our unalienable rights and to provide a minimal number of functions for the whole of society.  For instance, the ability to provide for a common defense or to ensure commerce occurs regularly without obstruction.

The imposition of government on society isn’t to ensure specific outcomes, to benefit one constituency over another, or to forcefully take property from its rightful owner and give it to another that has no rightful claim to it.  Since one individual cannot do this to another individual in society, it follows that the collective rights of society cannot be violated by the very government instituted to better secure those rights.  Therefore, the laws of government are, by extension, the laws of society which themselves are founded upon the laws of nature.  Commerce in free markets occurs naturally due to reciprocal interests and mutual benefits to all parties.

More laws and regulations distorts, interrupts, and even destroys free markets and the natural societal interactions amongst men.   Government laws and regulations are desired by those in society that wish to violate and transmute the foundational basis of free markets to gain advantageous or exclusive benefit over others.  For a variety of reasons, free market participants use government to gain competitive advantage by stifling competition, seeking subsidies, grants, or tax advantages, influencing pricing, or anything else that distorts, interrupts or destroys free markets.

Moreover, government laws and regulations are burdens upon society itself.  When government decides what goods or services you can procure, fines or penalizes you for non-compliance, or otherwise limits your liberty by restricting your actions government creates wrongful liberty.  Wrongful liberty is obstructed action against your will within limits drawn around the superior rights of others.  Government itself is responsible for creating the environment in which your actions are obstructed and others have superior rights over you.  Government centric preferences are creating the haves and the have nots.

Consequently, government has perverted the very basis on which it was founded; to better secure the unalienable rights of man.  The equal rights that all men possess can no longer be exercised because of government laws and regulations.  Thus, the exercise of personal and economic liberty and the pursuit of happiness is obstructed or denied.  The great irony is the belief that government laws and regulations creates more freedom and liberty when if fact it perverts the free markets and imposes the government’s will over individual liberty.

This situation is made possible through the threat of force against you — the individual.  That force is government force.  Volumes of laws and regulations litter society’s landscape.  Government uses force and state sponsored violence to ensure conformity and compliance upon the citizenry.  Paradoxically, a society with free markets functions properly without government interference.  Too often, the very laws enacted by government to prevent misbehavior and transgressions become the cause for disorder and discontent in society.  For a myriad of reasons one or more constituency receives favorable treatment while one or more constituencies are oppressed.

Government’s top-down, autocratic approach is the mirror opposite to a bottom-up society based on free markets.  Government uses the law to plunder property, to oppress the people, divide society along racial and class lines, etc.  Government mandates and directs nearly every aspect of our lives from cradle to grave.  This power is concentrated in the hands of a small cabal of legislators and bureaucrats that believe they known what is best for every individual.  Not only is this belief fallacious it endangers society itself.

Government has strayed off the path of its original intent; to further secure our unalienable rights.  Government is on a path contradictory to and in complete perversion of its stated purposed.  Government is not the protector of unalienable rights; instead government uses law and force to violate the very rights it was supposed to protect.  This is a complete perversion of the law and the reasons why people form political societies.

Frederic Bastiat describes this behavior as legal plunder.  Bastiat says:

Each of us has a natural right — from God — to defend his person, his liberty, and his property. These are the three basic requirements of life, and the preservation of any one of them is completely dependent upon the preservation of the other two. For what are our faculties but the extension of our individuality? And what is property but an extension of our faculties? If every person has the right to defend even by force — his person, his liberty, and his property, then it follows that a group of men have the right to organize and support a common force to protect these rights constantly. Thus the principle of collective right — its reason for existing, its lawfulness — is based on individual right. And the common force that protects this collective right cannot logically have any other purpose or any other mission than that for which it acts as a substitute. Thus, since an individual cannot lawfully use force against the person, liberty, or property of another individual, then the common force — for the same reason — cannot lawfully be used to destroy the person, liberty, or property of individuals or groups.

But, unfortunately, law by no means confines itself to its proper functions. And when it has exceeded its proper functions, it has not done so merely in some inconsequential and debatable matters. The law has gone further than this; it has acted in direct opposition to its own purpose. The law has been used to destroy its own objective: It has been applied to annihilating the justice that it was supposed to maintain; to limiting and destroying rights which its real purpose was to respect. The law has placed the collective force at the disposal of the unscrupulous who wish, without risk, to exploit the person, liberty, and property of others. It has converted plunder into a right, in order to protect plunder. And it has converted lawful defense into a crime, in order to punish lawful defense.

Man can live and satisfy his wants only by ceaseless labor; by the ceaseless application of his faculties to natural resources. This process is the origin of property.

But it is also true that a man may live and satisfy his wants by seizing and consuming the products of the labor of others. This process is the origin of plunder.

Now since man is naturally inclined to avoid pain — and since labor is pain in itself — it follows that men will resort to plunder whenever plunder is easier than work. History shows this quite clearly. And under these conditions, neither religion nor morality can stop it.

When, then, does plunder stop? It stops when it becomes more painful and more dangerous than labor.

It is evident, then, that the proper purpose of law is to use the power of its collective force to stop this fatal tendency to plunder instead of to work. All the measures of the law should protect property and punish plunder.

But, generally, the law is made by one man or one class of men. And since law cannot operate without the sanction and support of a dominating force, this force must be entrusted to those who make the laws.

This fact, combined with the fatal tendency that exists in the heart of man to satisfy his wants with the least possible effort, explains the almost universal perversion of the law. Thus it is easy to understand how law, instead of checking injustice, becomes the invincible weapon of injustice. It is easy to understand why the law is used by the legislator to destroy in varying degrees among the rest of the people, their personal independence by slavery, their liberty by oppression, and their property by plunder. This is done for the benefit of the person who makes the law, and in proportion to the power that he holds.

At this moment in the history of our Union ask yourselves why was government instituted and for what purposes do we need government?  Where these the right purposes?  Does your answer reconcile with what government is today?  Is government a perversion of its original purpose?  Does government use the law to plunder property and inflict injustices?

As Bastait concludes, Let us Now Try Liberty.

God has given to men all that is necessary for them to accomplish their destinies. He has provided a social form as well as a human form. And these social organs of persons are so constituted that they will develop themselves harmoniously in the clean air of liberty. Away, then, with quacks and organizers! Away with their rings, chains, hooks, and pincers! Away with their artificial systems! Away with the whims of governmental administrators, their socialized projects, their centralization, their tariffs, their government schools, their state religions, their free credit, their bank monopolies, their regulations, their restrictions, their equalization by taxation, and their pious moralizations!

And now that the legislators and do-gooders have so futilely inflicted so many systems upon society, may they finally end where they should have begun: May they reject all systems, and try liberty; for liberty is an acknowledgment of faith in God and His works.

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