Constitutional Complacency

     The constitution is a document beloved by the conservative remnant, ignored by liberal left, and held with suspicion by the classical libertarian. The conservative sees this document as the perfect framework for a federal government; they tend to believe the best of it's framers and see the problems of our country as basically a failure to abide by the great document. The socialist central planning left finds this document to be much too stifling, with no room to breath. They see the world today as entirely different than that in which the constitution was crafted and therefore its use has run out. They take issue with the limiting theme of the document and would much prefer a spelled out interventionist government without constraints.

    Then there is the Libertarian. These folks appreciate the idea of a limited government, but they look at the State as it is today and have sentiments similar to Lysander Spooner who said:

    “But whether the Constitution really be one thing, or another, this much is certain - that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case it is unfit to exist.”

    A harsh indictment indeed, and one from which many of us shrink away, but is there some truth to this? Is the fault entirely in the leaders’ failure to follow a perfect document, or has the document itself allowed for this tyranny?

    In 1787 The constitution was drafted with a controversial clause which has since then caused untold damage to our freedom - the 'Necessary and Proper' clause in Article 1 Section 8, clause 18.

    The anti-federalists claim that this clause could be used to grant the Federal government powers not expressly given to it. Patrick Henry, at the Virginia ratifying convention stated that the clause would lead to limitless federal power that would inevitably menace individual liberty. But federalists like James Madison, often referred to as the the author of the constitution, believed that this clause would only enable the government to take such steps as were required to fulfill those duties given to it. And this clause was necessary to give the government authority to accomplish those implicit actions which would coincide with the explicit powers.

     “No axiom is more clearly established in law or in reason than wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power for doing it is included.” James Madison Federalist Paper #44

    Thanks to an effort from the states, in 1791 the 10th amendment was adopted into the Bill of Rights. It reads:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Thomas Tucker, a House Representative from South Carolina tried to amend the proposed amendment by rewording it ‘The powers not expressly delegated.' James Madison objected to this change on the same basis that he included 'necessary and proper.' He felt that certain implied powers had to be granted. While this debate was in 1789, 2 years later Madison would see the monster he had created.

    Although Madison envisioned a small federal government with the majority of governing power resting with the states, he soon discovered that his best intentions were being used against him. Alexander Hamilton used the 'Necessary and proper' clause to justify the chartering of the first National Bank in 1791, a predecessor to our current Federal Reserve. Madison argued that the constitution gave no provision for a central bank, but Hamilton used Madison's own words from the federalist papers #44 as quoted above, to bolster his argument.* In the end Hamilton won, and the precedent had been set. The clause came to be all the authority the Federal government would need to vastly expand its size, scope, and intervention into the lives of the citizens of its states.

    But wait, there’s more. The General Welfare clause: Article 1, Section 8, Clause 1: “The Congress shall have 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; but all Duties, Imposts and Excises shall be uniform throughout the United States;”

    Prior to ratification, Madison argued that the 'General Welfare' was not an enumerated power, but rather a qualification for taxing and spending on other enumerated powers. I.e. You can only tax for the purpose of national defense if it is in the interest of general welfare.* But after the constitution was ratified Hamilton set out to argue that the clause did indeed grant the Federal government additional powers. And the interpretation from the courts today is much closer to Hamilton’s.*

    Madison was not a tyrant. He believed in a limited government that would promote the freedom of its people. But men like Hamilton used him to gain power, as they always do. So the question remains, is it possible for a properly written constitution to fully constrain government power? In my opinion, no. If ever a big government statist doesn't see a way to abuse its original intent, it will just ignore it altogether. There is no safeguard that could be enacted by a document itself.  It is, after all, just a contract between two parties.  If one or both parties fail to enforce its provisions, they will remain unenforced. The recent supreme court hearing of Obamacare is an excellent example of this. The law had no basis in the constitution; the constitution wasn't even considered in its drafting or ratification. Once it came to the supreme court, it became obvious that the defending lawyers were completely without legal precedent. But should we be surprised when we challenge their law in their courts, with their Judges, the result is what they want? Of course not. 

     The constraints of the constitution don't scream when you break them. It's just paper. When we centralize power, we create tyranny. Is a constitutional republic a good form of government? Maybe, but only if it is vastly more decentralized than we have today. It's my opinion that we would be much better off with no federal government whatsoever. 50 completely sovereign states, united voluntarily, would make tyranny virtually impossible. If ever a state demanded too large a percent of our pay check, or started flying drones over our heads, or sexually assaulted us in the airport, we could vote with our feet, and leave.

     Where we find ourselves today is not in that world, but the states are still the way out. Remember just what the institute of ‘the State’ really is - organized crime with a monopoly on violence and force.  They use precedents like the constitution to maintain the illusion of rule by the people, but the facade is getting thinner every day.  

    Just like any other gang of thugs, the government's chief threat is a rival gang.  If sustainable freedom within a limited government is possible, it will be though this principle.  We have to pit the rival gangs against each other.  Nullification is the way to do this.  If a state legislature is unwilling to challenge federal authority, then we should vote with our feet.  The states need to hear the message loud and clear.  Stand up to the Feds, or we’ll leave you to their tyranny.